R.S. Surtees Society | A Learned Society dedicated to the works of RS Surtees | “First They Came For the Hunts – Lessons from an Insider’s View of the Hunting Act for the Role of Tolerance in the Rule of Law” By Daniel Greenberg

Fellow Surteesians up and down the country, it is wonderful that our Chairman and his colleagues on the Executive Committee have found a way for us to be together this evening. If I may say so, I am perhaps a very slightly atypical choice of speaker for the Surtees dinner, and it is therefore not perhaps entirely out of keeping that I am addressing what is almost certainly the Society’s most atypical annual dinner to date. But the form and contrivance of this evening’s occasion are testament to the resilience and creativity of the Surteesian community, and as a relative neophyte I am enormously honoured to have been invited to play a part in maintaining the essence of the good-fellowship of this community in these unprecedentedly challenging conditions.

It is of course a source of credit to the Society that unlike the Methuen 1903 edition of Jorrocks’ Jaunts and Jollities (good as it is, and of course founded on the Ackerman edition), the Society’s own 1984 edition includes that delightful additional Chapter XIII The Day After The Feast – An Episode By the Yorkshireman; and I do not need to remind present company that it is in that additional chapter that we find it recorded that “Jorrocks, though no great fisherman (not having, as he says, patience enough), is never at a loss if there is plenty of eating”; well, our Executive Committee has not been at a loss this evening and I hope that we all have plenty of eating, whether we are doing it in small groups or even on our own physically, but united in this most agreeable of virtual occasions.

Although these times are challenging for obvious medical reasons, perhaps the most permanent damage that threatens to be caused by the coronavirus pandemic is not medical at all, but damage to the rule of law, and to the essence of the fundamental principles and practices of that rule of law to which we are all committed as the single guarantee of our liberties, and as the essential condition precedent to those compromises and sacrifices which we all willingly make in the interests of the greater good served by our democratic institutions.

You will be delighted to hear that I propose to spare the company the detailed analysis that I delivered recently to an international conference on legislative responses to the pandemic; suffice it to say for present purposes that one of the most dangerous aspects of the COVID crisis is that, through an outpouring of unclear and confusing messages, accompanying a muddled mixture of law, guidance and previously unheard of government “instructions”, a concept which forms no part of our rule of law tradition, very large numbers of previously unquestioningly law-abiding citizens have been taught, for the first time in their lives, to have a deep disrespect for the law itself founded on its appearing to be riddled through with so many anomalies and illogicalities, not to say injustices, that many have been at least tempted, again in many cases for the first time in their lives, to break law made in a form, and through a process, for which a combination of contempt and incredulity have replaced former unquestioning respect.

If I may say so, that is not an entirely novel experience for the hunting community. I was the drafter not only of the Hunting Act 2004 but of all the Government Bills that preceded it over a period of some years, and I well remember being struck by the fact that of all the legislation in which I had been involved since joining the Parliamentary Counsel Office, including Bills on matters medical, constitutional, social, fiscal and criminal, the first project in relation to which I felt seriously troubled from a moral perspective was over such an outwardly trivial matter in some respects as hunting. Let me be clear: the prohibition of hunting did not trouble me from a personal moral perspective: I do not hunt myself, and I would even go so far as to doubt whether I would personally be ethically justified in doing so, as I do not belong to a community in which it forms either a necessary part of pest control or a cherished cultural tradition. What troubled me was the fact that for the first time in my immediate professional experience the mechanism of the law was being deployed not to further some public policy objective – whether well-founded or not – but to inflict on the whole country the personal moral perspective of the 600 or so citizens who happened to find themselves in the House of Commons at the time.

If I may repeat something that I said on BBC Radio Four’s Thought For The Day in July this year in connection with pulling down statues of historical characters involved in slavery:

I fear that selective removal of some and their replacement with people of presently spotless reputation is unlikely to solve the problem: reputations inevitably become tarnished as more is discovered or as standards change. We look back on past generations with a more refined moral perspective in some respects, but doubtless future generations will do the same to us.

Moral relativity is certainly true of successive generations; but it is also true of different communities at the same time. Different cultural and community groups share many moral values but differ in many others. Successful diversity, to which I will return shortly, depends on recognising that it is possible to differ, including on matters of undoubtedly great importance, and both be right in relation to matters as to which there is no single right and no single wrong.

