Hunting Act

The Hunting Act 2004 (c. 37) is an Act of the Parliament of the United Kingdom which bans the hunting of most wild mammals (notably foxes, deer, hares and mink) with dogs in England and Wales, subject to some strictly limited exemptions; the Act does not cover the use of dogs in the process of flushing out an unidentified wild mammal, nor does it affect drag hunting, where hounds are trained to follow an artificial scent.

The Act came into force on 18 February 2005. The pursuit of foxes with hounds, other than to flush out to be shot, had been banned in Scotland two years earlier by the Protection of Wild Mammals (Scotland) Act 2002. Such hunting remains permitted by the law in Northern Ireland, where the Act does not apply.

History

Background

Several UK laws on animal welfare, such as the Protection of Animals Act 1911, the Protection of Badgers Act 1992 and the Wild Mammals (Protection) Act 1996 contained specific exemptions for hunting activities, thereby preventing prosecutions of other hunts activities that might otherwise have been considered cruel.

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 Two private member's bills to ban, or restrict, hunting were introduced in 1949, but one was withdrawn and the other defeated on its second reading in the House of Commons. The Labour government appointed a Select Committee on Cruelty to Wild Animals, chaired by John Scott-Henderson KC, to investigate all forms of hunting, and it published a report in 1951. Opponents of hunting claimed that the membership of the committee had been 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." The select committee was unanimous in recommending no action on hunting, but it made proposals on the use of spring traps.

Twice, in 1969 and in 1975, the House of Commons voted in favour of bills 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.

The Protection of Wild Mammals (Scotland) Act 2002 made it unlawful to chase or deliberately kill mammals with dogs in 2002. 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 2004.

At the time of this bill fox hunting with hounds was "not practised or is largely banned" in Belgium, Denmark, Finland, Germany, Norway, Spain and Sweden, but was allowed in Australia, Canada, France, India, Ireland, Italy, Russia and the USA.

Drafting

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." 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. The Burns Report in 2000 concluded that forms of fox hunting "seriously compromise the welfare of the fox", 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." 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.

In what he described as an attempt to raise animal welfare standards at the same time, and as an alternative to legislation that specifically targeted hunting, Lord Donoughue proposed the Wild Mammals (Protection) (Amendment) Bill. This would have made it the case that "any person who intentionally inflicts, or causes or procures, unnecessary suffering on or to any wild mammal shall be guilty of an offence." A matching Bill was introduced in the Commons with the support of The Middle Way Group (see below). Both bills failed to become law as they were blocked by Labour members who wanted a specific hunting ban. Animal welfare groups such as the League Against Cruel Sports criticised the Bill on two grounds. Firstly, they opposed the exemption in the Bill for activities undertaken "in accordance with an approved code of conduct". Secondly, they argued that, if an activity was inherently cruel, it should be deemed as such by Parliament, rather than prosecutors having to argue and prove cruelty in every court case.

Following a series of evidence hearings in 2002, on 3 December 2002, DEFRA Minister of State for Rural Affairs Alun Michael introduced a bill which would have allowed some licensed hunting. In July 2003, by a majority of 208 in a free vote, the Commons passed an amendment proposed by Tony Banks to ban hunting entirely, but in October 2003 this was rejected by the House of Lords by a majority of 212.

Voting, conflict with the Lords and royal assent

A bill identical to the one passed by the House of Commons in 2003 was reintroduced to the Commons on 9 September 2004.

On 15 September 2004, the day of the final vote (third reading) on the bill, two protesters staged the first invasion of the House of Commons chamber since King Charles I in 1641. The protesters were quickly removed by Parliamentary officials, but the incident led to a review of parliamentary security, given that it was the second breach of the security of the chamber in four months (Fathers 4 Justice activists had thrown purple flour in the Commons four months earlier). Simultaneously, a demonstration of between 8,000 and 10,000 people, including protesters from the Countryside Alliance filled Parliament Square outside. Later, John Holliday wrote for the ''Guardian'' an essay on his actions.

On 17 November, on one of the days of the Parliamentary session, the Lords again insisted on its amendments to the main Bill. In the Commons, the Government's last-ditch attempt to compromise on a delay until 31 July 2007 won the support of only 46 MPs, although the delay until 2006 was inserted in the Bill. The Lords, who would have had to have accepted the Commons' other amendments (including the principle of a ban on hunting) and dues, rejected the proposal by 153 to 114.

With the Lords and Commons unable to come to agreement by the end of the Parliamentary year the Speaker of the House of Commons, Michael Martin, invoked the Parliament Acts 1911 and 1949, an infrequently used legislative device that allows the Commons to overrule the Lords where agreement can not be reached. The Hunting Act was only the seventh statute since 1911 enacted using these provisions. The House of Lords was criticised for undemocratically blocking the legislation; however, other newspapers and broadcasters condemned Tony Blair's Labour administration for giving in to what they perceived as the prejudicial views of anti-hunting Labour backbenchers.

The act came into force on 18 February 2005, three calendar months after it received royal assent.

Exempt hunting

The Act exempts some limited forms of hunting believed to be necessary. Hunting with dogs is exempt from the Act if it falls within a class listed in Schedule 1, which may be amended by an Order made by the Secretary of State for the Environment.

Schedule 1 of the Act specifies nine forms of hunting with dogs which are exempt, subject to conditions in each case:Hunting Act 2004,
Schedule 1
legislation.gov.uk, accessed 24 December 2022
#Stalking and flushing out
#Use of dogs below ground to protect birds for shooting
#Rats
#Rabbits
#Retrieval of hares
#Falconry
#Recapture of wild mammal
#Rescue of wild mammal
#Research and observation

The Countryside Alliance has noted that "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."

