Hunting Act 2004

The Hunting Act 2004 is an Act of the UK Parliament passed in 2004. The effect of the Act is to outlaw hunting with dogs (particularly fox hunting, but also the hunting of deer, hares and mink and organised hare coursing) in England and Wales from 18 February 2005. The pursuit of foxes with hounds was banned in Scotland two years earlier under legislation of the devolved Scottish Parliament, while it remains legal in Northern Ireland.

Background

Many earlier attempts had been made to ban hunting. Two private member's bills to ban, or restrict, hunting were introduced in 1949, but one was withdrawn and the other defeated on its second reading in the House of Commons.cite web|url=http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=502052#|author=Tichelar, M.|date=2006|accessdate=2008-02-19|title=‘Putting Animals into Politics: The Labour Party and Hunting in the First Half of the Twentieth Century|work=Rural History, 17|page=213-234] . The Labour government appointed the Scott Henderson Inquiry [citation|author=Scott Henderson|date=1951|title=Report of the Committee on Cruelty to Wild Animals] to investigate all forms of hunting. Opponents of hunting claimed that the membership of the committee was chosen to produce a pro-hunting report. The inquiry reported its view that "Fox hunting makes a very important contribution to the control of foxes, and involves less cruelty than most other methods of controlling them. It should therefore be allowed to continue." [cite web|url=http://news.bbc.co.uk/1/hi/uk_politics/1846577.stm|publisher=BBC|date=2005-02-17|accessdate=2008-02-19|title=Timeline: Hunting row]

Twice, in 1969 and in 1975, the House of Commons passed legislation to ban hare coursing, but neither Bill became law. Three further private member's bills were introduced by Kevin McNamara in 1992 (Wild Mammals (Protection) Bill), by Tony Banks in 1993 (Fox Hunting (Abolition) Bill), and by John McFall in 1995 (Wild Mammals (Protection) Bill) - all of which failed to go on to become law. [cite web|url=http://www.justice.org.uk/images/pdfs/JamieFletcher.ExecutiveSovereigntyinourConstitution.pdf|author=Fletcher, J.|title=Executive Sovereignty in our Constitution|publisher=Justice|accessdate=2008-02-19|format=PDF]

The Labour Party came to power in 1997 with a manifesto saying, "We will ensure greater protection for wildlife. We have advocated new measures to promote animal welfare, including a free vote in Parliament on whether hunting with hounds should be banned." [cite web|url=http://www.bbc.co.uk/election97/background/parties/manlab/8labmanhertrans.html|publisher=BBC|date=1997|accessdate=2008-02-19|title=The Labour Party's Manifesto 1997] A new private member's bill, introduced by Michael Foster MP, received a second reading with 411 MPs voting in support, but failed due to lack of parliamentary time. [cite web|url=http://news.bbc.co.uk/1/hi/uk_politics/390091.stm|publisher=BBC|title=How hunting ban went to the dogs|date=1999-07-09|accessdate=2008-02-19] The Burns Report in 2000 concluded that hunting "seriously compromise the welfare of the fox",cite web|date=2000-06-09|publisher=Her Majesty's Stationery Office|coauthors=Lord Burns, Dr Victoria Edwards, Professor Sir John Marsh, Lord Soulsby of Swaffham Prior; Professor Michael Winter|title=The Final Report of the Committee of Inquiry into Hunting with Dogs in England and Wales|url=http://www.defra.gov.uk/rural/hunting/inquiry/mainsections/huntingreport.htm|accessdate=2008-02-10] but (in line with its remit) did not draw any conclusion on whether hunting should be banned or should continue. In a later debate in the House of Lords, the inquiry chairman, Lord Burns also stated that "Naturally, people ask whether we were implying that hunting is cruel... The short answer to that question is no. There was not sufficient verifiable evidence or data safely to reach views about cruelty. It is a complex area." [cite web|url=http://www.publications.parliament.uk/pa/ld200001/ldhansrd/vo010312/text/10312-06.htm#10312-06_para26|title=Official Report, Lords|date=2001-03-12|accessdate=2008-02-19|publisher=House of Lords|author=Burns, T.] Following the Burns inquiry, the Government introduced an 'options bill' which allowed each House of Parliament to choose between a ban, licensed hunting, and self-regulation. The House of Commons voted for a banning Bill and the House of Lords for self-regulation. The 2001 General Election was then called and the Bill ran out of parliamentary time. [cite web|url=http://news.bbc.co.uk/1/hi/uk_politics/1393104.stm|publisher=BBC|title=Hunt battle set to return|date=2001-06-17|accessdate=2008-02-19]

