Countryside Alliance & Ors v HM Attorney General & Ors [2005] EWHC 1677 (Admin)

Case No CO/835/2005; CO/2446/2005;CO/967/2005;[2005] EWHC 1677 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 29 July 2005
Before
THE RT HON LORD JUSTICE MAYTHE HON MR JUSTICE MOSES
Between
(1)THE COUNTRYSIDE ALLIANCE & OTHERSClaimant(2) FRANCES DERWIN & OTHERSClaimant(3) BRIAN FRIEND & HUGH THOMASClaimant(1)H.M. ATTORNEY GENERALDefendant(2)THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS AND ANOTHERDefendantRSPCA (INTERVENER)Defendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Richard Gordon QC; Richard Lissack QC; Nicholas Bowen and Robert-jAN Temmink (instructed by Allen & Overy LLP) for 1st ClaimantsDavid Anderson QC and Marie Demetriou (instructed by Clifford Chance) for 2nd ClaimantsBrian Friend and Hugh Thomas (3 rd Claimants)Philip Sales; Jason Coppel and Tom de la Mare (instructed by The Treasury Solicitor and DEFRA) for DefendantsRabinder Singh QC and Kate Cook (instructed by Herbert Smith LLP) for Intervener
Judgment
[1]This is the judgment of the court to which we have each contributed. It has been prepared under some considerable time pressure and will have rough edges. We have supposed, however, that the parties would prefer the giving of the judgment not to be delayed beyond the end of July.

Introduction

[2]Various claimants in these three applications for judicial review challenge the lawfulness and integrity of the Hunting Act 2004. Broadly speaking, they do so on the ground that the Act is a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market freedoms protected by European law; and an unjust interference with economic rights. They say that the Act is oppressive legislation, enacted irrationally by a majority of the members of the House of Commons, who rejected a rational compromise promoted by the Government; legislation which, so far from achieving its avowed aim of preventing cruelty to animals, will in fact promote such cruelty. The other side of the controversy, espoused by the House of Commons majority, and supported in this court by the RSPCA, is that hunting wild animals with dogs for sport is not only cruel, but unethical, and should be stopped. The Act is proportionate legislation to achieve that legitimate aim which withstands human rights and European law objections.[3]We have concluded that it was within the rational, proportionate and democratic competence of Parliament to make this enactment and that the court should not intervene. Our route to that conclusion has to pick its way through a mass of dense undergrowth cultivated by human rights and European legislation and jurisprudence. It is often hard to see the overgrown wood for the trees. We acknowledge that some of our intermediate judgments are more finely balanced than others, but that does not, in our view, apply to the main conclusion.

The Hunting Act 2004 (“The Hunting Act”)

[4]We here set out a summary descriptive account of the main relevant provisions of the Hunting Act. It should not be taken as definitive, if there were, for instance, a prosecution for alleged offences under the Act.[5]Section 1 of the Hunting Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt. Classes of hunting which are exempt are specified in Schedule 1. It is a defence for a person charged with an offence under section 1 to show that he reasonably believed that the hunting was exempt (section 4).[6]Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1.[7]Section 5 bans hare coursing.[8]Part 2 of the Act has provisions for enforcement. A person guilty of an offence under the Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale – currently £5,000.[9]Section 11(2) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and one or more dogs are employed in that pursuit, whoever employs, controls or directs the dogs.[10]Schedule 1 provides for exempt hunting. Exempt hunting includes: i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include: a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause; b) that it does not involve the use of more than two dogs; nor c) the use of one dog below ground otherwise than in accordance with paragraph 2. The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground. ii) hunting rats (paragraph 3) or rabbits (paragraph 4); iii) retrieving hares which have been shot (paragraph 5); iv) flushing a wild mammal from cover for falconry (paragraph 6); and v) rescuing an injured wild mammal using not more than 2 dogs above ground on condition that reasonable steps are taken as soon as possible to relieve its suffering.[11]It is the defendants’ case that hunting is by definition intentional. Subject to that, the offences created by the Hunting Act are absolute in the sense that there is no provision equivalent to those in section 1 of the Protection of Animals Act 1911, where an element of some of the offences of cruelty to animals is that the offender causes the animal unnecessary suffering. Hunting wild mammals with a dog is banned, unless it is exempt hunting, whether or not it causes unnecessary suffering.

Parliamentary history of the Hunting Act

[12]The Hunting Act was passed after a series of previous attempts, since a Labour government was elected in 1997, to ban hunting with dogs. The Labour Party’s 1997 manifesto said that the party would ensure greater protection for wildlife. It had advocated new measures to promote animal welfare, including a free vote in Parliament on whether hunting with hounds should be banned. The party’s 2001 manifesto also said that hunting was rightly a matter for a free vote.[13]A private member’s bill was introduced in 1997 by Michael Foster MP. It ran out of time in the House of Commons and went no further. The same happened to a bill presented by Ken Livingstone MP in 1999.[14]In 2002, the Protection of Wild Animals (Scotland) Act 2002 was passed by the Scottish Parliament, receiving the Royal Assent on 15th March 2002. The validity of this legislation was unsuccessfully challenged on human rights grounds in Scottish courts in Adams v Scottish Ministers [2002] UKHRR 1189 (Outer House) and [2004] SC 665; Scot CS 127 (Inner House). The Scottish statute is broadly similar to, but not identical with, the Hunting Act. The challenge in the Scottish courts was on broadly the same human rights grounds as are relied on by the Human Rights claimants in the present proceedings, although there are differences in the evidence relied on and the circumstances of the individual claimants.[15]The Burns Report (see later in this judgment) was published in June 2000.[16]In December 2000 the Government introduced the Hunting Bill 2000. This offered members of Parliament three choices: regulation, supervision or prohibition. The House of Commons voted by a large majority to ban hunting, rejecting the other two choices. In February 2001, the House of Lords rejected a total ban and regulation, and voted for supervision. The Bill was lost as a result of the 2001 General Election.[17]The same choices were presented to both Houses of Parliament in 2002 in the form of a Parliamentary motion. The House of Commons again voted for prohibition: the House of Lords for regulation. Alun Michael MP, the minister for Rural Affairs, then conducted public hearings on the subject at Portcullis House.[18]In December 2002, the Government introduced the Hunting Bill 2002 (“The Michael Bill”). This would have banned deer hunting and hare coursing (clauses 6 and 7), but permitted fox, hare and mink hunting subject to registration of individuals or groups by a registrar (clauses 1 and 2). There were to be two tests for registration, of which the registrar had to be satisfied. These tests were labelled the utility test and the least suffering test (clause 8). The utility test was that the proposed hunting was likely to make a significant contribution to the prevention or reduction of serious specified damage which the quarry would otherwise cause. The least suffering test was that an equivalent contribution could not reasonably be expected to be made in a manner likely to cause significantly less pain, suffering or distress to the quarry.[19]The Michael Bill was amended at the report stage in the House of Commons to reject registration and replace it with a ban on hunting with dogs, subject to exceptions, in terms which eventually became the Hunting Act. In this form, it was passed in the House of Commons. The House of Lords amended the Bill to remove a ban and replace registration. The Bill did not complete all its stages in the House of Lords in that session of Parliament and so fell without returning to the House of Commons.[20]On 15th September 2004, the Michael Bill, in the form in which it had previously been amended by the House of Commons banning hunting subject to exceptions, was introduced and passed in the House of Commons. It did not pass in the House of Lords, who were in favour of a system of regulation. This Bill eventually, on 18th November 2004, became the Hunting Act under the provisions of the Parliament Act 1911 as amended by the Parliament Act 1949. There is a challenge, so far unsuccessful, in separate proceedings to the validity of the Hunting Act on the ground that the Parliament Act 1949 was itself not validly enacted.[21]Thus in short, the Hunting Act was enacted by being passed in the House of Commons alone by a substantial majority on a free vote. The ban on hunting with dogs which it imposed did not represent legislation promoted by the Government following the Burns Inquiry and the Portcullis hearings. The legislation promoted by the Government was that in the original Michael Bill, which, in the cases of fox, hare and mink hunting, provided for registration, not an outright ban. As Mr Bradley, the civil servant in the Department of Environment, Food and Rural Affairs responsible to the Minister for Rural Affairs says in paragraph 6 of his witness statement, “the Hunting Act 2004 does not represent the policy of the Government, but rather the will of the House of Commons as expressed on a free vote”. Mr Bradley also points out that the length of Parliamentary time spent on the issue of hunting since 1997 is virtually unprecedented in modern times. The Hunting Act was passed by a large majority of Members of Parliament from all major parties.

Hunting in England and Wales

[22]The validity of the Hunting Act is challenged by and on behalf of those who have hunted, and wish to be able to choose to continue to hunt, foxes, deer, hares and mink. Some different considerations apply to each of these quarries. Many more people are concerned with hunting foxes than the other three quarries. The proceedings have therefore tended to concentrate on fox hunting. But we must not overlook those who hunt deer, hare or mink.[23]An account of the history of hunting with hounds is given in paragraphs 8 to 30 of the first witness statement, largely unchallenged factually, of Baroness Mallalieu, the President of the Countryside Alliance. It has been part of British rural life “since before recorded history”. Mr Friend and Mr Thomas say that its origin “lies in the dawn of time” in the Iron Age and before and during the Roman occupation. There are important links between property ownership and hunting, but it is and always has been socially inclusive in rural Britain. Foxes were hunted as vermin to safeguard farm stock. The “Master” of a Hunt denoted a leader of the local society as well as being in charge of the local pack. The bond between a community and its pack is immensely strong. Historically deer hunting reduced with the clearance of forests. Foxes became the most popular quarry from the mid-18th century. The excitement of jumping fences in pursuit of hounds led to present day sports, including cross-country riding, steeple chasing, national hunt racing, eventing and hunter trials. Hunting survived the advent of the railways in the 19th century and of roads, urban development and arable farming in the 20th century. Hunting is supported by the vast majority of farmers and land owners who allow it to take place on privately owned land. They benefit from hunting because it helps to control the fox population without extinguishing it; and because hunts voluntarily provide valuable services including retrieving and disposing of fallen stock and repairing fences and hedges.[24]Baroness Mallalieu assembled estimated statistics (paragraph 79ff of her first witness statement) showing that there is an estimated fox population in England and Wales of 217,000 foxes before each breeding season. We understand that the population more than doubles during the breeding season, but that a number of foxes, broadly equivalent to the annual number of cubs born, dies from one cause or another by the start of the next breeding season. Of these, an estimated 21,000 to 25,000 were killed by hunts – that is, less than 10% of those who died from all causes. An estimated 100,000 foxes are killed on the roads each year. Many of the rest are shot – one estimate refers to 80,000. Mr Bradley (paragraph 58) highlights other statistics derived from the Burns Report. These include that, of the 21,000 to 25,000 foxes killed by hunting, up to 11,000 may be dug out by terriers. The defendants further point to evidence indicating that, even in upland Wales, rather more foxes were culled by shooting (46%) than by hunting (35%).[25]In England and Wales, there are 174 registered fox hunting packs, one fox hunting club, 65 beagle packs, 12 harrier packs, 8 basset packs, 3 deerhound packs, 23 minkhound packs and 6 fell packs (with 2 affiliated fell packs). There are 27 registered Welsh gun packs and 56 registered Welsh hunting packs, although those registered with the Federation of Welsh Packs are only a proportion of the total number of packs in Wales. Hunting by registered packs takes place from early Autumn until the Spring, not in the close Summer breeding season. Most hunts go out twice a week.[26]Thus hunting is embedded in the rural community. Yet it is, and has been for a long time, highly controversial. Many of those concerned with animal welfare and protection regard hunting with dogs as an ethically unacceptable “blood sport” which expression we understand to connote chasing an animal with hounds and exhausting it, and then, for foxes at least, having the hounds kill it often in an unacceptable manner; and this for sport. Those who support and defend hunting maintain that hunting foxes does not cause them unnecessary suffering; in particular that a hunted fox is normally rendered insensible and killed instantly or within a few seconds; and, importantly to these proceedings, that there is no other method of culling foxes, an admitted necessity, which has been shown to cause less suffering. We must examine some of the evidence here, but it is no part of our function to form or express any judgment as to the balance of the highly emotional ethical issue. We do not do so. We simply acknowledge that a strongly held division of view exists. We note that there is an articulated feeling among some in the rural community that the Hunting Act represents oppression of a rural minority by an elected Parliamentary majority. We also note that the claimants in the present proceedings do not attribute bad faith to the elected Parliamentary majority.

The claimants

[27]There are three proceedings for judicial review before the court. In each claim, the defendants are H.M. Attorney General and the Secretary of State for Environment, Food and Rural Affairs. The claims are:(1) Claim no. CO/835/2005 in which the claimants are the Countryside Alliance and 10 individual claimants (the Human Rights claimants). This claim challenges the Hunting Act on human rights grounds.(2) Claim no. CO/2446/2005 in which the claimants are 9 individual claimants (the European Law claimants). This claim challenges the Hunting Act on European Law grounds.(3) Claim no. CO/967/2005 in which the claimants are Brian Friend and Hugh Thomas. They challenge the Hunting Act on grounds additional to those relied on in the other two proceedings.[28]The Royal Society for the Prevention of Cruelty to Animals has been given permission to intervene in all three proceedings on terms that no order for costs is made either in their favour or against them.[29]The Countryside Alliance is a non-political membership organisation with around 100,000 full ordinary members and some 250,000 associate members through affiliated clubs and societies. Its purpose is to campaign for the countryside, country sports and the rural way of life, so as to ensure the sustainability of rural community life for everyone’s benefit.[30]There is an unresolved technical issue as to the standing of the Countryside Alliance to bring these proceedings on their own account. The issue concerns whether they are “a victim” for the purpose of section 7(3) of the Human Rights Act 1998 and, if they are not, whether this disentitles them from bringing the proceedings. The parties have made written submissions on this question, but it is agreed that there is little or no practical need for the court to resolve the issue since, whatever the conclusion, the evidence, submissions and real issues would be the same. It is agreed that the court should determine the challenges to the Hunting Act in the round and not by blinkered reference to individual claimants.[31]The individual Human Rights claimants are Donald Summersgill, Lesley Drage, Roger Bigland, Colin Dayment, Kim Gooding, Joseph Cowen, Kenneth Jones, Richard May, Giles Bradshaw and Jason Vickery. We give summary details of who they each are and of their connection with and commitment to hunting as follows. The details are derived from their witness statements, which are largely unchallenged.[32]Donald Summersgill is the professional huntsman for the Devon and Somerset Stag Hounds which hunts on Exmoor. He is 39 years old and has been the huntsman since 1990. He has never worked outside the hunting industry and is not qualified for anything else. He has been hunting all his life. Virtually all the members of his family hunt and are dependent on hunting for their livelihoods. If hunting remains banned, he will lose his home. He has a position in the rural community by reason of his employment. In short, his life and property rights revolve around the hunt and his professional activities. He considers hunting, but particularly stag hunting in Exmoor, to be part of the traditional way that people in that area have lived their lives. He sees himself as part of a minority group who have a separately recognised culture that brings very substantial benefits to the local farming and rural community. The effect of the ban on his life and his career is set out in full in his witness statement.[33]Lesley Drage runs a small livery yard business in Stow-on-the-Wold in Gloucestershire. The business is entirely reliant upon local foxhunts for its survival. She looks after 18 horses, all of which are used exclusively for hunting. The contractual arrangements with the owners are vested and, in the absence of the hunting ban, could be expected to endure for the long term. These contracts provide her business with a steady income. She employs 4 people who have the benefit of contracts of employment with her. Likewise, Ms Drage has the reciprocal benefit of those employment contracts. She also has the benefit of a long-term contractual arrangement with a local landowner who has granted her an informal lease over her business premises. Her business has goodwill and, in the absence of the hunting ban, could have been sold as a going concern. Diversification is not possible for her into any other type of equestrian activity, as she cannot afford and has no access to borrow the necessary capital. She is part of hunting society. Her job is her life. Like the 2nd Claimant (and like all those for whom hunting is a way of life) she is part of a minority group who have a separately recognised cultural identity, which is not found elsewhere in suburban and urban England and Wales. The ban will devastate her life and her business and she will lose her home.[34]Roger Bigland is a professional terrier man. He has been employed by one of three foxhunts in the Cotswold area for the last 40 years. His current employer is the North Cotswold Foxhunt, for whom he has worked since 1990. If he loses his job he will probably, given his age and his lack of transferable skills, be unable to get another job. If he is lucky, he may find some low paid unskilled or manual labour. He has been with his present employers for the last 14 years and has the benefit of employment protection and vested rights under his contract of employment. His job is his passion and provides him and his wife with their only social life.[35]Colin Dayment is a self-employed farrier. His business is largely dependent upon hunting. His family have been in this business since 1904, and it was run by his father, his grandfather and his great grandfather before him. Mr Dayment is 52 and has been a farrier since he was 15 years old. He works alone and has no employees. 81% of his business is the shoeing of horses for local hunts. His business has been incorporated as Dayment & Son Ltd and he stands to lose the value of his 100% shareholding should the ban proceed. There are 7 packs of fox/staghounds within 20 minutes drive of his home. He believes that his business will not survive if hunting is criminalised and will thereby be deprived of the goodwill of the business built up by the family over the past 100 years. He also hunts and is, like the 2nd Claimant, part of the same defined and self-defining Exmoor hunting community. His only social life revolves around the hunt.[36]Kim Gooding works with her husband, they are full time, self-employed trainers of hare coursing greyhounds. Their property has been adapted solely for the requirements of the business. If the ban is implemented, they will lose their livelihood and the value of the business. Their property will be significantly devalued, and it is more likely than not that they will lose their home through a forced sale. Mrs Gooding will be deprived of her current and cherished lifestyle. Her social life and that of her family depends upon hare coursing and the activities that surround it. The family will have to start again in a different walk of life.[37]Joseph Cowen is a landowner and is a trustee and the Senior Master of the Fernie Foxhounds, a foxhunt in Leicestershire. As a trustee and Master, the Fernie’s properties, equipment, hounds, horses and contracts of employment with its staff are all vested in Mr Cowen. The Fernie hunts on his family land (of which he is a trustee) about 1 in every 3 days that it is out hunting. The family land has been managed specifically for the purposes of fox hunting and has thereby acquired a special amenity value that is threatened by the Act. The Fernie provides two important services to local landowners and farmers: control of the fox population and a fallen stock service. Mr Cowen and his family have a social life that revolves around the Fernie. The hunting ban will have a fundamental effect upon his family, their lifestyle, social life and that of the wider rural community.[38]Kenneth Jones is the Master of the Irfon and Towy Hunt and is a tenant sheep and cattle farmer in Mid Wales. The hunt goes over his land 3 or 4 times a season. The hunt hunts both on horseback and on foot as a gun pack. Generally when hunting, the hunt crosses the land of various different landowners during a day. However, at least twice a year as a gun pack and twice a year when mounted they hunt exclusively on the Llwyn Maddoc estate to protect pheasants from foxes. The ban will have a disastrous effect on his lifestyle, livelihood, social life and property rights. His grandfather founded the hunt in 1909 to protect his own and other local farmers’ stock, as they were losing too many lambs to foxes. His grandfather remained Master of the hunt for the next 37 years. Since then, his family has been an integral part of the hunt. Mr Jones has been hunting since he was 5 years old. He has a wife and 3 children and they have always hunted together as a family. It is the central unifying force in their life. The hunt provides an invaluable pest control service and the hunt committee, of which Mr Jones is a member, employs a professional huntsman who would lose his job if the ban proceeds. The hunt provides the only social life for the whole community in what is a very rural and quiet area with limited social and recreational activities. Mr Jones feels passionately that the ban will unnecessarily degrade his own family and community life. He fears that without hunting there is even less reason for one of his own children to take over the family farm and that the ban will lead to further drift from the area of local young people.[39]Richard May is the Master and owner of a beagle pack. His family has bought its own land (which he now owns) for the purpose of hunting and shooting. Every three weeks he hunts exclusively over this land with friends he invites to join him. The pack has been in the ownership of his family for three generations. It was founded by his grandfather in 1905. The dogs are used for hunting hares. When the ban is implemented, he may be able to keep at most 3 or 4 dogs and will have no option but to destroy the rest of the pack. They are pack animals and are not suitable as domestic pets. A ban will mean that he will have to dismantle his kennels, remove wire fencing, concrete and drains at substantial cost to restore his land.[40]Giles Bradshaw owns a small farm in Devon. He currently allows the Tiverton Staghounds, Tiverton Foxhounds and the Taw Vale Beagles to cross his land about 3 or 4 times a year. He also uses his 4 dogs as a method of pest control on his farm, particularly to chase deer out from an area of woodland in order to deter them from destroying his willow coppices. Mr Bradshaw is concerned that under the terms of the Hunting Act, he will be forced against his conscience, to shoot deer unnecessarily. Both as a farmer and a landowner he needs to be able to plan his conduct so that it is within the law. He does not consider that the Hunting Act is clear and easily understood and DEFRA have been unable to clarify it for him.[41]Jason Vickery is a tenant farmer in Dorset. He hunts with the South and West Wilts Foxhounds and is a member of its committee. Mr Vickery’s social and family life revolves around hunting. He grew up in a hunting family and met his wife through hunting. He also takes his young daughters out hunting with him and he has made most of his friends locally through the hunt. As a farmer, Mr Vickery relies on the hunt’s fallen stock service, which is described more fully in the first statement of Ann Mallalieu. He considers that the hunting ban will have a devastating effect on his life.[42]The individual European Law claimants are Francis Derwin, Shane Flavin, The Hon. 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. Summary details of who they are and of their connection with and dependence on hunting in England and Wales are as follows. This again is taken from their witness statements and is largely unchallenged.[43]Francis Derwin owns one of the largest horse dealerships in Ireland. He buys horses from all over Ireland and deals in about 800 horses per year, of which 300 or so are hunters. Before the Hunting Act came into force, he sold about 90% of those hunters to customers in the UK. The Hunting Act has had a serious impact on Francis Derwin’s business. He has been unable to sell any hunters at all this year.[44]Shane Flavin is also a horse dealer based in Ireland. An important part of his business has been the sale of hunters to customers in the UK. He has failed to sell any hunters at all since November 2004, when the Hunting Act was passed.[45]Diana Johnson has, since 1984, operated a business providing hunting holidays to foreign visitors. Many of these visitors come from other EU Member States. Diana Johnson built the business around her hireling business. Aside from hiring out hunters to her customers, she took them out on a wide variety of hunts and provided them with accommodation, transport, a valeting service and entertainment, such as hunt balls. To help her run her business, Diana Johnson employed a workforce all of whom came from other Member States of the EU. The ban on hunting has had an extremely damaging effect on her business.[46]Susan Lanigan-O’Keeffe is a horse breeder based in Ireland who specialises in half-breed horses most of which are sold as hunters to English buyers. The Hunting Act has resulted in a steep decline in her business. She will have to put down a number of her horses because she simply cannot sell them.[47]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. He takes part in 35-40 hunts in various parts of England during each hunting season. Viscount Hughes Le Hardy de Beaulieu uses his own horses when hunting near his house in Dorset, but uses hirelings when hunting in other parts of the country. When he returns to Belgium he keeps his horses in a livery yard in Dorset. As a result of the Hunting Act, he will no longer come to England to hunt. He would not consider drag hunting instead.[48]Gil Jose de Queiroz de Mendia lives in Portugal and has visited England on three occasions since 1999 to take part in hunting. On two of those trips he used the services of Diana Johnson, the 4th Claimant, paying around €2000 for 3 or 4 days’ hunting, including accommodation, meals and the provision of horses. He has also bought several hounds in England and taken them back to Portugal to use when hunting there. Following the hunting ban, he has no plans to come back to England to hunt.[49]Barbara Rich has two businesses: a horse livery business and a horse dealership, buying hunters in Ireland and selling them to customers in England and in other EU Member States. Prior to the hunting ban, both businesses were thriving; since the ban they have suffered dramatically. From having 40 liveries at any one time, Barbara Rich now has only one. She has sold only one hunter since December 2004. She used to sell 50 a year.[50]Marion Knoche lives in Germany. She and her partner have been coming to England to hunt for some 10 to 12 years. They normally come once or twice a year and take part in 5 separate hunts on each trip. They use hirelings and stay in bed and breakfast accommodation. They also buy hunting clothes and riding equipment when in England. As a result of the ban, Marion Knoche and her partner will no longer come to England to go hunting.[51]Kevin Lamacraft and his wife Ruth have run a hireling business since 1995. Amongst their customers are regular clients from Germany, France, Portugal, Austria and Scandinavia. The hunting ban has had a devastating effect on their business. Last year, he received £45,500 for the March to April period. This year he has generated only £14,500 during the same period. The sharp decline in business has meant that he has been unable to employ any workers.[52]Brian Divilly is one of the biggest breeders of greyhounds in Ireland. About 75% of his greyhounds are bred for coursing; prior to the hunting ban he sold a significant number of these to customers in England. The effect of the ban is that he no longer has a market for greyhounds in England. As a consequence he has had to cut back his breeding of coursing dogs by 50% this year.[53]In addition to the claimants themselves, other people have given witness statements in their proceedings. These include, but are not limited to, the following. Simon Hart is the Chief Executive of the Countryside Alliance. He has conducted a survey of the hunts in England and Wales in order to ascertain(a) whether they receive European visitors,(b) whether they employ workers from other Member States of the European Union, and(c) whether the hunts have links with hunts in other Member States. The results of his survey are set out in his witness statement and demonstrate that a significant number of European visitors hunt in England and Wales. For example, the Cotswold Hunt state that Portuguese, Dutch, French and Irish visitors have subscribed to their hunt and they also receive regular visitors from France, Germany, Portugal and Sweden. The results also show that several hunts employ workers from other EU Member States. For example, the Pembrokeshire and Carmarthenshire Mink Hounds employed two French workers between 2002 and 2005. Finally, there are links between hunts in England and Wales and hunts in other EU Member States. For example, the Trinity Foot and South Hertfordshire Beagles visit the Tory Foot Beagles in Ireland annually and hunt regularly in France.[54]Jerry Desmond is Chief Executive and Secretary of the Irish Coursing Club. His witness statement explains that a significant proportion of coursing greyhounds bred in Ireland are sold to customers in England. He considers that the ban on coursing in England and Wales will mean that part of the market for Irish greyhound breeders will disappear.[55]Brian Friend and Hugh Thomas, claimants in the third of the proceedings before the court, ride or follow on foot with the Cotley Hunt, the South Somerset Fox Hounds, the Quantock Stag Hounds and other hunts.