The principal fallacy of votes on a moral basis in the House of Commons is that we simply do not send representatives to Parliament based on trust in their moral judgements. We know very little about the personal morals of members of either House of Parliament, and what occasional glimpses we acquire are more often than not distinctly less than salubrious. That does not matter, or at least not much, while politicians confine themselves to supporting the party to which they belong in pursuing a line of public policy, published in the party’s election manifesto, for the administration of the country. The fact that the personal morality of many members of both Houses is so often dubious at best only begins to matter if they choose to use the power that they acquire based on a mandate to pursue a particular public policy so as to impose the majority moral perspective at any one time in the House of Commons on the entire country. By doing that, they diminish respect for the rule of law and provide increased reasons of principle for people to disrespect and, if not to disobey certainly to seek to circumvent, legislation that is seen as having been passed by a mob Parliamentary dictatorship rather than in accordance with a majority Parliamentary democracy, the latter concept being more about respecting and safeguarding the rights of minorities than giving the majority at any one time carte blanche to impose its ideas on the rest of the country.

From its earliest antecedents it was always clear that the Hunting Bill was not a measure aimed at advancing the public policy of animal welfare; at its best it was about morality (and of course to some it was not even that, but simply a piece of thinly disguised class warfare). The clearest proof that this was never a measure aimed at improving animal welfare is that nothing in the construction of the legislation tends towards its effective enforceability as a matter of animal welfare. Apart from the fact that the list of exemptions was deliberately, and on express instructions, framed in a way that would make circumvention obvious and easy, if one were devising an effective mechanism for advancing the welfare of the fox (and none of us will ever forget how the Burns Commission so convincingly justified the public money spent on it by its unutterably brilliant conclusion that on balance, and taking one thing with another, hunting seriously compromises the welfare of the fox being hunted) – if, as I say, one were devising a measure for safeguarding the welfare of the fox one would do it not through a few blunt criminal offences which are easy to circumvent and virtually impossible to prove (even if the Association of Chief Constables hadn’t written to the Government in advance to warn them that they had better things to do on a weekend morning than to hang around in bushes to see if people were following a fox or a drag).

If this had really been an animal welfare measure we would most likely have opted for a regulatory approach, possibly based around a licensing system: doubtless Of-fox would have been very popular, and the Chief Commissioner for Feral Foxes – or Foxcom – would have been a much sought-after sinecure. Joking aside, I suspect that most if not all organised hunts would actively have welcomed a properly founded licensing system as a way of showing their respect for the law, and for the welfare of all the animals and humans involved in the hunting tradition, which irrespective of whether the observer herself or himself chooses to hunt is clearly recognisable as being as respectable as any other community or cultural tradition, and a good deal more respectable than many.

Instead of an effective measure, therefore, the Act and the Bills for it were largely an exercise in what it has now become fashionable to describe as “virtue signalling” by persons who happened to draw their line in the sand of morality in one place in connection with animals, and many of whom would doubtless be incensed if a fortuitous majority of vegetarians in the House of Commons on another occasion sought to outlaw all those whose personal line in the sand stopped short of refraining from eating meat.

An exercise in intolerance, at a time when diversity and cultural sensitivity are meant to be more socially cherished and legally protected than at any other time in the history of the United Kingdom, indeed possibly in the history of the world. But diversity is a difficult ideal, that requires to be nurtured with great care.

I note in passing that it is interesting that it was on this moral or ethical issue of hunting that the House of Commons chose to dispense with the House of Lords and pass the Hunting Act 2004 under the Parliament Act 1911. Being still not entirely composed of career politicians, the House of Lords is arguably more able than the House of Commons to reflect the diversity of the country. Arguably, it is precisely on a measure such as the Hunting Act that the relative diversity of ethical approaches found in the Lords might have been helpful; and it is revealing that the measure could be passed only by dispensing with their counsel.

