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Countryside Alliance

Rosalind English


R (on the application of the Countryside Alliance and others ) v the Attorney General and Another

[2007] UKHL 52

HL (Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood) 28/11/2007

SUMMARY

The facts of this case are set out in the Court of Appeal decision below. The appellants complained against this decision - that the Hunting Act 2004 was neither incompatible with the Human Rights Convention nor inconsistent with EC law - and  they sought references to the European Court of Justice on the issues of whether a national measure prohibiting the economic activity of hunting within the territory of a member state engaged Article 28 in circumstances where the prohibition had the predictable effect of diminishing the market for a product used wholly or mainly for that activity and thereby eliminated or reduced cross-border trade in that product, and whether a national measure prohibiting hunting within the territory of a member state engaged Article 49 in circumstances where, as a predictable consequence of the prohibition, providers of hunting-related services were prevented from providing such services.

Held:

Appeal dismissed.

Article 8 was not designed to protect the values posited by the appellants. The interests of privacy, personal autonomy and choice, as explored in cases such as Pretty v United Kingdom (2346/02) (2002) 2 FLR 45 and Peck v United Kingdom (44647/98) (2003) EMLR 15  were far removed from the very public activity of fox hunting. As for the Article 8 protected interest of "home", it could not be said that the expression could cover land over which the owner permitted a sport to be conducted that would never in any ordinary usage be described as "home" (Niemietz v Germany (A/251-B) (1993) 16 EHRR 97).

As far as the arguments under Article 11 were concerned, the position of the appellant invoking this right was no different from that of other people who wished to assemble in a public place for sporting or recreational purposes. It fell well short of the kind of assembly whose protection was fundamental to the proper functioning of a modern democracy. Article 11 was not therefore engaged.

Even if Articles 8 and 11 were engaged, the interference would be justified since it was in accordance with the law, was for the protection of morals and was necessary in a democratic society. There were many who did not consider that there was a pressing social need for the hunting ban, but a majority of the country's democratically elected representatives had decided otherwise. 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. The Act was proportionate to the end that it sought to achieve.

Even though Article 1 Protocol 1 could be said to be engaged, in that the Act did restrict some of the appellants of their possessions, that interference was justifiable, and respect had to be paid to the recent and closely considered judgment of Parliament.

The arguments under Article 14 were similarly rejected. Even if the appellants had been the subject of adverse treatment compared to those who did not hunt, such treatment could not be linked to any personal characteristic of any of the appellants or anything that could meaningfully be described as "status". Article 14 was not therefore engaged.

On the EC arguments, the court was inclined to view that Art.49 of the EC Treaty was engaged, and the House of Lords were not entirely in agreement with the Court of Appeal's view that the Act did not engage Article 28. However, no good purpose would be served by seeking a preliminary ruling from the ECJ if the hunting restrictions were justified on the grounds of public policy under Articles 30 and 46.  This was because the  Act was a measure of social reform not directed to the regulation of commercial activity and was justifiable (Omega Spielhallen- und Automatenaufstellungs GmbH v Bundesstadt Bonn (C36/02) (2004) ECR I-9609). The interference with free movement of goods and services between other member states was incidental. Taken overall the prohibitions satisfied the requirement of proportionality in accordance with community law.


Note: on the same day their Lordships handed down their judgment in Friend v Lord Advocate, ([2007] UKHL 53), on similar challenges to the restriction imposed by the Protection of Wild Mammals (Scotland) Act 2002. In this ruling they concluded that the Act was not incompatible with the United Kingdom's international obligations nor did it violate rights and freedoms guaranteed by the European Convention on Human Rights 1950 and its enactment had not been outside the competence of the Scottish Parliament.

The Queen (on the application of) The Countryside Alliance and others and  (1) H.M. Attorney General and (2) The Secretary of State for the Environment, Food and Rural Affairs (Respondent)
and between The Queen (on the application of) Frances Derwin and Others and (1) H.M. Attorney General and (2) The Secretary of State for the Environment, Food and Rural Affairs (Respondent)

CA (Sir Anthony Clarke MR, Brooke LJ and Buxton LJ) June 23 2006 [2006] EWCA Civ 817

ABSTRACT

The Hunting Act 2004 infringes neither EC law nor the European Convention of Human Rights.


