R (Countryside Alliance and Others) v Attorney-General and Another

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD HOPE OF CRAIGHEAD,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date28 Nov 2007
Neutral Citation[2007] UKHL 52

[2007] UKHL 52

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

R
(on the application of Countryside Alliance and others and others (Appellants))
and
Her Majesty's Attorney General

and another

(Respondents)
R
(on the application of Countryside Alliance and others (Appellants) and others)
and
Her Majesty's Attorney General

and another

(Respondents) (Conjoined Appeals)

Appellants:

HR: Richard Gordon QC

EC: David Anderson QC

Marie Demetriou

(Instructed by Clifford Chance)

Respondents:

Philip Sales QC

Jason Coppel

(Instructed by DEFRA and Treasury Solictor)

Intervener's Counsel

Rabinder Singh QC

Kate Cook

(Instructed by RSPCA)

LORD BINGHAM OF CORNHILL

My Lords,

1

Fox-hunting in this country is an emotive and divisive subject. For some it is an activity deeply embedded in the tradition, life and culture of the countryside, richly portrayed in art and literature, a highly cherished, skilful, healthy and useful form of communal outdoor exercise. Others find the pursuit of a small animal across the countryside until it is caught and destroyed by hounds to be abhorrent. Both these deeply held views were fully expressed in the discussions and debates which preceded the enactment of the Hunting Act 2004. The House of Lords in its legislative capacity was much involved in these discussions and debates, and the Act became law without its consent. But this appeal comes before the House in its judicial capacity. Our task is to decide the legal issues which have to be decided. We must perform that task without reference to whatever personal views or sympathies individual members of the committee may entertain. These are irrelevant to the legal judgment we are called upon to make.

2

The issue in these appeals is whether the prohibition of hunting wild mammals with dogs and of hare coursing imposed by the Hunting Act 2004 is incompatible with the European Convention on Human Rights or inconsistent with the Treaty establishing the European Community.

3

The first group of claimants, headed by the Countryside Alliance, contend that the Act infringes their rights under articles 8, 11 and 14 of and article 1 of the First Protocol to the European Convention, all of them provisions to which domestic courts are required to give effect by the Human Rights Act 1998. These claimants have conveniently been called the human rights, or HR, claimants.

4

The second group of claimants, headed by Mr Derwin, contend that the Act is inconsistent with articles 28 and 49 of the EC Treaty, and is accordingly invalid. They have conveniently been called the EC claimants.

5

The HR claimants' contentions apply to the hunting of foxes, deer and mink and the hunting (and coursing) of hares. The EC claimants' contentions apply to the hunting of foxes. Fox-hunting, even for the HR claimants, has been the main focus of argument and evidence, no doubt because of its much greater scale and prominence as compared with the other sports, and can best be used to test the strength of the HR claimants' submissions in the first instance, as well as those of the EC claimants.

6

The Attorney General and the Secretary of State for the Environment, Food and Rural Affairs, supported by the Royal Society for the Prevention of Cruelty to Animals as interveners, contend that the 2004 Act is not incompatible with the European Convention or the EC Treaty. They prevailed before the Queen's Bench Divisional Court (May LJ and Moses J: [2005] EWHC 1677 (Admin); [2006] EuLR 178) and also, on very similar but not identical grounds, before the Court of Appeal (Sir Anthony Clarke MR, Brooke and Buxton LJJ: [2006] EWCA Civ 817, [2007] QB 305). The claimants now challenge this judgment of the Court of Appeal. Both the courts below gave very full and helpful judgments, to which reference must be made for a more complete account of the background to these appeals than is given here.

7

The Divisional Court gave a succinct summary of the effect of the Act in paragraphs 5-10 of its judgment, which the Court of Appeal reproduced in paragraph 5 of its judgment. Further repetition is unnecessary. The Act makes it a criminal offence, punishable by a fine of up to £5000, to hunt a wild mammal with a dog or help another to do so, unless the hunting is exempt, or to participate in hare coursing. Conviction may lead to the forfeiture of any dog, vehicle or other article used for the purpose of prohibited hunting. Certain activities are exempt from the statutory prohibition, including (in specified circumstances) the hunting of rats and rabbits, falconry, the retrieval of hares which have been shot and the stalking of a wild mammal or flushing it out of cover. A single dog may be used below ground to protect game birds for shooting. There is a further exemption for the hunting of a wild mammal with up to two dogs if the hunter reasonably believes that the mammal is or may be injured.

8

The Divisional Court recounted the parliamentary history of what eventually became the 2004 Act in paragraphs 12-21 of its judgment, which the Court of Appeal (with some addition) reproduced (paragraph 6). This account need not be further repeated. The salient points are these. The government had committed itself to a free vote on the banning of hunting. Measures introduced by private members failed for lack of time. In 1999 a committee chaired by Lord Burns was appointed to inquire into the practical aspects of hunting and the likely consequences of any ban. The committee reported in 2000, and its report (not seeking to address the ethical aspects of the subject) informed the subsequent debate. The Court of Appeal included excerpts of the report's summary and conclusions in Appendix II to its judgment. A bill was introduced in December 2000, but was lost in the following year on the calling of a general election. After the election the proposal was revived, and public hearings were held by the responsible minister, Mr Alun Michael MP, at Portcullis House. In December 2002 the government introduced the Hunting Bill 2002, known as "the Michael Bill". This prohibited the hunting of deer and hare coursing. But it permitted the hunting of foxes and mink with a dog if (but only if) the hunting was either exempt or registered. The grounds of exemption very largely foreshadowed those later enacted in the 2004 Act. Registration depended on satisfying a registrar that two conditions were satisfied: first, that the hunting was likely to make a significant contribution to the prevention or reduction of serious damage which the wild mammal to be hunted would otherwise cause to livestock, game birds, crops, growing timber or other property; second, that this result could not reasonably be expected to be made in a manner likely to cause significantly less pain, suffering or distress to the wild mammals to be hunted. This proposal proved acceptable to neither House of Parliament. In the Commons the Michael Bill was heavily amended, so as to substitute what is now the 2004 Act. It was rejected by the House of Lords. After prolonged debate and amid much controversy the 2004 Act received the royal assent, without the approval of the House of Lords, pursuant to the Parliament Acts 1911-1949.

The HR claims

9

The Divisional Court gave particulars of the individual HR claimants in paragraphs 32-41 of its judgment, reproduced by the Court of Appeal in Appendix 1 to its judgment. Its summary need not be repeated. The HR claimants fall into two broad groups. The first is composed of people professionally involved in hunting or hare coursing or activities closely related to these, dependent on the sport for their occupation, livelihood and continuing business (a professional huntsman of staghounds, the owner and manager of a livery business, a professional terrier man, a self-employed farrier, a trainer of hare coursing greyhounds). The second group comprises landowners and tenant farmers, masters of hunts and of a beagle pack, active participants in hunting who permit hunting across their land and, in one case, manage their land specifically for hunting. Common to some members of both groups is a strong psychological and social commitment to hunting as a traditional rural activity involving the individual, the family and the community more deeply than any ordinary recreation. The Divisional Court found (paragraph 135) and the Court of Appeal accepted (paragraph 38) that there are those for whom hunting is a core part of their lives.

10

The HR claimants relied, first, on article 8 of the Convention ("Right to respect for private and family life") which provides

The content of this right has been described as "elusive" and does not lend itself to exhaustive definition. This may help to explain why the right is expressed as one to respect, as contrasted with the more categorical language used in other articles. But the purpose of the article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose.

  • "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 is 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."

11

The HR...

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