Evidence

[56]A comprehensive statement of evidence and submission is made on behalf of the Human Rights claimants in 3 witness statements of Baroness Mallalieu. The main evidence on behalf of the defendants is in the witness statement of James Bradley. The main evidence on behalf of the RSPCA is given in the witness statements of John Rolls and David Thomas. Mr Rolls is the Society’s Director of Animal Welfare Promotion.[57]It may seem captious to complain that there are 32 lever arch files of evidential material, most of them well filled, at the same time as acknowledging with thanks that they have been immaculately prepared. We are also grateful for the 4 grey mini bundles of “essential reading”. There are 6 files of necessary and appropriate witness statements, one file of experts’ reports and 25 files of exhibits to witness statements. Although these are no doubt the source documents of material in the witness statements, theoretically necessary to substantiate what is asserted, such a volume of almost entirely unread material, no doubt many times copied, cannot be regarded as necessary.[58]These are judicial review proceedings, not witness actions. The court’s approach to evidence, and in particular contested questions of fact or opinion, is constrained by a number of matters. First, we cannot resolve such contested questions. It is not suggested that we should. Second, it remains a statutory imperative that proceedings in Parliament ought not to be impeached or questioned in any court – see the 9th Article of the Bill of Rights 1688 (1) Wil & Mar sess 2(c 2). Clear ministerial statements reported in Hansard may sometimes be used to construe ambiguous legislation – see Pepper v Hart [1993] AC 593; but see also R. (Jackson) v. Attorney General [2005] EWCA Civ 126, paragraph 72ff and especially paragraph 75. It is not permissible to suggest in court that Parliamentary legislation was inspired by improper motive. The present claimants do not do so. But there is no objection to using Hansard to prove what was done or said in Parliament as a matter of history – see Prebble v Television New Zealand Limited [1995] 1 AC 321.[59]The court is, of course, obliged under the Human Rights Act 1998 to examine the Hunting Act to see if it is, as the Human Rights claimants assert it is not, compatible with the rights and fundamental freedoms referred to in section 1(1) of the 1998 Act. If the court is satisfied that the Hunting Act is incompatible, it may make a declaration of that incompatibility. The court may also conclude and declare by virtue of the European Communities Act 1972 that the Hunting Act offends European Community law and may disapply it – see Case 106/77 Simmenthal [1978] ECR 629 at 645.[60]However, the entirely obvious and practical point is that the court cannot delve into the minds of each of the 339 members of the House of Commons whose votes enacted the Hunting Act. The claimants accept this. The House of Commons, as we have said, passed the Hunting Act on a free vote and the Act was not in the form which the Government proposed. So ministerial statements in Parliament in relation to a Bill which did not pass have to be approached with caution.[61]The claimants do not accept that preventing unnecessary suffering to wild mammals was the reason, or the full reason, why the House of Commons voted for a complete ban. They say, however, that a purpose of preventing unnecessary suffering cannot be justified because(a) it is, on (as they contend) unchallenged evidence, necessary to control foxes, deer and mink, and many farmers and landowners see hare as a pest; and(b) there is no scientific support for the proposition that the alternative means of control cause less suffering than hunting with dogs. The case here is vividly put by Mr Friend, who says that, when quarry is hunted by hounds, it is either alive and free or it is dead. It is never wounded. His assertion that the inevitable consequences of the Hunting Act will be that wild mammals will be killed by methods that invariably inflict more pain and suffering than hunting with hounds may overstate the case. The more moderate version of this, advanced on behalf of the Human Rights claimants, is that a significant proportion of mammals, culled by inexpert shooting, especially with shotguns, will be wounded but not killed outright. They will accordingly suffer for perhaps a substantial period. The same may apply to those who are trapped or snared. In many areas, the terrain and public access make shooting ineffective or unsafe. In some areas, the legal means of culling under the Hunting Act are not viable. This particularly applies to the upland areas of mid Wales and the Lake District, where hunting takes place with foot packs or fell packs and gun packs. By contrast, hounds kill a fox, once it is caught, instantaneously or very quickly.[62]Mr Anderson QC, for the European Law claimants, came close to accepting (without formally conceding) that there was scientific evidence, including the report of Professor Bateson, capable of establishing that a deer hunt can cause the deer physical suffering. We recall that deer hunting and hare coursing were to be banned under the original Michael Bill. But the case is that there is no equivalent scientific evidence for fox hunting, and Mr Bradley accepts (at paragraph 48 of his witness statement) that in some instances fox hunting might satisfy the tests of utility and least suffering. The Human Rights claimants’ case is that the evidence shows that hunting is often the method of least suffering, and that in a significant number of cases the Hunting Act would achieve the opposite of its stated purpose.[63]Hunting also has an important role for biodiversity and wildlife management. It is selective and promotes a healthy population. It has a dispersal effect. Hunts can and do retrieve injured animals to relieve their suffering.[64]The Hunting Act has numerous anomalies which the claimants say are irrational and for which no coherent justification is advanced. They are indications that the provisions of the Hunting Act are arbitrary. Three examples which the claimants give are: a) The Act prohibits the hunting with dogs of foxes, mink and hares but permits the hunting of rabbits and rats with dogs. b) The Act permits the use of dogs to flush out wild mammals for the purpose of shooting them, but DEFRA claims that it does not permit the pursuit of wild mammals by dogs to disperse them, even when the landowner has no desire to harm or kill them. c) The Act permits the use of a dog below ground to hunt a fox to prevent damage to game birds or wild birds kept or preserved for the purpose of shooting; but prohibits using the same dog below the same ground hunting the same fox to prevent or reduce damage to livestock or chickens. Further anomalies are listed in the Appendix to the Human Rights claimants’ Detailed Grounds of Challenge. They also say that the Act is arbitrary, irrational and discriminatory because it leaves fishing and shooting game birds and mammals untouched. This, they say, casts doubt on the legitimacy of the objective of the Act. Mr Bradley gives explanations for each of these anomalies in paragraphs 74-84 of his witness statement, which we find reasonably persuasive.[65]The claimants say that a complete ban on hunting was not necessary to eliminate unnecessary suffering. This could have been achieved by the registration scheme which the original Michael Bill proposed, applying the utility and least suffering tests to individual cases.[66]The claimants say that the adverse consequences of the Hunting Act will be far reaching. The economic effects may be small nationally, but considerable in rural communities. The effects in some areas, for example West Somerset, Exmoor and some areas of Wales, will be significant. In the Exmoor village of Exford, 20% of all employment is attributable to hunting and the effect of a long term ban will be devastating. More generally, many stand to lose their businesses which they have worked hard to build up. Contrary to Mr Bradley’s contention, many people will not be able to absorb the impact of the ban, find other jobs or modify their businesses for want of alternative skills or the necessary capital.[67]There will also be losses relating to land, property or contracts. Landowners will no longer be free to use their own land for hunting and may have to spend money adapting their land or property for other uses. Contracts with employees or customers will be interfered with. Many will lose the benefit of pest control, recovery of fallen stock and repair or improvement to the land provided by hunts. Many will lose the value of hounds and horses, vehicles and buildings or other property built or adapted for hunting purposes. All this without compensation, a system for which would not, it is suggested, be difficult to devise.[68]Hunting is important, if not absolutely central, to the social and cultural lives of many people in rural communities. For many it is a way of life, and has been so for many years and generations. The social network of many individuals consists entirely or mainly of those who hunt. Others are dependent on hunting for most aspects of their lives. Hunting is also important in a wider community through social activities and events organised by or deriving from the hunt.[69]There is for many a deep sense of loss and dismay. The loss, said Mr Lissack QC for the Human Rights claimants, is tangible, real, profound and irreversible. Some communities will be devastated. The more remote they are, the worse it may be. City people, it is suggested, cannot properly assess the importance of hunting in rural areas.[70]The defendants’ case, as articulated in Mr Bradley’s witness statement, includes the assertion (paragraph 17) that the purpose of the Hunting Act is to end practices which a clear majority of members of the House of Commons, supported by a majority across the country, consider to be cruel, because they cause unnecessary suffering to wild mammals. For reasons which we have indicated, we are cautious about accepting this simply because Mr Bradley says so, but it is part of the defendants’ case.[71]Mr Bradley states that the objective of the Hunting Act was to prevent cruelty to wild mammals caused by hunting with dogs. He refers to statements in Parliament by Alun Michael MP at various stages between December 2002 to November 2004 to that effect. Proponents of a ban spoke of cruelty in moral or ethical terms. Opponents maintained among other things that hunting is not cruel.[72]Mr Bradley says that virtually all the material now placed before the court was considered by the Burns Inquiry or the subsequent Portcullis House hearings and was before Parliament when the Act was passed. The defendants adopt the conclusions of the Inquiry, as supplemented by evidence given at the hearings and other evidence which has come to light subsequently. The defendants seek only to establish that there was a substantial body of evidence which could be relied upon in support of the view that hunting is cruel and which provided a sufficient basis on which the House of Commons could reach the conclusion, informed by moral judgments, that it should be banned. Although the extent of suffering caused by fox hunting cannot be established precisely, there is a body of evidence in favour of the view that it is cruel and should be banned. Mr Bradley refers to evidence before the Burns Inquiry questioning as implausible the contention that foxes caught by hounds are killed quickly and surgically rather than suffering more seriously before they are killed. He points to the statement in the Burns Report that hunting with dogs “seriously compromises the welfare of the fox”. The claimants emphasise later statements by Lord Burns and Lord Soulsby, another member of Lord Burns’ inquiry panel, that the panel were not asked to make, and did not make a judgment about cruelty. Mr Bradley points to evidence at the Portcullis House hearings by Professors Morton and Linzey to the effect that hunted animals experience, not only physical pain, but a whole gamut of suffering. Professor Morton expounded an anthropomorphic approach, and a principle that, if you are unsure about something scientifically, you should make the choice which eliminates or reduces the risk. The claimants say that this contention is misplaced. The “precautionary principle” should only be applied when there is a choice between stopping something which may be harmful, but cannot be proved to be harmful, and doing nothing, so as to risk the harm. They say that, with hunting, the choice is between two potential harms, which have to be evaluated and balanced.[73]The defendants accept the view of the Burns Inquiry that it is necessary to manage fox populations because of the damage which foxes cause to farming and game interests (paragraph 5.40). But Mr Bradley says that that is not an uncontested view. Animal welfare organisations, including the RSPCA, have maintained that the fox is not a significant pest. Fox hunting makes a minimal contribution to controlling fox numbers. The Burns Report also concluded that the overall contribution of traditional fox hunting, within the overall total of control techniques using dogs, was almost certainly insignificant in terms of managing the fox population as a whole (paragraph 5.36).[74]Mr Bradley points to a strong body of opinion, including that of the Burns Report, that shooting by lamping is preferable to hunting as a method of killing foxes. It is acknowledged that shooting may cause suffering, if an animal is wounded and escapes. But the Hunting Act itself has provisions to reduce that risk and other steps have been taken to promote effective marksmanship (paragraph 63). The defendants say that the number of shot foxes who escape wounded and are not retrieved is uncertain. A study which sought to measure wounding rates (Fox et al. 2003, 2005) was based on a single shot, although in real life many wounded foxes are promptly killed by a second or third shot. Further, the defendants allude to a point of view that, if shooting results in suffering, it is qualitatively different, being unintentional, from suffering caused by hunting.[75]In his paragraph 64, Mr Bradley states:
“I do, however, recognise that despite the work done by the Inquiry and at the Hearings, there remains a very significant difference of opinion, not just amongst legislators and members of the public, but also amongst scientists (as was made clear on day 2 of the Hearings), about what would, in general, be the most humane method of killing foxes, particularly given that shooting may not always be an available option or be carried out by skilled marksmen.”
[76]Thus many more foxes were already culled by shooting than by hunting – of the order of four times as many. Mr Sales, for the defendants, submits that the legislature was faced, in simplified terms, with a choice between hunting foxes and shooting those which would otherwise be hunted. Hunting could reasonably be considered to cause suffering in all instances. Shooting would be a more humane method of culling in most cases, and in the vast majority of cases, if appropriate steps were taken. Different people could reasonably take different views about which was preferable. Ethical views about hunting inevitably played a part in a balancing judgment for which there is no purely scientific solution.[77]The claimants submit that(1) there is scientific uncertainty about whether fox hunting causes suffering to the fox;(2) science is capable of providing an answer to this, or at least a much better answer than is presently available;(3) it is not justified or proportionate to interfere to the extent that the Hunting Act does with substantial rights and freedoms in the absence of proper evidence; and(4) there was an acceptable and less intrusive alternative in the form of the registration system which the Michael Bill promoted.[78]As to deer hunting, Mr Bradley states (paragraphs 65 to 68) that there is a strong body of opinion, including that of the Burns Report, that this causes unnecessary suffering and that stalking and shooting are preferable. The Burns Report stated (paragraph 6.39):
“Stalking, if carried out to a high standard and with the availability of a dog or dogs to help find any wounded deer that escape, is in principle the better method of culling deer from an animal welfare perspective.”
This was supported, it is said, by clear evidence (for example, Professor Bateson). The Hunting Act enables dogs to be used to retrieve wounded deer. There is unanimous agreement that deer populations need to be managed, but hunting accounts for only a small fraction of the number of deer killed each year. Hunting deer does not occur in most parts of England and Wales where there are deer. Hunting deer only takes place in three areas in West Somerset and Devon. Even in those areas, it accounts for only about 15% of the total cull required. Deer hunting was to be banned in the original Michael Bill. As we have said, Mr Anderson, but not Mr Gordon, more or less conceded (without formally doing so) that a ban on deer hunting might be justified, although paradoxically the most acute examples of the adverse effect of the hunting ban are those concerned with deer hunting on Exmoor.[79]As to mink hunting, Mr Bradley states (paragraphs 69 to 70) that despite a lack of firm scientific evidence, the Burns Report accepted that “being closely pursued, caught and killed by hounds, or being dug out or bolted, seriously compromises the welfare of the mink” (paragraph 6.71). There is an undoubted need to control mink, but the defendants do not believe that the Hunting Act will have any significant effect on that objective. The Burns Report estimated that there were about 18,000 mink in England and Wales, and that mink hunts accounted for only between 400 and 1400 mink a year. Trapping is the recognised main means of controlling mink. Some are also shot. Packs of dogs catch on average less than one mink per hunting day and most of those that are found escape. The contribution to control by mink hunts is insignificant and has to be set against the disturbance and damage caused to wild life, river banks and vegetation.[80]As to hare hunting and hare coursing, Mr Bradley states (paragraph 71 to 72) that the Burns Report noted a lack of firm scientific evidence, but concluded nevertheless that the experience of being closely pursued, caught and killed by hounds during hunting “seriously compromises the welfare of the hare” (paragraph 6.67). Mr Bradley says that hares are seldom a significant pest. Where control is necessary, shooting is generally used. The report found that an estimated 200,000 to 300,000 hares are shot in Britain each year (paragraph 5.85), while hunts killed in the region of 1,650 hares in a season (paragraph 2.47). Mr Bradley asserts that hare coursing and hare hunting have no justification as pest control at all. Both are described by the Burns Report as being “essentially carried out for recreational purposes” (paragraph 5.94). Hare coursing has serious welfare implications for reasons which Mr Bradley explains in paragraph 72. The Government has adopted the consistent position that hare coursing should be banned outright.[81]Mr Bradley states that the Government and the House of Commons considered that the consequences predicted for the ban on hunting with dogs by its opponents were and are exaggerated. There may be some cases of individual hardship, but the economic effects are not likely to be as serious as the claimants contend. The welfare of horses and hounds is not affected. There was a persuasive case for not having a compensation scheme.[82]The defendants, through Mr Bradley, say that drag hunting and trail hunting which are not banned are viable alternatives to hunting a live fox which is banned. They also say that what has actually happened since 18th February 2005, when the ban came into force, shows that lawful riding with hounds and the enjoyable social activities associated with it have in fact continued. The Countryside Alliance has itself issued a Handbook encouraging all this and explaining how hunts can continue to meet and operate within the law.[83]Baroness Mallalieu vigorously contests this. She says, first, that drag hunting and trail hunting are substantially different activities from hunting live foxes, and the vast majority of those who have, from their various standpoints, enjoyed hunting in the past will not want, and many will simply not be able, to take to simulated hunting as an alternative. Second, she says that the emphasis on what has happened in the short time since the ban took effect is no indication of what will happen if the ban is seen to be permanent. The hunting community is currently maintaining the integrity of its various organisations in the hope or expectation that the Hunting Act will be declared to be unlawful.[84]Although we do not regard ourselves as required or able to determine in these proceedings disputed questions of fact, we do find both these replies to Mr Bradley’s contentions intrinsically persuasive. In particular, we are persuaded that what has happened since 18th February 2005 cannot be taken as any reliable guide to what would happen if the ban on hunting is seen to be permanent.[85]We are distinctly cautious in assessing, so far as we have to, the short, medium or long term effects of a ban on hunting which is regarded as permanent. The evidence of individual claimants of the actual or anticipated effect on them is unchallenged, other than by general contentions whose force we find unpersuasive. There is bound, we think, to be a decline in riding to hounds. We hesitate to say how sharp that decline might be. The Burns Report was similarly cautious. Fox hunts will not, we suppose, all disband overnight. Still less will related social activities collapse immediately. On the other hand, we cannot but suppose that there would be a substantial contraction of hunting related activities in the medium term. More importantly, for present purposes, we proceed on the scarcely contested basis that a significant number of individuals, of whom the individual claimants are representative, will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood. The extent to which they may be able to find alternatives is scarcely predictable. Some, no doubt, may not.[86]We think that the integrity of the purely factual evidence of this kind to underpin a human rights or European law challenge survives Mr Bradley’s attempts to reduce its impact. We do not understand Mr Sales to suggest otherwise. The Hunting Act will have a substantial general adverse effect on the lives of many in the rural community in England and Wales. It will have a direct effect on a significant number of individuals, of whom the individual claimants are representative. Some of these effects may not be immediate, but much of it is likely to happen in the short to medium term.[87]Evidence filed on behalf of the RSPCA includes witness statements of John Rolls and David Thomas. Mr Rolls is the Director of Animal Welfare Promotion at the RSPCA. He has been responsible for the conduct of the Society’s campaign to end hunting of foxes, deers, hares and mink with dogs since 1995. He was in charge of the Society’s submission of evidence to the Burns Inquiry. He gave oral evidence to the Burns Inquiry and represented the Society at the Portcullis House hearings in September 2002. Mr Thomas is Chairman of the Council of the Society, elected to that position in July 2003, having previously been Vice-Chairman. A summary of the main points in these statements is as follows.[88]As a charity long established to prevent cruelty to animals, the RSPCA is, perhaps, in a unique position to contribute to these proceedings to represent that point of view. The Society’s strategic principle is that it is morally wrong to cause suffering to any animal, unless there is strong evidence of a justifiable need and the method used causes the minimum suffering. The Society has published policies on animal welfare, which is not just a science, but also necessarily involves questions of public morality. Scientific evidence can be important, but is not always determinative. The legislature is entitled and obliged to consider prevailing social, ethical and moral attitudes.[89]Mr Rolls gives a short account (paragraphs 21 to 23 and Annex 2 of his witness statement) of animal welfare legislation starting with Martin’s Act of 1822. This included a prohibition against animal baiting and fighting, including cock fighting within the City of London, later extended to the rest of the country.[90]The RSPCA does not believe that hunting is ever an effective control or culling method. It does not believe that there is a need to control the fox or hare population on a national basis, nor that the fox is a general pest.[91]Opposing all hunting with dogs has been the settled policy of the Society since 1976. The Society’s current policy is supported by a large majority of its members and donors. Mr Thomas states that the Society is opposed to hunting with dogs for sport or any other purpose including pest control because, on the evidence, neither the limited (at best) need for pest control of the various quarry species, nor the need for wider population control of deer in some cases, justifies the considerable suffering which the practice causes. In any event, the Society believes that hunting with dogs is an inefficient method of control and that alternative methods are more appropriate.[92]Mr Rolls says that a very substantial body of evidence was available to all members of both Houses of Parliament before the introduction of the Michael Bill. Support for a ban was based on an informed opinion of the issues.[93]Mr Rolls contends that hunting does not have any significant value as a pest control method. Nor do the claims of incidental benefits, such as habitat conservation, dispersal and promotion of the welfare of the quarry species obscure its fundamental purpose as a sport. It is plain that most participants regard hunting as a sport, not pest control. Mr Rolls has a colourful quotation, in paragraph 49 of his witness statement, from a former President of the Master of Foxhounds Association that hunts are not glorified pest destruction societies. It is the RSPCA’s view that those elements of hunting which exist solely for sport cannot be morally justified. The suffering caused to the quarry is wholly unnecessary. Such elements include, they say, prolonging the chase of the quarry to enhance the sport of the huntsmen and followers.[94]The RSPCA believes that it is plain from the evidence and an examination of the hunting process that the quarry is caused to suffer and that this is not balanced by the degree of human benefit obtained. The Society believes that the precautionary principle can be relevant when assessing suffering in animals. In this context, this would mean that if (which the Society does not accept) there were any doubts as to whether the quarry suffers as a result of being hunted, the benefit of the doubt must be given to the animal.[95]Mr Rolls discusses the chase in paragraphs 64 to 78 of his witness statement. He maintains that this was a key element leading to the conclusion of the Burns Inquiry that hunting seriously compromises the welfare of deer, fox, hare and mink. He further contends that Baroness Mallalieu’s claim that “[in] the vast majority of cases the killing technique of foxhounds is to grab the fox by the neck or across the shoulders and, either through a bite or severe shake quickly kill the fox” is not well supported by evidence.[96]Although the Burns Inquiry did not make an assessment on the question of cruelty, the Burns Report did conclude that hunting with dogs seriously compromises the welfare of each of the four quarry species. Mr Rolls says that ensuring that an animal’s welfare is not seriously compromised is a legitimate aim of legislation. The activities banned by the Hunting Act, chasing and killing using dogs, are rationally related to ensuring that a serious compromise of welfare is avoided.[97]In paragraph 86 of his witness statement, Mr Rolls puts what we understand to be the RSPCA’s central position. Setting aside the scientific evidence for suffering, it is contended that to chase an animal with a pack of hounds until it is exhausted or run to ground and to allow it (in many cases) to be killed by the hounds is self evidently an unpleasant experience whose different stages cause suffering to that animal.[98]Mr Rolls states that it is clear from data from a wide variety of sources, including two Research Contracts commissioned by the Burns Inquiry (paragraph 5.2 of the Burns Report), that hunting with dogs makes a very small contribution to the control of any hunted species. Mr Rolls considers this in paragraphs 116 to 127 of his witness statement. He suggests that there is no evidence in the scientific literature to show that hunting selectively culls unhealthy animals (paragraph 142).[99]He contends that there is no real evidence that shooting wounds large numbers of foxes, and that what evidence there is suggests the opposite. The humaneness of properly conducted shooting of deer in the United Kingdom has been scientifically established. Wounding rates in such cases, assessed over thousands of culls, are very low. The Burns Report (paragraph 6.60) tentatively concluded that lamping using rifles, if carried out properly and in appropriate circumstances, has fewer adverse welfare consequences for shot foxes than hunting and digging out.[100]Mr Thomas explains that, at an operational level, the Society’s governing council decided that the goal of the Society should be a legislative ban on hunting with dogs. The Society did not and does not believe that it is possible to regulate cruelty out of hunting. The Society, however, recognises that it is necessary to appreciate what is achievable in practice taking into account political realities. It was with this in mind that the Society gave conditional and qualified support to the original Michael Bill. The Society took the view that the Bill would, with amendments that had been made to it in committee and further amendments which it advocated, “effectively finish off hunting”. This was on the basis that hare coursing and hunting, deer hunting and terrier work would be banned, and that fox and mink hunting would not in practice be allowed to continue because they would not meet the least suffering and utility tests.

