Myth Busted: The Hunting Act 2004 and Pro-Hunt ‘Rights’

DOES THE HUNTING ACT 2004 INFRINGE THE RIGHTS OF THE PRO-HUNT FRATERNITY? THE ANSWER IS NO.

By JAMES S F HART

It has been said many times by the likes of the Countryside Alliance and others that the Hunting Act 2004 breaches the fundamental rights of those who wish to continue illegal fox hunting. And now with Labour pledging to concrete over the Loopholes of the Hunting Act, this argument has reared its ugly head once more.

Therefore, does the Hunting Act 2004 breach any of these so-called rights? The answer is no. We will explore the case of Friend and Others v United Kingdom, Countryside Alliance v United Kingdom (2010) 50 EHRR and its importance in regards to this argument. Firstly, let us explore the factor in that hunt clubs will and do consider the current law to be “temporary” and urge members to continue hunting as if the ban never existed. In addition, some pro-hunt lobby groups assert that due to the Hunting Act 2004 (“HA 2004”) the activity will struggle to survive. Many see the HA 2004 as a complete infringement of their liberty and assert that it impedes their ability to control fox populations.

The case is important to consider in relation to such claimed infringements. In addition, those who opposed the Act have campaigned for its repeal by parliament and have legally challenged its validity. One such example is the case of Friend and Others v United Kingdom, Countryside Alliance v United Kingdom (2010) 50 EHRR. The first set of Applicants claimed that their human rights were infringed by the HA 2004. As such their claim was brought under the European Convention of Human Rights, namely Articles 8, 11 and 14 and the First Protocol, Article 1.

Article 8 “Everyone has the right to respect for his private and family life, his home and his correspondence”.

Article 11 “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”. Article 14 requires that all of the rights and freedoms set out in the Human Rights Act must be protected and applied without discrimination.

The First Protocol of Article 1, Every natural or legal person is entitled to the peaceful enjoyment of his possessions.

The second group of Applicants brought a case forward that the HA 2004 was inconsistent with the EC Treaty, Articles 28 and 49. The Court had to consider firstly, whether each set of Applicants rights had been interfered with and, secondly, if such an interference was justifiable. The main body of the case revolved around the first group of Applicants’ assertion that their rights under Article 8 were infringed. Namely their right to respect for Private and Family Life. Furthermore, they had claimed that their rights to a cultural lifestyle and the peaceful enjoyment of their homes and the right to not be deprived of their home and livelihood have been infringed. Moreover, the first set of Applicants also stated their right to peaceful assembly was being undermined by the HA 2004. Conversely, they argued that Article 14 protected them against discrimination. Not surprisingly, the court was not at all persuaded by the arguments presented to the court and dismissed the appeals of both sets of Applicants.

In fact, the Court had found that in terms of an apparent breach of the Applicants Article 8 rights they had not been adversely affected due to the fact that hunting was a public activity, and the hunting community could not be seen as an ethnic or national minority. It can of course be argued that although private life is a broad concept, it does not necessarily mean that it is protected in every scenario and or activity in which a person might seek to engage in with other human beings. In the case in question, there was nothing within the court’s established case law which would suggest that the scope of private life extended to an activity of an essentially public nature/ activity. In comparison the case of Buckley (Buckley v United Kingdom [1996] 23 EHRR 101) and Chapman (Chapman v The United Kingdom) in which the concerned individuals were gipsies, who inherently belong to a distinctive group with their own traditional culture and lifestyle which is so fundamental as to form part of its identity. Furthermore, the traditional culture and lifestyle of gipsies are protected under Article 8 because they are recognised as an ethnic group with their own particular identity. The Hunting fraternity cannot be portrayed in such a way.