Following a series of evidence hearings in 2002, [cite web|url=http://www.defra.gov.uk/rural/hunting/huntinghearings.htm|title=Hunting Hearings|publisher=Defra|date=2002-12-10|accessdate=2008-02-19] on 3 December 2002, Rural Affairs Minister Alun Michael introduced a bill which would have allowed some licensed hunting. [cite web|url=http://news.bbc.co.uk/1/hi/uk_politics/2578151.stm|title=Hunting vote sparks angry scenes|publisher=BBC|date=2002-12-17|accessdate=2008-02-19] The Commons passed an amendment proposed by Tony Banks to ban hunting entirely, but the bill was rejected by the House of Lords. [cite web|url=http://news.bbc.co.uk/1/hi/uk_politics/3208776.stm|publisher=BBC|title=Lords rejects hunting ban|date=2003-10-12|accessdate=2008-02-19]

Royal Assent

The identical Bill to that passed by the House of Commons in 2003 was reintroduced to the Commons on 9 September 2004. It received Royal Assent as the Hunting Act 2004 on 18 November 2004 when the Speaker of the House of Commons invoked the Parliament Act, with the Bill not having received the approval of the House of Lords who had preferred an Act that regulated hunting with dogs. [cite web|url=http://news.bbc.co.uk/1/hi/uk_politics/4015075.stm|publoisher=BBC|title=Fox hunting ban looks inevitable|date=2004-11-17|accessdate=2008-02-19]

The final passing of the legislation was considered very controversial with many newspapers and broadcasters condemning Tony Blair's Labour administration for giving in to what they perceived as the prejudicial views of anti-hunting Labour backbenchers. [cite web|url=http://news.bbc.co.uk/1/hi/uk/4024503.stm|publisher=BBC|title=Hunters fall prey to Parliament |date=2004-11-19|accessdate=2008-02-19] MPs of all parties voting for the legislation asserted that hunting caused unnecessary suffering and said that they represented the majority of the public who favoured a ban on hunting with dogs. Their assertion of majority support for the thrust of the legislation seems to have some basis in evidence, a September 2002 survey commissioned by the Daily Telegraph indicated that a majority of people (57%) agreed with the statement that 'hunting with dogs is never acceptable'. [cite web|url=http://www.yougov.com/yougov_website/asp_besPollArchives/pdf/TEL[phone].pdf|title=Poll|publisher=Yougov|format=PDF] A survey by MORI for the BBC carried out in February 2005 found that there was a plurality (47% supporting, 26% opposed) of support for the new legislation, but not an absolute majority. [cite web|url=http://www.ipsos-mori.com/polls/2005/bbc-countryfile.shtml|publisher=Ipsos Mori|date=2005-02-16|accessdate=2008-02-19|title=Attitudes To The Hunting Ban]

Challenges

There have been a series of declarations by various groups of hunting activists (most notably the Countryside Alliance) that they will still go hunting in defiance of the law. Attempts by pro-hunting groups to challenge the Act by questioning the legality of the Parliament Act in the High Court and Court of Appeal failed, and the ban took effect on 18 February 2005. The House of Lords agreed with the lower courts in a judgment delivered in October 2005. [cite web|url=http://www.bailii.org/uk/cases/UKHL/2005/56.html|title=Jackson and others v. Her Majesty's Attorney General UKHL 56|date=2005-10-13|publisher=British and Irish Legal Information Institute|accessdate=2008-02-19]