SUMMARY

The appellants brought this appeal after their case was rejected by the Divisional Court (report below). Their arguments were ranged variously under EC law and the law of the European Convention on Human Rights.

The Human Rights Act Claims

The appellants contended that in some respects the Hunting Act directly infringed rights under the ECHR. However, their wider claim was that the Act indirectly infringed rights under the ECHR, in that it was alleged that the effect of the Act would significantly reduce the extent of hunting in England and Wales, so that many hunts would close down or reduce the extent of their activities. The engagement of various articles of the ECHR was said to be as follows.

Article 8:

The Act has a direct effect in two respects.

1) Landowners who at present use their land for hunting by themselves or others will be prevented from doing so. That is an interference with the right to respect for the home created by article 8.
2) People who currently want to hunt and enjoy doing so are prevented from engaging in what is for them an important part of their lives. That is an interference with the respect for their private lives and their right to personal autonomy that article 8 protects.

The Act has an indirect effect in a variety of ways:

The most important consequence is for hunt servants who will lose their employment if their hunts close down.
1) Interference with their employment is interference with their personal autonomy.
2) Those who live in accommodation tied to their employment will be evicted from their homes, thus infringing their rights to respect for their homes under article 8.

Article 11:

The Act directly infringes rights under article 11, because it prohibits the assemblies that hunt meetings constitute, and prohibits or significantly interferes with the freedom of association of persons in and around hunting.

Article 14:

The Hunting Act in its various effects falls within the ambit of articles 8 and 11 and article 1 of the First Protocol. It discriminates by imposing unequal handicaps either on the hunting community at large; or on specific groups, such as countryside dwellers or dwellers in particular rural areas such as parts of Somerset. (This contention was rejected by the Divisional Court, which did not grant permission to appeal in this respect. The Court of Appeal granted that permission on the basis that no argument was addressed to them on it, the point being reserved for potential use elsewhere.

Article 1 of the First Protocol:

The appellants asserted a very wide range of respects in which the Act deprived persons of property rights, or interfered with the peaceful enjoyment of those rights. These are listed by in the judgment of the Divisional Court at para 162

The EC appeal

The EC case asserts that the hunting ban imposed by the Hunting Act directly infringes various articles of the EC Treaty. It was not in dispute that, for instance, horses are bred in at least one other member state for use in hunting in England & Wales, an example being the business conducted by the first Claimant, Mr Derwin. It was also accepted by both sides that  persons come from other member states in order to hunt in England; thus the Claimant Diana Johnson operates a business to provide hunting holidays for foreign visitors, some of whom come from the EU; and the Claimant Viscount Hughes Le Hardy de Beaulieu lives in Belgium but owns a house in Dorset and has been coming to England to hunt for nearly 25 years. As a result of the Hunting Act, he will no longer come to England to hunt. The ECJ has made clear in the past that any interference at all with interstate trade, however insignificant,  would be sufficient to place the United Kingdom under an obligation to justify the whole of the hunting ban.

The EC claim is that the Hunting Act, by rendering hunting illegal, has an effect equivalent to a quantitative restriction on such imports (article 28 EC); and restricts the freedom of persons such as Mrs Johnson to provide services to persons from other member states and the freedom of persons such as Viscount Hughes Le Hardy de Beaulieu to come from other member states to receive services connected with the pursuit of hunting (article 49 EC).

Having made the case for the interference the EC appellants contended that if the legislature had been moved by the "ethical overlay" to promote this ban, that was not a permissible source of justification in Community law.

Held:

All appeals dismissed.

The Human Rights Claim

The Court of Appeal expressed considerable misgivings about the arguments under the ECHR. It is, they observed, unusual for a court to be asked to declare legislation to be unlawful on the basis not primarily of what the legislation says but rather of how individuals (eg hunt followers) may react to that legislation, and how that reaction may impact, at one or more removes, on other individuals (eg hunt employees).

