Feature: Sport and Human Rights
No.48
September 2006
 
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Human Rights and Animal Welfare: The Implications of Anti-hunting Legislation in the United Kingdom
David McArdle

 

Abstract
This paper considers the relationship between human rights and animal welfare, with particular reference to the United Kingdom. It provides an analysis of recent court decisions concerning the legality of legislation that bans hunting with hounds in England and Wales and considers whether that legislation complies with the provisions of the European Convention on Human Rights. Certain legal and factual weaknesses in the hunting fraternity’s case are highlighted, notably those concerning the ambit of Articles 8 and 11 of the European Convention on Human Rights and the putative conservation and other benefits of hunting with hounds.

Introduction
The subject matter of this paper is the relationship between human rights and animal welfare in the United Kingdom, and particularly the role played by the legislature and the courts in the recent development of that relationship within the specific context of hunting with hounds. In order to explore that issue, and in deference to the writer’s academic subject background, the paper takes the form of an extended case note on a recent judgment of the England and Wales Court of Appeal, namely R v HM Attorney General, ex parte the Countryside Alliance. 1
The case represents the latest, and perhaps the final, round of the hunting fraternity’s ongoing struggle with the legislature over the criminalisation of hunting with hounds in England and Wales. 2 That struggle commenced in earnest in 1997, when the Labour party incorporated into its election manifesto a clear commitment to ban hunting with hounds in the event of it being successful in that year’s general election. Following Labour’s electoral victory, there ensued a conflict between the government of the day and MPs on all sides over what the provisions of the anti-hunting legislation should be; this was followed by the House of Lords attempting to reject the legislation passed by the House of Commons, and subsequently by litigation that sought to have the legislation struck down on the ground that the legislative procedures used for enacting it were themselves unlawful. 3 While those aspects of the hunting debate fall outside the scope of this paper, they provide a fascinating insight into the political and constitutional issues underpinning it; what follows should be read with that background in mind. 4

The legislative history
The Hunting Act 2004, s. 1 rendered unlawful an activity that had, on its face, taken place on British soil since the iron age; namely, riding on horseback in order to facilitate the hunting of a wild animal with a dog or a pack of dogs. Hunting a wild animal with a dog, or assisting others to do so, is now a criminal offence punishable by a fine, currently not exceeding £5000. 5 There is a defence if the activity is exempt because it amounts to stalking or flushing the animal out of cover, carried out in order to reduce or prevent serious damage to game or wild birds kept for the purposes of their being shot. 6
An important aspect of the case, so far as the human rights element is concerned, is that the legislation eventually enacted was not that which the government had envisaged. After the Labour government’s coming to power in 1997, the implementation of anti-hunting legislation involved a long and convoluted process that culminated in the House of Commons rejecting the government’s proposed hunt licensing scheme in favour of an outright ban. Thereafter, the Commons was constrained to invoke the Parliament Acts 1911 and 1949 to circumvent the largely unelected and hereditary House of Lords’ failure to consent to the Bill that had been passed by the elected House of Commons. 7 The Commons, a majority of whose members were of the opinion that hunting with hounds was cruel and that only an outright ban was appropriate, thus won the day and the Hunting Act 2004 came into force in February 2005.

The claim
The applicants in ex p Countryside Alliance challenged the legislation on various grounds, namely the Act’s alleged incompatibility with the European Convention on Human Rights 1953 and the ‘free movement’ provisions of European Union law (which fall outside the scope of this paper). The most significant Convention provisions were Article 8 (right to privacy and right of respect for the home); Article 11 (freedom of assembly and association); and Article 1 of the First Protocol (protection of property). Under the terms of the Human Rights Act 1998 (the enactment of which was another central tenet of Labour’s 1997 election manifesto), the UK courts are required to consider whether UK law is compatible with these fundamental rights and freedoms as enshrined in the Convention, and if it is not, to make a declaration of incompatibility – a step that is tantamount to declaring that the legislation in question is invalid. The claimants in ex p Countryside Alliance (all of whom were heavily involved in hunting and in some cases relied upon it for their livelihoods) 8 thus asserted that the Hunting Act 2004 was incompatible with Articles 8 and 11 and with the First Protocol, and sought a declaration to that effect.
The challenge under Article 8 involved several aspects: first, that the ban on hunting with hounds infringed the right to respect of the participants’ private lives because, although hunting takes place in the public sphere rather than in the home, it was central to the lives of the claimants because it provided all or most of their recreational pursuits and social outlets. Second, the fact that landowners who had made their land available for hunting were no longer able to do so meant there was an interference with the right to respect for their home. Third, hunt servants would lose their jobs and, in some cases, their homes if hunting were banned.
The Article 11 challenge alleged that the 2004 Act amounted to a prohibition on, or significant interference with, hunt members’ freedom to associate in and around hunting. Finally, the challenge under Article One of the First Protocol alleged that the Act deprived landowners of property rights, and/or the right to peacefully enjoy them. For the government, the Attorney General accepted there was a potential infringement of the First Protocol, but asserted that ‘even taking the (Alliance’s) case at its highest, the interference that is feared will not be of a sufficient weight or level to engage the protection of the Convention’. 9

