The Electronic Collar Manufacturers Association (an Unincorporated Association) v The Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 24 October 2019 |
| Neutral Citation | [2019] EWHC 2813 (Admin) |
| Docket Number | Case No: CO/4770/2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 2813 (Admin)
Mr Justice Morris
Case No: CO/4770/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Broach and Imogen Proud (instructed by DLA Piper UK LLP) for the Claimants
Richard Turney (instructed by Government Legal Department) for the Defendant
Hearing dates: 22, 23, 24 May and 10, 11 June 2019
Approved Judgment
Introduction
By this action, the Electronic Collar Manufacturers Association (“ECMA”) and Petsafe Limited (“Petsafe”) (together “the Claimants”) seek judicial review of the decision of the Secretary of State for Environment, Food and Rural Affairs (“the Secretary of State”) dated 27 August 2018 (“the Decision”) to ban the use of hand-held remote-controlled e-collar devices for cats and dogs (“e-collars”).
The Secretary of State announced the Decision following a consultation process which opened on 12 March 2018 and closed on 27 April 2018. On 27 August 2018, the Secretary of State published the Decision in the document entitled “Electronic training collars for cats and dogs in England: Summary of Responses and Government Response – August 2018” (“the Government Response”). The position taken was a “policy decision”, being a final decision to introduce regulations under the provisions of section 12 of the Animal Welfare Act 2006 (“the 2006 Act”) to ban e-collars.
The Claimants contend that the consultation and process by which the Decision was reached were materially flawed and unlawful and that the Decision in substance is irrational, disproportionate and thus unlawful. The Claimants' fundamental contention is that there is an alternative, less restrictive, means of promoting animal welfare by the regulation (rather than outright prohibition) of the use of e-collars. My conclusion is stated at paragraphs 220 and 221 below.
The Secretary of State's case, in summary, is that the Claimants' challenge is to the merits of a high level policy decision which followed a consultation exercise in which over 7000 responses were made, including detailed representations from ECMA. The consultation responses were carefully considered by officials, summarised and reported to Ministers. The Decision was ultimately made by the Secretary of State. The fundamental rationale of the proposed ban is the promotion of animal welfare. Welfare is a broad concept and judgments about what measures are appropriate to promote animal welfare are not solely scientific, but involve elements of moral and ethical judgment. Those judgments may vary from time to time (and across different jurisdictions). Through section 12 of the 2006 Act, Parliament has entrusted the decision as to what measures serve the purpose of promoting animal welfare to the Secretary of State.
The Parties
ECMA is an unincorporated trade association representing manufacturers and suppliers of electronic dog collars and other electronic training aids for dogs in the UK. Petsafe is a manufacturer and supplier of e-collars, based in Chorley, Lancashire. Ms Angela Critchley is Global Marketing Director of the Petsafe brand of Petsafe's US parent company and that company's representative for the ECMA. She has given evidence in two witness statements. The Claimants have also provided witness statements from Mr Paul Stone, their solicitor in the proceedings, and from Mr James Penrith, a user of e-collars.
The Defendant is the Secretary of State (also referred to as “Defra”) and is, in England, the “appropriate national authority” under the 2006 Act. Mr Marc Casale, Head of Defra's Animal Welfare & Disease Control Team, has provided evidence in three witness statements.
The Facts in brief
The nature of e-collars and other devices
For present purposes, there are three relevant types of device: e-collars, containment systems and bark control collars. The first two types of devices are described in the consultation document published by Defra at the commencement of the consultation process, entitled “ A ban on electronic training collars for cats and dogs in England: March 2018” (“the Consultation Document”). E-collars are described as follows:
“Remote-controlled devices are operated by the owner/handler and are used to stop unwanted behaviour such as chasing livestock. The owner or handler has a remote device which can trigger an electronic pulse (similar to a static pulse which can be varied in strength) or which can emit a noxious spray…”
Containment systems are described as follows:
“Containment systems can be used to keep a dog or cat within the owner's garden reducing the chances of the animal straying into a busy road or defecating on someone else's property. In such situations the e-collar sends out an electronic pulse or a noxious spray when the animal approaches the boundary …”
(Whilst this description refers to the term “e-collar”, for the purposes of this judgment, I use that term to refer only to the former remote-controlled device operated by the owner).