A separate application for judicial review was made to the English High Court, arguing that the anti-hunting legislation contravenes individual human or property rights protected in the European Convention on Human Rights (ECHR) and under European Community law, that is the free movement of goods and services. [cite web|url=http://www.countryside-alliance.org/images/stories/pdf/L_legal_challenges_update_19_July_2005.pdf|title=Legal challenges update|publisher=Countryside Alliance|date=2005-07-19|format=PDF] Some believed that there was a possibility that the challenges could obtain a degree of compensation for some of those adversely affected, although the Scottish courts did not reject the equivalent Scottish law, the Protection of Wild Mammals (Scotland) Act 2002, which also lacked any compensation provision. [cite web|url=http://www.bailii.org/scot/cases/ScotCS/2002/344.html|title=Adams & Ors [2002] ScotCS 344|date=2002-07-31|publisher=British and Irish Legal Information Institute|accessdate=2008-02-19] The application was dismissed by the High Court in July 2005 [cite web|url=http://www.bailii.org/ew/cases/EWHC/Admin/2005/1677.html|title=The Countryside Alliance and others v. H.M. Attorney General and others [2005] EWHC 1677 (Admin)|date=2005-07-29|publisher=British and Irish Legal Information Institute|accessdate=2008-02-19] An appeal to the Court of Appeal was heard in March 2006, but dismissed in a judgment published in June 2006. [cite web|url=http://www.bailii.org/ew/cases/EWCA/Civ/2006/817.html|title=R. (oao The Countryside Alliance; oao Derwin and others) v. Her Majesty's Attorney General and Secretary of State of Environment, Food and Rural Affairs" [2006] EWCA Civ 817|date=2006-06-23|publisher=British and Irish Legal Information Institute|accessdate=2008-02-19] Permission was subsequently granted for an appeal to the House of Lords, and this appeal was heard in October 2007 and rejected in November 2007. [cite web|url=http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd071128/countr-1.htm|publisher=House of Lords|title=R (oao Countryside Alliance and others and others (Appellants)) v Her Majesty's Attorney General and another (Respondents); R (oao Countryside Alliance and others (Appellants) and others) v Her Majesty's Attorney General and another (Respondents) [2007] UKHL 52|date=2007-12|accessdate=2008-02-19]

Enforcement of the Hunting Act

Police forces have said, on a number of occasions, that enforcement of the Hunting Act is a low priority for them, although they say that they will enforce the law, most notably by investigating evidence of illegal hunting. [cite web|url=http://www.timesonline.co.uk/tol/news/uk/article515096.ece|author=Elliott, V.|title=Q&A: the hunting ban|publisher=The Times|date=2005-02-16|accessdate=2008-02-19] Frustrated by this, animal welfare groups like the League Against Cruel Sports have taken on a self-appointed role of monitoring hunts that they believe may be breaking the law and, in some cases, taking private prosecutions themselves. [cite web|url=http://www.league.org.uk/content.asp?CategoryID=1912|publisher=League Against Cruel Sports|title=Hunting Prosecutions|accessdate=2008-02-19]

Convictions under the Hunting Act

Despite claims that the Hunting Act is unworkable,cite web|url=http://www.countryside-alliance.org.uk/images/stories/pdf/Blueprint_For_A_Whole_Countryside.pdf|title=Blueprint For A Whole Countryside|publisher=Countryside Alliance|format=PDF] at least thirty people have been convicted under it, including six hunt officials.cite web|url=http://www.league.org.uk/convictions|title=Hunting Act convictions|publisher=League Against Cruel Sports|date=2008-01|accessdate=2008-02-19] Two of these convictions have gone to appeal and were upheld by a High Court Judge. [cite web|url=http://news.bbc.co.uk/1/hi/england/somerset/7053016.stm|publisher=BBC|title=Hunting duo appeal is turned down|date=2007-10-19|accessdate=2008-02-19]

