Adams and Others v Lord Advocate

JurisdictionScotland
CourtCourt of Session (Outer House)
Judgment Date31 July 2002
Docket NumberNo 8
Date31 July 2002

OUTER HOUSE

Lord Nimmo Smith

No 8
ADAMS
and
ADVOCATE GENERAL

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).

Cases referred to:

A v The Scottish MinistersSC 2002 SC (PC) 63

ADDB v Netherlands Application No 37328/97 (31 August 1999)

Aldred v Miller 1925 JC 21

Associated Provincial Picture Houses Ltd v Wednesbury CorporationELR [1948] 1 KB 223

Baner v Sweden (1989) 60 DR 128

Botta v ItalyHRC (1998) 26 EHRR 241

British Railways Board v PickinELR [1974] AC 765

Brown v StottSC 2001 SC (PC) 43

Brïggemann and Scheuten v Federal Republic of GermanyHRC (1983) 3 EHRR 244

Chassagnou v FranceHRC (1999) 29 EHRR 615

CCSU v Minister for Civil ServiceELR [1985] 1 AC 374

Davidson v The Scottish MinistersSC 2002 SC 205

De Freitas v Ministry of AgricultureELR [1999] 1 AC 69

Dudgeon v United Kingdom (No 2)HRC (1981) 4 EHRR 149

East Kilbride District Council v Secretary of State for Scotland 1995 SLT 1238

Fredin v SwedenHRC (1989) 13 EHRR 784

Friedl v AustriaHRC (1995) 21 EHRR 83

Handyside v United KingdomHRC (1976) 1 EHRR 737

International Transport Roth GmbH v Secretary of State for the Home DepartmentUNK [2002] EWCA Civ 158

James v United KingdomHRC Series A No 98, (1986) 8 EHRR 123

Karni v Sweden (1988) 55 DR 157

Kjeldsen, Busk Madsen and Pedersen v DenmarkHRC (1976) 1 EHRR 711

Krone-Verlag GmbH v Austria Application No 31564/96 (7 March 2002)

Kruse v JohnsonELR [1898] 2 QB 91

Laskey, Jaggard and Brown v United KingdomHRC (1997) 24 EHRR 39

Lithgow v United KingdomHRC (1986) 8 EHRR 329

M v Home OfficeELR [1994] 1 AC 377

Mabey v United KingdomHRC (1996) 22 EHRR CD 123

McDonald v Secretary of State for ScotlandSC 1994 SC 234

Matthews v Ministry of DefenceUNK [2002] EWCA Civ 773

Niemetz v GermanyHRC (1992) 16 EHRR 97

Norris v IrelandHRC (1989) 13 EHRR 186

Northern Ireland Road Transport Board v BensonDNI [1940] NI 133

NWL Ltd v WoodsWLR [1979] 1 WLR 1294

Open Door Counselling Ltd and Dublin Well Woman Centre Ltd v IrelandHRCHRC (1992) 14 EHRR 131, (1992) 15 EHRR 244

Pagan & Osborne v HaigENR 1910 SC 341

Pinnacle Meat Processors Co v United KingdomHRC (1998) 27 EHRR CD 217

Pretty v United Kingdom Appln 2346/02 (29 April 2002)

Purcell v Ireland (1991) 70 DR 262

Pyx Granite Co Ltd v Ministry of Housing and Local GovernmentELR [1960] AC 260

R v Director of Public Prosecutions, ex parte KebileneELR[2000] 2 AC 326

R v Immigration Appeal Tribunal, ex parte Manshoora Begum [1986] Imm AR 385

R v Secretary of State for the Home Department, ex parte Fire Brigades UnionELR [1995] 2 AC 513

R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) ELR [1991] 1 AC 603

R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2001] UK (HL) 23

R (Daly) v Secretary of State for the Home Department[2001] UK (HL) 26

Renton Football Club v McDowallUNK (1891) 18 R 670

Scottish Motor Traction Co v Lanarkshire County Council 1929 SC (HL) 110

Scottish Old People's Welfare Council, Pet 1987 SLT 179

Slough and King v United Kingdom Applns 37679/97; 37682/97 (26 September 2000)

Smith and Grady v United KingdomHRC (1999) 29 EHRR 493

Sporrong and Lînnroth v SwedenHRC (1982) 5 EHRR 35

The Prolife Alliance v The British Broadcasting CorporationUNK [2002] EWCA Civ 297

Tre Traktîrer Aktiebolag v SwedenHRC (1989) 13 EHRR 309

Vogt v GermanyHRC (1995) 21 EHRR 205

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