The Burns Inquiry and Report

[101]Lord Burns and four colleagues were appointed in December 1999 by the then Home Secretary, the Rt Hon Jack Straw MP, to carry out an inquiry into, and to report on, hunting with dogs. Their terms of reference were to inquire into:
“ The practical aspects of different types of hunting with dogs and its impact on the rural economy, agriculture and pest control, the social and cultural life of the countryside, the management and conservation of wild life, and animal welfare in particular areas of England and Wales; The consequences for these issues of any ban on hunting with dogs; and How any ban might be implemented.”
They delivered their Report on 9th June 2000 with an accompanying letter which included the following:
“Without doubt, conducting the inquiry has been a challenging experience. This is a complex issue that is full of paradoxes. We were helped by the terms of reference, which asked us to concentrate on the factual and analytical background to hunting. We have addressed those issues and we have not attempted to answer the questions of whether or not hunting should be banned. In particular, we have not sought to find a compromise solution, which we regarded as outside our terms of reference. The result is a report that might appear long on analysis and short on solutions. But we believe that it will help to inform the debate that will follow the publication of our report. We have travelled widely throughout England and Wales and listened to many people. We were left in no doubt about the sensitivity of the issue or the passion that it arouses. We have sought to conduct the inquiry in a very open manner. We have made as much as possible of our evidence available on the inquiry website. Our oral evidence sessions have been in public and transcripts have also been posted on the website as quickly as possible. We commissioned research papers, which were made available in draft and discussed at seminars, also open to the public. In the process we believe that we have gone some way to reach a wider agreement about the analysis of the issues, although some important differences remain. Some of these differences could be narrowed further with more research conducted over a longer time period. Others are likely to remain because they are not capable of being resolved in this way.”
The consequences for these issues of any ban on hunting with dogs; and How any ban might be implemented.” How any ban might be implemented.”[102]The Burns Report is the product of a very substantial process of evidence gathering and evaluation. It formed a principal source of information and opinion available to Members of Parliament during subsequent debates and the eventual passage of the legislation. There was also the evidence given and views expressed at the Portcullis House hearings.[103]It is well beyond our competence in these proceedings to attempt to absorb and reassess the mass of material which Lord Burns and his colleagues considered, together with the material which subsequently became available. It is agreed that it is no part of our function in judicial review proceedings to do so, and we do not do so. It is, of course, theoretically open to parties to litigation such as this to express disagreement with parts of the conclusions of the Burns Report, but, in the main, they do not do so. Rather, there is a tendency to pick the bits which support the parties’ respective cases; but also to highlight parts of the opinions of experts which the Burns Inquiry considered and evaluated with other such evidence expressing different or contrary views or opinions. In so far as the Burns Report did not adopt these opinions, it is scarcely open to us to do more than note that the opinions have been expressed.[104]Both pragmatically and in principle, we are concerned to hang on to such evidential anchors as are properly discernable and properly available to us. The conclusions of the Burns Report are, we think, in that category, both because they are the considered and balanced product of the process which the Inquiry undertook, and because they were central background and contextual material available to, and no doubt studied by, Members of Parliament.[105]We accordingly (and with due acknowledgement) reproduce most of the first 67 summary conclusions of the Burns Report in the Appendix to this judgment.

The Human Rights Challenge

[106]The first question is whether one or more Articles of the Human Rights Convention are applicable to the Hunting Act so that they are infringed by it. If they are there is the issue whether nevertheless the Act is justified and proportionate. The Human Rights claimants say that Articles 8, 11, 14 and Article 1 of the First Protocol are applicable and infringed. The defendants accept that Article 1 of the First Protocol is to an extent infringed, but that the other Articles are not.

Article 8 – right to respect for private and family life

[107]Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[108]At first blush, a ban on hunting with dogs has no obvious effect on the private lives or the homes of those who have enjoyed taking part in what is now banned. Hunting takes place out of doors in public and away from the home. A more sophistic application of these points led the Scottish courts in Adams to conclude, after considering the authorities relied on by the claimants in that case, that Article 8(1) was not interfered with by the Scottish legislation.[109]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. It was 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.[110]On appeal to the Inner House, the court did not agree (paragraph 65) with the Law Ordinary’s view that fox hunting has no characteristics that would bring it within the concept of private life. Taking the petitioner’s averments as true, the court considered that certain aspects of fox hunting support the view that it forms part of private life. It is, for example, the principal leisure pursuit for many people and is therefore an aspect of the development and fulfilment of their personalities. It is a core part of their lives, affording them the opportunity of forming social relationships. But the question could not be determined by those considerations alone. The court continued at paragraph 66:
“In our opinion, other aspects of fox hunting prevent its being part of the private lives of the participants. It is conducted in the open over large tracts of private and public land. … Only a landowner possessed of an extensive estate could undertake fox hunting within the confines of his own property. None of the petitioners claim to be able to do that. A typical hunt crosses the land of several owners. It is not a solitary activity. Even if only the mounted participants are taken into account, it is undertaken by a substantial number of people. For the majority of participants it is a sport, however central it may be to their lives. When followers are taken into account, the hunt takes on the character of a spectator sport. It is also a public spectacle. The fact that the hunt is inclusive rather than exclusive points against its being part of the private lives of the participants. If any competent horseman is welcome to join the hunt for a modest subscription, as the petitioners aver, the individual participant has no control over the identities or numbers of those with whom he shares the activity. Moreover, the social aspects of hunting extend far beyond the hunt itself. They involve the wider community, a point that is emphasised in Dr Marvin’s Report.”
The Lord Ordinary was right in concluding that fox hunting was not part of the private lives of the participants.[111]The court reached these conclusions with appropriate reference to Strasbourg authority, to some of which we shall also refer later in this judgment. The claimants in the present case say that the Scottish courts were wrong in this decision.[112]Mr Gordon on behalf of the Human Rights claimants submits that the jurisprudence has developed so that Article 8 is engaged in an increasingly wide range of situations. It is a dynamic provision, not set in stone. It is, he submits, an over-simplification to characterise private life as confined to a private place. The cases have developed a concept of personal autonomy – a right to choose how people conduct their lives. The Hunting Act is a colossal interference with some people’s personal and social lives. The seriousness of the interference is critical because of the extent to which it affects the choices people make of how they live their lives. This does not mean that there is no limit to the ambit of Article 8, as the defendants suggest. The ban smashes some people’s lives in a number of respects. For some people, for example Mr Dayment, hunting is an entire way of life upon which they depend. For some, there will be a loss of livelihood or their home as a result of the legislation.[113]As to the concept of private life, Mr Gordon submits that the court should look at cases to find principles, not to compare and contrast disparate factual circumstances. He submits that Article 8 extends to protecting a person’s physical or psychological integrity, their right to personal development, and their right to establish and develop relationships with others and the outside world.[114]The 10 individual claimants are representative of “many thousands of other people” mainly in rural communities whose way of life has to a varying degree and in varying ways been interfered with by the hunting ban.[115]For the concept of personal autonomy, Mr Gordon refers to Pretty v United Kingdom (2002) 35 EHRR 1. Mrs Pretty suffered from motor neurone disease, an untreatable progressive illness, leading to respiratory failure and pneumonia. She wanted her husband to help her commit suicide. It would be a criminal offence for him to do so. She complained that the refusal of the Director of Public Prosecutions to grant her husband immunity from prosecution infringed a variety of her rights under the Human Rights Convention, including Article 8. The European Court of Human Rights accepted that she was prevented by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life. The court was not prepared to exclude that this constituted an interference with her right to respect for private life as guaranteed under Article 8(1) of the Convention (paragraph 67). The court concluded however that the interference might be justified as “necessary in a democratic society” for the protection of the rights of others and that, accordingly, there was no violation of Article 8 (paragraph 67). In short, there was an interference with Mrs Pretty’s Article 8(1) right to respect for her private life, although the tone of this decision suggests that it was a marginal one. But the interference was justified.[116]In considering the applicability of Article 8(1), the court observed at paragraph 61:
“As the Court has had previous occasion to remark, 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. Elements such as for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self determination as being contained in Article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”
The judgment proceeds to consider the “ability to conduct one’s life in the manner of one’s own choosing” (paragraph 62); and observes that “the very essence of the Convention is respect for human dignity and freedom” (paragraph 65).[117]These passages articulate broad generalities. They need to be moderated, no doubt, by the factual circumstances from which they have evolved and to which they have been applied. But the nature of human rights jurisprudence does not, we think exclusively confine the general by reference to the particular. The observations in Pretty taken alone are, we think, conceptually capable of embracing as interference with their private lives legislation which prevents some people for whom hunting is a central part of their lives from choosing to do as they wish. The same would not apply to many hunt supporters for whom hunting is nevertheless peripheral.[118]Mr Gordon referred to Peck v United Kingdom (2003) 36 EHRR 41. In that case, the applicant was captured on closed circuit television walking around in public with a knife trying to commit suicide. The local council owners of the CCTV footage released it to the local press. The European Court of Human Rights held that this constituted a serious interference with the applicant’s right to respect for his private life. In paragraph 57, the court stated:
“Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Art. 8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”.”
[119]Brűggemann and Scheuten v Germany (1977) 3 EHRR 244 is a decision of the European Commission of Human Rights in a case concerning restriction on the termination of unwanted pregnancy. Paragraphs 54ff of the majority opinion consider the scope of the right to respect for private life under Article 8(1). It secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. He must have the possibility of developing relationships of various kinds, including sexual, with other persons. However, there are limits to the personal sphere. The concept of private life comprises to a certain degree the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality. The protection afforded by Article 8 does not extend to relationships of the individual with his entire immediate surroundings – see also Niemietz v Germany [1992] 16 EHRR 97. But the “zone of interaction” with others, even in a public context, may fall within the scope of private life – see PG and JH v United Kingdom (Application No. 44787/25, 25th September 2001). These are scarcely hard-edged concepts. The concept of private life may extend to personality developing relationships in a public context, but not to all such relationships.[120]Mr Sales submits that the claimants contend for a meaning of the concept of private life which is wholly unprecedented in its breadth. If they were correct, Article 8(1) would confer a broad right to do anything a person chooses to do, privately or publicly, alone or in conjunction with others. Although the concept of “private life” in Article 8 is “elusive” and can extend “to those features which are integral to a person’s identity or ability to function socially as a person” (Lord Bingham CJ in R. Razgar v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at paragraph 9), and is “not susceptible to exhaustive definition” (Pretty at paragraph 61), it is nevertheless subject to important limitations, which exclude the current claim from its scope. The main object and intended sphere of application of Article 8 was that of “domiciliary protection” of the individual (see Sir Gerald Fitzmaurice in Marckx v Belgium (1979) 2 EHRR 330 cited by Lord Hope in Harrow London Borough Council vQazi [2003] UKHL 43, [2004] 1 AC 983 at paragraph 48). Mr Sales submits that any extension beyond that limited sphere has to be carefully measured.[121]Mr Sales submits that Pretty and Peck cannot bear the extended application for which Mr Gordon contends. Examples of “features which are integral to a person’s identity or ability to function socially as a person” given in Pretty included gender identification, name, sexual orientation and sexual life. General principles enunciated by the European Court of Human Rights have to be moderated by the individual circumstances in relation to which they are expressed. This court cannot, it is submitted, leap from the harrowing case of Mrs Pretty to the wide submission that is made. Mr Sales submits that hunting may be of considerable importance to the claimants, but it is only one activity out of many which they may seek to pursue as work or leisure. It can hardly be integral to their identity or their ability to function socially as persons. The European Court is dealing with matters of core significance to the identity of the individual.[122]Mr Sales refers to Botta v Italy (1998) 26 EHRR 241, and submits that the Inner House in Adams were correct to consider that the facts in Botta were analogous to those relating to the ban on hunting.[123]In Botta, the applicant, who was disabled, complained that the Italian authorities had failed to enforce legislation requiring bathing establishments to provide disabled facilities enabling access to the beach and sea. The Commission declared the complaints admissible under Article 8 and 14. The European Court held unanimously that neither Article was applicable. The court stated (paragraph 32) that private life includes a person’s physical and psychological integrity, and that Article 8 is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. But the court held in paragraph 35 that:
“… the right asserted by Botta 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.”
[124]There is, perhaps, a broad analogy between the personal enjoyment of many who support and follow hunting and the personal enjoyment of bathing in the sea. But for some, for whom hunting is a core way of life or central to their main business or employment, hunting may well come closer to the core of their existence. Nevertheless, as Mr Sales submitted, the European Court has regarded hunting, including hunting with dogs, in the context or the claim under Article 1 of the First Protocol, as essentially a leisure activity, notwithstanding the history and culture associated with it and other benefits it may bring. Mr Sales refers to Chassagnou v France (2000) 29 EHRR 615. In that case, applicants complained that, despite their opposition to hunting on ethical grounds, they had been obliged to transfer hunting rights over their land and to become automatic members of municipal hunting associations, so that they could not prevent hunting on their property. The court stated at paragraph 108, in its consideration of legitimate aim for the purpose of Article 11, that “[hunting’s] main purpose in the present day was to provide pleasure and relaxation to those who took part in it while respecting its traditions.” Mr Sales submits that the desire to hunt is, on the basis of Botta, outside the scope of “private life”. We see the force of this submission from many who support, follow or participate in hunting, but again consider that those who are concerned with hunting cannot all be tied in the same bundle. For some, hunting is obviously more than a mere leisure activity.[125]Mr Sales accepts that a person’s private life may extend to some activities conducted in public, as for example Peck. But it is, he submits, material to ask whether the claimant has “a reasonable expectation of privacy”. He refers to Halford v United Kingdom (1997) 24 EHRR 523 at paragraphs 45 to 46, and to Campbell v MGN [2004] 2 AC 457. In Campbell, Lord Nicholls of Birkenhead said 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. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonably expectation of privacy.”
[126]In Sidabras v Lithuania (Application Nos. 55480/00 and 59330/00, 27th July 2004), applicants who were former KGB officers were banned from employment in a range of public and private sector jobs, including as lawyers, notaries, bank employees and in the teaching profession. They complained of infringement of Article 8 taken alone and in conjunction with Article 14. The Government submitted that Article 8 was not applicable as it did not guarantee a right to retain employment or to choose a profession. The court referred to Peck and to Niemietz v Germany, where it was said at paragraph 29 that there appeared to be no reason of principle why the understanding of the notion of “private life” should be taken to exclude activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. The court considered (paragraph 47) that a far-reaching ban on taking up private-sector employment does affect private life. The court concluded at paragraph 50 that:
“… the impugned ban affected, to a significant degree, the possibility for the applicants to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their “private life” within the meaning of Article 8.”
[127]Mr Sales submits that Sidabras is in notable contrast with the present case. Here, the claimants have not been banned from any employment, nor have any so far lost their existing employment as a result of the Hunting Act. If they were to lose employment, there is no bar on them finding similar employment elsewhere. He says that Sidabras does not support a wide application of Article 8(1). In that case, the applicants were put in a position where they could not form relationships with others. He submits that Sidabras confirms what was already apparent from Smith and Grady v United Kingdom (2000) 29 EHRR 493, that loss of employment or livelihood is not by itself an interference with the right to respect for private life. In Smith and Grady, there were in addition elements of investigation by the military authorities into the applicants’ homosexuality, reports prepared about them and the intimate and intrusive grounds for their dismissal which triggered the application of Article 8.[128]In so far as the claimants contend that the right to respect for their private lives is infringed because they will have to destroy much loved animals, dogs and horses, this fails with reference to Bullock v United Kingdom (1996) 21 EHRR CD 85. It was there said that the keeping of a pet does not fall within the sphere of the owner’s private or family life for the purposes of Article 8. Authorities referred to in paragraphs 50 to 53 of the Human Rights claimants’ skeleton argument (including those in the footnotes) show the weakness of their Article 8 (private life) case. None of these is remotely analogous to the facts in the present case.[129]Mr Sales submits that the claimants’ case has no support from either G and E v Norway [35 D & R 30] Application Nos. 9278/81, and 9415/81, 3rd October 1983, nor Chapman v United Kingdom (2001) 33 EHHR 18. In essence, the court was concerned in each of these cases with ethnic minorities whose life style was intrinsically bound up with their ethnic existence. Contrary to the submissions of Mr Friend, the hunting community in England and Wales is not an identifiable ethnic minority.[130]In summary, he submits that the right to respect for “private life” extends to certain core interests, including the physical and psychological integrity of a person and aspects of an individual’s physical and social identity, but does not extend to cover simply anything a person might wish to do, even if it is of considerable importance to them.[131]Even if Article 8(1) was in theory applicable to protect such broadly interpreted interests as the claimants seek to rely on, the Hunting Act does not show any lack of respect for those interests, and does not therefore constitute an infringement of the right to respect for private life under Article 8(1). Article 8 does not confer a right to private life, but only a right to respect for private life. A mere impact upon private life is not sufficient to make Article 8(1) applicable. A threshold of intrusion must be crossed before there is an interference with the right in Article 8(1) which is required to be justified under Article 8(2) -see Costello-Roberts v United Kingdom (1993) 19 EHRR 112 at paragraph 36. Mr Sales submits that the degree of intrusion is insufficient. The act only prohibits certain hunting activities. Other comparable activities may continue. If hunts or individual hunt followers stop hunting activities, that is the result of their decision. It was not required by the Hunting Act.[132]Mr Gordon in reply says that the defendants mischaracterise the claimants’ case. Not every interference with autonomy or personal choice comes within Article 8(1). As was said in Niemietz v Germany at paragraph 29, respect for private life must also comprise to a certain degree the right to establish and develop relationships with the outside world. It is the “certain degree” which is in issue. Of course, Pretty concerns a very different set of facts. But, as again was said in Niemietz, the notion of private life should not be taken to exclude professional and business activities where people have at least a significant opportunity of developing relationships with the outside world. Mr Gordon points to elements of the authorities to which Mr Sales referred as favouring the claimants’ case rather than the defendants. For instance, there is a direct and immediate link between a hunting ban and its effect on the claimants, such as there was held not to be in the case of Botta. Botta does not exclude leisure activities from the scope of Article 8(1) as a matter of principle.[133]Mr Gordon submits that hunting is far more than a pastime for the claimants and many others in rural England and Wales. For them, it is a community life style and an entire way of life. The evidence here is unchallenged. The argument that they can simply do something else is not an adequate response. Mr Gordon submits that the decisions in G and E v Norway and Chapman v United Kingdom do not depend on race or origin, but on the identification of a way of life and livelihood.[134]In our judgment, the Article 8(1) “private life” debate has become clouded with imprecision. There are 10 Human Rights claimants and the Countryside Alliance naturally wishes to represent the hunting community generally. Submissions have tended to generalise the claimants. But an Article 8(1) challenge has to be made for one or more individuals. Even for individuals, it is a struggle to make a case on the authorities for interference with their private lives. For the hunting community generally the case is, we think, untenable. Mr Gordon’s submissions in reply implicitly accept this.[135]A person, or family perhaps, who from time to time enjoys watching the spectacle of a hunt from a public road or who follow a hunt by car or on foot, but whose main occupation and interests lie elsewhere, may be sorry if they can no longer do this. But the ban scarcely impinges on their personality or its development, nor intrudes upon essential social relationships. On the other hand, those for whom hunting is a core part of their lives, and perhaps has been a core part of the community in which they have lived all their lives; those for whose families hunting has been a central, personal and community activity for generations, may stand differently. So also those for whom hunting provides their only, or main, source of employment and income. Although hunting is a community open-air activity, and although its associated social activities do not, in the main, take place in the privacy of a single home, people thus affected can at least make a case, we think, that the ban intrudes into their private existences. We are quite satisfied that there are such people. In a sense, it is unnecessary to count them. Some of those who live and have hunted in and around Exford in Devon appear to be examples. But 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).[136]We take the 2nd and 3rd claimants as perhaps having the strongest cases here, although it may seem invidious to single them out from the other 8 claimants. Their circumstances are summarised in paragraphs 32 and 33 above. We think that the question for them is whether hunting is so much a part of their personal integrity and social and inter-personal development that the ban may properly be said to interfere with their private lives. This is on the authorities a matter of degree for which an evaluative judgment is required. In the end, the Strasbourg cases contain largely anchorless generalisations, moderated only by the facts of the individual cases. The facts of most of these cases are far removed from those in the present case. But we agree with Mr Sales that the ambit of personal integrity and social and inter-personal development which they address tends towards intensely personal matters of physical or psychological integrity in a domiciliary context. But not all of them. Sidabras perhaps represents something of a watershed. We should prefer to adopt the judicial choice favoured by Laws LJ in Sheffield City Council v Smart [2002] LGR 467 at 480-481 but feel constrained by the majority decision in Qazi not to do so – see below for a more extended discussion.[137]We regard the cases of the 2nd and 3rd claimants and some others as reasonably close to the borderline for Article 8(1) purposes. But on balance we do not consider that they cross the border. We reach this conclusion in short because(1) the nature of the intrusion into personal integrity and inter-personal development caused by the hunting ban is qualitatively different from that in most of the core Strasbourg authorities;(2) other authorities, for example Sidabras, represent a degree of intrusion which is not present in the cases before the court;(3) much of the intrusion is economic, more appropriate for consideration under Article 1 of the First Protocol; and(4) the hunting community as a whole is not remotely equivalent to an ethnic minority.