Where the effect of the Act upon Convention-protected rights was said to be indirect, as is conspicuously the case in relation to the article 8 claim, then the Appellants should have established, as a prior condition to consideration of the legal issues, that the factual consequences of the Act that they were alleging infringed the Convention had resulted or will result from the passing of the Act. The Court of Appeal did not find that the extent and intensity of any such outcome, and its impact on any particular Claimant, had been sufficiently established. However they considered that for the purposes of the present appeal it was simplest, in respect of the claims of indirect infringement of the Convention, to proceed on the assumption that the future would be as the Appellants alleged.

Article 8:

The Court of Appeal did not consider that article 8 was engaged at all. The last 50 years have seen the destruction, for various reasons, of many people's way of life in this country, often by deliberate decisions by Government. The collapse of the heavy manufacturing and the coal-mining industries are just two cases in point. In all the "core" Strasbourg cases on the right to respect for private life, what tipped the scales were "special factors" which amounted to the state's intrusion with the applicants' private lives. No such special factors applied to the present case. Even if the feared consequences were to arise (an outcome that is still far from certain) they will not be caused by any lack of respect in article 8 terms for the Appellants' private or family life or for their homes. Since Article 8 did not come in to play at all, therefore the question of justification of the Hunting Act under article 8(2) did not arise.

Article 11:

Here the Court agreed with approach of the Inner House in Adams, that the 2002 Act does not prohibit the assembling of a hunt, on horseback or otherwise, but rather an activity upon which the hunt might engage (Adams v Scottish Ministers [2002] UKHRR 1189 (Outer House) and [2004] SC 665: Scot CS 127 (Inner House). The members remain free to assemble together for a mock chase, or a drag hunt or simply a communal ride. What is subject to regulation is the nature of the quarry and the method of the kill, not the fact or manner of association (at para [80]). Therefore the argument under Article 11 was irrelevant.

Article 1 Protocol 1:

These claims were similarly dismissed. Despite the respondent's concessions in this regard, the Court took the view that this provision was not engaged on the basis that the Appellants were relying upon interests which cannot be said to be 'property' for the purposes of article 1 protocol 1. Nevertheless, even assuming that the Article was engaged, the Court concluded that these infringements were justified within the requirements of article 1 protocol 1. This determination was reached on the basis of the following conclusions: that the aim pursued by the Hunting Act was legitimate; that the ban was proportionate to the aim pursued; and that the passing of the ban was a permissible course of action for the State to take considering the significant margin of discretion accorded to it in such a circumstance

The legislative aim of the Hunting Act is a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical. The human rights appellants, largely supported in this respect by the EC Appellants, raised a complex series of objections to the legitimacy of that aim as a reason or justification for interference with rights protected by the ECHR. Those objections did not persuade the Divisional Court and they did not persuade the Court of Appeal.

The EC Appeal

The essence of the EC appeal was that the ban engaged and infringed two of the free movement provisions contained in the EC Treaty: the free movement of goods, enshrined in article 28, and the free movement of services, in article 49. It was not in dispute before this Court that there exists established interstate trade in goods and services related to hunting between the UK and other member states.

Free Movement of Goods (Article 28 EC)

The EC appellants contended that the ban on hunting was a measure having equivalent effect to a restriction on interstate trade. The Court carefully considered the jurisprudence since Dassonville (Case 8/74 [1974] ECR 837), particularly the new departure for selling arrangments which do not fall foul of this rule under the exception carved out by Keck  (Case 268/91 [1993] ECR I-6097). In the Court of Appeal's opinion, the ban fell outside any category of product rules, and was a far stronger candidate for principled exclusion from the reach of Dassonville than was the ban on resale in Keck. That is not only so on commonsense grounds, but more particularly because of the concern about the application of Article 28 to rules that are not directed at products from other member states. The Hunting Act is not in any realistic sense "aimed at" products at all. And it certainly does not have the discriminatory effect on imported products that was seen in Keck as the necessary touchstone of the application of Article 28. The issue did not engage Article 28 of the EC treaty at all, for two reasons. One was that the Hunting Act does not have the inherently protectionist effect that is the perceived vice of product rules. Second, the implication of the argument is that a member state can be under an obligation to keep intact, or even possibly to create, a market for the benefit of importers from other member states. That cannot be so, at least where the state (as it is in this case) is equally depriving its own citizens of that benefit.