A number of prosecutions have been out on hold [cite news|url=http://www.scarborougheveningnews.co.uk/news/Celebrity-chef-court-case-is.3761629.jp|title=Celebrity chef court case is adjourned|publisher=Scarborough Evening News|date=2008-02-09|accessdate=2008-02-18] [cite news|url=http://www.horseandhound.co.uk/competitionnews/article.php?aid=163266|publisher=Horse & Hounds|date=2007-11-23|accessdate=2008-02-19|title=Isle of Wight hunting trial postponed over “burden of evidence”] due to legal uncertainty over the question of whether the Hunting Act contains a reverse burden of proof in situations where accused hunters claim to be following an exemption in the Hunting Act. Section 101 of the Magistrates' Courts Act 1980 says :"Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden or proving the exception, exemption, proviso, excuse or qualification shall be on him" [cite web|url=http://www.statutelaw.gov.uk/content.aspx?LegType=Act+(UK+Public+General)&Year=1980&searchDay=19&searchMonth=2&searchYear=2008&searchEnacted=0&extent=E%2bW%2bS%2bN.I.&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=1&NavFrom=0&parentActiveTextDocId=3208594&ActiveTextDocId=3208754&filesize=1612|title=Magistrates' Court Act 1980|accessdate=2008-02-19|publisher=Ministry of Justice] This view has been upheld by a High Court Judge in one Crown Court case but rejected by a Crown Court Judge in another. [cite web|url=http://www.league.org.uk/uploads/documents/doc_494.pdf|title=League Against Cruel Sports vs. Wright, appeal judgement|publisher=League Against Cruel Sports|author=Cottle, Judge G.|date=2007|format=PDF] The cases are suspended pending an appeal by the Crown Prosecution Service to the High Court against this latter judgement. [cite news|url=http://www.timesonline.co.uk/tol/news/uk/article3096841.ece|title=Prosecution of hunting on hold as 300,000 meet for Boxing Day|author=Elliott, V.|publisher=The Times|date=2007-12-27|accessdate=2008-02-19]

What the law stops: the exemption/loophole issue

The meaning of the Hunting Act is a matter of substantial public dispute. The Countryside Alliance claim that the Act is unclear, while the League Against Cruel Sports argues the opposite. [cite web|url=http://news.bbc.co.uk/1/hi/england/devon/5245458.stm|publisher=BBC|title=Huntsman guilty of breaking ban|date=2006-08-04|accessdate=2008-02-19] The difference between the two centres around the alternative views that the Act contains either "tightly drawn exemptions" or "glaring loopholes."

For example, letters from Countryside Alliance officials to a series of local newspapers around the UK in early 2006 say, "The act makes it an offence to hunt a mouse with a dog but not a rat, you can legally hunt a rabbit but not a hare. You can flush a fox to guns with two dogs legally but if you use three it's an offence. You can flush a fox to a bird of prey with as many dogs as you like." [cite news|url=http://www.manchestereveningnews.co.uk/postbag/template/2006/03/06.html?1|publisher=Manchester Evening News|accessdate=2006-07-01|title=Postbag] The sections below examine whether such exemptions allow loopholes.

Hunting mice, rats, rabbits and hares

The Hunting Act bans activities that Parliament believed to be cruel sports and permitted activities that it believed to be necessary for land managers. Parliament accepted the view that, where rats and rabbits were pests, hunting them was legitimate. [cite web|url=http://www.publications.parliament.uk/pa/cm200203/cmhansrd/vo021216/debtext/21216-16.htm#21216-16_spnew15|title=Official Report, Commons|date=2002-12-16|accessdate=2008-02-19|publisher=House of Commons] MPs did not believe that there was any necessity to use dogs to hunt mice [cite web|url=http://www.publications.parliament.uk/pa/ld200304/ldhansrd/vo041028/text/41028-10.htm#41028-10_spnew3|title=Official Report, Lords|date=2004-10-28|accessdate=2008-02-27] and believed that hare hunting was cruel, which is why these activities were not exempted from the Act.

