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The right to hunt? England’s new constitutional debate

Richard Burge Karen Bartlett
17 September 2002

All round the world, more and more people live in cities. Yet, as modern life becomes overwhelmingly urban, hunting in the woods, rivers, seas and countryside is becoming increasingly popular and at the same time under growing attack, especially from those concerned with animal rights. Nowhere is this polarisation greater than in England, where the social ritual of the hunt with all its symbolism dates back to the late seventeenth century. This coming weekend, perhaps half a million supporters of the Countryside Alliance will converge on London under the slogan of ‘Liberty and Livelihood’, to defend their way of life from what they see as the threat of Labour legislation. It is being presented as one of the largest civil rights demonstrations ever to take place in Europe.

openDemocracy has published what is arguably the most subtle, profound and sweeping debate on hunting from its pre-neolithic origins up to today, between Roger Scruton, Hugh Brody, Donna Landry, Rupert Isaacson and others. We hope this will grow into the first global discussion on the topic.

(Click for bigger image)

Here we want to ask about what the clash means for modern politics. The Countryside Alliance is positioning its demands in terms of civil rights and has threatened a constitutional confrontation. There are particularly British aspects to this, of course. But popular engagement with many issues is everywhere taking on new forms which by-pass traditional representative party politics – not least, so far as the UK is concerned, the Conservative Party, which once personified both government itself and the hunt.

Anthony Barnett: So, Richard, from your vantage point as the Alliance’s Director, are you not just trading on big issues of principle such as liberty and civil rights. Isn’t it really just a march about hunting?

Richard Burge: No. If it were a march about hunting there would be maybe up to 40,000 people coming rather than up to ten times that number. We are dealing with people’s emotional capital in their lives. I sense a very strong, raw emotion: a feeling of utter disenfranchisement and isolation up against an indifferent State. The marchers see themselves as no longer politically significant in the electoral sense. Instead, they feel the countryside has more in common with the position of a colony in relation to the Empire than a partner community in a broad, democratic, caring, and responsive country.

I think hunting is in itself important, and in my view it is a civil liberties issue. In terms of the march it has acted as a touchstone for how people articulate their sense of disenfranchisement and as a symbol for the way in which they see an inalienable quality of their lives as being different and which they think should be tolerated.

I have spent a lot of my time outside Britain. Looked at from afar you get a rosy view. But when you return, you find that far from this country being the mother of all democracies, democracy here is barely neo-natal. Every other credible democracy has overtaken it. Others have written constitutions; they have a sovereignty in terms of democracy, but not a ‘supremacy’ of elected individuals. If the state wishes to suppress the liberty of individuals in any respect, it has to overcome the protections of individual liberty enshrined in a constitution. In this country, by contrast, there is an obsession among our political elite – and I include all parties in this – with the sovereignty of the House of Commons.

Minority rights under a non-constitution

AB: Karen, you are the first Director of Charter 88 to have grown up in the countryside with an experience of fox-hunting. Do you think it really is a civil liberties question?

Karen Bartlett: In general I am very sympathetic to the problems that people in the countryside face. They have real grievances. I tend to be completely unsympathetic on the issue of fox-hunting and in some ways I wish we could get it out of the way so that we could think about the real issues that are going on in the countryside. If the fox-hunting issue were resolved, what would happen to all the sentiment that has been stirred up around it?

Growing up, I don’t remember fox-hunting being an issue; much of this has been caused by the Labour Party. The Labour Party, which took a stance against fox-hunting, then wavered and backed off and probably infuriated a huge proportion of its members, including me, is now coming back to it and wavering again. I wish they would take a stand, and follow through on what they believe – which is that fox-hunting is a cruel and unnecessary pastime, even though there are people who profoundly disagree.