The decision
The court at first instance rejected the Article 8 challenge, and this decision was upheld on appeal. Both courts took the view that the principles emanating from the existing case law on aspects of Article 8 did not extend to cover the circumstances to hand, 10 for any ruling to the contrary would ‘confer a broad right to do anything a person chooses to do, privately or publicly, alone or in conjunction with others’.11 At first instance May, LJ said that although ‘the ban scarcely impinges on (hunters’) personality or development, nor intrudes upon essential social relationships…(and while) those for whose families hunting has been a central, personal and community activity for generations may stand differently…the number of people affected to the extent that they are able to at least make a case for interference under Article 8 must be quite small. This would affect the question of justification and proportionality’12 which is considered below.
As to the possibility that some of the applicants would lose their jobs or their homes if the Act were to remain in force, the Court of Appeal commented that:
However much one may sympathise … the last 50 years have seen the destruction, for various reasons, of many people’s way of life in this country, often by deliberate decisions by government. The collapse of the heavy manufacturing and the coal-mining industries are just two cases in point.… Even if the feared consequences do arise (an outcome that is still far from certain) they will not be caused by any lack of respect in Article 8 terms for the appellants’ private or family life or for their homes. We do not consider that any question of respect for their private life or family life or their home comes into play. 13
A finding to the contrary would amount to upholding that an individual has a ‘right to work’ – a concept that Lord Denning, MR had come dangerously close to upholding in Nagle v Fielden, 14 but one that has no basis in English law.
Finally, the court also noted that the European Court of Human Rights had previously ruled in Bullock v United Kingdom 15 that the keeping of pets is not a right under Article 8 so the possibility of having to kill dogs, and perhaps horses, that had hitherto been used for hunting purposes did not invoke the Convention16– a point that illustrates the distinction that must be drawn between animal welfare and any concept of animal ‘rights’ under Convention jurisprudence.
The Article 11 claim that was also rejected at first instance, this time on the ground that the 2004 Act only indirectly prevented people from meeting: put another way, it prevented them meeting for the purposes of engaging in the hunt and had not directly affected their freedom of association. By way of analogy, ‘we should not, for instance, be inclined to hold that banning the consumption of spirits would interfere with the freedom to assemble and associate at a public house of those who only drink whisky or gin’. 17
On appeal, it was recognised by counsel for the Countryside Alliance that given the court of first instance and the Court of Appeal’s unwillingness to countenance the wide interpretation of Article 8 that would have been necessary for the hunting lobby to succeed under that head, there was little chance of it being willing to do so in respect of the Article 11 claim. 18 Notwithstanding that, the Court of Appeal affirmed that ‘it cannot be said that the Hunting Act interferes with the right of the appellants to assemble. All that it does is to prohibit a particular activity once the appellants have assembled’. 19
In contrast, both the court at first instance and the Court of Appeal were willing to countenance that rights under the First Protocol had been infringed. This was due largely to the fact that the lawyers for the Attorney General had conceded as much – albeit only to the extent that the ban diminished the value of land and other property or damaged the established goodwill of a hunting-related business. 20 While this may seem a questionable admission to make given that the European Court of Human Rights had previously stated 21 that hunting, including hunting with dogs, was essentially a leisure activity ‘notwithstanding the history and culture associated with it and other benefits it may bring’, 22 it can better be seen as a pragmatic concession that afforded the Court of Appeal an opportunity to consider whether the legislation was a justifiable, proportionate response to the evil that Parliament sought to remedy.
Space considerations prevent the detailed exploration that this most complex of issues merits. However, put at its most straightforward, one can say that once the Commons had decided in the course of its debates that hunting with hounds was an inherently cruel pastime – a finding it was perfectly at liberty to reach given the weight of scientific and popular opinion - its decision to press for an outright, total ban on the practice was an entirely appropriate response. This was the case even though the government of the day had favoured a licensing system over outright prohibition, the government’s view being that licences ought to be available in circumstances where hunting with hounds represented ‘least suffering’ in situations where conservation requirements demanded that the population of deer, foxes, hare or mink be controlled.
On this matter the Court of Appeal said as follows:
Had (the aim of the Act) been ‘least suffering’…then no doubt the court would have to look carefully at whatever reasons the legislature might have had for thinking that in a particular case hunting did not meet the test of least suffering, and therefore should be banned for that reason, taken on its own. But that is not the case. Because of the view taken of the implications for hunting as a sport, what is required is that there should have been sufficient material available to the legislators to conclude that hunting does impose suffering on the quarry, and for that reason is not acceptable as a sport. 24
Put another way, an outright ban was appropriate for that which the Commons sought to remedy – the inherent cruelty of hunting with hounds, which seriously compromised the welfare of all quarry species. This was not a view from which the Commons had been swayed notwithstanding the government’s invoking of notions of ‘least suffering’ or the requirements of conservation. Both the court of first instance and the Court of Appeal were in agreement that ‘once that objection is identified, and is recognised as a legitimate basis for legislation, then a total ban was clearly a proportionate response’. 25

