Hunting Act 2004

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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.

Contents 1 Background 2 The 2004 Bill 3 Challenges 4 Enforcement of the Hunting Act 5 Convictions under the Hunting Act 6 What the law stops: the exemption/loophole issue 6.1 Hunting mice, rats, rabbits and hares 6.2 Flushing wild mammals to guns 6.3 Flushing a fox to a bird of prey 6.4 Hunting below ground 6.5 What the law does not cover 7 Long Title & Enacting Formula 8 The Protection of Wild Mammals (Scotland) Act 9 Footnotes 10 See also 11 External links

[edit] Background

For more details on this topic, see Fox hunting legislation.

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 Two private member's bills to ban, or restrict, hunting were introduced in 1949, but one was withdrawn and the other defeated on its second reading in the House of Commons.^[1]. The Labour government appointed the Scott Henderson Inquiry^[2] to investigate all forms of hunting. Opponents of hunting claimed that the membership of the committee was chosen to produce a pro-hunting report.^[1] 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."^[3]

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.^[4]

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."^[5] 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.^[6] The Burns Report in 2000 concluded that hunting "seriously compromise the welfare of the fox",^[7] 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."^[8] 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.^[9]

Following a series of evidence hearings in 2002,^[10] on 3 December 2002, Rural Affairs Minister Alun Michael introduced a bill which would have allowed some licensed hunting.^[11] The Commons passed an amendment proposed by Tony Banks to ban hunting entirely, but the bill was rejected by the House of Lords.^[12]

[edit] The 2004 Bill

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.^[13]

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.^[14] 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'. ^[15] 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.^[16]

[edit] 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.^[17]

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.^[18] 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.^[19] The application was dismissed by the High Court in July 2005^[20] An appeal to the Court of Appeal was heard in March 2006, but dismissed in a judgment published in June 2006.^[21] 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.^[22]

[edit] 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.^[23] 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.^[24]

[edit] Convictions under the Hunting Act

Despite claims that the Hunting Act is unworkable,^[25] at least twenty one people have been convicted under it, including six hunt officials.^[26] Two of these convictions have been upheld after appeal by a High Court Judge.^[27]

A number of prosecutions have been out on hold^[28][29] 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"^[30]

This view has been upheld by a High Court Judge in one Crown Court case^[31] but rejected by a Crown Court Judge in another.^[32] The cases are suspended pending an appeal by the Crown Prosecution Service to the High Court against this latter judgement.^[33]

[edit] 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,^[25] while the League Against Cruel Sports argues the opposite.^[34] 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."^[35] The sections below examine whether such exemptions allow loopholes.

[edit] 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.^[36] MPs did not believe that there was any necessity to use dogs to hunt mice^[37] 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.^[38]

[edit] Flushing wild mammals to guns

Traditionally, in some upland areas, foxes were flushed by packs of dogs to be shot.^[39] This activity is still permitted in Scotland under the Protection of Wild Mammals (Scotland) Act 2002.^[40] 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.^[41] 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]."^[42]

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 flushing

The 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."^[43] 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.^[31]

[edit] 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."^[42] 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.^[44]

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.

[edit] 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".^[45] 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.^[42]

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.^[26]

[edit] 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.^[46]

[edit] 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.^[42]

[edit] 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.^[40]

[edit] Footnotes

[edit] See also

• Beagling

[edit] External links

• The text of the Hunting Act 2004
• Defra Q&A on the Hunting Act
• BBC In depth analysis
• Countryside Alliance 'Case for repeal'