These two exemptions do not make it possible for "traditional" hunting to continue. Rabbits tend to stay very close to their warrens and will go underground at the sight of dogs, thus not providing the chase that hunts need. [citation|title=Behavioural, Morphological and Dietary Response of Rabbits to Predation Risk from Foxes|author=Banks, P.B., Hume, I.D. & Crowe, O.|work=Oikos 85(2)|date=1999-05|page=247-256]

Flushing wild mammals to guns

Traditionally, in some upland areas, foxes were flushed by packs of dogs to be shot. [cite web|url=http://www.defra.gov.uk/rural/hunting/inquiry/evidence/welshhounds.htm|author=Jones, K.|date=2000|title=Federation of Welsh Packs submission to Burns Inquiry|publisher=Defra|accessdate=2008-02-19] This activity is still permitted in Scotland under the Protection of Wild Mammals (Scotland) Act 2002.cite web|url=http://www.opsi.gov.uk/legislation/scotland/acts2002/asp_20020006_en_1|title=Protection of Wild Mammals (Scotland) Act|date=2002|publisher=HMSO|accessdate=2008-02-12] However MPs, in making law for England and Wales, decided that this activity did result in unnecessary suffering, not least because it is more difficult to control a large number of hounds in dense woodland where this activity used to take place. [cite web|url=http://www.publications.parliament.uk/cgi-bin/newhtml_hl?DB=semukparl&STEMMER=en&WORDS=it%20is%20more%20than%20twice%20as%20difficult%20to%20keep%20two%20dogs%20under%20control%20one%20dog&ALL=&ANY=&PHRASE=%22it%20is%20more%20than%20twice%20as%20difficult%20to%20keep%20two%20dogs%20under%20control%20than%20one%20dog%2e%20%22&CATEGORIES=&SIMPLE=&SPEAKER=&COLOUR=red&STYLE=s&ANCHOR=muscat_highlighter_first_match&URL=/pa/cm200203/cmstand/f/st030204/pm/parti/30204s08.htm#muscat_highlighter_first_match|title=Official Report, Commons|date=2003-02-04|accessdate=2008-02-25|publisher=House of Commons] The restriction to two dogs was written to ensure that foxes were flushed to be shot rather than being chased to be killed by hounds.

Certainly, "traditional" hunts can perform this activity, and the mounted field can watch a legal activity. But such flushing should be differentiated from chasing. The Hunting Act requires, amongst other things:
* that the flushing can only be done "for the purpose of preventing or reducing serious damage which the [flushed] wild mammal would otherwise cause" (rather than, say, for sport or entertainment);
* that "reasonable steps are taken for the purpose of ensuring that as soon as possible after being found or flushed out the wild mammal is shot dead by a competent person"; and
* that "each dog used in the stalking or flushing out is kept under sufficiently close control to ensure that it does not prevent or obstruct achievement of the objective [of shooting the fox] ."cite web|url=http://www.opsi.gov.uk/acts/acts2004/ukpga_20040037_en_1.htm|title=Hunting Act 2004|publisher=HMSO|accessdate=2008-02-12]

This exemption was tested in court in the private prosecution brought by the League Against Cruel Sports against the huntsman of the Exmoor Foxhounds in August 2006. In his judgement, the judge said:
* that the conditions are "a very tight test";
* that, "after the fox is flushed, the hounds should be called off"; and
* that, if "long after the foxes had been flushed they were still being pursued or driven by the hounds", this would be hunting not flushingThe Judge also raised the question "whether it could ever be possible, save in some limited areas of woodland or similar cover, to utilise the exemption with foxhounds." [cite web|url=http://www.league.org.uk/uploads/documents/doc_393.pdf|title=League Against Cruel Sports vs. Wright|date=2006-08|format=PDF] The judgment was successfully appealed against.