Article 8: interference with right to respect for the home

[138]In Adams, the Lord Ordinary considered that, while the concept of the “home” was flexible, its principle connotation was that of a person’s dwelling house or habitation and its immediate surroundings. The concept of home could apply to a large estate only in an extended sense not used in the Strasbourg jurisprudence. The Inner House considered that, although the concept of “home” extends beyond an individual’s dwelling house, an extensive country estate on which a person lives could not be regarded as his home. “Home” connotes a dwelling house or habitation and its immediate surroundings. It does not include whatever land is held with the house. The prohibition on fox hunting, although it undoubtedly interfered with the petitioners’ freedom to use their estates as they chose, could not be regarded as an infringement of their right to respect for their home.[139]The second claimant, Mr Summersgill, lives in accommodation which has been leased or licensed to him as a result of his employment as a huntsman. The third claimant, Leslie Drage, rents her house together with the stables which she uses for her livery business. They and others invoke Article 8 on the basis that they will in all probability lose their homes as a result of the Hunting Act.[140]The defendants accept that those properties are their “homes” within Article 8, but deny that there has been any interference with their right to respect for their homes. They say that the Hunting Act does not fail to respect the home merely because a landlord may at some point in the future choose to terminate a license or a lease to use a tied property as a result of a decrease in activities relating to hunting, or because changed economic circumstances require an individual to move from one dwelling to another. The defendants point out that the terms on which the second and third claimants occupy their properties have not been disclosed, and that questions of detail might arise if they were.[141]Other claimants make the case that for them Article 8 is infringed because land surrounding their dwelling houses over which hunting formerly took place constitutes part of their home. For the 7th, 8th, 9th, 10th and 11th claimants, hunting takes place over their own land and estates. Another example is Anthony Gillam. He hosts hare coursing events which take place entirely on his own farm. He has managed the land, not necessarily in the most profitable way, to preserve the hare population. Mr Gordon submits that it is artificial to say that “home” does not extend to land surrounding a dwelling. A home is a place with which you have a continuous residential connection.[142]The principal authority relied on by the defendants is Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983. In that case, the local housing authority refused the defendant’s application for a sole tenancy of a house in which he and his wife had lived and sought an order for possession against him. The wife had left the defendant and had given the housing authority notice to quit in accordance with the tenancy agreement. The defendant resisted the proceedings for possession on the ground that the authority were interfering with his right to respect for his home under Article 8 of the Human Rights Convention. There were two questions, both under Article 8(1). The first question was whether the house was his “home” within Article 8(1). The House of Lords decided unanimously that it was. The second question was whether the defendant’s right to respect for his home was infringed by the enforcement of proprietary or contractual rights to possession, so that a question of justification under Article 8(2), as yet undecided, arose. The House of Lords decided by a majority, Lord Bingham of Cornhill and Lord Steyn dissenting, that the defendant’s right to respect for his home was not so infringed.[143]Qazi decides, adopting Strasbourg jurisprudence, that the concept of “home” is autonomous, independent of all classification in domestic law. It directs attention to where a person lives (Lord Bingham at paragraph 9). Lord Hope, in considering what Article 8 protects, directed attention to the decision of the European Court of Human Rights in Marckx v Belgium (1979) 2 EHRR 330 at page 342. This included the observation that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities. Lord Hope also drew attention to passages from the dissenting opinion of Sir Gerald Fitzmaurice. Sir Gerald drew a distinction between an article of the Human Rights Convention being applicable and being interfered with. He observed that the main, if not the sole, object and intended sphere of application of Article 8 was the “domiciliary protection” of the individual. Lord Hope said at paragraph 50:
“It seems to me that the following conclusions can be drawn from the language of Article 8(1) in the light of the observations in Marckxv Belgium 2 EHRR 330. The rights to respect referred to in this paragraph extends to the person’s home. But the essence of this right lies in the concept of respect for the home as one among various things that affect a person’s right to privacy. The context in which the reference to a person’s “home” must be understood is indicated by the references in the same paragraph to his private and family life and to his correspondence. The emphasis is on the person’s home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person’s right to the peaceful enjoyment of his home as a possession or as a property right. Rights of that kind are protected by Article 1 of the First Protocol.”
Lord Hope reiterated at paragraph 53 that the object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy and that it is not concerned, as such, with the protection of his right to own or occupy property. Likewise at paragraph 63, Lord Hope cited a passage from Buckley v United Kingdom (1996) 23 EHRR 101 at page 115, paragraph 63, which considered whether or not a particular “habitation” constitutes a home which attracts the protection of Article 8(1).[144]In the present case, there are two questions with reference to the concept of “home” in Article 8(1). The first is whether land, over which hunting takes place, which surrounds the place where a person lives is part of his or her home within Article 8(1). We agree summarily with the Scottish courts in Adams that it is not. It is not the place where a person lives as their habitation, nor the place where they live their private lives.[145]The second question is whether there is interference with a person’s right to respect for their admitted home, if the Hunting Act were to result in loss of their home because it is tied to their employment or business and the Hunting Act interferes with their employment or business. We note that Lord Bingham and Lord Steyn, in the minority in Qazi, agreed with paragraphs 26 and 27 of Laws LJ’s judgment in Sheffield City Council v Smart [2002] LGR 467 at 480-481 about the relationship between the two paragraphs of Article 8. Laws LJ considered that there is a judicial choice to be made between two possibilities. The first would entail a judgment that the Convention requirement was not met at the Article 8(1) stage, i.e. that there was no want of respect for the tenant’s home. The second choice would accept that there was a prima facie violation of Article 8(1), and entail the subsequent application of the more rigorous and specific standards set out in Article 8(2). Laws LJ’s first approach, which he preferred and which Lord Bingham and Lord Steyn agreed with, might possibly result in a decision in this case that there is an interference with the right to respect for the home of people who lose their homes because they are tied to their hunting jobs which are lost. But even on that view, the interference is indirect.[146]In our judgment, the case here is not made out upon the majority decision in Qazi. As Lord Hope said, the object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy. It is not concerned with protection of his right to own or occupy property. This is the province, if at all, of Article 1 of Protocol 1 – see Lord Millett at paragraph 89.[147]Mr Sales rightly drew our attention to the fact that the decision of the European Court of Human Rights in Connors v United Kingdom (Application no. 66746, 27th May 2004) had cast some doubt on the decision in Qazi and that the Court of Appeal in Price v Leeds City Council [2005] EWCA Civ 289, [2005] 1 WLR 1825 had held that Connors is incompatible with Qazi. However, the Court of Appeal in Price held themselves for the time being bound by Qazi, and we should do likewise. So far as it goes, we agree. Mr Gordon understandably did not submit that we should not follow Qazi in this case.[148]The relevant issue in Connors concerned the eviction of the applicant and his family from a local authority caravan site (see paragraph 95 of Connors). The court was not persuaded that the necessity for a statutory scheme which permitted that summary eviction without giving reasons had been sufficiently demonstrated by the Government (paragraph 94). In the present case, we are not concerned with anything approaching a statutory scheme permitting summary eviction by a public authority. Rather are we concerned with whether the possible loss of their homes under tenancies with private landlords as an indirect consequence of the hunting ban constitutes interference within Article 8(1). We conclude that it does not.[149]We accordingly hold that the claimants, including Mr Friend and Mr Thomas, do not get through the Article 8(1) gateway. We shall nevertheless address later in this judgment the Article 8(2) justification and proportionality issue, lest higher courts take a different view.

Article 11 – Freedom of Assembly and Association

[150]Article 11 provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
[151]The 2nd, 4th to 9th and 11th claimants say that the ban on hunting with dogs is an interference with their Article 11 rights. The activity of hunting with dogs brings into play their right to associate and assemble for a common purpose. This is, they say, a fundamental liberty and democratic right, one foundation of a liberal democratic society. They say that Article 11 protects their freedom to take part in a communal activity by means of a collective entity or association for the furtherance of common interests of members of the group, a right which should be practical and effective, not theoretical or illusory. The citizen should be free to create a legal entity to act collectively in a field of mutual interest. The right would be neutralised if the purpose of the association or assembly was removed. The right to associate carries with it the right to do so for a particular purpose. The dominant purpose of hunting was and remains setting up an organised structure to control pests and protect livestock.[152]These claimants say that Article 11 protects the right “for the inhabitants of a region in a country to form associations in order to promote the regions special characteristics for historical as well as economic reasons” see Sidiropoulos v Greece 27 EHRR 633 at paragraph 44. This applies to hunting. A democratic society must tolerate and even protect and support the existence of minorities and different cultures in a country. They say that there is a close link between privacy rights protected by Article 8 and the right to freedom of assembly and association protected by Article 11. They also say that Article 11 should be read consistently with Article 10, which protects all forms of freedom of expression.[153]The claimants reject the defendants’ submission that their Article 11 case would make the scope of Article 11 impossibly broad. It is a matter of degree. They rely on Ezelin v France (1992) 14 EHRR 362 to reject an argument which the present defendants do not make. They say that Chassagnou v France (1999) 29 EHRR 615 is the mirror image of the present case. There, owners of land were required to join Municipal Hunters’ Associations so that the association could hunt on the owner’s land. The European Court of Human Rights held that this fell within the scope of Article 11 because the measure forced association on the landowner. This was protected by Article 11 because, as the court said at paragraph 100:
“Freedom of thought and opinion and freedom of expression guaranteed by Articles 9 and 10 of the Convention respectively, would thus be of very limited scope if they were not accompanied by a guarantee to be able to share one’s beliefs and ideas in community with others, particular through association with individuals having the same beliefs, ideas or interests. The term “association” therefore possess an autonomous meaning; the classification in national law has only relative value and constitutes no more than the starting point.”
This last observation went to reject a submission that there was a difference between private and public associations.[154]The claimants rely on Anderson v United Kingdom [1998] 25 EHRR, CD 172, [1998] EHRLR 218, a decision of the European Commission. The owner of commercial property had withdrawn from the applicants licence to have pedestrian access to a shopping centre on the grounds of alleged misconduct and disorderly behaviour. They brought proceedings for an injunction to restrain them from entering the centre. The applicants complained that the withdrawal of their licence constituted a violation of their right to peaceful assembly under Article 11 of the Convention. The Commission found that there was no interference with their Article 11 rights because they had no history of using the centre for any form of organised assembly or association. The Commission stated the law at paragraph 1 as follows (omitting case references):
“The right to freedom of assembly is one of the foundations of a democratic society and should not be interpreted restrictively. The right is applicable to private meetings and to meetings in public thoroughfares, marches, and sit-ins. There is, however, no indication in the above case law that freedom of assembly is intended to guarantee a right to pass and repass in public places, or to assemble purely for social purposes anywhere one wishes.”
The claimants contend that assembly and association for hunting is not for purely social purposes.[155]The defendants’ case is that Article 11(1) is not infringed in this case because the Hunting Act does not ban hunts as organisations or in any way prevent the claimants from associating under the auspices of hunts. Mr Sales refers to and adopts the decision of the Inner House in Adams, where it was said at paragraph 82:
“But there is a material distinction, in our opinion, between a restriction which compels an individual to join an association or prohibits him from joining it, or penalises him in either event (cf Chassagnou v France), and a restriction that, without reference to any association, nearly prohibits a particular activity with the indirect result that persons cannot associate for the purpose of carrying it out. A restriction of the former kind is capable of engaging Art 11; but a restriction of the latter kind is not. If it were otherwise, the prohibition of any activity would infringe Art 11. We agree entirely with the conclusion of Lord Brodie on the question in Whaley v Lord Advocate. As His Lordship said in that case, 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. 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 (para 80).”
[156]Mr Sales submits that Chassagnou is no more than an application of a long-established principle that Article 11 has a negative aspect which prevents people from being compelled to join associations, as well as a positive aspect, protecting their right to join associations of their own free will. He submits that the fact that hunts have continued to meet since the Hunting Act came into force undermines the claimants’ submission that there has been any interference with their rights under Article 11(1).[157]Mr Singh QC, on behalf of the RSPCA, agrees with Mr Gordon that the question whether Article 11(1) is infringed is a matter of degree. He says that it is simply not sustainable for the claimants to characterise the hunting ban as prohibiting the entire purpose of their association or assembly. He says that similar alternative activities with similar social, economic and cultural potential remain lawful and that the evidence is that hunts have continued to meet in order to pursue these activities following the hunting ban. The European Commission held in Anderson that Article 11 does not extend to protect freedom of assembly for purely social purposes. Mr Singh submits, with reference to Chassagnou, that those involved in hunting remain able to share their beliefs and ideas and interests in association with others. Many, if not most, continue to do so following the ban. He submits that the decision of the Inner House in Adams was correct. An application of Article 11(1) which is sufficiently wide to encompass the ban on hunting would devalue this and other Articles of the Convention. The core of Article 11 rights is illustrated by the specific reference in Article 11(1) to trade unions.[158]The focus of Art 11 is directed at assembly or association. It is true that many assemblies or associations would not occur unless those participating shared a particular purpose. Alternative social activities for the hunts are still permissible, but, the whole point of the meet (a word itself redolent of Article 11) is defeated by the ban and, accordingly we accept that the effect of the ban will be to inhibit or impede the freedom. But that, in our view, is not enough. A prohibition which has an indirect effect on the freedoms protected by Art 11 does not fall within its scope. Only a measure which directly affects such freedoms would do so. We should not, for instance, be inclined to hold that banning the consumption of spirits would interfere with the freedom to assemble and associate at a public house of those who only drink whisky or gin.[159]We again feel constrained not to adopt Laws LJ’s preferred judicial choice in Sheffield. Accepting that the issue is a matter of degree, we hold that the Hunting Act does not infringe rights under Article 11(1), essentially for the reasons given by the Inner House in Adams. We shall again proceed to consider justification and proportionality, lest higher Courts consider that we are wrong.