Freedom to Provide Services (Article 49 EC)

The Court of Appeal dismissed this argument on two grounds. First, the hunting ban does not have a direct inhibiting effect on the rights asserted, of the English providers to supply services, and of persons in other member states to receive such services. What it does is to render the market for such services within a particular member state less attractive, both to English and foreign providers and receivers. Second, the complaint of all of those who deplore the hunting ban, whether English or foreign, is that it destroys the base activity, hunting with dogs, on which the market for the provision of the particular services in issue is predicated. It is very difficult to see how it can be a breach of Article 49 simply to remove the factual opportunity to engage in a particular trade.

On the matter of justification, the Court accepted the EC appellants' point that the grounds of justification for acts that would otherwise entail a breach of the Community provisions are less extensive, and much more constrained by law, than are the grounds that can be appealed to in Convention jurisprudence. In the present case, the member state can only defend itself on the basis of the ground provided by the EC Treaty, and not otherwise. The notion of proportionality is narrower in Community jurisprudence than it is in Convention jurisprudence. In particular, where there are alternative means of achieving a legitimate end, recourse must be had to the least onerous of them.

However the Court was also of the view that the method of elucidating the basis of and ground for a particular piece of legislation was properly the same whether HR or EC issues were under consideration, and in particular that the approach in Wilson v First County Trust [2003] UKHL 40; [2004] 1 AC 816 was appropriate to the EC appeal. The Court of Appeal agreed with the Divisional Court that, on the basis of the material open to them under the rules in Wilson, the legislative aim of the Hunting Act was a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical. It was therefore to that rubric that they applied the rules of Community law and found that the legislators objectives were legitimate.

The question still remained as to whether those objectives could have been obtained by less restrictive measures. The candidate for the role of less restrictive measures, and easily to hand, was the Michael Bill (the rejected legislation that proposed a restriction on hunting via a licensing mechanism rather than an outright ban). In the Court of Appeal's view, however, that argument was based on a misunderstanding of the aim of the Michael Bill, whose point of departure was pest control, and not the animal cruelty that informed the Hunting Act. The Michael Bill would not, or at least would not except in a very indirect way, have achieved what the Court had found to be the objectives of the Hunting Act.

The Court concluded that, even if, which they did not accept, the hunting ban engaged Articles 28 and 49 of the EC Treaty, judged by the norms of Community law its interference with the values protected by those articles was justified and proportionate.
 

COMMENT (June 2006)

Two aspects of this ruling are worth discussing in detail. First, the approach by the Court of Appeal to the claim that the hunting ban indirectly infringed the appellants' rights under Article 8. Second, the whole question – which has become something of a political hot potato in discussions over the Human Rights Act and the UK's relationship to Strasbourg – of member states' margin of discretion to come up with policies that infringe the freedoms and interests protected variously by the Human Rights Convention and the EC Treaties.

Article 8

This ruling, not surprisingly, contributes to the recent case law that has sought to inhibit the development of Article 8 as an all purpose "filler" right - one that can be seized upon when the claim fails to reach the threshold of all other more specific interests.  To allow the appellants' claim as formulated would have been to stretch the ambit of article 8 even wider than has ever been recognised even in Strasbourg jurisprudence.

There is a threshold to be crossed before an act of a public authority can be recognised as interfering with a right. For instance, although the notion of "private life" in article 8 is said to be a broad one and is designed to protect a person's physical or moral integrity, the Strasbourg court has said that not every act or measure which may be said to affect the physical or moral integrity of a person necessarily gives rise to an interference of which the court will take note (Costello-Roberts v UK (1995) 19 EHRR 112, para 36).