The third type of device, a bark control collar, is a device which is activated by the animal's behaviour and not by the owner. When the dog barks, the collar detects vibration from the voice box, activating delivery of an electrical pulse or other types of stimulant.
The chronology in outline
The effects of these devices had been contentious over a number of years and the subject of research reports, and in particular Defra-funded research completed in 2011 (see paragraph 30 below). They had been also made the subject of advice under the statutory code. In 2010 the Welsh Government had imposed a ban on e-collars. In Scotland, there had been an extensive and detailed statutory consultation in 2015–2016. At first the Scottish Government decided not to impose a ban, but rather to deal with the issue by way of licensing/regulation. In 2018, the Scottish Government changed its approach by introducing guidance which suggested that use of e-collars, in certain circumstances, might be an offence.
In England, from 2013 until early February 2018, Defra's position was that the evidence provided by the Defra-funded research was not sufficient to justify a ban of e-collars or containment systems, but rather that the matter was addressed by advice in the statutory code.
Later that month, February 2018, the Secretary of State changed his position and brought forward a proposal to ban e-collars and containment systems. This proposal was put out to consultation, as required by the 2006 Act. On 11 March 2018, Defra published the Consultation Document, and on the next day, the consultation response window of 6 weeks opened. In the Consultation Document, the Secretary of State sought views on a proposed ban of e-collars (including at that stage a proposed ban on containment systems). A large number of responses, from welfare organisations and from individuals, were received. ECMA submitted its response to the consultation on 26 April 2018, setting out its position as to why there is a need for electronic training systems and why they should not be banned.
On 26 April 2018 the Secretary of State made a statement in Parliament (“the Parliamentary Statement”) in which, it is contended by the Claimants, he indicated a decision to ban e-collars. On 27 April 2018 the consultation response window closed. On the same day, The Times reported, and commented upon, the Parliamentary Statement.
In June and July 2018, Defra held further meetings with particular interested parties. On 18 July 2018, there was a meeting between Mr Philip Alder of Defra and ECMA representatives.
In this period, Defra officials collated and analysed the over 7000 responses to the consultation and produced a draft of the Government Response. On 3 August 2018, Defra officials made a “Submission to Ministers” (“the Ministerial Submission”) outlining the consultation responses, the options open to the Secretary of State and recommending a ban on e-collars, but not on containment systems.
On 27 August 2018 the Decision was announced by press release and contained in the published version of the Government Response. The Government would ban e-collars, but not containment systems. The terms of the Decision are set out in paragraph 87 below.
Proceedings
On 12 November 2018, ECMA sent a pre-action protocol letter. Following a holding response from the Secretary of State on 16 November 2018, on 26 November 2018 ECMA issued proceedings seeking permission to apply for judicial review. On 20 December 2018 Petsafe was joined as a second claimant. On 24 January 2019, permission to apply for judicial review was granted by Lang J. On 21 March 2019, the Office of the Speaker's Counsel wrote to the Government Legal Department setting out its position on the admissibility of the Parliamentary Statement (see paragraph 130 below).
Evidence (witness statements/disclosure)
At the outset of the hearing there were a number of applications before me concerning evidence and disclosure. I allowed the admission of further evidence (some of which I refer to below). I decided to leave the issue of admissibility of the Parliamentary Statement until this substantive judgement (see paragraphs 129 to 138 below). The disclosure application is addressed at paragraph 39 below. The Secretary of State initially relied upon the first statement of Mr Casale dated 22 March 2019. Mr Casale has direct experience of the evolution of Government policy relating to the welfare of captive animals, including the formulation of, and consultation on, the changes to the use of electronic training collars for dogs in England.
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