Article 1 of the First Protocol – Protection of Property

[160]Article 1 of the First Protocol provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
[161]The individual Human Rights claimants all say that their rights under Article 1 of the First Protocol (“Article 1”) are infringed in their cases and in many thousands of other potential cases. The defendants accept that the Hunting Act does to an extent infringe Article 1. The principle issues between the parties are(1) whether a person’s “livelihood” constitutes a possession within Article 1;(2) the extent to which Article 1 is infringed; and(3) whether such interference as there is constitutes control of use of possessions or deprivation of them. The third of these issues is relevant to the question of justification and proportionality, since the Hunting Act does not provide a compensation scheme. Beyond this, all three issues are of general relevance only, since (a) the defendants accept that there is to a extent infringement of Article 1, so that an issue of justification and proportionality does arise; and (b) this court is not in a position to make a final determination in respect of individuals.[162]The Human Rights claimants say that the types of possessions which are within the protection of Article 1 and have been interfered with are as follows: In respect of land i) Use of land to hunt by the owner; ii) Permitting others to hunt over one’s own land; iii) The value of land; iv) Expense associated with the removal of buildings and equipment which is of use only in the hunting industry; v) The reinstatement of land which has been modified specifically for hunting with dogs; In respect of livelihoods vi) An individual’s job and/or his livelihood; vii) The benefit of an existing contract of employment or contract for services; viii) Goodwill in and/or the value of existing businesses which are reliant on the hunting industry for a large proportion of their income and even the viability of their business; In respect of other Property ix) Dogs; x) Horses; Vehicles; xi) Miscellaneous equipment.[163]As to the use of land, the claimants say that it has been accepted for centuries that a person has the right to take animals and birds of all kinds on his own land. Landowners and occupiers have been restricted by the Hunting Act as to the methods they may use and the species they may hunt. The 7th, 8th 9th and 11th claimants can no longer hunt foxes or hares on their own land with dogs. The 10th claimant can no longer use his dogs to chase foxes and deer away from his trees and his stock. If he is to stay within the law, he will be forced to shoot them, an action he is unwilling to take on moral and ethical grounds. These are, it is said, clear examples of a control of use of land. Similar considerations apply to the 7th to 11th claimants, in that they wish to allow others to hunt over their land. The 6th, 7th and 9th claimants have land which, for the reasons given in their witness statements, is devalued and in some cases rendered valueless as a result of the prohibition on hunting. This is said to be a deprivation of possessions. The same claimants adapted their property purely for hunting activities which are now unlawful. They have in effect been deprived of these possessions. They have other property which is devalued as a result of the ban on hunting and which will require reinstatement. This control has economic consequences.[164]As to livelihoods, the 2nd to 6th claimants will lose their livelihoods, and so, it is said, be deprived of possessions. The direct effect of the ban on hunting is that these claimants can no longer carry out their profession, trade or calling, and as a result they will suffer severe economic loss. The same claimants all have vested rights (including in some instances tied accommodation) under existing contracts from which they receive economic and other benefit. They have been deprived of these possessions. The 3rd, 5th and 6th claimants have also been deprived of the ability to realise the existing value and goodwill of their businesses. They have accordingly been deprived of their possessions.[165]As to other property, the 2nd to 9th claimants each have possessions that can only be used for the purposes of types of hunting with dogs that are now prohibited. These include variously, horses, dogs, vehicles and miscellaneous equipment, which they say have been rendered valueless by the ban on hunting. Dogs or horses belonging to the 7th, 8th and 9th claimants are only suitable for hunting. The ban on hunting has made them worthless, and they will have to be destroyed humanely. This is in effect a deprivation of property, or at least a control of use that requires to be justified.[166]The defendants accept that the Hunting Act interferes with the peaceful enjoyment of possessions or controls the use of those possessions in as much as it prevents individuals from using land, animals and goods which they own for the purposes of hunting wild mammals with dogs and to the extent that the claimants can establish that the Hunting Act has the consequence of diminishing the value of land or other property or damaging the established goodwill of a business.[167]In Adams, the Scottish courts held that the livelihood of a self employed individual constitutes a possession. The defendants submit that this decision in Adams was wrong.[168]The relevant part of the Lord Ordinary’s decision in Adams is in paragraph 129 of his judgment. The Inner House upheld this part of the decision, under the heading “Is the first petitioner’s livelihood a possession?”, as follows:
“[97] We agree with the Lord Ordinary that the petitioners have relevantly averred that the first petitioner’s economic interest in making his livelihood as a self-employed manager of foxhounds is a possession within the meaning of Art 1. That interest is comparable with an interest in operating a licensed restaurant (Tre Traktőrer Aktiebolag v Sweden) or in carrying on a medical practice (Karni v Sweden) or in practising a profession (Van Marle v Netherlands), each of which has been recognised as a possession. [98] The Lord Ordinary considered that, on the assumption that the Act directly prevented the first petitioner from engaging in his profession, it was sufficiently relevantly averred that it had the effect of controlling the use of that possession. We agree with this conclusion also, which, on that assumption, counsel for the respondent did not dispute. [99] However, counsel for the respondents submitted that any interference with the possession was a consequential rather than a direct effect of the Act. It was agreed that the Lord Ordinary, in the context of Art 8, was right in holding that the statutory prohibition would have, at most, a consequential rather than a direct effect on the first petitioner’s tied house if his employment was terminated. Any interference with the first petitioner’s right to practise his profession was a similarly consequential effect. [100] The Lord Ordinary did not hold that the first petitioner’s inability to practise his profession was a direct consequence of the legislation. He was careful to say that it was sufficiently relevantly averred that the Act had the effect of controlling the use of that possession ‘to the extent that [it] may have had the direct, and not merely consequential effect’ of preventing the first petitioner from practising his profession (para 129). He did not go further and he did not need to.”
[169]Mr Sales submits that there is a clear distinction in Strasbourg jurisprudence for the purposes of Article 1 between the valuable goodwill of a business and the ability of a person to earn future income. The first is a possession: the second is not. The first is marketable: the second is not. There is no intermediate “possession”, being the livelihood of a self-employed person. A self-employed person may or may not have marketable goodwill. If he does, it will be a possession. If the livelihood of a self-employed person is in truth no more than his (unmarketable) personal ability to earn future income, that is not a possession.[170]Mr Sales referred to paragraph 60 of Marckx v Belgium (1979) 2 EHRR 30, where the European Court stated that Article 1 applies only to a person’s existing possessions, and that it does not guarantee the right to acquire possessions. He cites from the Decision on Admissibility in Wendenderg v Germany (Application No. 71630/01) at page 16 of the print provided to us, where it is stated:
“Referring to its previous case law, the Court notes that insofar as it concerns a loss of future income, the applicants’ complaint falls outside the scope of Article 1 of Protocol No. 1, which is not applicable to future earnings, but only to existing possessions, that is to say income once it has been earned or where an enforceable claim to it exists (Denimark v the United Kingdom, no. 37660/97, decision of 26 September 2000; Ian Edgar [Liverpool] Ltd. V the United Kingdom, no. 37683/97, decision of 25 January 2000; see also Van Marle and Others v the Netherlands, judgment of 26 June 1986, Series A no. 101, p 13, para 39-41). The applicability of Article 1 however extends to law practices and their clientele, as these are entities of a certain worth that have in many respects the nature of a private right and thus constitute assets and therefore possessions within the meaning of the first sentence of Article 1. (see Olbertz v Germany and Dőring v Germany both cited above; see also Van Marle and Others v.the Netherlands cited above, p. 13, para. 41).”
[171]Mr Sales referred us to the Decision as to Admissibility in Denimark. This and the Edgar case were both claims brought by commercial concerns adversely affected by the Firearms Amendment Acts 1997, which extended the prohibition on hand guns. They complained that the diminution in the value of their businesses constituted an interference with their possessions contrary to Article 1. In both cases, the court held that the element of the complaints which was based upon diminution of value of a business assessed by reference to future income fell outside Article 1. Only goodwill, in the sense of an established client base with its own inherent value and the existing assets of a company could qualify as possessions under Article 1.[172]Mr Sales submits that none of the three cases referred to by the claimants support the proposition that “livelihood”, as opposed to the goodwill of a business, is a possession. The three cases are Van Marle v The Netherlands (1986) 8 EHRR 483; Tre Traktőrer Aktiebolag v Sweden (1991) 13 EHRR 309; and Karni v Sweden (1988) 55 DR 157. In Van Marle, the applicants alleged that their income and the value of the goodwill of their accountancy practises had diminished as a result of a statutory requirement for registration, which they were refused. The European Court said at paragraphs 41, 42 of its judgment:
“The Court agrees with the Commission that the right relied upon by the applicants may be likened to the right of property embodied in Article 1; by dint of their own work, the applicants had built up a clientèle; this had in many respects the nature of a private right and constituted an asset, and hence, a possession within the meaning of the first sentence of Article 1. This provision was accordingly applicable in the present case. The refusal to register the applicants as certified accountants radically affected the conditions of their professional activities and the scope of those activities was reduced. Their income fell, as did the value of their clientèle and, more generally, their business. Consequently, there was interference with their right to the peaceful enjoyment of their possessions.”
[173]Although this passage refers to a fall in income as well as a diminution in the goodwill of the practises, we read that, in the light of Wendenderg, as incidental. The point was that the value of the goodwill of their accountancy practice had diminished. Mr Gordon accepted the distinction between goodwill and future income, and pointed out that, in Adams, counsel had accepted before the Lord Ordinary that loss of future income did not come within Article 1. Mr Gordon submitted that economic activity was not limited to marketable goodwill and that the decision of the Scottish courts in Adams was correct.[174]In our judgment, Mr Gordon had no persuasive answer to Mr Sales’ analysis that there is no middle position, occupied by the livelihood of a self-employed person, between marketable goodwill and future income. In so far as the Scottish courts may have decided otherwise, we respectfully disagree. Whether individual claimants in the present proceedings who are self-employed have marketable goodwill is beyond our present competence to decide. It is, we think, essentially a side issue in the present proceedings.[175]The defendants do not accept that the Hunting Act interferes with claimants’ possessions to an extent greater than they accepted in paragraph 44 of Mr Sales’ skeleton argument (which we have set out in substance in paragraph 166 above). They say that the effect of the Hunting Act is indirect and consequential, and below the requisite threshold of impact, having regard to the range of hunting related activities which remain lawful and the necessary exercise of free choice by those who hunt to refrain from participating in those activities. This is not to suggest that the impact of that choice may not be significant for a particular person or business. Nevertheless, except perhaps for the 6th claimant, who trained greyhounds for hare coursing, Mr Sales submits that the evidence does not support the allegation that various of the claimants can no longer pursue their livelihood.[176]Mr Gordon submits that this is simply not the state of the evidence. He says that claimants are well able to demonstrate direct interference. He further submits that there is no meaningful distinction between a direct and consequential effect for the purposes of Article 1. He says that there is for these purposes no simple requirement of causation, as for example in the English law of tort.[177]In our view, this is largely shadow boxing in the context of the present proceedings. It is accepted that for some claimants and in some respects there is interference with their right to peaceful enjoyment of their possessions. These claimants accordingly get through the gateway, so that justification and proportionality become an issue. The parties’ submissions were, in the main, directed to generalities, using individual claimants as examples. The nature of the present proceedings is such that we cannot, and are not invited to, make final determinations for individual claimants.[178]The defendants say that the interference with the peaceful enjoyment of possessions which they accept, and any further interference which the claimants might establish, constitute control of the use of property within the third sentence of Article 1 and not deprivation of possessions within the second sentence. The Inner House in Adams accepted an equivalent submission limited to three petitioners’ complaints relating to their hounds. Mr Sales supports the submission in the present case with a reference to Denimark v United Kingdom and Pinnacle Meat Processors v United Kingdom (1998) 27 EHRR CD 217.[179]The claimants regard the difference between deprivation and control as “largely irrelevant”, and Mr Gordon referred to it as a “somewhat arcane issue”. It is, we think, of some significance on the question of compensation, for which the Hunting Act does not provide. If there were deprivation of possessions without compensation, that would arguably be more severe than if there is simply a control of use. We note that, for example, the Firearms Amendment Acts 1997 provided compensation for existing stock, but not for loss of future sales.[180]In the absence of any structured submission from the claimants, we proceed on the basis that the Hunting Act does to an extent which is significant interfere with the peaceful enjoyment of possessions, but that such interference mainly, if not entirely, constitutes control of use, not deprivation.[181]We address the question of compensation here, although it may also or alternatively be seen as relevant to the question of justification and proportionality. The Human Rights claimants do not place great reliance on the fact that the Hunting Act does not provide for compensation. It has a relevance (see James at paragraph 54), but it is difficult for the claimants to make a great deal of it in the light of the authorities. These were recently reviewed in paragraphs 41-58 of judgment of the Court of Appeal, given by Neuberger LJ, in R (Trailer & Marina) v Secretary of State for the Environment [2004] EWCA CIV 1580, [2005] 1 WLR 1267, in the context of a complaint under Article 1 of the First Protocol.[182]If there is legislative control of property, as opposed to deprivation, Article 1 does not normally give rise to a right to compensation. If it did, the results would be very far-reaching indeed. There is no Human Rights doctrine that there can be no control of use without compensation. After considering a number of authorities, Neuberger LJ said in summary at paragraph 58:
“The right analysis seems to us to be that provided the state could properly take the view that the benefit to the community outweighs the detriment to the individual, a fair balance will be struck, without any requirement to compensate the individual. Should this not be the case, compensation in some appropriate form may serve to redress the balance, so that no breach of AIPI occurs.”

Article 14 – Prohibition of Discrimination

[183]Article 14 provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
[184]The Human Rights claimants say that they have been discriminated against both directly and indirectly in the enjoyment of their rights under Articles 8(1) and Article 1 of the First Protocol. In so far as they may fail under any of these Articles by themselves, they ask the court to consider their claims under Article 14 alone. The claimants pragmatically accept that establishing discrimination under Article 14 adds little or nothing to establishing interference under an Article to which the discrimination relates.[185]The main issues here are whether there can be discrimination under Article 14 without interference under another Article; and whether, if there is discrimination potentially within Article 14, it is on a ground such as those listed in Article 14 (which it is accepted it is not) “or other status”. The claimants have to establish that they have an “other status”.[186]The claimants say that there is direct discrimination against them as country dwellers and, more narrowly, as members of the hunting community. That is an intrinsically unpromising attribution of “status” in the light of the preceding list of examples in the article. Mr Friend would have it that the hunting community is a “national [ethnic] minority”. We think it is obvious that he is wrong here.[187]The claimants say that available comparators for the purposes of discrimination are:(a) Those who wish to hunt or control wild mammals such as foxes, hares or deer using means other than dogs, such as with a bird of prey, by shooting, or any of the other legal methods available;(b) Those who wish to take part in either coarse or game fishing; and(c) Those who wish to shoot duck, geese, wildfowl or game birds.[188]In Adams, it was agreed that Article 14 is not free-standing. The Lord Ordinary had held that there was interference only under Article 1 of the First Protocol and so he only considered Article 14 in relation to Article 1. The Inner House, reversing the Lord Ordinary’s decision in this respect, held that Article 14 prohibits relevant discriminatory treatment having as its basis or reason a personal characteristic or status by which persons or groups of persons are distinguishable from each other. The Inner House said at paragraph 113:
“Any discrimination brought about by the present legislation is, in our view, not between persons but between activities. All persons are prohibited from hunting with dogs. On the other hand, all persons may participate in other lawful types of hunting. There is nothing in the personal characteristics or status of any petitioner that bears on this.”
The court found it difficult to see how a single characteristic or status could be attributed to all those who in countless ways participate in hunting. The Scottish Act did not prohibit the killing of foxes by a particular sort of people or by people having particular characteristics.[189]The Human Rights claimants say that the Inner House failed to take account of the concept of indirect discrimination. They rely on the decision of the European Court of Human Rights in McShane v United Kingdom (2002) 35 EHRR 23 at paragraph 135, where it was said that:
“Where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed at that group.”
The claimants say that, although the Hunting Act is of universal application, it in fact has a disproportionate adverse impact on a particular group by comparison with persons not in that group. The ban has a disproportionate adverse effect on those who live in the countryside, particularly those who live in remote rural areas of Somerset, Devon and Cornwall and the upland areas of Wales and Cumbria. They also say that the Hunting Act violates Article 14 because it fails to treat differently people whose situations are significantly different. It was for this reason, it is said, that the Government opposed an outright ban and supported the regulation of hunting on a selective basis.[190]Mr Gordon submits, as we understand him, that the ban imposed by the Hunting Act is within the ambit of Articles 8, 11 and Article 1 of the First Protocol, even if there is no sufficient interference with the rights which they protect for those Articles to apply directly. He submits that the relevant status is that of people who belong to the hunting community, which includes those who hunt, shoot and fish. He also refers to paragraph 120 of Chassagnou, but we do not see that what is said there advances the claimants’ case. He accepts that status has to be ascertained by reference to personal characteristic, but says in effect that membership of the hunting community is a personal characteristic. He did not in his oral submissions specifically rely in this context on the more fragmented characteristics of smaller groups within the hunting community referred to in the claimants’ detailed grounds of challenge.[191]The defendants say that, for the purposes of Article 14, the claimants’ cases do not fall within the ambit of another Convention right to a greater extent than they are able to establish an infringement of that other Convention right. They further say that the Article 14 challenge is misconceived because the alleged discrimination is not based on any “personal characteristic” which would constitute a “status” within Article 14.[192]For both these submissions, Mr Sales relies on R (S) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 1 WLR 2196. It was there held that, in so far as retention of fingerprint and DNA samples under section 64(1A) of the Police and Criminal Evidence Act 1984 constituted an interference with the appellants’ right to respect for their private lives under Article 8(1) of the Convention, such interference was modest and was objectively justified under Article 8(2); and that the difference in treatment between the appellants and those who had not been required to provide fingerprints and samples was not on the ground of “other status” within Article 14 and not on a proscribed ground of discrimination under that Article.[193]Lord Steyn said at paragraph 42, with reference to the approach of Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, as amplified in R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin) that:
“Five questions can be posed as a framework for considering the question of discrimination. (1) Do the facts fall within the ambit of one or more of the Convention rights? (2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the different in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justified in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?”
[194]Lord Steyn then mentioned a caveat, with reference to the explanation of the Michalak questions by Baroness Hale of Richmond in Ghaidan v Godin-Mendoza [2004] 3 WLR 113 to the effect that a rigidly formulaic approach is to be avoided.[195]Mr Sales submits that the form of Lord Steyn’s five questions shows that the first three are concerned with whether Article 14 is applicable; and that the third question shows that falling within the “ambit” of one or more convention rights in the first question requires that that or those other rights themselves are interfered with. Paragraph 44 of Lord Steyn’s opinion sustains Mr Sales’ submission, which we accept. Lord Steyn had said in paragraph 31 that he inclined to the view that in respect of retained fingerprints and samples Article 8(1) was not engaged. In paragraph 44 he said:
“There is no free-standing right under Article 14 against discrimination. In this case the question is whether the facts fall within the ambit of Article 8. If my conclusion is right that article 8(1) is not engaged, it follows that Article 14 is not triggered. I will assume, however, that the retention of fingerprints and samples does amount to an interference under Article 8(1), albeit a justified interference under Article 8(2). On this supposition the first Michalak question must be answered in the affirmative.”
[196]On the question of the meaning and extent of “other status” in Article 14, Lord Steyn said at paragraph 48:
“The list of grounds in article 14 is not exhaustive, and necessarily includes each of the specifically proscribed grounds as well as “other status”
. The European Court of Human Rights has interpreted “other status” as meaning a personal characteristic: Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 717, 732-733, para 56. I do not understand Lord Woolf CJ [2002] 1 WLR 3223, 3238 to have expressed a different view in paragraph 47 of his judgment. On the other hand, the proscribed grounds in Article 14 cannot be unlimited, otherwise the wording of Article 14 referring to “other status” beyond the well established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of Article 14.” (See also R (Carson) v Work and Pensions Secretary [2005] UKHL 37, [2005] 2 WLR 1369 at paragraphs 13, and 53 to 54.) Lord Steyn then examined whether the ground for different treatment in the South Yorkshire case amounted to a status in the sense of a personal characteristic within the meaning of Article 14. Having done so, he summarised the position in paragraph 51, saying that “the difference in treatment is not analogous to any of the expressly proscribed grounds such as sex, race, gender or religion”.[197]Applying this analysis, in our judgment membership of the hunting community is not a personal characteristic amounting to a status analogous with those in Article 14. We accept Mr Sales’ submission that the label “hunting community” does no more than identify the individuals who engage in a number of employments or recreational activities.[198]We conclude that Article 14 is not applicable. It is not necessary in this context to address Mr Gordon’s submissions about comparators.

Articles 6 and 7

[199]The claimants’ Detailed Grounds of Challenge complain of violations of Article 6(1), 6(2) and 7(1) of the Convention. These are not pursued as independent infringements.

Section 3 of the Human Rights Act 1998

[200]Finally Mr Gordon advances without enthusiasm a submission relying on section 3 of the Human Rights Act 1998. This section requires the court, so far as it is possible to do so, to read and give effect to primary and subordinate legislation in a way which is compatible with convention rights. If the Hunting Act is on a purely domestic interpretation incompatible with the European Convention, the court has to try to interpret it in a manner that is compatible. Otherwise, the court should make a declaration of incompatibility under section 4(2). Mr Gordon submits that, assuming that the court would otherwise find incompatibility, it is possible to read and give effect to the Hunting Act in a way which is compatible with Convention rights by (for example) interpreting section 1 of the Act to read: “A person commits an offence if he hunts with the result that unnecessary suffering is caused to a wild mammal with a dog,, unless his hunting is exempt.” (The words in italics inserted) and by making comparable adjustments to other sections. In our judgment, this would plainly amount to judicial legislation, impermissible even under section 3 of the 1998 Act. In saying this, we take due account of what Lord Nicholls and Lord Steyn said in relation to section 3 in Ghaidan v Godin-Mendoza [2004] 3 WLR 113 at paragraphs 30 and 33, and 45-48. We note that Lord Nicholls said that the answer to the difficult question how far section 3 requires a court to depart from the intention of the enacting Parliament depends on the intention reasonably to be attributed to Parliament in enacting section 3. In the following paragraphs, Lord Nicholls considered this question. Mr Gordon’s suggested reading would also – but this is not necessary to our decision – come quite close to resurrecting in another guise the registration scheme in the original Michael Bill, which the House of Commons rejected.