The Appellants' article 8 challenge was advanced on four discrete fronts: "autonomy", "culture/community", "loss of livelihood/home", and "use of home". What they seized on for the purposes of their argument was the reference, in the Strasbourg annals, to the right to establish and develop relationships with other human beings, together with the explanation that the understanding of the notion of "private life" should not be taken as excluding activities of a professional or business nature (Niemietz v Germany(1993) 16 EHRR 97 . Reliance was also placed on the reference to personal autonomy that entered the Strasbourg jurisprudence in the case of Pretty v United Kingdom (2002) 35 EHRR 1.

Taken out of context, these two references do indeed provide fertile ground for an open ended number of autonomy claims under Article 8. But the Court of Appeal was concerned to place these formulations back in the factual context to which they belong:

"it would be wrong for us to give an extravagant meaning to the phrases "self-determination" and "personal autonomy" which surfaced for the first time in the judgment in Pretty. These words draw their meaning from the context in which they appear in that judgment. The whole of the passage from §§ 61-67 shows that the court was concerned with the right of an individual to make personal choices about her own body, even extending to the choice of preferring assisted suicide rather than an undignified and distressing end to her life. That this restricted meaning of the phrase "personal autonomy" was intended is clear from the court's discussion of the Canadian case of Rodriguez v Attorney-General of Canada [1994] 2 LRC 136 in § 66 of its judgment, where it said that "comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body."

The appellants also placed considerable reliance on a number of ethnic minority Strasbourg judgments, primarily the ruling in Chapman v UK (2001) 33 EHRR 18.  It will be remembered that in this case the Strasbourg court held  that the applicant's occupation of her caravan was an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. Measures which affected her stationing of her caravan therefore had a wider impact than on the right to respect for her home alone: they also affected her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.

However, this particular line of authority availed the Appellants nothing once the Court of Appeal had endorsed the Divisional Court's conclusion that none of their number could be said to constitute some form of ethnic minority.

All in all, most of the significance of these ECHR authorities has been compromised by the Court of Appeal's agreement with the Divisional Court's observation that "in the end,  the Strasbourg cases contain largely anchorless generalisations, moderated only by the facts of the individual cases..."

The Justification Question: Margin of Appreciation

Fundamental to this enquiry is the basic principle of Convention law that in respect of policy decisions that directly or indirectly touch on Convention rights the democratic decisions of domestic policy makers should be accorded a significant margin of discretion. It was only necessary to cite, as did the Divisional Court, the observation of the Grand Chamber in Hatton v United Kingdom (2003) 37 EHRR 28[97]:

"in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight."

It is a fascinating coincidence that within a week of this judgment coming out, the whole matter of whether the UK should replace the incorporated Convention on Human Rights Act with some sort of Bill of Rights of its own has been raised by the Leader of the Opposition. He pointed out that Council of Europe member states with their own written Bills of Rights – such as the German Basic Law – protected their legal systems to a certain extent from being overridden in Strasbourg, and that we should do the same (Telegraph, BBC Radio 4 World at One June 26).  This very point has been underwritten by the Court of Appeal in considering the legitimacy and justification arguments the UK might have in respect of the ban on hunting and any incursions it might make into the free trade provisions of the EC Treaty.

Referring to a case involving a shooting game where Germany sought to impose restrictions in the interests of public morality (Case C-36/02 Omega [2004] ECR I-9609), the Court of Appeal discussed the role of public morality in derogations from EC obligations by member states. In that case Omega, the operator of a "laserdrome", was forbidden by German law from offering a simulated killing game in which laser guns were aimed at tags on clothing worn by live players. There was no objection to the use of the guns on tags placed in a shooting range.

In other words, the competent authorities had taken the view that the activity concerned by the prohibition order was a threat to public policy by reason of the fact that the commercial exploitation of games involving the simulated killing of human beings infringed a fundamental value enshrined in the national constitution, namely human dignity, a legal interest protected by the German Basic Law.

