HUNTING BAN NOT INCOMPATIBLE WITH HUMAN RIGHTS OR EU LAW

The Times

Regina (Countryside Alliance and Others) v Attorney-General and Another Regina (Derwin and Others) v Same

Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood Judgment November 28, 2007

The prohibition of hunting wild animals with dogs and hare coursing imposed by the Hunting Act 2004 was not incompatible with the European Convention on Human Rights or inconsistent with the treaty establishing the European Union.

The House of Lords so held when dismissing appeals by:

(i) Countryside Alliance, Donald Summers-gill, Lesley Joan Drage, Roger Bigland, Colin Dayment, Kim Gooding, Joseph Cowen, William Jones, Richard May, Giles Bradshaw and Jason Vickery, the human rights claimants, and

(ii) Francis Derwin, Shane Flavin, Diana Johnson, Susan Lanigan-O’Keeffe, Viscount Hughes Le Hardy de Beaulieu, Gil Jose de Queiroz de Mendia, Barbara Rich, Marion Knoche, Kevin Lamacraft and Brian Divilly, the EC claimants,

from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Brooke and Lord Justice Buxton) ( The Times June 30, 2006; [2007] QB 305), affirming the Queen’s Bench Divisional Court (Lord Justice May and Mr Justice Moses), ( The Times August 3, 2005) which dismissed judicial review claims against the Attorney-General and the Secretary of State for the Environment, Food and Rural Affairs:

(i) by the human rights claimants for declaratory relief that the 2004 Act was incompatible with articles 8, 11, 14 of, and article 1 of Protocol 1 to the Convention, as scheduled to the Human Rights Act 1998; and

(ii) by the EC claimants, seeking to quash the 2004 Act, alternatively for a declaration that it was inconsistent with article 28 EC (free movement of goods) and article 49 EC (freedom to provide and to receive services) of the EC Treaty.

Mr Richard Gordon, QC, for the human rights claimants; Mr David Anderson, QC and Ms Marie Demetriou for the EC claimants; Mr Philip Sales, QC and Mr Jason Coppel for the respondents; Mr Rabinder Singh, QC and Ms Kate Cook for the RSPCA intervening by written submissions.

LORD BINGHAM said that the purpose of article 8, the right to respect for private and family life, his home and correspondence, was to protect the individual against intrusion by state agents, unless for good reason, into the private sphere where individuals expected to be left alone to conduct their personal affairs and live their personal lives as they chose.

Fox-hunting was a very public activity, carried out in daylight with considerable colour and noise, a spectacle often attracting onlookers’ attention.

Analogies could not be drawn with Strasbourg cases relating to private life and personal autonomy or cultural lifestyle, use of the home and loss of livelihood. The human rights claims could not be brought within the scope of article 8 under those heads.

His Lordship would not treat article 11, freedom of peaceful assembly and association, as inapplicable: if people only assembled to act in a certain way and that activity was prohibited, the effect in reality was to restrict their right to assemble.

Article 1 of Protocol 1 was applicable to the complaints of claimants who suffered loss of control over their possessions.

His Lordship rejected their article 14 complaint, of discrimination in being subject to adverse treatment as compared with nonhunters on the ground of their “other status”. He could not link that treatment to any claimant’s personal characteristic which could meaningfully be described as status.

The EC claimants, relying on article 28, argued that the hunting ban impeded the free movement of goods within the prohibition as interpreted in Procureur du Roi v Dassonville (Case 8/74) ([1974] ECR 837) and was not a selling arrangement within the exception recognised in Keck and Mithouard (Case C-267/91 and C-268/91) ([1993] ECR I-6097).

His Lordship thought the Act did not engage article 28 but, that was not clear on the authorities. If the question had to be decidid, for the House to give judgment, a definitive ruling from the ECJ would be required.

The EC claimants secondly relied on article 49, prohibiting restrictions on freedom to provide services for nationals established in other EU states. He considered that the hunting ban would engage that article, but the matter was not acte clair and a reference would be required if its resolution were necessary to the House’s decision.

His Lordship agreed with the statement in Adams v Scottish Ministers (2004 SC 665), in relation to Scottish legislation, that the prevention of cruelty to animals had long fallen within the constitutional responsibility of the legislature. Enactment of each statute involved the making of a moral judgment; the latest Act was a further step in a long sequence promoting animal welfare.

Having traced that sequence through the stream of 19th and 20th century British legislation, he said that it might be doubted whether any country had done more than the United Kingdom to try to prevent unnecessary suffering to animals.

He referred to noncontentious facts that foxes were a pest, requiring regular culling, traditionally by hunting with hounds, shooting or snaring; that before the 2004 Act those killed by hunting represented roughly 10 per cent of annual deaths from all causes.

Contrary to the appellants’ submission, the courts below accurately expressed the Act’s aim as a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport was unethical. The appellants argued that the ban did not reduce the overall level of suffering as compared with the situation before the Act.

His Lordship found it impossible to construct any precise calculus of relative suffering. A body of reputable professional opinion accepted that hunting imposed a degree of suffering. But the degree was unknowable, as was the future incidence of foxes wounded by inexpert shooting and left to die.

The conditions by which otherwise impermissible interferences with articles 8 and 11 rights might be justified were met: the interference was in accordance with the law; it was directed to “the protection of ... morals": see articles 8.2 and 11.2, that was the aim of the Act.

Many did not consider there was a pressing, or any social need for the ban but the majority of the country’s elected representatives had decided otherwise.

The degree of respect to be shown to the considered judgment of a democratic assembly would vary according to subject matter and circumstances but this was preeminently a case where respect should be shown to what the House of Commons had decided.

The democratic process was liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieved through the courts what they could not achieve in Parliament.

No less far-reaching measure could have achieved the statutory object. The Act was proportionate to the end it sought to achieve.

Article 1 of Protocol 1 was not to impair the state’s right to enforce such laws as it deemed necessary to control the use of property in the general interest. The Act was such a law and respect should be paid to the recent, closely considered judgment of a democratic assembly. No ground was shown for disturbing it.

Article 30 EC, qualifying article 28, and article 46 EC, applicable to article 49 by article 55, provided for justifying an impugned measure on public policy grounds, subject to strict principles: see Omega Spielhallen- und Auton-matenaustellungs GmbH v Oberbürgermeister-in der Bundesstadt Bonn (Case C-36/02) ([2004] ECR I-9609, paragraphs 28-31).

His Lordship approached that issue on the assumption that articles 28 and 49 applied and that the measure was one of social reform, not directed to the regulation of commercial activity, of which any impediment to the intra-Community provision of goods and services was a minor and unintended consequence, and which bore more hardly on those within the United Kingdom than on those outside it.

In Omega the German authorities considered, and the ECJ accepted, that exploitation of games involving the simulated killing of human beings infringed a fundamental value, human dignity, enshrined in the national constitution.

Here, Parliament considered that the real killing of foxes, deer, hares and mink by way of recreation infringed a fundamental value expressed in numerous statutes and culminating in the Act.

The Act was justifiable in Community law; no ECJ ruling was necessary for the House to decide the appeal.

Lord Hope, Lord Rodger, Lady Hale and Lord Brown delivered opinions concurring in the result.

Solicitors: Clifford Chance LLP; Clifford Chance LLP; Treasury Solicitor and Solicitor, for the Department of the Environment, Food and Rural Affairs; Mr Raymond Goodfellow Horsham; Edwards Duthie, East Ham.

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