I am not convinced it is a civil rights issue. I think this is an issue best decided by weighing the cruelty to the fox against the utility of killing foxes in this way. But the whole debate about hunting being a human right is a good argument because it connects with people who are politically conservative and brings them into the debate about the Human Rights Act. It demonstrates that, contrary to what the tabloids would have you believe, you don’t have to be an asylum seeker to benefit from the Human Rights Act. The main arguments fox-hunting raises in connection to human rights are about the rights of people to enjoy private property, and the freedom of people to do things as long as it is not interfering with the rights of others. In Scotland, protestors tried to overturn a ban on fox-hunting on those ground, but lost their case.

Sophie Jeffreys: Can we clarify the question about civil liberties? In my understanding, the discussion at this stage should be about civil liberties within our present constitution. If it went beyond this to the European institutions, then there may be an argument about human rights. I am therefore wondering, Karen, how much weight you give to the civil liberties argument within the British constitution?

KB: Obviously a ban on fox-hunting would restrict a minority of people from pursuing their sport or hobby. But the government has always intervened and restricted people’s freedom; witness the legislation banning bear-baiting and dog-fighting. The question of liberty is being dragged into this issue, in order to make it more complex than it is.

AB: But surely this ought to be welcomed by Charter 88, which has always maintained that the political process in this country has made things too simple for those with power? Acceptable political decisions must be based in a sound constitutional structure so as to take account of different views, enabling people to trust the process whereby they are governed. How do you respond to Richard’s point, that a community who were used to being the arbiters of an Empire now feels that it is nothing but a colony?

KB: You are right that people feel increasingly disenfranchised. They experience political decisions as being made further and further away from them, even when made by some devolved assembly. But the worst possible solution is the one that has been talked about recently, according to which the government would support a partial ban, then allow amendments in the Commons that will make the legislation tantamount to a total ban, and then would force this total ban through the Lords by means of the Parliament Acts. Such tactics surely point to the failure of our constitutional system as it is at the moment.

AB: Karen, can you explain to openDemocracy’s non-UK readers why the situation you have just described would be the worst possible outcome? The Parliament Acts can be evoked to ensure that the majority decision of the House of Commons is rammed through the House of Lords, the second chamber so called, and so become law. Why do you regard that as the worst possible outcome?

KB: It is the worst possible outcome because it would involve the government in pretending to listen to a grievance, while allowing the House of Commons to do the dirty work of ignoring it. It would be an act of political dishonesty, which would mainly serve to undermine public trust. It would also be another illustration of our constitutional chaos. The fact is that the Parliament Acts were passed in 1911 in order to avert a constitutional crisis caused by the intransigence of the House of Lords. They were a way of avoiding a constitutional reform that we are still avoiding today, namely, the democratisation of the second chamber. It is difficult to accept that the second chamber has power to block legislation passed by an elected House of Commons, when the second house was composed (as it was then) of people who had inherited their position, or when it is composed (as it is now) of people who are appointed on whatever arbitrary grounds that have just been thought up by the political establishment. Our upper house is not an elected chamber but a chamber of unelectables.

Freedom and fox-hunting

KB: But I want to ask a question about fox-hunting. What position does the Countryside Alliance have towards the system that pertains in parts of America where the aim of the fox-hunt is not to kill the fox, where foxes are not dug out and earths are not stopped? What is your objection to continuing the sport but without actually killing the fox?

AB: Sophie, unlike Richard you participate in the fox-hunt, so this is a question for you.

SJ: The traditional way of hunting over the last couple of centuries, when the fox was perceived by farmers as a menace, has actually ensured a healthy population of foxes and a kind of balance of interests between wildlife and farming. In other European countries, the fox has been culled mercilessly and by means that are to my mind unacceptable.

AB: But Karen’s question is do you have to kill the fox, can’t you still hunt without the kill?

SJ: Would that be an honest relation to the fox? To chase an animal for fun seems more like the kind of practice that has now been made illegal, in which animals are tormented for no other purpose than human pleasure. The feeling among hunting people is that, since there is a requirement for some fox control, and since a more humane way of carrying this out is by using dogs, a natural predator, than by man-made instruments such as guns which frequently wound without killing, then there is no shame attached to following those dogs and sharing in their excitement.