By the same token, said the Court of Appeal, even though the absence of a written constitution in the English legal system means that basic values are more elusive,

 "in the particular case of the Hunting Act it is in our view easy to demonstrate from the extensive nature of the consideration given to the issue, and the unprecedented time allowed for the Parliamentary debates, that the democratic legislators considered the issue, and the values inherent in the legislation, to be of high importance. That in our view is more than sufficient to establish the legitimacy of the Hunting Act within the requirements of Community law."

Rosalind English, 1 Crown Office Row

Countryside Alliance, Frances Derwin and Others, Brian Friend and Hugh Thomas v (1) Attorney General (2) Secretary of State for the Environment Food and Rural Affairs and Another and RSPCA (Intervener)
 

Administrative Court (May LJ and May J) 29 July 2004

ABSTRACT

The Hunting Act 2004 did not infringe any of the rights protected by Articles 8, 9, 11, 14 or Article 1 Protocol 1 of the European Convention on Human Rights. Nor did it breach the freedom of services or goods principles in EC law.

SUMMARY

This was an application for judicial review of the Hunting Act 2004, which imposes an outright ban on hunting with dogs. The claimants contended that the Act was an irrational response by the House of Commons to the pressure to restrict hunting, that it was unlawful in that it interfered with their rights under Articles 8, 9,11, Protocol 1 and Article 1, and that it discriminated contrary to Article 14 against those rural sectors of the population whose livelihood was bound up with hunting, and that it also amounted to an illegitimate interference with market freedoms protected by Articles 28, 29 and 49 of the EC Treaty.

Held:

Applications refused.  Neither the protected interests of privacy nor home life were directly infringed; the hunting ban may have indirect consequences for these rights but the object of Article 8 was to protect the individual against arbitrary interference by public authorities with his right to a respect for home and privacy and not with protection of his right to own or occupy property. Equally the prohibition entailed by the Act only had an indirect effect on the claimants' freedom of association and therefore Article 11 was not engaged.  The claim included a challenge under Article 9, which the Court rejected outright; not all opinions or convictions, however sincerely or deeply held, constitute beliefs in the sense protected by this provision.  The claimants had failed to satisfy the court that a recreational pursuit such as hunting qualified as an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs.

As for the claim under Article 1 Protocol 1 the court considered the ban to be a control rather than a deprivation of property. As such, there was no infringement because the provision did not impose a duty on states to compensate individuals for such measures. The claim under Article 14 was rejected because membership of the rural population or hunting community was not a personal characteristic amounting to "other status", R (on the application of Marper) v Chief Constable of South Yorkshire (2004) UKHL 39 , (2004) 1 WLR 2196 considered.

As far as the challenge under the EC Treaty was concerned, the court accepted that  hunters and greyhounds previously exported from Ireland into the United Kingdom were "goods" within the meaning of Article 28, which obliged EU member states to ensure freedom of movement of goods. However, the claimants had not established that the ban had equivalent effect to that of a quantitative restriction on imports because they had not shown that it had a greater effect on intra community trade than it did on internal trade. The free movement of hunting animals from Ireland was no more affected than it was within the UK and therefore under Keck ((C267/91)) (1993) E.C.R. 1-6097) the ban did not have equivalent effect to that of a quantitative restriction on imports.

Although the court agreed that the hunting ban did fall within Article 49 of the EC Treaty which protected the freedom of services, it considered that the measure had a legitimate aim and was justified to the same extent as it passed the legitimacy test under the Human Rights convention.  Parliament had had sufficient evidential material to reach such conclusions on a rational basis (Wilson v First County Trust Ltd (No.2) [2003] UKHL 40 , [2003] U.K.H.R.R. 1085).  The legislative aim of the Act was a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral view point that causing suffering to animals for sport was unethical and this viewpoint was one that it was open to the House of Commons to espouse on a free vote.