Stalking and flushing out

Traditionally, in some upland areas, foxes were flushed by packs of dogs to be shot.

Stalking and flushing out are exempt under the Act, subject to five conditions:

Firstly, the stalking or flushing out is for the purpose of preventing or reducing serious damage which the wild mammal would otherwise cause to livestock, to game birds or wild birds, to food for livestock, to crops, to growing timber, to fisheries, to other property, or to biological diversity; or for obtaining meat for human or animal consumption; or for participation in a field trial competition in which dogs flush animals out of cover and/or retrieve animals that have been shot.

Secondly, the stalking or flushing out must take place on land which belongs to the person doing the stalking or flushing out or which he has been given permission to use for the purpose.

Thirdly, only one or two dogs may be used.

Fourthly, the use of a dog below ground is limited as in the next section.

Fifthly, reasonable steps must be taken to ensure 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 is kept under sufficiently close control to ensure that it does not obstruct the prevention or reduction of serious damage.

Flushing to guns is still permitted in Scotland under the Protection of Wild Mammals (Scotland) Act 2002. 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.

This exemption was claimed by one stag hound pack in the Exmoor area. In an appeal judgment following the conviction of two stag hunt officials, the judge said that such hunting conducted primarily for recreation was unlawful.

Use of dogs below ground to protect birds for shooting

Hunting below ground often took place with terriers, and the Act outlaws hunting with terriers, apart from a narrowly drawn exemption, described by the Minister, Alun Michael MP, as existing "for gamekeepers".

The use of one such dog is exempt, but only in the course of stalking or flushing out, and in accordance with four 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 stalker or person doing the flushing out must have written evidence that the land concerned belongs to him, or that he has been given permission to use it for the purpose, and must make the evidence immediately available for inspection by a constable who asks to see it.

Only one dog can be used below ground at any time.

Reasonable steps must be taken to ensure that
*as soon as possible after being found the wild mammal is flushed out from below ground and is shot dead by a competent person
*the dog is under close control
*injury to the dog is prevented; and
*the use of the dog complies with any code of practice issued or approved by the Secretary of State.

Despite this, many fox hunts continue to use terriers regularly. Three people, not associated with hunts, have pleaded guilty to offences under the Hunting Act 2004 for hunting with terriers and a fourth was found guilty after a trial.

Hunting rats and rabbits

In enacting the Hunting Act, parliament accepted the view that the hunting of rats and rabbits is legitimate, as they are pests. Parliament did not believe there was any necessity to use dogs to hunt mice, so provided no such exemption.

The hunting of rats and rabbits is exempt only if it takes place on land which belongs to the hunter, or which he has been given permission to use for the purpose by the occupier or (if unoccupied) by an owner.

Retrieval of hares

The hunting of a hare which has been shot is exempt if it takes place on land which belongs to the hunter, or which he has been given permission to use for the purpose.

In a private prosecution under the Act brought by the International Fund for Animal Welfare (IFAW) who had observed two hare coursing events in villages near Malton, North Yorkshire in March 2007 organised by the Yorkshire Greyhound Field Trialling Club, the District Judge in Scarborough magistrates court clarified that the club was mistaken in believing that because the dogs they had been using were muzzled, the practice was lawful.

Falconry

In making falconry an exempt form of hunting, the Act lays down two conditions.

"Flushing a wild mammal from cover is exempt hunting if undertaken for the purpose of enabling a bird of prey to hunt the wild mammal."

Such activity must be done on land which belongs to the hunter or which he has been given permission to use for the purpose.

Many traditional hunts have bought birds of prey and say that they are using hounds to flush foxes to the bird of prey. 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 this view proves to be correct, then it is unlikely that such a use of dogs is lawful.

Expert opinion on the limitations of flushing foxes to birds of prey will be available to advise courts considering such cases, when they are litigated. For now, the question of what is lawful remains to be determined.

Recapture of wild mammal

This exemption is for the hunting of a wild mammal which has escaped or been released from captivity, subject to these conditions:

The activity must take place on land which belongs to the hunter, or on land which he has been given permission to use for the purpose, or with the authority of a constable.

Reasonable steps must be taken to ensure that as soon as possible after being found the wild mammal is recaptured or shot dead by a competent person, and that each dog used in the hunt is kept under close control.

The wild mammal must not have been released or allowed to escape for the purpose of being hunted.

Rescue of wild mammal

The hunting of an injured wild mammal is exempt, subject to these conditions:

The hunter must reasonably believe that the wild mammal is or may be injured.

The hunting must be for the purpose of relieving the wild mammal's suffering.

No more than two dogs may be used.

There must be no use of a dog below ground.

The activity must take place on land which belongs to the hunter or which he has been given permission to use for the purpose or with the authority of a constable.

Reasonable steps must be taken to ensure that as soon as possible after the wild mammal is found appropriate action (if any) is taken to relieve its suffering, and that each dog used in the hunt is kept under close control.

The wild mammal must not have been harmed to enable it to be hunted under this exemption.

Research and observation

The last form of exempt hunting which is provided for in the Act is subject to these conditions:

The hunting must be undertaken "for the purpose of or in connection with the observation or study of the wild mammal."

No more than two dogs may be used, and no dog below ground.

The activity must take place on land which belongs to the hunter, or which he has been given permission to use for the purpose.

Each dog used must be kept under close control to ensure that it does not injure the wild mammal.

Failed challenges

Challenges to the Act which questioning the legality of the Parliament Act 1949 in the High Court and Court of Appeal failed (for example ''Jackson v Attorney General

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