In terms of Article 14 the culture and minority element that was argued by the Applicants, the Court found that mere participation in a common social and open activity, without more, could not create membership of such a minority. Moreover, as these individuals namely the hunters and support consented to socialise with people who share their interest in such an activity or pastime, regardless of the interpersonal ties could not be taken to be sufficiently strong to create a discrete minority group. In addition, the Court was not satisfied that the Applicants’ Article 11 rights had been compromised due to the fact that the hunting ban would not prevent nor restrict the right to assembly in order to engage in hunting.

The Court found that the ban did not prevent the Applicants’ right to assemble with other huntsmen and as such did not interfere with the right of assembly. It is also important to take heed of what the Court said regarding its justification regarding Article 11 “All those affected by the ban continue to be entitled to assemble and associate with others to theirs content.” Furthermore, it’s easy to establish this point by the mere fact that clubs have “hunt support” and these supporters pay a subscription to watch a day’s hunt. It can, therefore, not be argued that hunting is such a private activity. Hunting by its very nature is conducted in “open air” across vast areas of land.

By virtue of the Hunting Act 2004 it only outlaws the killing of a Wild Mammal with hounds, as prescribed by s.1 of the Hunting Act 2004. This means that hunters would still be allowed to freely engage in alternatives such as clean boot hunting (Drag hunting). The Court does make mention of trail hunting as an alternative but one can only presume that the Court was not fully aware of trail hunting being a smokescreen for illegal hunting at the time.

Furthermore, the Court did not on the evidence presented find that there was any concrete evidence to suggest that the Applicants would lose their homes, nor did the Court find that there were any serious difficulties for earning one’s living as prescribed by Article 8. In addressing the issue presented by two of the Applicants that they would lose their homes the Court was not provided any evidence that this would or had happened, nor any evidence to suggest the direct consequence of the ban was the loss of homes. In fact, honing on the element of “home” the Court had made it clear that the concept of “home” does not include land over which the owner permitted or caused a sport to be conducted, the reason being that it would strain the prescribed meaning of “home” if it was extended to be such.

Considering that most hunt clubs have permission from land owners to hunt on the owner’s land, it is very far-reaching to then suggest that the HA 2004 infringes Article 8.

In relation to Article 14, due to the reasons given by Lord Bingham, the applicants claim under this article was unable to succeed due to the decisions of the House in the case of R (s) v Chief Constable of the South Yorkshire Police [2014] 1 WLR 2196 and R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484.

In addition, there was and still is clear justification and proportionality for the Hunting Act 2004. The Divisional Court accepted by the Court of Appeal made clear what the aim of banning hunting with hounds was. It was stated that “The legislative aim of the Hunting Act 2004 is a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical.” The ban on fox hunting had two aims, firstly, to reduce the unnecessary suffering of foxes and secondly, to give effect to the majority viewpoint of those opposed to hunting that causing suffering to animals for sport is unethical. In fact the Burns Report made clear that hunting causes at least some degree of suffering to foxes “compromises their welfare”. It can, therefore, be shown that the aim of the Act was for a purpose as to limit the suffering of mammals namely foxes for the purpose of sport.

In conclusion, the discourse surrounding the Hunting Act 2004 underscores a complex multifaceted interplay between individual rights, claimed culture and traditions and legal regulation. The persistence of hunt clubs in considering the law as “temporary” and actively advocating for continued hunting despite the ban reflects a deep-seated resistance to what many perceived as an infringement upon their rights. The case law mentioned above sheds light on the multifaceted nature of the debate. The case raised fundamental questions about the compatibility of the Hunting Act 2004 with various legal frameworks, including the European Convention on Human Rights and the EC treaty. The judgments in such a case offer a great insight into such claims made by the pro-hunt fraternity and the court’s dismissal of the claims brought by the Applicants shows the challenges in substantiating perceived infringements upon rights, particularly in cases where such sporting activities are deemed public rather than private.

Moreover, the Court’s conclusion regarding the absence of concrete evidence supporting claims of adverse effects on individual homes and livelihoods, as well as the preservation of the right to assembly, highlights the nuance considerations involved.

References

Main Photo

Lincoln Holley @linxphotography – Unsplash