COMMENT (September 2005)

This judgment covers a great deal of territory under the European Convention and provides some very useful analysis on a number of issues on which there has been a wealth of jurisprudence but very little by way of consensus. The first is the extent to which the parliamentary background to a legislative act can be called into question in legal proceedings. The second is the much-travelled ground of the right to respect for private life. Another issue is the extent to which certain interests can be protected under Article 1 Protocol 1.

Debating the Legislative Aim

Behind these challenges, although not articulated in any single one, was the implication or suggestion that the ban on hunting was improperly motivated; that its main aim was a political social one rather than anything to do with the stated object of promoting the welfare of wild mammals. Whilst the claimants were not suggesting that the court should resolve such contested questions as the true motive behind those members of the House of Commons who voted the ban through, the sheer wealth of evidential material that was produced to convince the court that the legislation did not pursue a legitimate aim was in effect inviting the court to reach a conclusion on the bona fides of the Acts' proponents. The judgement by no means makes light of this material – Moses J's opinion runs to 88 pages – but it carefully steers away from any partiality on the issue right from the outset. As Moses J points out, the political controversy surrounding the ban does not detract from the basic statutory imperative that proceedings in Parliament ought not to be impeached or questioned in any court, as laid down by Article 9 of the 1688 Bill of Rights. The court could not on this issue or any other "delve into the minds of each of the 339 members of the House of Commons whose votes enacted the Hunting Act."

There was, apart from this basic principle, an additional obstacle in the way of any scrutiny via Pepper v Hart; the Hunting Act was passed on a free vote. As the judgment makes clear, the ban was not in the form which the Government proposed (the original Bill had been for a registration system rather than outright ban) Ministerial statements in relation to a Bill which the executive does not pass "have to be approached with caution".  So, whilst the main thrust of the claimants' case was that the legislative aim was not clear from the text of the Act, and that there was insufficient material from which the court  could discern that aim, it was not the court's role to pick a preferred position from two opposing points of view on an issue of such controversy. Even though none of the evidence brought by either party before the court showed conclusively whether or not the impugned measure was the best way or even a legitimate way of protecting wild animals from unnecessary suffering, this argument, like the one central to the Pretty right to die case,

"?remains unresolvable in any forum?A legalistic debate about the status and effect of a precautionary principle [concerning animal welfare] seems to us to miss the main point; which is that there are two opposing points of view about the justification for and proportionality of a ban on hunting, neither of which is capable of trumping the other in a purely scientific or logical debate."

It may well remain the case legitimacy of the Hunting Act 2004 cannot be established unless and until, in the claimants' words, it can be shown that hunting causes unnecessary suffering; or that there is clear evidence that those who hunt are morally corrupted by hunting; or that there was a clear evidential foundation that a ban is necessary to protect the rights of others.  But this is a matter for public and political debate, not for the courts to decide. Administrative and legislative measures may be challenged and even reversed under human rights and EC law where the courts are able to scrutinise the adequacy of the evidence advanced by way of justification for these measures. But –

"the extent of that scrutiny must depend upon the nature of the objective.  At one end of the spectrum will lie matters of genuine but pure public morality (e.g. abortion); at the other end damage to the health of consumers caused by vitamin additives to food.  In between will lie many cases which will combine aspects of morality or ethics and matters requiring scientific proof."

The greater the role played by moral or ethical considerations in any given issue, and the near absence of any scientific consensus, the more reluctant the judiciary should be to taking a view on such matters, however questionable might be the motives behind the legislative or administrative reaction to the question..

Hunting and the Scope of "Private Life" under Article 8

This judgment contains a timely meditation on the boundaries of the concept of private life under Article 8. An enormous amount of case law has accumulated on this point, most of it, in the court's words, containing "anchorless generalisations" which cast more mud than light on the issue, thus inviting ever more far-fetched claims for Article 8's ambit.