Discussion
From the 1750s, the regulation of hunting with hounds in the UK had stood in marked contrast to the regulation of other animal sports, which had been largely policed out of existence by the late 1800s. Hunting with hounds survived because it was a highly specialised ‘gentlemen’s’ pursuit, governed by conventions that participants strictly adhered to – specifically an ‘honour code’, under which ‘while hunting the fox, gentlemen strictly refrained from pursuing and killing any other animals which came their way…even though it might serve as a most desirable delicacy’. 26 This was ‘killing by proxy’, the actual task being delegated to the hounds and the honour code surrounding the event encompassing the organisation, dress codes, and other paraphernalia as well as extending to the care afforded to horses and hounds both before and after the event.
The effect of this ‘honour code’ distinguishes the contemporary version of hunting with hounds from the earlier manifestations with which the hunting fraternity were keen to claim a historical link in ex p Countryside Commission. 27 In times past, ‘the pleasurable excitement of the hunt had been a kind of fore pleasure experienced in anticipation of the real pleasure – the pleasures of killing and eating’. Foxes, deer, mink and hare were ‘a constant menace to the chicken-run, to the geese and ducks of peasantry and gentry’ and people of all classes enjoyed ‘the pleasure of hunting and killing animals in whatever way they could and ate as many of them as they liked’. 28 The ‘honour code’ of the more recent vintage has served to make a comparatively easy activity – finding a fox and killing it – less straightforward, the sole purpose for the existence of those rules being ‘not because it was felt to be immoral or unfair to kill a fox outright, but because the excitement of the hunt itself had become increasingly the main source of enjoyment for the human participants’. 29 The development and acceptance of these behavioural restraints upon the use of physical force thus reflects a shift towards taking pleasure in seeing violence done rather than in doing it oneself, but this exercise in self-restraint ultimately serves to distinguish those from whom hunting was a source of leisure from those for whom it was a source of food, an economic necessity but one that could attract deportation or the death penalty if it contravened the provisions on poaching. 30
Thus regarded, hunting with hounds has little to distinguish it from illegal animal sports such as cock-fighting, badger-baiting and pig-sticking: the pleasure is in seeing violence done, the putative conservation benefits largely incidental, and its links to ancient history purely mythological. Indeed, as part of its claim under the provisions of European Union free movement law the Countryside Alliance made much of the fact that people travelled from throughout the European Union in order to participate in fox hunting and specialised travel agencies existed to facilitate the same. At no stage did it suggest that those individuals did so in order to assist in a conservation exercise - they did so in order to ride horses and kill foxes and in this aspect the hunting lobby was implicitly acknowledging, contrary to the whole basis of its claim, that the putative livestock conservation benefits of hunting with hounds were purely incidental. The figures bear this out, for fox hunting accounts for less than 10% of the 250,000 fox deaths that occur each year, while in contrast 80,000 are shot and 100,000 are killed on the roads. Furthermore, it costs £70,000 to kill a single fox by hunting it 31, and while most people would accept that fox populations have to be managed, not by any stretch can hunting with hounds be regarded as an efficient or cost-effective exercise in fox population control.
Ex p Countryside Alliance illustrates that considerations of animals’ welfare can fetter human rights: the rights of individuals to engage in whatever leisure pursuits they wish, to utilise their real property in whatever ways they choose, or to enjoy the same lifestyle ad infinitum are not immune to animal welfare considerations. While that was the situation prior to the emergence of a discrete body of human rights jurisprudence, the case further delineates the scope of those restrictions. Although it would certainly be over-stretching the case to assert that animals have ‘rights’ under English law that are in any way analogous to human rights, the recent judicial and legislative history of hunting with hounds illustrates that ‘human rights’ do not afford a license to act with impunity; particularly in the face of other, no less compelling, interests.