The European Law Challenge

[201]The European Law claimants contend that their fundamental freedoms of movement, protected by the Treaty of European Union (the Treaty under the European Union and the Treaty establishing the European Community (Official Journal C-325 of 24.12.2002)) have been impeded by the Hunting Act. That Act, they submit, cannot be justified as a proportionate measure designed to achieve a legitimate objective. Thus two issues arise: i) Whether the claimants, are, in reality seeking to exercise rights protected by the treaty? ii) If such rights can be identified, whether the Hunting Act has an aim which can justified under the Treaty and if so, whether it is a measure proportionate to that aim.[202]The European Law claimants rely upon three fundamental Treaty rights: Article 28 (Goods) (ex 30), Article 49 (Services) (ex 59), Article 39 (Workers) (ex 48). In the light of the argument advanced by the defendants and the RSPCA it is necessary to consider all those Articles although the application of any one will require the defendants to justify the Hunting Act. Some of the defendants’ arguments will have more force in relation to one (for example Article 28) than in relation to the others. Success in establishing infringement of any one Article in relation to any one European Law claimant will compel the defendant to justify the infringement in accordance with the Treaty and jurisprudence of the European Court of Justice. Moreover, breaches of more than one Article may have an impact, if the Hunting Act is unjustified, on any claim for damages under Factortame principles. All the articles on which the claimants rely must, accordingly, be considered.[203]The claimants do not in this court seek a reference to the European Court of Justice. Mr Sales is content with this if the defendants are successful on justification. The delay of a reference would, in our view, cause uncertainty and palpable injustice. Article 28: protection of free movement of goods[204]Article 28 provides:
“Quantitative restrictions on imports and all measures having an equivalent effect shall be prohibited between Member States.”
There is and can be no dispute that the hunters and greyhounds previously exported from the Republic of Ireland into the United Kingdom are “goods” within the meaning of Article 28. Two issues form the main grounds of dispute; first, whether the asserted freedom falls outside Article 28 on the grounds that the Hunting Act is not a measure having an equivalent effect to quantitative restrictions on imports and, second, whether the Hunting Act has too uncertain and indirect an effect on the export of the animals in question.[205]The meaning of Article 28 has, ever since 1974, been explained in what has become known as the Dassonville formula (Procureur du Roi de Dassonville [1974] ECR 837 para5). The prohibition in Article 28 extends to:
“All measures capable of hindering intra-community trade, whether directly or indirectly, actually or potentially.”
[206]In Keck C-267 and 268/91 [1993] ECR I-6787the European Court of Justice re-stated the meaning of Article 28, excluding from its application measures which restrict or prohibit what it describes as “certain selling arrangements”. In Keck traders challenged the French legislation prohibiting the resale of products at a lower than purchase price. The Court accepted that the legislation deprived traders of a method of sales promotion but refused to regard the legislation as a measure having equivalent effect to a quantative restriction. The Court expressly stated that it was necessary to re-examine and clarify its case law on the meaning of Article 28 (ex Article 30) for the following reason:
“14. In view of the increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States.”
The court continued by identifying measures which were equivalent to quantative restrictions on imports contrasting them with their resale price maintenance provision in issue in that case:
“15. It is established by the case law beginning with “Cassis de Dijon” ….. that, in the absence of harmonisation of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30. This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods. 16. By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment…, so long as those provisions apply to all relevant traders operating within the national territory and so long as they effect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. 17. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member States meeting the requirements laid down by that State is not by nature such to prevent their access to the market or to impede access any more than it impedes the access to domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty.”
[207]The Court’s motives were plain and it ruled in a manner which it recognised did not follow previous decisions (paragraph 16). The Court recognised that the Dassonville formula was so wide that any measure which had the potential of restricting the sales of goods between Member States might fall within the scope of the formula. In those circumstances the court sought deliberately to restate the meaning and effect of Article 28.[208]At first blush the Court did so by creating a dichotomy between rules regulating the products themselves and certain selling arrangements. Accordingly, so the European Law claimants’ argument runs, any measure, such as the Hunting Act, which cannot be described as falling within the category of certain selling arrangements remains within the Dassonville formula and is contrary to Article 28, provided that the likely effect of the measure is to inhibit or prevent sales of goods from one Member State to another.[209]It is necessary to consider whether, in reality, the court was creating the stark dichotomy on which European Law claimants rely. To do so, it is important to focus on the court’s process of reasoning. The starting point must be to consider the question posed by Article 28 itself. The quest is to determine whether the measure in issue has an equivalent effect to a quantative restriction on imports (see paragraph 11 of the judgment and the terms of Article 28).[210]In order to answer that essential question, the court first considered the purpose of the ban in question; in that case it was not designed to regulate trade between Member States (paragraph 12). But the Court recognised the difficulties created by the Dassonville formulation. Notwithstanding the fact that the measure was not intended to regulate intra-state trade, it had the potential to impede such trade. Thus arose the question whether that potential was sufficient to bring the measure within Article 28 (see second sentence at paragraph 13).[211]Paragraphs 15 to 17 explain why the mere fact that a measure has the potential to restrict trade between Member States is not sufficient. At paragraph 15 the court identified the paradigm case of a measure which has an equivalent effect to quantative a restriction on imports. Such a case has the following features:(a) absence of harmonisation;(b) rules laid down by the importing Member State relating to the requirements to be met by the products in question e.g. form and labelling;(c) export of goods from one Member State where those goods are lawfully manufactured and marketed, i.e. the exporting state has no rules relating to the requirements to be met by the goods to be exported equivalent to the rules laid down by the importing Member State. There would be no difference, if the roles of the exporting state and the importing state were reversed. The hallmark of such a measure is the closeness of its analogy to a quantative restriction on imports. Such a measure impedes the free movement of goods between Member States because domestic products have no numerical limit impeding their access to the market, whereas imported products are restricted by reference to their quantity.[212]The measures in question in Keck differed from the paradigm case because, whilst they did have the potential to affect trade and, therefore, trade between Member States, they did not have the potential to affect intra-state trade any more than trade within the state which had imposed the regulation. There is no magic in the label certain selling arrangements; that was merely a description of the measure in question in Keck. The essential point is that, provided the measure applied to domestic products and to those from other Member States equally, the measure did not have any potential effect on intra- Member State trade in comparison with internal domestic trade.[213]That is explained in the rationale of the contrast drawn between the paradigm case at paragraph 15 and paragraph 17. In paragraph 17, the important words lie not in the expression access to the market but rather in the need for comparison between the effect on trade of domestic products and on those imported from other Member States. Hence the closing words of the first sentence:
“any more than it impedes the access of domestic products”
. An arrangement which does not have any effect on the free movement of goods between Member States, in contrast to an effect on the trade of a domestic product within a Member State imposing the measure in issue, does not have an equivalent effect to that of a quantitative restriction on imports. Thus it is not within the prohibition in Article 28.[214]Mr Anderson QC, for the European Law claimants, described the principle in Keck as a derogation from the Dassonville formula. He suggested it required strict interpretation. That submission fortified his contention that, since the prohibition could not be described as a selling arrangement, it came within Article 28. That submission misses the point ofKeck.Both DassonvilleandKeck were attempts by the European Court of Justice to explain the meaning and effect of Article 28. The restatement of the meaning and effect of Article 28 in Keck is not a derogation from Article 28 any more than Dassonville was. It merely constituted the latest explanation of the Court as to the scope of that article.[215]If the claimants were correct, the focus on selling arrangements makes no sense. It is not possible to find any rational explanation for creating an exception to the Dassonville formula in relation to certain selling arrangements. But once it is appreciated that the Court was not creating an exception to the Dassonville principle but rather restating the meaning and effect of the article itself, then the basis for distinguishing between measures which fall within the prohibition in Article 28 and those which do not becomes clear.[216]Article 28 is designed to protect intra-community trade, the most blatant impact on which would be a restriction on imported products by reference to their quantity. If a measure has no greater effect on intra-community trade than it does on purely on internal trade, it falls outside Article 28.[217]Mr Anderson QC contended that to read Keckas requiring a comparison between the effect on trade in domestic products and on products from other Member States offends the principle that non-discriminatory measures are still caught by Article 28, however even-handed their application. This principle is stated in Keck itself (see last sentence at paragraph 15). It is exemplified in Bluhme Case C-67/97 [1998] ECR I-8033 (the Danish prohibition on keeping brown bees on a small island whether imported from elsewhere in Denmark or from anywhere else) and in Familiapress [1995] ECR I3689 (an Austrian prohibition on newspaper prizes for games, applying to all newspapers produced in Austria and elsewhere, in that case a German newspaper). In both of those cases the measures were found to concern the quality of the product itself.[218]But it is important to understand the scope of the principle on which Mr Anderson QC relies. The principle that non-discriminatory measures are caught by Article 28 however even-handed their application is not concerned with the question whether a measure does in truth fall within Article 28. The principle merely directs that a measure may be caught by Article 28 notwithstanding that it applies to both domestic and other products. The principle does not itself provide the answer to the question whether the measure is within Article 28. That logically prior question is now governed by the jurisprudence explained in Keck.The paradigm case, as explained inKeck at paragraph 15, does itself draw a distinction between the rules applying to a product in one Member State in contrast to the rules applying in another. The principle that a rule may fall foul of Article 28 notwithstanding its non- discriminatory application merely means that if, after the contrast is drawn, the measure is prohibited by Article 28, it will not be saved because it applies to domestic and non-domestic products alike.[219]Applying those principles to the Hunting Act, we accept, as the claimants stressed, that the Hunting Act cannot properly be described as a selling arrangement. The restriction on the use of hunters or greyhounds seems miles away from those measures which the court has considered as selling arrangements (the resale price maintenance provisions in Keck itself, itinerant selling in Burmanjer Case C-20/03 [2005] ECR I-nyr and advertising in Karner Case C-71/07 [2004] 2 CMLR).[220]Nor can the ban be properly described as a measure laying down the requirements to be met by hunters or greyhounds. It has nothing to do with the intrinsic characteristics of those animals (contrast the bees in Bluhme). As Flurry Knox might say, Cruiskeen retains all the qualities for which that mare is renowned whether she is hunted in Wiltshire or Castletown.[221]The ban can, therefore, neither be described as a requirement to be met by the hunters or greyhounds nor a selling arrangement. But it is not a measure having an equivalent effect to a quantative restriction of imports. It has no greater effect on trade between the Republic of Ireland and United Kingdom than on trade in hunters or greyhounds within the United Kingdom. It does not, in the words of the court in Keck, impede the access to the market of greyhounds and hunters from the Republic of Ireland any more than access to the market of hunters and greyhounds offered for sale within the United Kingdom.[222]We do not regard Omega Speilhallen Case C-36/02 (judgment 14 October 2004) as authority that a restriction on the use to which a product may be put is not a selling arrangement and is thus outside the principles in Keck, as contended by the claimants. In Omega, a German company wished to buy from a United Kingdom producer a laser gun to be used in its laserdromes. The gun could be used to shoot at targets. But its apparent attraction was to simulate shooting people, to which the necessary target could be attached. Such use offended a German prohibition on games which simulated playing at killing people. The Court ruled that such a prohibition affects the freedom to provide services contrary to Article 49, as well as the freedom to trade in goods in Article 28. But it made no reference to the selling arrangements. It did however go on to conclude that the measure was justified.[223]The important feature of Omega is that the Court regarded the case as concerning the free movement of services, protected by Article 49 and not, in essence, a case concerning the free movement of goods. The company offered the service of use of the facilities of the laserdrome; its provision of a laser gun imported from the United Kingdom was incidental to that service.[224]The Advocate General regarded that case as concerned only with the restriction on the freedom to provide services. She explained that there was no need to examine one fundamental freedom, if the restrictive effect was an unavoidable consequence of the consequences of the legal effect of another fundamental freedom. The German measure restricted importation of the laser guns only in so far as they facilitated participation in the game of shooting at human targets (see paragraph 32).[225]The Court took a similar view, regarding the restriction on free movement of goods as “entirely secondary” to the provision of services (see paragraph 26). It is true that at paragraph 25 the court said:
“Moreover, insofar as use of the form of the game developed by Pulsar involves the use of specific equipment, which is also lawfully marketed in the United Kingdom, the prohibition imposed on Omega is likely to deter it from acquiring the equipment in question, thereby infringing the free movement of goods ensured by Article 28 EC.”
[226]The Court, however, immediately went on the consider free movement of services; concluding:- “In the circumstances of this case, the aspect of the freedom to provide services prevails over that of the free movement of goods. ….. therefore, as the Advocate General has concluded in paragraph 32 of her Opinion, there is no need to make an independent examination of the compatibility of that order with the Treaty provisions governing the free movement of goods.” (See paragraph 27).[227]We take the view that that is the explanation why there was no reference to the Keck principle in relation to Article 28. The court did not find that a restriction on use was not, in the context of Article 28, a selling arrangement. Rather it concluded, by implication, that the Keck principle had no application to Article 49. It made no reference to the Keckprinciple at all, nor to whether the measure was or was not a selling arrangement within that principle. That absence of reference can only be explained by appreciating that the court thought that Omega was a service provision case to which Keck had no application.[228]Thus Omega is not authority for the proposition that a general ban on a particular use is prohibited by Article 28. We conclude that the Hunting Act is not prohibited by Article 28. It has no greater impact on the free movement of hunters and greyhounds from the Republic of Ireland than on hunters and greyhounds within the United Kingdom.[229]We should add that, had we taken a contrary view, the claimants have established a sufficient link between the Hunting Act and the export of horses and greyhounds from the Republic of Ireland to the United Kingdom. The Dassonville formula, had it been of application, itself refers to indirect links and potential trade. InOmega the court considered whether the restriction on use was likely to deter the free movement of goods (see paragraph 25). In Esso Espanola SA v Comunidad Autonoma de Canaries C-134/94 [1995] ECR I-4223 (a requirement that petroleum products be supplied to at least four islands in the Canaries) the Advocate General referred to a logical and foreseeable link (see paragraph 19 of his Opinion).[230]There is ample evidence of the effect of the ban on sales both in relation to hunters (see e.g. the evidence of Mr Derwin) and in relation to greyhounds (see e.g. the evidence of Mr Divilly). The suggestion that they could have been used for other purposes is the not supported by the evidence before us. We shudder to think how Cruiskeen would have performed in the show jumping ring. Article 49: freedom to provide services[231]Article 49 provides:- “Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of a person for whom the services are intended. ”[232]There is no dispute but that some of the claimants do provide services in connection with hunting to recipients in other Member States. As the terms of Article 49 itself make clear, all that is necessary is that the provider of the services is established in a different Member State to the recipient. It is not necessary that the provider should provide services in a Member State other than the state in which he is established. Article 49 applied to Austrian restrictions on the number of moorings on Lake Constance which could be allocated to boat owners resident abroad. Article 49 applied, notwithstanding that the provider, an Austrian manager of the mooring service, was only providing the service within Austria (see Erich Ciola v Land Vorarlberg Case C-224/97 [1998] ECR I-2517).[233]Such cross-border services may be provided without leaving the Member State in which the provider is established (e.g. the advertising services in respect of which Article 49 applied provided by Mr Carpenter both within and outside the United Kingdom (see Carpenter Case C-60/00 [2002] ECR I-6279 at paragraph 30). The right may be relied upon against the State in which the provider is established (e.g. the restriction against cold-calling in Alpine Investments Case C-384/93 [1995] ECR I-1141).[234]In those circumstances it is difficult to see how the defendants can resist the application of Article 49 in the case of those who provide services in relation to hunting. The defendants seems to say that because only a small proportion of the services are provided to recipients from other Member States, the ban has no effect, in reality, on intra-state trade.[235]There is no de minimis test (see e.g. Bluhme where the prohibition applied to only 0.3% of Danish territory). In any event the evidence contradicts any assertion that the services are minimal. It is true that Article 49 has no application to purely internal situations but the evidence in this case is such that it is not possible to regard this case as destructive of that principle.[236]We conclude, therefore, that the provision of livery and hireling services, and offers of participation in the hunts themselves, constitute the provision of services by those established within the United Kingdom to recipients resident in other Member States. They are, accordingly, subject to the Keck point within the ambit of Article 49.[237]Since we have concluded that the providers of hunting services within the United Kingdom may rely upon Article 49, it is unnecessary to consider the more troublesome question as to whether the recipients of such services, travelling from other Member States, may do so. The defendants contend that Article 49 has application only in relation to providers of a service. Since there are no service providers within other Member States who have any interests in challenging the United Kingdom measure, it is not open to a resident of another Member State to do so.[238]Since it is unnecessary to resolve this issue we shall, reluctantly, decline to do so. But it is, perhaps, only an aspect of the more substantial point advanced by the defendants, that the Keck principles should apply to Article 49.[239]The essence of the Keckprinciple, as we have understood it, was that the free movement of goods between Member States was not inhibited in a way which engaged Article 28 in circumstances where there was no greater impact on products imported from other Member States than on domestic products. The defendants contend that there is no reason why that principle should not equally hold good in relation to the free movement of services. The Hunting Act provides no greater inhibition to the provision of services across the borders of Member States than it does internally.[240]Moreover, contends Mr Sales for the defendants, there is ample authority for the greater convergence of interpretation in relation to all four of the fundamental freedoms. As a matter of principle Article 49 should be understood and applied in the same way as Article 28. In CaixaBank France v Ministẻre de l’Ẻconomic, des Finances et l’Industrie Case C-442/02 [2005] 1 CMLR 2Bthe Advocate Generalidentified the rationale underlying cases such asAlpine Investments as falling within Article 49 because the prohibition on cold-calling “directly affected access to the market in services in other Member States” (see paragraph 49). Such a rationale is, so the argument runs, identical with the rationale underlying Article 28.[241]We can see strong reasons why a measure preventing the provision of services should fall outside Article 49 if it has no greater impact on non-domestic services than on domestic service. Thus the Keckprinciple would apply to Article 49.[242]There is, however, one considerable argument to the contrary, possibly identified by the Advocate General in Omega at paragraph 36, in rejecting the suggestion that the Keck principle applied to services. At paragraph 36 she said:- “… transposition of the restriction made in the Keckand the Mithouard case to the freedom to provide services is un-persuasive because, where there are sufficient international implications, the rule on arrangements for the provision of any service – irrespective of location – must constitute a restriction of relevance to Community law simply because of the incorporeal nature of the services, without any distinction at all being permissible in this respect between rules relating to arrangements for the provision of service and rules that relates directly to the services themselves.” We suspect the reason why Keck cannot be applied to Article 49 is that any restriction on the application of Article 49 relating to a distinction between rules concerning the services themselves and rules concerning the circumstances under which they are provided would be difficult, if not impossible, to draw. In Keck, it was possible to draw a distinction between the paradigm case and other measures. In relation to services, this is much more difficult. If the same or similar tests were adopted it would tend to cover so many measures relating to services as to deprive Article 49 of any practical effect.[243]But, in any event, it is not open to us to rule that the Keckrule does apply to Article 49. There is ample authority to the contrary. Not only the Advocate General at paragraph 36 in Omega but also the Court in Alpine Investments (above)and Gourmet International Case C-405/98 [2001] ECR I-1795demonstrated that the Dassonville test is the principle which should be applied to Article 49. In Gourmet there is a striking contrast between the approach of the Court to Article 28 (see paragraphs 13–15) in which the Keck principle was applied to the prohibition on advertising in Sweden of sales of alcohol, and the absence of any reference to that principle when the Court considered the freedom to provide such services at paragraph 39. This contrast is sufficient to defeat the defendants’ argument, as a matter of binding authority. Article 39: Free movement of workers[244]Article 39 provides:- “Freedom of movement for workers shall be secured within the Community.”[245]Diana Johnson employs a workforce to assist in her business for providing hunting holidays all of whom come from other Member States of the European Union. Since she falls within the scope of Article 49 it seems to us quite unnecessary to consider Article 39 separately. Her freedom, enshrined in that Article is, as the Court put it in Omega, entirely secondary to the freedom Miss Johnson has in relation to the provision of her services.

Mr Friend’s and Mr Thomas’ claim

[246]Mr Friend and Mr Thomas in their separate application for judicial review rely on:(a) Articles 8, 9, 10, 11, 14, 17 and 53 of the European Convention on Human Rights.(b) The Race Relations Act 1976.(c) The provisions of a number of international agreements.[247]We are grateful to Mr Friend for his clear and economically expressed written and oral submissions. In so far as they encompassed the human rights grounds relied on by the Human Rights claimants, we have considered them in other parts of this judgment. We hope that Mr Friend and Mr Thomas will forgive us, if we deal quite briefly with those of their grounds which are not adopted in the other proceedings.

Article 9

[248]Mr Friend submits that Article 9 is infringed because the claimants’ belief in the right to hunt with hounds is a matter of conscience for an individual of comparable importance to a religious belief.[249]It is well established that the scope of Article 9 includes a non-religious belief (Kokkinakis v Greece (1994) 17 EHRR 397, Ect HR, para. 31, and cited with approval by Lord Nicholls in Williamson, also Arrowsmith v UK (1981) 3 EHRR 218. The judgments of the Court of Appeal [2003] 1 All ER 385 and the House of Lords in R (Williamson)v Secretary of State for Education and Skills [2005] UKHL 15 have provided clear guidance for the courts when considering whether a particular belief comes within Article 9. In the Court of Appeal, Arden LJ accepted the submission that, in order to qualify under Article 9, a religious belief, like a philosophical belief, must be “consistent with the ideals of a democratic society, and … must be compatible with human dignity, serious, important and (to the extent that a religious belief can be reasonably required so to be) cogent and coherent”. Furthermore, as Lord Nicholls said in the House of Lords, “For its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs.”[250]We do not doubt but that the claimants have a strong conviction that they have a right to hunt with hounds in the United Kingdom. The extent and depth of this conviction was shown clearly in the submissions made by Mr Friend to the court. The claimants submitted that hunting with hounds has been a custom in this country for thousands of years, and that over the course of time those with a common passion and interest in the pursuit have been brought together by a common aim. However, not all opinions or convictions, however sincerely or deeply held, constitute beliefs in the sense protected by Article 9(1) of the ECHR: Pretty v United Kingdom. The right to hunt with hounds does not have the necessary qualities identified by the Court of Appeal or Lord Nicholls to qualify under Article 9. In particular, the claimants failed to persuade us that their belief in the right to hunt went beyond enjoyment of and dedication to a recreational pursuit. It cannot qualify as an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs.

Article 10

[251]Mr Friend submitted that Article 10 is infringed because the right to freedom of expression includes the right of membership of any cultural or social group and the right to pursue an associated lifestyle, for example the wearing of traditional hunting dress.[252]The types of expression and acts which are protected under Article 10 have been widely interpreted. The right to express views about the Hunting Act, the ban on hunting and the perceived incursion on freedoms and liberties that the ban imposes are all protected by Article 10 even if the information and ideas which the claimants make public would offend, shock or disturb the state or any sector of the population. Equally, the claimants have a protected right to wear hunting dress whenever and wherever they please if they so choose. The Hunting Act does not interfere with any of these forms of expression. It is difficult to determine from the claimants’ argument what precise form of expression is alleged to have been infringed by the Act. The alleged infringement of a right to membership of a social or cultural group and the participation in an associated lifestyle is more appropriately dealt with under Article 11, which we have considered elsewhere in this judgment.

Article 17

[253]Article 17 is not listed as a “Convention right” under Schedule 1 Human Rights Act 1998 and does not have direct domestic effect. This is subject to the general principle that provisions of international human rights treaties (such as the European Convention on Human Rights) to which the UK is party have some limited application in determining civil rights and liberties in the English courts, even though these provisions are not a part of English law.[254]Article 17 deserves some further consideration, by virtue of section 1(1) HRA 1998 which provides that the Convention Rights should “read with Articles 16 to 17 of the Convention”. The claimants argue that Article 17 should be read with Article 3 of the First Protocol (the right to free elections). However, it is unclear how Article 3 is applicable in the context of the Hunting Act and this submission was not elaborated.

Race Relations Act 1976

[255]Mr Friend submitted that the claimants are entitled to the protection against discrimination on the basis of “racial grounds” under the 1976 Act, on the basis that the hunting community is an ethnic group. The hunting community is quite plainly not an ethnic group. Nor is it obvious what remedies the claimants would pursue under the 1976 Act, if they were successful. The 1976 Act does not allow the court to strike down primary and subordinate legislation. It follows that this submission must fail.

International obligations

[256]Mr Friend relied on a number of international instruments, to which the United Kingdom is either a signatory or has ratified. He claims that the UK has failed to apply these provisions in breach of Article 53.[257]There is a well established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Lord Atkin in A-G for Canada v A-G for Ontario [1937] AC 326 at 347. The corollary of this is that the domestic courts have no power to enforce directly treaty rights at the behest of a private individual, except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute: see J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, HL. None of the international instruments cited by the claimants have been incorporated by statute into domestic law, though various other enforcement measures are provided for in the terms of the instruments. These rights are not directly enforceable by the claimants or any other private individual in the domestic courts.[258]We conclude that the additional grounds relied on by Mr Friend and Mr Thomas do not succeed.