RB: There is something at the root of anti-hunting legislation which troubles me: the suggestion that people should be made to change their behaviour, even when we have no evidence that any person or animal would benefit from this (the foxes will be shot), and purely so that we can feel more comfortable with the result. I think if people are required to limit their behaviour, there must be clear evidence that what they are doing is against the public interest. And there must be clear constitutional hurdles that must be passed by those who propose the change, in order, frankly, to ensure against voracity on the part of people in power.

KB: I think that is absolutely right. It is a central argument in Charter 88 that we need a written constitution, and that we must overcome the feeling of being colonized by the state by encouraging citizens to believe that they own the state in some principled way. I really welcome the discussion about people’s liberty and freedom in a civilised society and about the sovereignty of Parliament. I would be interested to know more from the Countryside Alliance about the comment by your Chairman, John Jackson, that a vote in Parliament would be undemocratic. We know that if there were a vote tomorrow about fox-hunting, over 50 per cent would vote to ban it. So presumably he is raising the question of how we elect MPs as well as respect the rights of minorities. But if we are to argue in this way, we must broaden the debate, to cover those minorities that are truly in need of a voice: gays, asylum seekers, and many others. On the other hand, the whole ‘Free Country Debate’, as so branded by the Daily Telegraph, has narrowed the discussion of human rights and civil liberties to the single issue of hunting. Where do we set the threshold of liberty and how do we describe it?

AB: What is interesting is that a focused political question is forcing people to engage in a much-needed and hitherto constantly avoided constitutional debate. Suddenly the southern England ‘home counties’, the squirearchy and the old landed class are saying, hey, we don’t like the way we are being ruled, we are being treated like natives, we are not used to this! And these people have the self-confidence, the influence and the money to do something about it. Doesn’t this point towards the ongoing reality of a constitution that has broken down? Shouldn’t you be in there making an ally of the Daily Telegraph?

KB: I went to the Daily Telegraph conference on a 'free country'. I arrived in more optimistic spirits than I left. It seemed to me that the prevailing attitude was quite bigoted: we want liberty for us, so to speak, but not necessarily for you. There was a particular sentiment against asylum seekers and the gay community, which meant I couldn’t feel a great warmth towards the event. This was supposed to be a general discussion about freedom, rights and the constitution. But it was biased towards particular interests, which is exactly what a debate about the constitution should not be. A constitution exists to ensure that people feel ownership of the political process, and therefore an ability to accept the laws that stem from it, even when they go against their short-term interests. You don’t arrive at a constitution by starting from a single set of minority interests, and obliging everybody else to go along with them.

RB: Karen is right. But Tom Stoppard immediately challenged the undeclared presupposition of that conference, which was ‘freedom for the things I like, restrictions on things that are “obviously” wrong’. Stoppard reminded us that Karl Popper said that a free society is one where people are required to tolerate you doing things that they don’t like. He said ‘the mark of a free society was one where you were free to snort a line of cocaine while you wait for a fox to break cover’ – a statement that split the room right down the middle. Somebody whom I know quite well, who is very rural and hunts, stood up and said, ‘I now think I am starting to get an idea about what it must be like to be gay in Britain: you are supposedly free to do it, but you are not really.’ I thought that was very telling.

KB: The Alliance has persuaded the government to pioneer a new kind of parliamentary hearing, closer in form to conflict resolution. Are you confident that it will have a positive influence on government policy?

RB: I am determined they are going to do so, since that is what should happen. Unfortunately, we cannot rely on some rigorous parliamentary procedure to guarantee the right result. It is still possible for the Commons majority to use arcane procedures in order to exercise absolute political power. We can’t test our laws against a written Constitution, against a Bill of Rights, against an independent Supreme Court that is there to guard the constitution. These are all things that everyone else seems to have if they’ve had a democracy for more than ten years.