This exemption was also claimed by the three stag hound packs in the Exmoor area. In an appeal judgement following the conviction of two stag hunt officials, the judge said that such hunting conducted for recreation was illegal.cite web|url=http://www.league.org.uk/uploads/documents/doc_480.pdf|title=League Against Cruel Sports vs. Down & Pillivant|date=2007-10-02|author=Williams, Judge W.|publisher=League Against Cruel Sports|format=PDF]

Flushing a fox to a bird of prey

Many traditional hunts have bought birds of prey and say that they are using hounds to flush foxes so that the bird of prey can hunt them. The Act requires that the intention must be "for the purpose of enabling a bird of prey to hunt the wild mammal." Many experts, such as the Hawk Board, deny that any bird of prey can reasonably be used in the British countryside to kill a fox which has been flushed by (and is being chased by) a pack of hounds. If they are right, then it is unlikely that any use of dogs undertaken in this manner is legal. [citation|author=McLeod, I.|date=2005|title=Birds of prey and the Hunting Act 2004|work=Justice of the Peace, 169|page=774-775]

It seems reasonable to assume that the judgement (above) describing the limits on flushing foxes to guns will be advisory on courts considering cases of the flushing of foxes to birds of prey.

Hunting below ground

Hunting below ground takes place with terriers. The Act outlaws hunting with terriers (also known as terrier work of fox baiting) with a narrowly drawn exemption, described by the Minister, Alun Michael MP as existing "for gamekeepers". [cite web|url=http://www.publications.parliament.uk/pa/cm200203/cmhansrd/vo030630/debtext/30630-17.htm#30630-17_spnew10|title=Official Report, Commons|publisher=House of Commons|date=2003-06-30|accessdate=2008-02-19] The Act requires that any hunting below ground must comply with a number of conditions:
*The activity must be carried out "for the purpose of preventing or reducing serious damage to gamebirds or wild birds which a person is keeping or preserving for the purpose of their being shot."
*The person using the dog must have with them written evidence that the land used belongs to them or that they have been given permission to use the land by the occupier. This permission must be shown immediately to a police officer on request.
*Only one dog may be used underground at any one time.
*Reasonable steps must be taken to ensure that:
**the mammal is flushed as soon as found
**the mammal is shot as soon as flushed,
**the manner in which the dog is used complies with a code of practice, and the dog must be under sufficient control so as not to prevent this, and
**the dog is not injured.

Despite this, many fox hunts continue to use terriers on a regular basis. Three people, not associated with hunts, have plead guilty to offences under the Hunting Act for hunting with terriers and a fourth was found guilty after a trial.

What the law does not cover

The Hunting Act does not stop, and was not intended to stop, 'drag hunting' where hounds are trained to follow an artificial scent, because no animal is chased. [cite web|url=http://www.publications.parliament.uk/pa/cm200203/cmstand/f/st030225/pm/30225s12.htm|title=Official Report, Commons|date=2003-02-25|publisher=House of Commons|accessdate=2008-02-26]

Long Title & Enacting Formula

An Act to make provision about hunting wild mammals with dogs; to prohibit hare coursing and for connected purposes.

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows.

The Protection of Wild Mammals (Scotland) Act

The equivalent law in Scotland, the Protection of Wild Mammals (Scotland) Act 2002, similarly makes it illegal to chase or deliberately kill mammals with dogs. There are a number of differences between the two Acts:
* The Scottish Act does not place a two dog limit on the flushing of a mammal to guns in order to shoot it;
* With respect to flushing foxes above ground to guns to shoot them, only the Scottish Act permits this to be done to protect game birds;
* With respect to flushing foxes below ground to guns to shoot them, only the Scottish Act permits this to be done to protect livestock;
* The Scottish Act allows someone convicted to be sentenced for up to six months in prison, there is no such power in the Hunting Act.

ee also

*Beagling

Footnotes

External links

*The text of the [http://www.opsi.gov.uk/acts/acts2004/20040037.htm Hunting Act 2004]
* [http://www.defra.gov.uk/rural/hunting/hunting_qa_a.htm#1 Defra Q&A on the Hunting Act]
* [http://news.bbc.co.uk/1/hi/in_depth/uk/2003/hunting_debate_/ BBC In depth analysis]
* [http://www.countryside-alliance.org.uk/images/stories/pdf/2007_case_for_repeal.pdf Countryside Alliance 'Case for repeal']