R (Petsafe Ltd) v Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Beatson |
| Judgment Date | 16 November 2010 |
| Neutral Citation | [2010] EWHC 2908 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5875/2010 |
| Date | 16 November 2010 |
[2010] EWHC 2908 (Admin)
Before: The Honourable Mr Justice Beatson
Case No: CO/5875/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
Monica Carss-Frisk QC and Hanif Mussa (instructed by Brabners Chaffe Street LLP) for the Claimants
Clive Lewis QC and Joanne Clement (instructed by Welsh Assembly Government) for the Defendant
Hearing date: 8 October 2010
The Honourable Mr Justice Beatson:
Introduction
The issue in this case is whether the Welsh Ministers were entitled to prohibit the use on cats and dogs of any electronic collar designed to administer an electric shock as they did by the Animal Welfare (Electronic Collars (Wales)) Regulations 2010 (SI 2010/934) (“the 2010 Regulations”). The 2010 Regulations are made under section 12 of the Animal Welfare Act 2006 (“the 2006 Act”). Section 12 (1) empowers “the appropriate authority”, in Wales the Welsh Ministers, to make regulations “for the purpose of promoting the welfare of animals for which a person is responsible, or the progeny of such animals”. By the 2010 Regulations using such a collar is an offence punishable with up to 51 weeks imprisonment.
The first claimant is a manufacturer and distributor of pet products. The products it distributes include electronic collars. The second claimant is an unincorporated association of four companies, including the first claimant, which manufacture and distribute electronic training aids for animals. They seek permission to apply for judicial review of the 2010 Regulations and, if permission is granted, an order quashing the Regulations, which they submit are invalid. A previous challenge (CO/9043/2008) was launched in September 2008. Permission in that case was refused on 31 March 2009 on the ground of prematurity.
The use of electronic collars and similar devices is controversial. A number of groups, including the Kennel Club, have been campaigning for some time to ban them because they have the potential to have adverse consequences for animals, and are cruel and unnecessary. Others maintain that the scientific evidence does not support a ban or regulation, and that the devices help to avoid injury to animals on roads or at the hands of farmers protecting their stock. During 2007 a number of governmental bodies in the United Kingdom considered the question. In England, the Department for Environment, Food and Rural Affairs (“DEFRA”) commissioned research to assess the effect of pet training aids on the welfare of domestic dogs. In Scotland and Wales there were consultation exercises to consider whether electronic collars are harmful to dogs and cats and whether they should be banned.
The Welsh Ministers’ first consultation ran from November 2007 to February 2008. In the light of the responses the Welsh Ministers decided to ban electronic collars. There was a further consultation between 4 March 2009 and 25 May as to the terms of draft regulations to do this. That consultation proposed two defences or exemptions. The first was where the collar was attached by or under the direction of a veterinary surgeon. The second was where the device was used for a short period and was activated by a boundary marked by a physical barrier. The second consultation was delayed because of the earlier judicial review. There was a third consultation between 21 December 2009 and 8 February 2010 in the light of the responses to the second consultation. In particular the two defences canvassed in the second consultation were removed.
The outcome of the consultation process was summarised by the Office of the Chief Veterinary Officer for Wales (“OCVO”), a division of the Department for Rural Affairs of the Welsh Assembly Government in an Explanatory Memorandum. The summary and a draft of proposed regulations were laid before the National Assembly for Wales on 14 February 2010. The 2010 Regulations were made on 23 March and came into force on 24 March. These proceedings were launched on 21 May 2010. The application for permission was accompanied by an application for urgent consideration on the ground that there was a risk of wrongful prosecution and conviction. The papers came before His Honour Judge Jarman QC. He considered that, while it was not clear that the claimants had demonstrated reasonable arguments that the 2010 Regulations constitute an unjustifiable or disproportionate means of promoting animal welfare, given the importance and potentially wide impact of the issues, the court would be assisted by more detailed submissions as well as by oral argument.