Focusing on this idea of diversity, and with the doubtless welcome reassurance that I am rapidly bringing my remarks to a close, I wish to focus for a moment or two on the relationship between diversity and tolerance. Superficially, one might have thought that living in a society that both exhibits, and claims to value, diversity on a scale that has rarely been exceeded, although occasionally equalled, in history, tolerance of different opinions on different matters, particularly those arising from or relating to cultural tradition, would be a natural corollary. And it is of course true that we live in a society where diversity is guaranteed or underpinned by legal recognition of a wider range of equalities than one might have thought possible only a few decades ago, and that expands at such a bewildering pace that although when I wrote the Equality Act 2006 we thought we had identified all the characteristics that required protection at that time, and had even placed a marker for some future protections to be developed by later subordinate legislation, within a couple of years that list had been rendered obsolete and was required to be expanded in the Equality Act 2010, which has itself had to be amended and expanded.

So how does this age of unparalleled wealth of equality law come to be known also as a social media age in which bullying, harassment and other forms and expressions of intolerance have flourished as never before? Of course, the availability and anonymity of technology has something to do with this, but I think there is a more fundamental and troubling connection.

As a lawyer, I have often been struck with how little politicians and policymakers recognise the fact that a new law dealing with a particular matter is a sign of failure and not a sign of success. Take the case of racial discrimination, one of the earliest forms of discrimination to be made unlawful, back in the 1960s. Nobody would argue that as a society we have succeeded in conquering or even taming racial discrimination; it is as powerful a poison today as it was in 1965 if not more so, despite the law having had more than half a century to counter it. And that of course is the whole point: law does not and cannot change attitudes, and if anything it entrenches unpleasant attitudes by setting their parameters in the stone of law which by aiming to coerce both creates the temptation, and sets the curriculum, for circumvention and avoidance. Attitudes and ethics can be changed by discussion and by informative education; but they cannot in general be changed by law; and having recourse to legal enforcement by way of declaring certain attitudes unlawful is in general no more than a recognition of failure to change those attitudes by other and more effective methods.

So a society that has an increasing number of laws protecting different aspects of diversity, is by definition a society in which those diversities are causing tensions of a kind that politicians and policymakers have failed to resolve through effective means; and they resort to the compulsion of the law to change attitudes, despite the lack of any evidence that there is any positive correlation between legal compulsion and change of attitude. Law can work well when it reflects consensual morality: the offence of bear baiting is never updated, and rarely if ever prosecuted, because it remains a successful monument to a moral development that was won by argument and the victory cemented through the emergence of consensual moral abhorrence. Modern slavery legislation is an example of law which has not yet succeeded, but which ought to be able to succeed being again based on a solid foundation of generally shared moral perceptions.

The law of hunting is in my opinion a significant example of an issue where an ephemeral majority in the House of Commons sought to enforce and perpetuate its own opinion on a moral issue without caring whether or not the balance struck by the legislation corresponded to the consensual morality of the country as a whole. It was an attempt by one side of a moral argument to coerce the other into submission. On that basis it was unlikely to be a success on any level, and it has not proved so. Sadly, it leaves unresolved some genuinely important practical issues of animal welfare, and it has widened the gulf between opposing views rather than creating a mechanism for them to explore and refine common ground.

So without wishing to test your patience for more than a minute or two longer, I want to offer a very brief word of advice to those who seek to reopen the question of the legalities of hunting. The campaign should not be about hunting, in the sense of seeking to rerun the vote and hope that this time the numbers will stack up differently. The campaign needs to be much wider, focusing on the proper limitations of legislation and on the need for the law to reflect tolerance as the foundation stone of successful diversity. Not only does this broaden the coalition of those who have an interest in the matter, so that it includes all those whose religious or cultural traditions include any practice to which other people might take objection – a pretty wide class when comes to think of it – but it takes the fight to the right battle-ground, one where it is not a question of who is right or wrong about any one moral or ethical issue, but whether we are or are not still to enjoy the liberty to form our own moral and ethical judgments without coercion by the political class.

Surtees was not a man to have heroes. Deeply as we all love John Jorrocks MFH, nobody could describe him as a heroic figure. Almost all of Surtees’ characters are either bad or ludicrous, and very often both. But he does have one or two quietly sung and understated heroes, of whom Stanley Sterling in Facey Romford’s Hounds is for me one of the most attractive. Bearing in mind the encomiums passed upon Sterling by Independent Jimmy of the Melon Frame fame, who can doubt that his sage observations upon this evening’s topic would be as short as they would be just, something along the following lines:

“I choose to do after the manners and morals of my forebears; I neither urge nor coerce any other person to do the same; but I expect from others their enthusiastic protection of my liberty to do as I think right.”