Adams v Scottish Ministers
| Jurisdiction | Scotland |
| Judgment Date | 28 May 2004 |
| Date | 28 May 2004 |
| Docket Number | No 52 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Constitutional Law - Scottish Parliament - Legislative competence - Whether Act of Scottish Parliament prohibiting mounted foxhunting outwith legislative competence - 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 Arts 8, 11 or 14 and Art 1, First Protocol - Scotland Act 1998 (cap 46), secs 1, 28, 29, 54, 100, 126 - Human Rights Act 1998 (cap 42) secs 1, 3, 6, 7, 21, scheds 1, Arts 8, 11, 14, First Protocol, Art 1 - Protection of Wild Mammals (Scotland) Act 2002 (asp 6), secs 1, 10
The Protection of Wild Mammals (Scotland) Act 2002 which prohibits mounted foxhunting with dogs or the permitting of use of land or dogs for that purpose was passed by the Scottish Parliament on 13 February 2002, received the Royal Assent on 15 March 2002 and came into force on 1 August 2002 in terms of the Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 (SSI 2002 No 181). A petition for reduction of the Act and the Commencement Order together with ancillary orders was brought prior to the coming into force of the Act. The orders sought were on the basis of the Act being incompatible with the European Convention on Human Rights and therefore outwith the legislative competence of the Scottish Parliament. The petitioners were a self-employed manager of foxhounds, a farmer, landowners, unincorporated hunt associations, the Countryside Alliance, an unincorporated association, and the governing body for foxhunting in the United Kingdom, an unincorporated association.
At the first hearing on the petition and answers, the Lord Ordinary on 31 July 2002 dismissed the petition as irrelevant. The petitioners reclaimed against the Lord Ordinary's decision, seeking only reduction of the Act on the grounds that it was ultra vires because it infringed the petitioners' rights under the European Convention on Human Rights. The petition was amended to add a case under Art 11 which had not been argued before the Lord Ordinary. It was accepted by the respondents that the remedy of reduction was the appropriate one subject to the provisions of sec 102 of the Scotland Act 1998 in relation to interim provisions in the event of a declarator of incompatibility.
The petitioners argued that hunting was an intensely social activity which fell within the ambit of Art 8 because it related to the fabric of the petitioners' daily lives and although the activity was not done in private the respective petitioners' homes under Art 8 did include their estates and lands held therewith which were not freely accessible to the public, in the event of doubt on the matter, they were entitled to proof; that the prohibitions contained in the act were contrary to the Art 11 right to freedom of peaceful assembly and of association; that the act constituted a de facto expropriation of the respective petitioners' hounds and affected the first petitioner's livelihood, there being little or no evidence that foxhunting was cruel the act could not be said to be necessary in the general interest and therefore contravened the provisions of Art 1 of the First Protocol; that the interference with the petitioners' rights under Art 14 was not justified.
Held that: (1) although foxhunting had characteristics which would bring it within the concept of private life it nevertheless did not fall within the personal sphere under Art 8 as the establishment and development of interpersonal relationships by it happened in such a broad and indeterminate way that it could not be described as part of the petitioners' personal lives (paras 67,68); (2) that the respective petitioners' homes in terms of Art 8 could not extend to anything more that the dwellinghouse and its immediate surroundings and there was no entitlement to proof on the matter (paras 71-73]; (3) that a prohibition such as that contained in the Act which prohibited a particular activity with the indirect result that persons could not associate for the purpose of carrying it out did not infringe Art 11 (paras 82, 83); (4) that although no formal legal confiscatory act was necessary to contravene Art 1 of the First Protocol, the Act did not deprive the petitioners of their hounds which could still be used for a variety of purposes, and although the first petitioner's livelihood was a possession, parliament was entitled to find that foxhunting was cruel and consequential effects on the petitioners were effects which fell within Parliament's discretionary area of judgment, and that therefore no contravention of the article had occurred (paras 94,97, 104, 105); (5) that the prohibition in the Act did not constitute discrimination under Art 14 and that the Lord Ordinary had erred in holding that someone who takes part in foxhunting has on that account a personal characteristic or status (para 14); (Whaley v Lord AdvocateSC 2004 SC 78 approved); and reclaiming motion refused and cross-appeal granted.
Observed that a representative organisation cannot claim the status of victim within the meaning of the Scotland Act 1998 for convention purposes unless its own interests, rather than just those of its members, are directly affected (para 12).