AB: Richard, people in other countries who have those things can also feel powerless. Those constitutional forms are not a panacea. But at least the Countryside Alliance has a large passionate community that is beginning to question the way the government in this country is run. Don’t you see here, Karen, an opportunity for developing a larger constitutional mobilisation?

KB: Yes. Charter 88 wants to get away from having abstract arguments about the constitution so as to make the link with people who know their voices can’t be heard. Globalisation, Europe, the countryside – all these have stepped into the centre of political argument since Charter 88 was founded in ways that relate to this. But I have to say that there are Charter 88 supporters who would not be happy if we formed a relationship with an organisation that was in favour of fox-hunting. It is important though for Charter88 to talk to all groups of people who are concerned about democracy and not just to those who might share an opinion on a particular policy.

A political culture of exclusion

AB: Elsewhere, certainly now in France, Italy and the United States, there are movements for constitutional change. Do you feel, Karen, that there is a possible global community of concern around these questions, rather than the somewhat parochial and British one that is more or less inevitable when the primary issue is hunting?

KB: Well, there is certainly a constant recourse to novel expedients in Britain at the moment – such as the current hearings chaired by the Minister for Rural Affairs. While the debate over how Bush became President when it seems that he was not in fact elected shows that others also have very peculiar ways of proceeding. Because such issues are technical, it is very hard to form international links but we would certainly like to.

AB: Does the Countryside Alliance have natural partners round the world?

RB: No we don’t. It is a big investment for an organisation of any size to go out and find genuine partners around the world. I take Karen’s point that institutions don’t necessarily create confidence and can be abused. But our problem is not only a constitutional one. It is also cultural. Quite frankly, it is the outlook of the British political class that worries people. There is a huge disrespect for our political class and I suspect that the disrespect is mutual. I don’t like hearing MPs being rude to or about their constituents, but it is increasingly happening. We have a political elite that seems to be taken from the cradle to join a closed club. Their policies are driven by personal ambition, but their effective monopoly excludes the ordinary citizen from effectively standing against them and saying from the heart what those policies should be. We are dealing with a freemasonry of professionals.

AB: You mean the victory of Tony Blair and a fresh, new, social-democratic, left-of-centre government has just created a new establishment overnight? Karen, do you agree with Richard’s description?

KB: In some ways I do. I was quite shocked by the response of some people on the Left to the foot and mouth crisis, for example. At a time of real crisis in the countryside, and for farmers in particular, some responses showed a contempt for ordinary humanity and for the need for all of us to earn a living regardless of who we vote for.

RB: It is not just a Labour problem, it is deeply rooted in all our major political parties. As we get closer to the 22 September march, I start to feel that what is resonating is­ an anger about our political class and about the way they treat citizens. Whether anyone on the march would articulate it this way, I don’t know. This is part of what is interesting in a protest movement; you are trying to unpack and articulate a sentiment for which the people who most urgently feel it may have no words – the demonstration is the only way they have to express directly what they feel.

AB: Sophie, as someone who will be on the march, what do you feel?

SJ: It is a last resort to try and get a message across to leading politicians who haven’t been prepared to hear the case. When the people representing you in Parliament are prepared to legislate against your way of life without troubling to listen to your arguments, you inevitably feel disaffected from the democratic process.

AB: Will we see more such direct protest if there is not some change to the democratic representation?

KB: Yes. Many groups feel marginalised but have not yet reached that moment of coming together as an opposition to centralisation and the undemocratic decisions that are controlling their lives. As small groups, it is too easy for the government to swot them away like flies. It would be much more effective if these different groups could reach some kind of consensus on principles and campaign together.

RB: I see what you are saying, but this is not the role for the Countryside Alliance. Our job is not to be the political opposition. We are not a government-in-waiting. We exist to articulate the interests and grievances of a law-abiding minority. And maybe, in a constitution that really guaranteed the rights of minorities, we would never have needed to exist at all.

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