1 [2006] EWCA Civ 817, upholding the first instance decision in Countryside Alliance v Attorney General [2005] EWHC 1677.
2 The Scottish executive had already outlawed hunting with hounds in Scotland under the Protection of Wild Animals (Scotland) Act 2002
3 Jackson v Attorney General [2005] 4 All ER 1253.
4 For more on those aspects see Burns, S (2006) ‘When is an Act of Parliament not an Act of Parliament? 156 New Law Journal 191 and Samuels, A (2003) ‘Is the Parliament Act 1949 Valid?’ 24 Statute Law Review 237.
5 Hunting Act 2004, s. 6
6 Hunting Act 2004, Sch. 1. The exemption is available only if the animal is then shot dead as soon as possible after being flushed out: put another way, the animal must not be killed by the dogs that have flushed it out. One of the hunting lobby’s main objections to the legislation is the apparent impossibility of enforcing this provision.
7 Burns, op cit. While the predominance in the legislative chamber’s upper house of unelected, unaccountable, right-wing, public-school educated white men continues to be a source of amazement and amusement to colleagues in other jurisdictions, the author feels obliged, reluctantly, to share on this occasion the opinion of the late and unlamented Enoch Powell MP – namely, that the system history has bequeathed us is no worse than the alternatives.
8 Countryside Alliance v Attorney General [2005] EWHC 1677, paras 31-55.
9 [2006] EWCA Civ 817, at para 17.
10 The Countryside Alliance had argued that the hunting fraternity’s Article 8 claim was analogous to the rights asserted in, inter alia, Pretty v United Kingdom (2002) 35 EHRR 1 (on the putative right of a terminally ill person to end their own life); Peck v United Kingdom (2003) 36 EHRR 41 (privacy rights of an individual caught on camera trying to commit suicide); and Bruggemann v Germany (1981) 3 EHRR 244 (termination of an unwanted pregnancy).
11 [2005] EWHC 1677, at para 120 per May, LJ.
12 [2005] EWHC 1677, at para 135.
13 [2006] EWCA Civ 817, at para 103 per Ld Phillips, MR.
14 [1966] 1 All ER 689, a case arising from the requirement that a female trainer of horses be registered with the Jockey Club under the name of her (male) head stable-boy rather than under her own.
15 (1996) 21 EHRR CD 85
16 [1995] EHHC 1677, at para 128.
17 [2005] EWHC 677, at para 158 per Laws, LJ. See also Anderson v United Kingdom [1998] 25 EHRR, CD 172.
18 [2006] EWCA Civ 817, at para 106.
19 [2006] EWCA Civ 817, at para 107 per Lord Phillips, MR. Emphasis in original.
20 [2005] EWHC 1677, at para 166.
21 In Chassagnou v France (2000) 29 EHRR 615.
22 [2005] EWHC 1677, at para 124 per May, LJ.
23 As outlined in, for example, the Burns Report into Hunting, which was instigated at the behest of the Home Secretary in 1999 and carries a detailed investigation into the scientific and other evidence: http://www.huntinginquiry.gov.uk (last accessed 11th August 2006).
24 2006] EWCA Civ 817, at para 120 per Lord Phillips, MR.
25 [2006] EWCA Civ 817, at para 123 per Lord Phillips, MR.
26 Elias, N and Dunning, E (1986) Quest for Excitement: Sport and Leisure in the Civilising Process (Oxford: Blackwell): 160.
27 [2005] EWHC 1677, at paras 22 - 26
28 Elias and Dunning, op cit: 161.
29 Elias and Dunning, op cit: 166.
30 Thomson, E (1974) ‘The Crime of Anonymity’ in Hay, D et. al Albion’s Fatal Tree (London: Penguin).
31Martin, B (1999) ‘Animal Protection and the Red Fox: Could Licensing Provide an Answer?’ 1(3) Environmental Law Review 196.


Dr David McArdle
School of Law, University of Stirling, Scotland
United Kingdom
d.a.mcardle@stir.ac.uk




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