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). On 31 July 2002 the Lord Ordinary dismissed the petition. The petitioners reclaimed on human rights grounds only, and the Advocate General withdrew from proceedings. The remaining respondents, the Scottish Ministers, cross-appealed against the Lord Ordinary's decision to the extent that he held that human rights were engaged by the petition.
Cases referred to:
A, X and Y v Secretary of State for the Home DepartmentELR [2004] QB 335
Baner v Sweden (1989) 60 DR 128
Botta v Italy (1998); 26 EHRR 241
Brown v StottSC 2001 SC (PC) 43
Brüggemann and Scheuten v Federal Republic of Germany (1981); 3 EHRR 244
Bullock v United Kingdom (1996); 21 EHRR CD 85
Chassagnou v France (1999); 29 EHRR 615
De Freitas v Ministry of AgricultureELR [1999] 1 AC 69
Fredin v Sweden (1991); 13 EHRR 784
Grande Oriente d'Italia di Palazzo Giustiniani v Italy (2002); 34 EHRR 22
Handyside v United Kingdom (1976); 1 EHRR 737
James v United Kingdom (1986); 8 EHRR 123
Karni v Sweden (1988) 55 DR 157
Kjeldsen, Busk, Madsen and Pedersen v Denmark (1979-80); 1 EHRR 711
Klass v Germany (1978); 2 EHRR 214
Lithgow v United Kingdom (1986); 8 EHRR 329
Mabey v United Kingdom (1996); 22 EHRR CD 123
NF v Italy (2002); 35 EHRR 4
Niemetz v Germany (1992); 16 EHRR 97
Norris v Ireland (1988) 44 DR 132
PG and JH v United Kingdom App 44787/25 (25 Sept 2001)
Pentidis v Greece (1997); 24 EHRR CD 1
Pinnacle Meat Processors Co v United Kingdom (1998); 27 EHRR CD 217
Pretty v United Kingdom (2002); 35 EHRR 1
R v BBC, ex p Prolife AllianceELR [2004] 1 AC 185
R v Director of Public Prosecutions, ex p KebileneELR [2000] 2 AC 326
R v LambertELR [2002] 2 AC 545
R v ShaylerELR [2003] 1 AC 247
Scientology Kirche Deutschland v Germany App 34614/97
Slough and King v United Kingdom App 37679/97; 37682/97 (26 Sept 2000)
Sporrong and Lönnroth v Sweden (1982); 5 EHRR 35
Steel and Morris v United Kingdom App 68416/01 (22 Oct 2002)
Tre Traktörer Aktiebolag v Sweden (1989); 13 EHRR 309
Van Marle v Netherlands (1986); 8 EHRR 483
Vogt v Germany (1995); 21 EHRR 205
Wandsworth London Borough Council v MichalakWLR [2003] 1 WLR 617
Whaley v Lord WatsonSC 2000 SC 340
Whaley v Lord AdvocateSC 2004 SC 78
Wingrove v United Kingdom (1996); 24 EHRR 1
The cause called before the Second Division, comprising the Lord Justice-Clerk (Gill), Lord Macfadyen and Lord Abernethy for a hearing on the summar roll.
At advising, on 28 May 2004, the opinion of the Court was delivered by the Lord Justice-Clerk -
OPINION OF THE COURT -
[1] This petition challenges the validity of an enactment of the Scottish Parliament. The enactment in question is The Protection of Wild Mammals (Scotland) Act 2002 ('the 2002 Act'). It received Royal Assent on 15 March 2002 and came into force on 1 August 2002. The petitioners seek reduction of this Act and of the Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 (SSI 2002 No 181).
[2] The petition was presented before the Act came into force. It craved reduction of the Act and of the Commencement Order; and various ancillary orders for interdict, specific performance, suspension and postponement of the coming into force of the Act. The petitioners now seek only reduction of the Act itself on the ground that it isultra vires. The respondents do not dispute the competency of that crave; nor do they dispute that, if the petitioners succeed on the issue of vires, the remedy of reduction is appropriate, subject only to the special provisions of sec 102 of the Scotland Act 1998 (cap 46).
[3] The petitioners are persons and bodies opposed to the prohibition of fox-hunting. The first petitioner and two others tried and failed to have Lord Watson interdicted from introducing the Bill before the Scottish Parliament (cf Whaley v Lord Watson). This petition is the latest step in the campaign against the legislation. The petition was originally presented on wider grounds...
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