Justification and proportionality

[259]Thus, in our judgment, the Human Rights claimants and the European Law claimants succeed in getting through at least one of the gateways, which require the defendants to justify the Hunting Act as proportionate. We note that, although the phrase “burden of proof” is often used, the court is concerned mainly with a broad evaluation of competing private and public interests, and rarely has to make a detailed assessment of the credibility and cogency of factual evidence – see Lord Walker of Gestingthorpe in R (Carson) v Work and Pensions Secretary [2005] 2 WLR 1369 at 1390E.[260]We use the expression “justification and proportionality” as a composite label for the bundle of questions which arise. The Human Rights bundle of issues is much the same as the European Law bundle. We shall in conclusion take them together, but shall undertake separate analyses on the way.[261]The Human Rights claimants’ short case is that a complete ban on hunting is unjustifiable and disproportionate; that it constitutes for them an infringement of one or more of their rights under the Convention; and that the Act should be declared to be incompatible with the infringed Convention rights under section 4 of the Human Rights Act 1998, unless the court is able to read and give effect to it under section 3 of the 1998 Act in a way which is compatible (which this court is not).[262]In so far as the claimants in any of these proceedings establish that a Convention right or economic freedom is infringed, it is for the state to justify the infringement as proportionate. We put it compositely thus, being conscious nevertheless that the framework for justification may in theory vary somewhat depending on which right or freedom is infringed. We have held that the question of justification arises under Article 1 of the First Protocol in the human rights proceedings and Article 49 of the Treaty in the European law proceedings. We have also said that we will address justification in the context of possible infringements of Articles 8 and 11 of the Convention. But, subject to some qualifications mainly by Mr Anderson, the parties have proceeded on the basis that substantially the same questions have to be addressed whichever route to justification is taken. This is, we think, both sensible and pragmatically correct. It would be strange, perhaps absurd, if the Hunting Act were held to be justified and proportionate for the purpose of one kind of infringement, but unjustified or disproportionate for the purpose of another closely related infringement. This is especially so when human rights considerations are acknowledged to bear upon European law issues.[263]The text of Article 1 of the First Protocol relevantly provides that no one shall be deprived of his possessions “except in the public interest” and, “subject to conditions provided for by law”; but that this does not in any way impair the right of a State to enforce such laws as it deems “necessary” to control the use of property “in accordance with the general interest”. We have held that the Human Rights claimants do not make any significant case for deprivation of possessions. We are concerned in the main with a measure which controls the use of property. 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.[264]The text of Article 8(2) provides that there shall be no interference by a public authority with the exercise of an Article 8(1) right except such as is “in accordance with the law” and is “necessary in a democratic society … for the protection of health or morals”. The text of Article 11(2) is relevantly in the same terms, except that “prescribed by law” replaces “in accordance with the law”. This makes no difference.[265]We have held that the Hunting Act does not offend Article 14. If it had, it is accepted that substantially the same questions of justification and proportionality would arise. Although the text of Article 14 does not say so, this is implicit in the requirement that the discrimination has to be within the ambit of another Convention right, so that that other right is infringed.[266]The composite evaluation, therefore, has to consider whether the Hunting Act is(a) in accordance with the law;(b) necessary in a democratic society; and(c) in accordance with the general interest [for the protection of health or morals]. These matters also embrace questions whether the Act:(d) has a sufficiently important legitimate aim or objective to justify limiting a fundamental right or freedom;(e) there is a rational connection between the legislative objective and the means used to achieve it; and(f) the means used to impair the right or freedom are no more than is necessary to accomplish the objective. (See Lord Clyde giving the judgment of the Privy Council in De Freitas v Ministry of Agriculture [1999] 1 AC 69.) The questions of necessity and legitimate aim or objective are associated with the concept of pressing social need. The legislation must not only have a legitimate policy objective. It must satisfy a proportionality test.[267]We were rightly referred at length to the House of Lords decision in Wilson v First County Trust Limited [2003] UKHL 40, [2004] 1 AC 816. One question for consideration was whether section 127(3) of the Consumer Credit Act 1974 was compatible with Article 1 of the First Protocol of the Human Rights Convention. For that purpose the court had to look for the policy objective of the legislation. That gives rise to the question what material is properly available to help the court do this. There were submissions on behalf of the Speaker of the House of Commons and the Clerk of the Parliaments. The policy and objects of a statute must be determined by interpreting its language, which alone represents Parliament’s intention. Reference to debates for the purpose of determining whether the policy considerations put forward by those participating in debates in either House were justifiable in Convention terms and proportionate to the remedy proposed would involve “questioning” what is said in Parliament contrary to Article 9 of the Bill of Rights 1689.[268]Lord Nicholls of Birkenhead considered these questions at length in paragraphs 54 to 67 of his opinion. Lord Scott of Foscote and Lord Rodger of Earlsferry agreed with Lord Nicholls without qualification (paragraphs 173, 178). We do not cite these passages from Lord Nicholls’ opinion in full, but their full content is centrally relevant to more than one aspect of our present consideration. At the risk of over simplification and omission, we abstract these propositions: i) The court’s first role is to interpret and apply legislation which Parliament enacts (paragraph 55). ii) In looking for Parliament’s intention, the court has a variety of legitimate aids, some internal to the statute itself and some external, found outside the statute. External aids include the background to the legislation, because no legislation is enacted in a vacuum (paragraph 56). iii) Cautious reference may be made to clear and unambiguous statements recorded in Hansard made by the minister or other promoter of the Bill as background, but these cannot control the meaning of an Act of Parliament (paragraphs 58, 60). This is not “questioning” what has been said in Parliament contrary to Article 9 of the Bill of Rights (paragraph 60). iv) The Human Rights Act 1998 requires the court to exercise a new role in respect of primary legislation, evaluating it in terms of Convention rights. “If the legislation impinges upon a Convention right the court must then compare the policy objective of the legislation with the policy objective under which the Convention may justify a prima facie infringement of the Convention right.” For this the court will look primarily at the legislation, but the court may need to look outside the statute for the complete picture. What is relevant is the underlying social purpose of the legislation (paragraph 61; see also Lord Hope of Craighead at paragraph 116). v) The legislation must also satisfy a “proportionality” test to decide whether the means employed by the statute are appropriate and not disproportionate to its adverse effect. This involves a value judgment (paragraph 62). vi) For this value judgment, the facts will often speak for themselves. But the court may need additional background information tending to show the likely practical impact of the statutory measure, why the course adopted is or is not appropriate, and the nature and extent of the social problem at which the legislation is aimed (paragraph 63). vii) The additional background material may come from a number of sources (paragraph 64) which may to a limited extent include matters stated in Parliament (paragraph 65, see also Lord Hope at paragraph 118 and Lord Hobhouse of Woodborough at paragraphs 141, 142 for a rather more expansive general approach). The court will seldom resort to Hansard (paragraph 66). viii) It is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. It is not to be judged by the quality of the reasons advanced in support of it in the course of Parliamentary debate, nor by the subjective state of mind of individual ministers or other members. The court is called upon to evaluate the proportionality of the legislation, not the minister’s explanation of the policy options or of his explanations to Parliament (paragraph 67; see also Lord Hope at paragraph 117 and Lord Hobhouse at paragraph 143).[269]Accordingly, our first task, in the search for the comparative policy objectives upon which we have to make a value judgment, is to look primarily at the Hunting Act itself. We may also look cautiously outside the statute for its background context and underlying rationale; and also on the other side of the comparison for information tending to show its likely practical impact. Where this takes us at the margins may be debateable, but the parties were in broad agreement in their oral submissions as to the relatively confined nature of the evidential material properly available for our consideration. We are clear that we may consider the conclusions of the Burns Inquiry, and we note that opinions have been expressed over the years, at the Portcullis House hearings and elsewhere, in support of or in opposition to the continuation of hunting with dogs, and as to various aspects of the overall debate. We are not, however, called upon to decide the many facets of disagreement; rather to evaluate whether the legislation which the House of Commons enacted was justifiable in Human Rights and European Law terms. Statements by individual Members of Parliament in and out of Parliament are not helpful, nor, we think, admissible. We have not in this respect looked at Hansard. We are extremely cautious about looking to statements by the Minister in promoting his Bill, mainly because his Bill was not enacted. We also disregard what the Minister may have said in criticism of the legislation which the House of Commons eventually enacted, both because to that extent he was not promoting the legislation which was enacted, and because we are “called upon to evaluate the proportionality of the legislation, not the adequacy of the Minister’s exploration of the policy options or of his explanations to Parliament” (Lord Nicholls at paragraph 67 of Wilson). Finally, since the House of Commons rejected the registration scheme in the original Michael Bill, we may suppose that the House of Commons considered that scheme to be inadequate to achieve its policy objective. We have therefore to evaluate that rejection, which may also cast light on the policy objective of the legislation which was enacted.[270]As to the likely impact of the legislation, our first resort is to the balanced and considered views of the Burns Inquiry. Lord Burns and his colleagues were in a far better position than we are to address this topic. On the other hand, we must take proper account of the evidence of individual claimants as to the impact which they say the legislation is likely to have on them. We have already cited in a related context the opinion of Lord Nicholls in Wilson at paragraph 62 to this effect. We are required to make a value judgment such as Lord Nicholls there delineated. We must also consider the intensity of scrutiny which the court should bring to bear on these matters, and the margin of discretion available to the legislature, which is the obverse of the intensity of our scrutiny.[271]The parties have addressed these questions under the telegramatic headings:(1) Legitimate aim;(2) Necessary in a democratic society and proportionality; and(3) In accordance with the law.[272]It is necessary to identify what the legislative aim of the Hunting Act was. Mr Bradley in paragraph 17 of his witness statement says that the purpose of the Act was to end practices which a clear majority of Members of the House of Commons considered to be cruel because they cause unnecessary suffering to wild mammals. We are not necessarily obliged to adopt this uncritically, but it does represent the defendants’ case in these proceedings. The claimants accept that the protection of animals from unnecessary suffering could be a legitimate legislative aim. They say that it is far from clear that this was the true legislative objective, but that, assuming that it was, it has to be justified as legitimate and sufficiently necessary and proportionate to justify interference with the claimants’ Convention rights.[273]The Human Rights claimants say that there is no sufficient rational relationship between a legislative aim of protecting wild mammals from unnecessary suffering and the measures used to achieve this. This is so because, it is said, the Hunting Act has the potential for causing unnecessary suffering. The simple submission here is that, with hunting banned, more foxes will be shot. A hunted fox dies quickly, but a fox that is shot but only wounded may experience protracted suffering. The intended legislative aim of the original Michael Bill was to protect wild mammals from unnecessary suffering, but the same cannot be said of the Hunting Act. The Act itself had the potential to cause unnecessary suffering. The term “cruel” is misleading, because it elevates moral protest over proper consideration of the evidence. Hunting is not cruel, if it causes an animal no greater suffering than other lawful culling methods.[274]Another strand of submission is that the Hunting Act has no sufficient legitimate aim (and is unnecessary and disproportionate), because it does not provide as a defence to a criminal charge in an individual case that the hunting satisfied tests of utility and least suffering. Only thus, it is said, could a legitimate aim of preventing cruelty be proportionately achieved.[275]The claimants emphasise here the attention given by the Strasbourg court to pluralism, tolerance and broadmindedness as hallmarks of a democratic society. Democracy does not simply mean that the views of the majority must always prevail; a balance must be achieved which ensures the fair and balanced treatment of minorities and avoids any abuse of a dominant position – see Chassagnou at paragraph 112.[276]They say that the State has failed to show why the indisputable social and economic consequences of a complete ban were necessary in a democratic society. The complete ban on hunting has a “totemic” element about it, the opposite of pluralism and tolerance. It is not a measure that attempted to weigh up the evidence for a complete ban as opposed to a registration system such as the Government proposed. The registration scheme would have achieved the objective and the complete ban on hunting goes further and is more intrusive than was necessary. Nor did the Act effect a proper balance with the economic and social consequences. There was no evidence that a complete ban was necessary.[277]The Burns Report concluded, and it is not in dispute, that if hunting were banned, farmers would use other methods more frequently to cull foxes. None of the remaining legal methods are without difficulty from an animal welfare perspective. Although paragraph 6.49 of the Report concluded that being closely pursued, caught and killed above ground by hounds “seriously compromises the welfare of the fox”, this was not, as Lord Burns later explained, a judgment that fox hunting is cruel in the sense that it causes unnecessary suffering, nor a judgment that fox hunting should be banned. The Report itself concluded (paragraph 6.61) that if hunting were banned, it is possible that the welfare of foxes in upland areas could be affected adversely unless dogs could be used at least to flush foxes from cover.[278]The claimants say that the Portcullis House hearings failed to produce any evidence that hunting was cruel or which would justify a complete ban. The defendants and the RSPCA dispute this. It was the absence of such evidence and an acceptance that hunting could sometimes be a no less humane method of wild life management which resulted in the registration system which the original Michael Bill proposed.[279]Although it is speculative to wonder how the system of registration as proposed in the original Michael Bill might have worked out, it is not clear to us (despite the helpful material provided to us by counsel for the claimants) how in practice the registrar would have been able to apply the least suffering test. We can see in general how the utility test might have been applied. We can see also that the registrar could have concluded for an individual hunt in particularly difficult country that there was no other practically effective means of culling the foxes than hunting. We cannot, and do not, guess whether a registration scheme would have resulted in 6, or 60, or 160 registered fox hunts. We do however note the RSPCA’s view that the registration scheme would effectively have brought hunting to an end (see also paragraph 40 of Mr Bradley’s witness statement). We also see force in the defendants’ submission that Members of Parliament may have considered that the proposed registration scheme would simply have subcontracted to the registrar an intensely difficult decision which Parliament itself ought to take.[280]The claimants say that the State cannot establish that the means used to impair the infringed Convention rights were no more than was necessary to achieve the legislative aim. The main point here assumes that it was the Government’s view that the proposals in the original Michael Bill were justified and proportionate. On that assumption, the State now either has to show that the Government’s original view was wrong, or has to demonstrate by scientific evidence that the more restrictive provisions of the Hunting Act are both necessary and the only means of achieving the legislative aim; or the State has to show both of these. The evidence, in particular that of Mr Bradley, does not show this. He and the defendants are driven to “the clarion call of morality”. This is no more than a substitute for rational argument. These claimants accept that moral views may, provided they have a proper basis and scientific evidence, have a part to play in a legislative judgment about unnecessary suffering. But moral views cannot be determinative.[281]The claimants say that the Hunting Act is not shown to be in accordance with the law. It does not comply with the principle of legal certainty, being opaque and unclear, and does not have adequate procedural safeguards.[282]They say that the Hunting Act is arbitrary, lacks foreseeability and accessibility, and has inadequate procedural safeguards. It is said that the Hunting Act fails to achieve the principle of legal certainty. These points are advanced as an aspect of proportionality.[283]Reliance is placed on difficulties of interpretation exemplified by protracted correspondence between the 10th claimant, Giles Bradshaw, and DEFRA as described in paragraphs 7 to 39 of Mr Bradshaw’s witness statement. His difficulties include the lawfulness of his 4 dogs chasing away wild mammals. Is this flushing out, and, if so, must he exercise his dogs in pairs rather than all 4 at the same time? Must he shoot a deer which his dogs flush out/chase away? Is chasing away lawful?[284]We summarily reject this part of the claimants’ case. In doing so we note references, drawn to our attention by Mr Singh, to Sunday Times v United Kingdom (1979) 2 EHRR 245 and S.W and C.Rv United Kingdom (1996) 21 EHRR 363 (see paragraphs 36 and 37 of the RSPCA’s Human Rights skeleton). The Hunting Act is accessible and, in the round, quite clear. It is not for this court to address or resolve questions of its interpretation at the margins. That would arise and have to be addressed if prosecutions were to ensue which raise such points.[285]The claimants’ other main point here is that the Hunting Act lacks adequate procedural safeguards. It is said that an accused person should not be exposed to criminal penalty without the prosecution having to prove that the person is morally culpable. This is indeed an aspect of proportionality. The true heart of this submission is that, so far from creating an absolute offence, the Hunting Act ought, to achieve proportionality, to provide a defence for a hunter who intends to achieve the tests of utility and least suffering. In essence, therefore, the submission adds nothing to the main justification and proportionality case.[286]R v Lambert [2002] AC 545, to which Mr Gordon referred, concerned the onus of proof in a prosecution under the Misuse of Drugs Act 1971. The speech of Lord Steyn at paragraph 35 does not, in our view, support the submission that the Hunting Act ought to have included a defence, which it does not include, with reference to what is said to be the legislative aim. It was well within the competence of the legislature to decide that a workable ban on hunting had to be absolute in this respect, if the ban is justified and proportionate in the first place.[287]Mr Sales submits that the primary objective of the Hunting Act was the moral objective of preventing cruelty to wild mammals. He says that this may be discerned from the terms of the Act itself; from the Government’s clearly stated object when introducing the original Michael Bill; and from the terms of the debates in Parliament as to the merits of the Bill as originally introduced and as amended. We discount the last of these, for reasons which we have already explained. But the background context, including years of campaigning by animal welfare organisations, the Burns Report and the Portcullis House hearings all support Mr Sales’ submission. Also illuminating is the fact that deer hunting and hare coursing were to be banned under the original proposal. For these, the background material provides a clear indication of the intended legislative aim.[288]Mr Sales submits that the fact that the House of Commons rejected the registration scheme in favour of an outright ban does not show that the Hunting Act does not have the objective of preventing cruelty to wild mammals; only that the House of Commons took a different view from the Government as to the extent of the cruelty involved in those forms of hunting and of the extent of the measures necessary to prevent it. There is also a purpose of reducing “hunt havoc” and trespass and criminality. The objectives are rationally directed towards the prevention of disorder, protection of health and/or morals and the protection of the rights and freedom of others in Article 8(2) and 11(2), and to legitimate objectives of public policy under Article 1 of the First Protocol and Article 14, if that were applicable.[289]A ban on hunting, says Mr Sales, may also involve and be based on moral views to the effect that, in the words of Mr Rolls, “animal welfare is not just a science but also necessarily involves questions of public morality”. The Act does not, and is not required to, depend entirely on a scientific analysis. It is not as if it were concerned, for instance, with food additives and their potential scientific and physiological effect. It was an entirely tenable view for the legislature to adopt, that hunting should be banned, not just because it causes animal suffering, but also because it is unethical.[290]Animal welfare has been specifically recognised as an important and legitimate aim in the EU context. Mr Sales says that it could hardly have any lesser status in the context of the Convention. He refers to Holdijk [1982] ECR 129 at paragraph 13; Declaration No. 24 annexed to the Final Act of the Treaty of European Union; and the Protocol on Protection and Welfare of Animals adopted at the same time as the Treaty of Amsterdam and annexed to the Treaty. The promotion of public morality is an accepted legitimate aim where Member States are given a wide discretionary area of judgment, so long as measures are not discriminatory against nationals of other Member States (which the Hunting Act is not).[291]As to proportionality, Mr Sales submits that the claimants’ first case – that the Hunting Act cannot be justified or proportionate because the House of Commons adopted a more restrictive measure than the Government had itself promoted as justified and proportionate; and that the Hunting Act may in some instances promote cruelty because it is accepted (or indisputable) that some foxes which are shot will be wounded but not killed outright – ignores evidence, available to the House of Commons, upon which a structured rejection of these premises might justifiably depend.[292]It is clear from its rejection of the original Michael Bill that the House of Commons took a different view on the cruelty issue from the Government, and a different view on the practicability and appropriateness of the registration scheme. The issue is whether the House of Commons was entitled to do so, within the broad margin of discretion afforded to it in a matter which is not readily amenable to scientific proof, which does raise ethical questions, and which has given rise to such sharply divided views in the community as a whole.[293]The defendants reject the claimants’ case that scientific evidence, or lack of it, should be determinative. As the Inner House said in Adams at paragraph 47:
“The enactment of every statute on the subject [of animal welfare] has necessarily involved the making of a moral judgment.”
The Burns Inquiry did not consider moral or ethical issues. The nature of the evidence available to legislators was such that its assessment necessarily required an element of moral or value judgment. It is impossible to know for certain to what extent hunted animals suffer during the chase and the kill. This is just not because they cannot express themselves but because of the nature of hunting. The chase can be portrayed as no different in substance from vigorous and healthy exercise; the kill as excluding suffering because of the speed at which it often occurs. Whether or not you accept those arguments cannot depend purely on scientific evidence, because science has not yet provided, and is unlikely to provide, any definitive answer. It must depend in part on beliefs as to the sentient capacity of animals (not presently susceptible to definitive proof); the extent of the respect which should be accorded to them; whether a precautionary approach should be adopted; and the relevance of the fact that hunting may be a purely recreational activity. The Burns Report noted in paragraph 6.10 that reliance on physiological and behavioural indicators would leave room for argument about whether particular indicators were a sign of poor welfare or merely of exertion within normal limits. There is a better understanding of the physiological changes which occur when a deer is hunted, “although there are still substantial areas of disagreement” (paragraph 6.33). There comes a point where in “the argument ceases to turn purely on scientific evidence, but instead, becomes a broader judgment about animal welfare” (paragraph 6.32).[294]The defendants say that there is an analogy here with R (Williamson) v Secretary of State for Education and Skills [2005] 2 WLR 590, which concerned the infliction of corporal punishment in schools. There was an issue whether the Secretary of State should be permitted to rely on a justification defence on appeal, when the claimants argued that they had not had the opportunity to adduce relevant evidence. Lord Nicholls said at paragraph 47:
“Moreover, and importantly, I am wholly unpersuaded that the evidence the claimants wish to adduce would assist in deciding the justification issue. The proposed new material would comprise psychiatric and other research evidence on the effect of corporal punishment, including in particular the effect of corporal punishment in an environment where “the relationship between school and home is a crucial issue in the progress and development of each child”, and parental evidence on the effect the ban on corporal punishment has had on children since section 548 came into effect. But this evidence would resolve nothing, it is well known that different views are held on the desirability of the corporal punishment to children. Evidence by parents, experts and others that in their opinion corporal punishment has an overall beneficial effect, or that it may do so in certain circumstances, would be no more than evidence in support of one view on a much discussed social issue affecting every family.”
[295]The defendants say that Members of the House of Commons were entitled and obliged to use their personal judgment and experience, and were not obliged to act solely on scientific evidence. Mr Sales adopts and relies on paragraph 39 of the judgment of the Inner House in Adams as follows:
“In our opinion, counsel for the petitioners have taken a wrong approach to this question. The factual basis upon which a legislature decides to enact a specific provision is not governed by the rules of admissibility and sufficiency of evidence that would apply in a court of law. A legislator is entitled to bring to bear on his decision his personal knowledge gained from his experience of life and from the representations that he may receive on current political topics from informants, pressure groups, committee witnesses, and so on. It is entirely for the judgment and experience of the individual legislator to decide which competing factual account he prefers. He is entitled to accept any account that in his judgment is reliable, no matter that it may be contradicted from other sources.”
[296]The defendants say that DEFRA and the Government have never taken the position that hunting is intrinsically unethical and should be banned because it involves the killing of animals for sport. They do not say that the Act is justified for that reason. However, it is clear that some Members of Parliament did take that view, and they were entitled to do so. It corresponds with a widely held and eminently respectable ethical view, as expressed, for example, by Professor Linzey at the Portcullis House hearings. It was the House of Commons which decided on the measures to take. This decision was admittedly contrary to the preference of DEFRA and the Government for a registration system. But this does not mean that the approach taken by the House of Commons was illegitimate, disproportionate or wrong. It was an approach which was legitimately available to them.[297]The defendants say that, when assessing the question of proportionality, the court should allow a very broad margin of discretion. The Act represents the view of the democratically elected legislature on an issue of general social policy, involving elements of moral and value judgment, on which reasonably held opinions differ widely. This is so, they say, under Article 1 of the First Protocol, where the margin of discretion is always broad. It would also be so under Articles 8, 11 and 14, if they were applicable. Respect for democratic decision making necessarily requires a margin of discretion for the legislature in those areas where it is proper for it to exercise the primary evaluative judgment.[298]James v United Kingdom [1986] 8 EHRR 123 concerned a challenge by the trustees of the estate of the 2nd Duke of Westminster to provisions of the Leasehold Reform Act 1967, which provided for compulsory transfer of leasehold properties to tenants at a price calculated under the Act. This was said to be an infringement of Article 1 of the First Protocol. The European Court stated at paragraph 46:
“Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”
. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation. Furthermore, the notion of ‘public interest’ is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is ‘in the public interest’ unless that judgment be manifestly without reasonable foundation.”[299]In considering whether the aim of the contested legislation was a legitimate one, the court said at paragraph 47 that eliminating what are judged to be social injustices is an example of the functions of a democratic legislature. And at paragraph 49, the court stated that it had jurisdiction to enquire into the factual basis of the justification pleaded by the respondent Government. That review however was limited to determining whether the legislature’s assessment of the relevant social and economic conditions came within the State’s margin of appreciation.[300]The European Court in James also confronted an argument that the legislation was arbitrary, because it failed to provide independent consideration for the reasonableness of each proposed enfranchisement. This has resonances of the claimants’ submission that the Hunting Act does not enable individuals or individual hunts to show that their hunting would conform with the tests of utility and least suffering. The court in James said at paragraph 68 that a system for individual consideration of reasonableness:
“… may have been possible, and indeed a proposal to this effect was made during the debates on the draft legislation. However, Parliament chose instead to lay down broad and general categories within which the right of enfranchisement was to arise. The reason for this choice, according to the Government, was to avoid the uncertainty, litigation, expense and delay that would inevitably be caused for both tenants and landlords under a scheme of individual examination of each of many thousands of cases. Expropriation legislation of wide sweep, in particular if it implements a programme of social and economic reform, is hardly capable of doing entire justice in the diverse circumstances of the very large number of different individuals concerned.”
[301]The European Court articulated the width of the State’s margin of discretion in these matters in part because the court itself was at some remove from the domestic social situation. It was suggested that we, a domestic court, are equipped by proximity to make a more intrusive evaluation, and that we should do so. We think that this misses the main point, which is that, in particular in the context of Article 1 of the First Protocol, it is for the legislature, not the court, to make the primary evaluation of social and economic matters which are not susceptible to purely scientific analysis and upon which reasonably held views differ widely.[302]In Hatton v United Kingdom (2003) 37 EHRR 611, which concerned an Article 8 claim, the Grand Chamber adopted the principle in James that “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” (paragraph 97). The House of Lords adopted this in Marcic v Thames Water Utilities [2003] UKHL 66, [2004] 2 AC 42, a claim under Article 8 of the Convention concerning protection from flooding (see Lord Nicholls at paragraph 41, Lord Hoffmann at paragraph 71, Lord Hope at paragraph 84 – Lords Steyn and Scott agreed with Lords Nicholls and Hoffmann). See also Williamson at paragraphs 50, 51 and Adams (Inner House) at paragraph 48.[303]Finally, on this topic, Mr Sales correctly submits that the court cannot claim any special expertise or institutional role in the matter of hunting. In practice, court procedure, especially judicial review, does not properly enable the court to assimilate and adjudicate upon the wide range of material which bears upon the justification and proportionality of legislation of this kind. These are not hard-edged questions.[304]As to the three elements embedded in the principle of proportionality, the defendants say that there was adequate factual information available, and an adequate and proper basis on which the House of Commons could make the judgment that hunting was cruel and should be banned in its entirety, subject to the exceptions in Schedule 1 of the Act, rather than merely subjected to a registration system. This would be so, even if the relevant judgment were defined as a purely factual or scientific judgment; the more so when it is properly defined so as to include an element of moral or value judgment.[305]It is quite evident that the parliamentary and public debate on hunting was extensive. The amount of parliamentary time was unprecedented. Members of Parliament had extensive evidence and analysis. The Burns Report concluded that hunting with dogs “seriously comprises the welfare of the fox” (paragraph 6.49). There were equivalent conclusions for deer, hare and mink.[306]The Report said that it was an over-simplification to say that foxes are almost invariably killed by the leading hound grabbing the foxes neck (paragraph 6.46). It was critical of the practice of digging out and suggested as one option banning it altogether (paragraph 9.20). The Report expressed these conclusions, while noting the lack of firm scientific evidence as to the suffering caused by hunting. The Report also noted that there was often room for argument about the extent to which various indicators pointed to poor welfare.[307]The defendants emphasise that the Burns Inquiry was not asked to reach conclusions on moral or ethical issues, nor on whether hunting should be banned. Nor did it reach a conclusion on whether hunting is cruel. They say that the statements made by Mr Rolls in these proceedings were in the main available to legislators by means of the Burns Inquiry and the Portcullis hearings. There is a respectable and well supported school of thought that hunting with dogs is obviously cruel. There is a view, widely held internationally, that “man has a moral obligation to respect all animals and to have due consideration for their capacity for suffering and memory” (preamble to the European Convention for the Protection of Vertebrate Animals used for Experimental and Other Scientific Purposes). This view guides a principle for the treatment of laboratory animals that, if something is likely to cause suffering in humans, it should be assumed to cause suffering in animals. If there were doubt about the suffering of a hunted animal, it would be justifiable to legislate to remove that doubt. Therein, perhaps, lies the point at which the claimants’ and defendants’ cases most obviously collide. The claimants’ case in essence is that their rights and freedoms should not be infringed, if the scientific case for doing so is not securely established.[308]A legalistic debate about the status and effect of a precautionary principle 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. In a parliamentary context, the mediation process at Portcullis House failed to reach a common position. A decision was required of Parliament whether to legislate and, if so, in what terms.[309]The defendants say that there was a legitimate basis on which Parliament could conclude that shooting, which was and is, after road accidents, themost common way for foxes to be killed, causes less unnecessary suffering than hunting with dogs. The Burns Report concluded that lamping is in general the most humane way to kill foxes. Retrieving wounded foxes with one or two dogs is permitted under paragraph 8 of Schedule 1 of the Act. The defendants further question the utility of fox hunting as a means of pest control. Hunting makes a statistically minor contribution to the control of the fox population. They say that it is a tenable view that hunting is mainly a leisure sport.[310]We did not receive detailed oral submissions specifically relating to deer, hare and mink. The defendants say that deer hunting is not necessary for pest control, as is shown by the fact that it does not take place in most of England and Wales where there are deer in the wild. The Bateson Report is tacitly accepted to provide cogent scientific evidence that a prolonged deer chase may cause prolonged physiological suffering. Neither hare nor mink hunting are necessary for pest control. Each, according to the Burns Report, seriously compromises the welfare of the quarry.[311]The Human Rights claimants say in reply that a purely ethical objective unsupported by demonstrable harm cannot justify the infringement of Convention rights. Mr Gordon points to Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39 at paragraphs 43-46; and Norris v Ireland (1991) 13 EHRR 186 at para. 46 as indicative of this principle. We note that in Norris, the European Court was responding to a contention by the Irish Government that its discretion in the field of protection of morals was unfettered. This is not the defendants’ case in these proceedings. Nor do the defendants seek to support an ethical basis for the legislation divorced from a sufficiently established factual point of view.[312]Mr Gordon reiterates that there has to be a sufficiently weighty and clearly established evidential foundation to support the necessity of the legislative aim contended for. It is this which is lacking. Mr Anderson contrasts the scientific evidence relating to deer with what he says is the lack of such evidence relating to foxes.[313]Mr Gordon says that the legitimacy of the legislative aim is not established unless 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. He says that none of these can be shown.[314]He says that the legislative aim is not clear from the text of the Act. He questions whether there is sufficient material from which the court can discern the aim, and says (correctly) that the court cannot pluck an aim out of the ether. He says that there can be no other rationally deduced legitimate aim for the Hunting Act than that of protecting wild animals from unnecessary suffering. It would be odd, to say the least, for the court to find a legislative aim which is different from that which the defendants contend for through both Mr Bradley and Mr Sales.[315]The European Law claimants contend that the importance of their rights, protected by the Treaty is twofold. First, they establish the need to find a scientific and not a moral basis for the prohibition. Secondly, the jurisprudence of the Community establishes the need for strict scrutiny of the justification for the ban and requires a cogent scientific foundation.[316]Much of the journey through Community jurisprudence, in which we were led by Mr Anderson QC, demonstrated that which was not in dispute. If a claimant succeeds in establishing an infringement of a freedom protected by the Treaty, this court is required to disapply the Hunting Act, save in so far any of its provisions are severable. The court is bound to follow and not merely take into account the jurisprudence of the European Court of Justice in accordance with Section 2 of the European Communities Act 1972. The test of proportionality is well settled: “The lawfulness of the prohibition of an economical activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.” (See R v Maff ex parte Fedesa Case-331/88 [1990] ECR I.4013at 406 para 13).[317]The European Law claimants assert that the only permissible justification is the maintenance and improvement of animal welfare. The measure designed to achieve that aim must be supported by sufficient evidence and it must be the least restrictive way in which the identified objective could have been achieved.[318]Unlike the restrictive powers of the courts in relation to Parliament under the Human Rights Act, 1998, the constitutional position of Parliament is of less significance: “I doubt whether identification of the Community legislator, or distinctions between primary and secondary legislation, either at the Community or at the national level, are of much assistance in determining the margin of appreciation available to a national decision.” (See Robert Walker LJ, as he then was, in R v Maff at page 384 B to D). Any justification must be compliant with the European Convention on Human Rights (see e.g. Carpenter). Thus the claimants contend that justification under the Treaty requires no less a foundation than under the Human Rights Act 1998. None of these points are in issue; but it is necessary to consider what Community jurisprudence adds to issues of justification .[319]In relation to Article 28, Article 30 provides:
“The provisions of Articles 28 and 29 shall not preclude prohibition or restrictions on imports, exports…. justified on grounds of public morality, public policy or public security; protection of health and life of humans, animals or plants…. such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”
[320]In relation to Article 49, by virtue of Article 55, Article 46.1 provides:
“The provisions of this chapter and measures taken in pursuant thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.”
[321]The area of controversy again concerns the role of moral or ethical considerations. Whilst it was accepted that an ethical view of hunting is part of the justification, it must, so the European Law claimants contended, be firmly rooted in the justification of protection of animal welfare. Ethical views about hunting cannot be divorced from the legitimate objective of the promotion of animal welfare. They cannot form a separate justification.[322]If the justification of protection of animal welfare does not withstand appropriate judicial scrutiny, it cannot be saved by any distinct, ethical dimension. Justification for the Hunting Act must be judged by the yardstick of whether it can be shown to be the least restrictive measure for the reduction or elimination of unnecessary suffering. If, as is contended, the Hunting Act has an insufficiently rational basis because it may cause equal or more suffering to some foxes, ethical views as to the pursuit of foxes for pleasure will not cure the inadequacy of the justification.[323]In support of these submissions we were referred to a number of authorities which highlighted the inadequacies and dangers of relying upon moral or ethical justifications. In Torfaen Case C-145/99 [1989] ECR I-3851, the Advocate General did not think that preventing public offence at trading on Sundays fell within the concept of public morality under the Treaty. He pointed out that the purpose of Article 30 (ex 36) is not to permit Member States to exercise exclusive jurisdiction over matters such as public morality. He continued at paragraph 29: “It is true that the court in its judgment in Henn & Darby accepted that in principle it is for each Member States to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory. However, the principle that it is not the purpose of Article 36 to reserve certain matters to the exclusive jurisdiction of the Member States implies that the court must exercise some control over what is regarded by a Member State as falling within the concept of public morality. The prevention of offence to religious convictions does not seem to me to fall within that concept. Nor does the protection of public policy seem to me to be applicable here. Reliance on that ground, the scope of which must be interpreted strictly, requires “the existence…..of a genuine and sufficiently serious threat to the requirements of public policy affecting one the fundamental interests of society.”” (See also the Advocate General in Omega between paragraphs 100 and 103).[324]Thus, it is said, that a mere indication of public morality as justification for the hunting ban would deprive the court of any opportunity of accessing the measure against the yardstick of Community jurisprudence.[325]We accept the need for caution when public morality is advanced as an objective for a measure which infringes Community rights. But we reject any suggestion that, at least when founded in concerns for animal welfare, it cannot afford an additional basis of justification. The European Law claimants sought to resist that proposition by reference to ex parte Compassion in World Farming Case C-196 [1998] ECR I-1252. The Court ruled that the Government had no power to restrict the export of calves in veal crates on the ground of public policy and public morality because animal health had already been exhaustively regulated in a Directive. Thus in relation to an infringement of Article 29 (ex 34), it was not open to the court to rely upon Article 30 (ex 36).[326]The Court referred to the question whether public morality could in that case be invoked as a separate ground:
“65. It remains to be examined whether a Member State may rely on Article 36 in order to restrict the export of calves to other Member States for reasons relating to the protection of public policy or public morality which are not the subject of the Directive. 66. CIWF supports recourse to those justifications simply by drawing attention to the views and reactions of a section of national public opinion which believes that the system put in place by the Directive does not adequately protect animal health. So, in reality, public policy and public morality are not being invoked as a separate justification but are an aspect of the justification relating to the protection of animal health, which is the subject of the harmonising Directive.”
[327]That affords, in our view, no support for the proposition that public morality cannot be invoked as a separate ground or as part of a composite ground. The European Union has not promulgated any legislation relating to hunting. There are ample examples, amongst which can be numbered Omega, as to the part public morality can play in the justification offered by a Member State for a measure which inhibits the four fundamental freedoms. The Advocate General in Omega, echoing the Advocate General in Torfaen, referred to the scope for discretion, in particular in areas as especially sensitive ideologically or associated with particular social risks (see paragraph 102).[328]The Court too, in Omega, referred to the need to construe public policy strictly “so that its scope cannot be determined unilaterally by each Member State without any control by the community institutions” (paragraph 30). It referred to a margin of discretion within the limits imposed by the Treaty (see paragraph 31).[329]Thus the Court recognised the need for strict scrutiny so as to determine whether there is a genuine and sufficiently serious threat to a fundamental interest of society. But it equally appreciated that public policy and the needs of society will vary from Member State to Member State and therefore each Member State must be allowed a margin of discretion.[330]Within domestic law, the importance of accepting a margin of discretion in relation to aspects of public policy such as public health was recognised by the Court of Appeal in R v Secretary of State for Health ex parte Eastside Cheese Company [1999] EuLR 968. Although the defendants placed particular reliance upon the Lord Chief Justice’s exposition as to proportionality and the margin of appreciation, it must be recalled that legitimacy of the objective in that case, namely the protection of public health against the threat of E-coli, could hardly be doubted. The real issue was as to the extent of the actions taken.[331]The importance of these authorities is that they allow of the possibility that a genuine, as opposed to a colourable, public interest may be identified by a particular Member State which has a discretion in determining the needs of society for which it is responsible, through its democratic institutions. Secondly, a public interest, as Omega illustrates, may not be capable of scientific assessment.[332]The second proposition brings us to the second limb of the European Law claimant’s reliance upon Community jurisprudence. That jurisprudence recognises the need for adequate scientific evidence so as to enable the European Court of Justice to make an assessment as to whether a measure is proportionate. The Court has required sufficient cogent evidence to establish danger to public health in relation to bans on addition of vitamins to food (Commission v Denmark [2003] ECR 1-9693) and in relation to the extent to which a prohibition on tobacco advertising would reduce consumption (see Germany v Parliament and Council Case C-376/98 [2000] ECR I-819). In Familapress the Court laid down the nature of the steps the national court would have to take to satisfy itself that the measure banning the offer of prizes in the press was proportionate. It would, so the Court said, be necessary to conduct a study of the press market, define that market and market shares of particular newspapers, and consider the effect on consumers of papers which do not offer prizes (see paragraph 30 and 31).[333]All those authorities were relied upon in support of the contention that it was not open to Parliament to legislate while the state of the evidence as to the suffering of foxes was unclear.[334]We accept the submission that in so far as the justification for legislative measures is capable of scientific assessment, national courts must themselves be astute to scrutinise the adequacy of the evidence. 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. As the Advocate General in Compassion in World Farming pointed out, morals, according to Le Petit Larousse are: “All the rules of conduct and values which operate as standards in a society.” (See note 49 at paragraph 101).[335]The crucial submission of the European Law claimants is that, in the state of scientific evidence at present, the legislature could not know whether the ban would increase or diminish the welfare of the fox. They say that this case is distinguishable from threats to public health due to E-coli or toxic waste where the legislature may act to avoid a risk before the extent of the risk is known. For all the legislature knew, the ban on hunting will increase the risk of suffering to foxes.[336]The application of Community law principles does not dictate so restrictive an approach to the issues in this case. In a case where difficult decisions must be taken, requiring risks to be weighed in an area of social policy, the margin of discretion recognised in Community jurisprudence is wide. True, the fact that it was Parliament making the decision is not a trump card. But the legislature is best placed to assess such delicate matters of ethical policy, even though informed by scientific research.