The claimants submitted, with justification, that the jurisprudence has developed so that Article 8 is engaged in an increasingly wide range of situations.  They contended that it was therefore an over-simplification to characterise private life as confined to a private place.  Taking their cue from a number of recent judgments on this issue, notably the right to die case of Pretty v UK (2002) 35 EHRR,  the claimants contended that the right to privacy includes the concept of personal autonomy – a right to choose how people conduct their lives.  At paragraph 61 of that judgment, the Strasbourg Court had said

"the concept of "private life" is a broad term not susceptible to exhaustive definition.  It covers the physical and physiological integrity of a person.  It can sometimes embrace aspects of an individual's physical and social identity."

In Peck v United Kingdom (2003) 36 EHRR 41 the court noted that "Private life is a broad term not susceptible to exhaustive definition.  ...there is...a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life"."

With such authoritative backing, it is hard to resist a broad definition of Article 8 that might encompass the right to respect for an activity like hunting. But this issue has already received detailed consideration in the Scottish case of Adams, where the Lord Ordinary considered that fox hunting had no characteristics that would bring it within the concept of private life as that concept has evolved in the Strasbourg jurisprudence. (Adams v Scottish Ministers [2002] UKHRR 1189 ) It was, he said, an activity "carried on in the open air with a large number of participants.  It was inclusively open to all comers.  It was principally carried on on private land, but on land to which all who wished to participate were admitted.  It was a spectacle for them and for those followers who used public roads."

The case more relevant to the application of Article 8 to this question therefore are not the personal autonomy cases of the Pretty variety but the ones relating to activities carried out in public spaces, the leading authority on which is Botta v Italy (1998) 26 EHRR 241, which marked an important limit around the rapidly developing constellation of rights around Article 8. In this ruling the Strasbourg Court rejected an application under Article 8 concerning disabled access to public beaches: the right asserted by the applicant,

"namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays concerns inter-personal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."

The battle to claim the high ground of Article 8 has, in the Administrative Court's words, clouded the right to private life with imprecision. As Lord Nicholls of Birkenhead observed in Campbell v MGN [2004] 2 AC 457 at paragraph 21:
"Accordingly, in deciding what was the ambit of an individual's "private life" in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later state of proportionality."

The business of getting hunting with hounds within the scope of Article 8 represented something of a cleft stick to the claimants in this case. The more examples they (perforce) brought before the court, of how the ban might interfere with people's lives, the more they emphasised the social rather than individual aspects of the sport. And although the administrative court in this case was not unsympathetic to the argument that the public act of hunting might involve privacy interests in other words, that there might be such people whose private lives were so bound up with hunting that this claim could be made in their respect, in the end it considered that

"the number of people affected to the extent that they are able at least to make a case for interference under Article 8(1) must be quite small.  This would affect the question of justification and proportionality, if there were interference under Article 8(1).  " 

Hunting and Proprietary Rights

The discussion on the applicability of Article 1 Protocol 1 should be of interest to anyone contemplating a Human Rights challenge to any administrative action that threatens or diminishes income received on a self-employed basis. Reviewing the Strasbourg case law, from Marckx to Von Marle, the Court states unequivocally that there is no middle position, occupied by the livelihood of a self-employed person, between marketable goodwill and future income. The former constitutes a "possession" for the purposes of Article 1 Protocol 1; the latter does not. (Marckx v Belgium (1979) 2 EHRR 30; Van Marle and Others v the Netherlands, judgment of 26 June 1986, Series A no. 101).  In fact that issue is not of central relevance to the judgment because the fact that some of the claimants do not come within the ambit of Article 1 Protocol 1 (for the above reason) makes no difference to the general applicability of the right to peaceful enjoyment of possessions to the class of claimants as a whole, which is why this part of the judgment turned on matters of justification and proportionality instead of applicability of Convention rights.

The court lays out very clearly what it considers the judicial role in this balancing act. The language of the Article makes the State the arbiter of what is "necessary".  This has some bearing on the extent to which the court should carry out a re-evaluation of what is to be regarded as necessary.  The court has to evaluate the State's view of what is necessary, not to make its own independent evaluation.


Rosalind English, 1 Crown Office Row
 

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