The claimants’ original claim form submitted that the 2010 Regulations violate the European Convention on Human Rights and EU Law. It is contended that the decision to ban electronic collars was disproportionate to the aim of promoting animal welfare. It is said the Regulations are thus contrary to Article 1 of the First Protocol to the European Convention on Human Rights and the prohibitions in Articles 34 and 56 of the Treaty on the Functioning of the European Union. Article 34 prohibits unjustified restrictions on the free movement of goods. Article 56 prohibits unjustified restriction on the freedom to provide services. Secondly, the 2010 Regulations are challenged on domestic public law grounds. The grounds are irrationality, Wednesbury unreasonableness, and perversity. At the hearing Miss Carss-Frisk QC abandoned the Article 56 point. She also accepted that, as far as the proportionality of the 2010 Regulations is concerned, the claimants’ case based on Article 34 is stronger than that based on Article 1 of the First Protocol.
Three days before the hearing, in her Skeleton Argument, Ms Carss-Frisk QC raised two new domestic law grounds. The first is that the acts which are criminalised by regulations 2(1)(a) and (b) are not qualified or restricted in their application to animals “for which a person is responsible” as required by section 12 of the 2006 Act. She submitted that they are thus outwith the power conferred by it. The second concerns regulation 2(1)(c). Although that provision creates a prohibition by reference to the statutory concept of responsibility for an animal, it is submitted that it has perverse consequences. This is because it makes it a criminal offence for a person to be responsible for a cat or a dog to which an electronic collar is attached irrespective of the reason for which the person is taking responsibility for that animal. It thus includes responsibility assumed by a person in order to remove the electronic collar or otherwise to care for the welfare of the animal. During the hearing amended grounds of challenge, dated 7 October, were provided to the court and the defendant.
The Evidence
The evidence in support of the application consists of the statements of Ms Angela Critchley, the first claimant's International Marketing Manager, dated 19 May 2010, Mr David Chamberlain, veterinary consultant to the first claimant, dated 20 August 2010, and the two statements, in almost identical terms, of Lord McNair, respectively dated 20 August and 13 September 2010. Lord McNair is the national spokesman for the second claimant. His statement dated 13 September 2010 does not identify the changes from his earlier statement or give any explanation for them. It contains no indication that it is a second statement. At the hearing, Miss Carss-Frisk QC stated that the changes were either corrections or further particulars of matters in the first statement. That may be so, but it is surprising that a statement prepared with the assistance of solicitors should be prepared in this way. A statement of Lord McNair dated 23 September 2008, prepared for the earlier judicial review was also before me. It contained both factual evidence and the grounds, submissions and authorities relied on in those proceedings.
The evidence on behalf of the defendant consists of two statements of Professor Christianne Glossop, the Chief Veterinary Officer for Wales and Head of OCVO, and one of Mr Huw Jones, OCVO's Head of Animal Welfare. Professor Glossop's statements are dated 12 July and 20 September 2010. Mr Jones's statement is dated 17 September 2010.
On 20 August the claimant applied for permission to rely on three undated and unsigned statements made by witnesses identified only as Mr X, a resident of Wales, Ms Y, a resident of Monmouth, and Mr Z, a resident of Wrexham. These witnesses stated that they desired anonymity because of concerns for the welfare of their family and themselves in the light of “the sensitive nature of these issues and the well-known reprisals inflicted by animal rights activists upon those willing to support anything which they oppose”. The claimants were willing to disclose their names to the court.
There were a number of difficulties with this application. The names and addresses of virtually all the respondents to the defendant's consultations had been published. There was, however, no evidence before the court of any threat from animal rights protestors in relation to those persons, these proceedings, the question of electronic collars, or these witnesses. Secondly, the claimants did not respond to a request dated 17 September by the defendant for disclosure to it of the names of these witnesses on a confidential basis. It was only after the commencement of the hearing and after being pressed that they agreed to...
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