Conclusion

[337]We have concluded that the defendants sufficiently establish that the Hunting Act has a legitimate aim; that it is rationally related to that aim; that it does not go further than is necessary to achieve that aim; that it is necessary in a democratic society; that it satisfies the test of proportionality; and that Parliament had sufficient evidential material to reach such conclusions on a rational basis.[338]We so conclude for reasons which are anticipated in our account of the defendants’ submissions, which in the main we accept, but which we synthesise in our own words as follows. In reaching these conclusions, we have done our best to undertake and perform the evaluative process described in the speech of Lord Nicholls in Wilson. We have done our best to balance all the main factors put before us by each of the parties as, we trust, the length of this judgment sufficiently indicates.[339]We discern from evidence admissible on the principles in Wilson that 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 and should, so far as is practical and proportionate, be stopped. The evidential derivation for this legitimate aim comprises the terms of the legislation and the admissible contextual background. This background includes the Burns Report, the Portcullis House hearings, the ministerial basis for and the terms of the original Michael Bill, the obvious inference that the majority of the House of Commons considered the original Michael Bill inadequate, and the well-known opposing points of view in the prolonged and much publicised hunting controversy.[340]We reject the contention that the court should not discern a legislative aim which goes beyond that espoused by the Government, both originally and in this litigation. The legislation was not that which the Government proposed. It was rationally open to the House of Commons to espouse a different or modified legislative aim and in particular to supplement the Government’s aim with a sustainable ethical overlay. We can well see that the defendants, to maintain consistency, would decide forensically to adhere to the Government’s published original position. But, as Mr Sales said, if it was rationally open to the House of Commons to adopt a different view (as we think it was), it is open to the court to conclude that that is what they collectively did. The State is not in a more advantageous position in these proceedings because the Hunting Act resulted from a free vote. But, since we cannot consider the views in Parliament of individual members of the House of Commons, the search for their collective legislative aim, objectively determined from the evidence, cannot be abandoned.[341]We consider that there was sufficient material available to the House of Commons for them to conclude that hunting with dogs is cruel. In analytical terms, this “material” is evidence, but we espouse the view of the Inner House in Adams that the nature of the subject matter is such that evidence is not to be strictly regarded as if it were evidence in court – rather material from which a view as to cruelty could rationally be reached.[342]Although it is no part of our task to make a primary adjudication on this material – and we do not do so – we think that the claimants’ case on comparative cruelty is fragile. We acknowledge that a comparative assessment is necessary to satisfy the requirement that the measure must go no further than is necessary to achieve the aim. But that is a comparison between the Hunting Act and other possible measures. In urging a comparison between hunting with dogs and other methods of culling, the claimants assume a definition of cruelty (also assumed by the Government) based on unnecessary suffering, itself based on a comparative assessment of that which causes least suffering, and without an ethical overlay. We can well conceive that Members of Parliament could rationally adopt a rather less structured view of what is cruel. More importantly, however, a comparative evaluation between(1) suffering caused by hunting with dogs, which is regarded as both unethical and intentional, and(2) accidental and unintentional suffering resulting from a shot which wounds but does not kill outright, could rationally fall on the side of the former. There was, in any event, a reasonable basis on the evidence for a conclusion that, taken as a whole, hunting foxes with dogs causes more suffering than shooting them.[343]We think that there was sufficient “evidence” for the majority of the House of Commons rationally to conclude that fox hunting is cruel for the reasons given by Mr Sales. The claimants’ case that this is not yet scientifically proved (but may be one day) defies the nature of the subject matter. It is not a judgment which depends entirely on science. We think, incidentally, that the evidence was sufficient to sustain rationally the Government’s legislative aim, by means of the Hunting Act, without an ethical overlay. But we accept the defendants’ submission that the implementation by legislation of an ethical view, which is, as we think, sufficiently supported in fact, does not have to wait for conclusive scientific evidence.[344]The claimants’ case on deer, hare and mink hunting is weaker than their case on fox hunting. What applies to fox hunting applies with equal or greater force to hunting the other three quarries.[345]We think that there was ample basis for a legislative judgment that the registration scheme in the original Michael Bill was unworkable, and that it would result in Parliament delegating to the registrar an intensely difficult series of decisions which Parliament itself ought to take. In any event, if, as we think, the legislative judgment was that hunting with dogs is unethically cruel and should be banned, a registration scheme was obviously not the way to implement that judgment.[346]We think that it was rationally open to the House of Commons to decide that exceptions for individual circumstances from a complete ban would be unworkable. This would be essentially the same legislative judgment as that which would reject the registration scheme, and reject enacting a defence based on intention to adhere to and achieve the utility and least suffering tests.[347]We think finally that the legislation passes the proportionality test which we have to apply and evaluate. It was within the proportionate rational competence of the legislature to conclude that the balance between the legitimate legislative aim and the interference with rights and freedoms which it would engender fell on the side of enacting the Hunting Act. It was intrinsically a political judgment and a matter of domestic social policy, incapable of measurement in any scientifically calibrated scale, upon which the domestic legislature had a wide margin of discretion.[348]A measure is not necessary in a democratic society only because the democratically elected majority of the legislature enacts it. But it was, we think, reasonably open to the majority of the democratically elected House of Commons to conclude that this measure was necessary in the democratic society which had elected them. In the end, there were two irreconcilable opposing views, each capable of being reasonably and rationally held, about hunting with dogs. The House of Commons duly decided to legislate to achieve the one which the majority of its members regarded as necessary.[349]In the light of these conclusions in relation to justification under the Human Rights Act, it is unnecessary to lengthen this judgment unduly by reference to justification for the purposes of Article 46.1, since there has been a breach of Article 49, or Article 30 (if there had been a breach of Article 28).[350]The objective we have identified of preventing or reducing unnecessary suffering, overlaid by the ethical view as to causing suffering to animals for sport, is plainly an objective which is legitimate within Article 46.1 and 30 (see paragraph 339). In the light of that aim, no lesser measure would have achieved the aim which Parliament believed to be necessary. This was not a case where the legislature had proceeded on the basis of insufficient evidence (see paragraph 341). In those circumstances the decision cannot be condemned on the basis that it puts the legislation wholly beyond judicial assessment by mere invocation of public morality, as the Advocate General feared in Torfaen.[351]The Act was proportionate under Community law for the same reasons as we have found it to be proportionate under the Human Rights Act (see paragraph 347). In reality, there is no space, in the instant case, between the one and the other.[352]For these reasons, each of the applications for judicial review is dismissed.

Cited in 9 later judgments