Adams and Others v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 31 July 2002 |
| Docket Number | No 8 |
| Date | 31 July 2002 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Nimmo Smith
Constitutional Law— Scottish Parliament— Legislative competence— Whether Act of Scottish Parliament outwith legislative competence— Whether service and intimation appropriate on Advocate General in proceedings seeking reduction of Act of Scottish Parliament— Whether competent to reduce Act of Scottish Parliament— Whether judicial review of Act complained of competent at common law— Whether averments sufficient to establish petitioners' title and interest to sue— Whether Act incompatible with the European Convention on Human Rights— Whether relevant averments that Act interfered with private life, control of possessions, or discrimination contrary to Art 8, Art 1 First Protocol, or Art 14— Rules of the Court of Session r 25A— Scotland Act 1998 (cap 46) secs 1, 19, 21, 27–29, 31, 33, 40, 44, 45, 47, 52, 54, 87, 100–102, 126 — Human Rights Act 1998 (cap 42) secs 3, 6, 7, 21, sched 1: Art 8, First Prot Arts 1 & 14, 2, 6— Protection of Wild Mammals (Scotland) Act 2002 (asp 6)1
The Protection of Wild Mammals (Scotland) Act 2002 which prohibits mounted foxhunting with dogs was passed by the Scottish Parliament on 13 February 2002 and received the Royal Assent on 15 March 2002. A petition for reduction of the Act as incompatible with the European Convention on Human Rights and therefore outwith its legislative competence was served on the Advocate General in terms of Rule of Court 25A, a devolution issue arising. The Advocate General lodged answers to the effect that the Scottish Parliament and not the Advocate General was the appropriate respondent in respect of any such challenge and the Parliamentary Corporation ought to have been called as respondent.
The petitioners were a self-employed manager of fox-hounds, a farmer, landowners, the Fife Hunt an unincorporated hunt association and the chairman and master thereof, the Buccleuch Hunt Supporters Club an unincorporated association engaged in supporting the traditional activity of traditional mounted hunting and the chairman and secretary thereof, the Jedburgh Hunt an unincorporated hunt association, the Countryside Alliance an unincorporated association and the chairmen of the association and of the Scottish steering committee thereof and the Masters of Foxhounds Association an unincorporated association and the chairman and secretary thereof.
The petitioners argued that at common law the Act was not a bona fide or reasonable exercise of limited legislative powers, was unnecessary for the good government of Scotland, was partial and unequal in its operation, involved oppressive or gratuitous interference with rights, would have damaging and disproportionate economic and social effects, was based on incompletely informed views as to the moral desirability or appropriateness of criminalizing certain types of conduct, proceedings on the Bill were vitiated by procedural impropriety in the committee stages, and the Scottish Parliament had failed to take account of limitations on its legislative powers, namely enactment of legislation that was reasonable and necessary for the legitimate aims of good government in Scotland.
The petitioners accepted that in relation to title and interest to sue, they required to show that they were each “victims” within the meaning of the Scotland Act 1998 in relation to convention grounds of challenge. The effect of the legislation would be to infringe the convention rights in relation to each of the petitioners.
The petitioners argued that the ban on mounted foxhunting interfered with the private lives and homes of the individuals, in particular the participation in hunting and hunt-related activity such as running a pack of foxhounds, use of private land for hunting, and the social and other hunt-related activities enjoyed by those involved, contrary to Art 8 of the European Convention. The petitioners further argued that the ban contravened Art 1 of the 1st Protocol and interfered with property rights by having the effect of loss of livelihood, loss of occupational rights contingent on the practice of the profession of foxhunting, loss on sale of horses and vehicles necessary for the exercise of foxhunting, increase in fox numbers resulting in loss of stock. Such interference were not proportionate nor in pursuit of a legitimate aim. Finally, the petitioners argued that the distinction drawn in the legislation between mounted hunting and the continuance of other forms of hunting amounted to discrimination under Art 14 of the convention for no rational reason.
Held: (1) that service on the Advocate General rather than the Parliamentary Corporation was appropriate although the Advocate General was not obliged to lodge answers or enter appearance, the appropriate contradictor in present proceedings being the Lord Advocate (pp 186I–187F); (2) that the Scotland Act 1998 provided a comprehensive framework for the operation of the legislative procedures of the parliament itself as well as the parliament's relationship to the courts and accordingly traditional common law grounds of judicial review were excluded (p 200E–I); (3) that the claims of the unincorporated associations were either irrelevant or of doubtful relevancy in relation to title and interest to sue (p 206B–D); (4) that foxhunting had no characteristic which would bring it within the concept of private life and did not fall within the personal sphere recognised by the European Court and accordingly the Act did not breach Art 8 (pp 215H–216B); (5) that there was no identifiable loss averred and therefore no breach of property rights in terms of Art 1 1st Protocol (pp 227C–228B); (6) that although the dis crimination between forms of hunting amounted to discrimination under Art. 14, the prohibition fell within the discretionary area of judgment of the Scottish Parliament as objectively justifiable (pp 229H–230B); and petition dismissed.
Observed that in the event of successful challenge to an Act of the Scottish Parliament, the remedy of reduction would be competent (pp 186I–187F).
Trevor Adams and other individuals involved in mounted hunting presented a petition under the judicial review procedure in the Court of Session seeking reduction of an Act of the Scottish Parliament, the Protection of Wild Mammals (Scotland) Act 2002, as incompatible with the European Convention on Human Rights and therefore outwith the legislative competence of the Scottish Parliament. The Advocate General and the Scottish Ministers entered appearance as respondents.
The petition and answers came before the court for a first hearing on 2 to 11 July 2002 before the Lord Ordinary (Lord Nimmo Smith).
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Associated Provincial Picture Houses Ltd v Wednesbury CorporationELR [1948] 1 KB 223
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