SI Amendment to the Hunting ACT Comparisons to the Scottish Hunting Act

by Nigel
on 30 June, 2017

SI Amendment to the Hunting ACT Comparisons to the Scottish Hunting Act

Dr. Brian Mays Save Me Trust strongly opposes the government's proposals to amend the Hunting Act 2004 using a draft Order. The government proposes to use a statutory instrument to change the exemptions under the Act, in order to use an unlimited number of dogs in exempt cases.  At present, the exemptions only apply where a maximum of

two dogs are used. The government claims that it is amending the exemptions to bring them into line with the current position in Scotland. 

Anne Brummer CEO said “The use of a draft Order, rather than a Bill to amend, is a good example of 'cherry picking' some of the bits of the Scottish legislation, that favour hunters, without also taking on the related obligations. Most notably, the Scottish legislation has the possibility of higher penalties to go with its more liberal approach to the number of dogs used. The power to amend the existing exemptions by order does not permit amendment of penalties and thus underlines the inappropriateness of the approach of using a draft order.” It should also be noted that there are only 10 registered hunts in Scotland, compared to the 310 in England and Wales, so the issues of enforcement are hardly comparable. 

Brian May said, “If the government wishes to amend or repeal the Hunting Act 2004, it should have the guts to bring forward a Bill, as it suggested it would during the election campaign. They are simply running scared of the level of opposition such a move would produce. 80 percent of the electorate is against the repeal of the Hunting Act 2004. The draft Order is a move to avoid the kind of debate that a Bill would engender and to curtail the time allowed for debate on the proposed changes.”

The government's supporters have suggested that bringing the legislation in England and Wales in line with that in Scotland, would be beneficial to farmers, however, this is not the case. This is an attempt to reintroduce hunting by stealth and we strongly reject it. 

We call on the SNP to vote to oppose this affront to democracy along with all enlightened MPs.

Comparing the Protection of Wild Mammals (Scotland) Act 2002, Hunting Act 2004 and 2015 Draft Amendments 

The government claims that proposed changes to the Hunting Act 2004 would simply bring parity between Scotland and the rest of Britain are deeply misleading. The Scottish law preceded Westminster’s by two years, with stricter exemptions included in the latter as a deliberate improvement. 

Indeed, the experience in England and Wales has shown the Hunting Act (2004) to be the better piece of legislation, with more than 400 convictions since its inception. The difficulty in proving intent under the Scottish law has meant little enforcement of the law has happened north of the border. As the Scottish Countryside Alliance said on  the 10th anniversary of the Protection of Wild Mammals (Scotland) Act, ‘you could be forgiven for thinking little has changed during the course of time’[1] 

It is also important to remember that Scotland has only 10 registered hunts while England and Wales have a total of 310. If parity is to be sought, surely the minority should come in line with the majority.

More importantly, the proposed amendments to the Hunting Act 2004 would actually make this the weaker law. The changes and their implications are set out below.

Current exemptions permitted under Hunting Act 2004 and equivalent provisions in PWMA 2002 

1.      Stalking and flushing out

HA 2004 Schedule 1 paragraph 1

            Currently, two dogs can be used to flush a wild mammal out of cover if undertaken for purpose of reducing serious damage animal would cause to livestock, game birds, crops, timber, fisheries, property or biodiversity; also to obtain meat for human consumption and participate in a field trial for retrieval dogs.

            Reasonable steps must be taken to ensure the animal is shot as soon as possible after being flushed and shot by a competent person. Each dog used in the flushing must be kept under sufficient control to ensure it does not interfere with the mammal being shot quickly.

            PWMA 2002 section 2:           

            An unlimited number of dogs can be used to flush a wild mammal from cover for the purposes of protecting livestock, timber, ground-nesting birds, game birds, and crops; to provide food for human consumption; protect human health; prevent the spread of disease; control a pest species; or control number of a species to safeguard welfare of that species.

            2015 Draft Amendment

Removes the limitation on the number of dogs to be used under the Hunting Act 2004, bringing parity with Scotland.

2.      Use of dogs below ground

HA 2004 Schedule 1 paragraph 2

Currently, it is permissible to use one dog below ground to flush out mammal to be shot if undertaken for the purpose of preventing damage to birds kept for the purpose of being shot. The person using this exemption must have written evidence of landowner permission available for inspection by a constable. The mammal must be shot as soon as possible and the dog must be under sufficient control to prevent it interfering with the shooting of mammal. An enforceable code of practice only permits a “soft” terrier to be used to reduce the risk of a fight. 

PWMA 2002 section 2(3)

Any number of dogs may be used to flush out a fox or mink from below ground for the same purposes as the PWMA stalking exception above. It must be flushed as soon as possible and shot as soon as possible after being flushed. In limited circumstances, a “hard” terrier is allowed to be used. A single dog may be used below ground to kill an orphaned fox cub.

2015 Draft Amendment 

Widens the exemption to include using dogs below ground to protect livestock which brings parity with Scotland. Up to seven days will be allowed to produce written evidence of landowner permission.


3.      Rescue of wild mammal

HA 2004 Schedule 1 paragraph 8

Applies to any mammal. No more than two dogs can be used. The hunt must believe that the animal is or may be injured and the hunting is undertaken to relieve its suffering.

PWMA 2002 section 5 

An unlimited number of dogs may be used to locate a seriously injured or orphaned animal, but only if the person "acts to ensure that the mammal, once located, is captured, treated or killed as humanely as possible in order to relieve its suffering".

In Scotland  this exemption does not cover below ground retrieval of mammals, save for the below ground retrieval of foxes that are  believed to be orphaned and there the exemption applies only if the person "takes reasonable steps to ensure that the fox, once located, is despatched by a single dog or otherwise killed as humanely as possible" - para 5(3). 

2015 Draft Amendment

An unlimited number of dogs may be used, bringing parity with Scotland. The exemption is widened to include diseased animals, which is not included in the Scottish exemption. The draft Order does not introduce the Scottish requirements to act humanely.

4.       Research and observation 

HA 2004 Schedule 1 paragraph 9 

Up to two dogs are allowed to be used for the purpose of or in connection with the observation or study of a wild mammal. 

PWMA 2002

No such exception. 

2015 Draft Amendment 

An unlimited number of dogs may be used. Widens the exemption, which has no equivalent in Scotland.

Other differences

a.   Meaning 

HA 2004 The high court ruled that hunting does not include searching. 

PWMA 2002 section 10(1) Explicitly states that “to hunt”includes to search or to course.

No change in the draft amendment, so England and Wales is not brought into line with Scotland and maintains a weaker provision.

b.   Penalties

HA 2004 section 6 Level 5 fine only, on summary conviction.

PWMA 2002 section 8(1) Up to 6 months imprisonment and/or level 5 fine

No change in the draft amendment so England and Wales is not brought into line with Scotland and maintains a weaker provision. 

c.   Defence 

HA 2004 Part 1(4) It is a defence for a person to show that he reasonably believed that his hunting was exempt (even if it wasn’t). 

PWMA 2002 The same defence is available but only in limited circumstances. No change in the draft amendment so England and Wales is not brought into line with Scotland and maintain a weaker provision.