Trevor Adams And Others For Judicial Review Of The Protection Of Wild Mammals (scotland) Act 2002
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith |
| Date | 31 July 2002 |
| Docket Number | P557/02 |
| Court | Court of Session |
| Published date | 31 July 2002 |
| OUTER HOUSE, COURT OF SESSION | |
| P557/02
| OPINION OF LORD NIMMO SMITH in Petition of TREVOR ADAMS AND OTHERS Petitioners; for Judicial Review of the Protection of Wild Mammals (Scotland) Act 2002 and the Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 ________________ |
Petitioners: Cullen, Q.C., D.E.L. Johnston; Balfour & Manson (for Levy & McRae, Solicitors, Glasgow)
First Respondent: Tyre, Q.C.; Solicitor to the Advocate General for Scotland
Second Respondent: Moynihan, Q.C., W.J. Wolffe; Solicitor to the Scottish Executive
31 July 2002
Introduction
[1]This application for judicial review raises important issues about the legislative competence of the Scottish Parliament and the relationship between this court, the Parliament and the Executive in respect of legislation enacted by the Parliament. It was described to me by counsel for the Lord Advocate as the first challenge in the courts to an Act of the Scottish Parliament in which petitioners who (either in person or through representative organisations) actively campaigned against and made representations about the policy of the legislation during its progress through the Parliament seek to continue the debate about that policy through the courts after Royal Assent has been given.
[2]The Protection of Wild Mammals (Scotland) Act 2002 ("the Protection of Wild Mammals Act") was passed by the Scottish Parliament on 13 February 2002 and received the Royal Assent on 15 March 2002. One of the principal effects of the Act is to make it a criminal offence to engage in the activity of mounted foxhunting with dogs, or to permit land or dogs to be used for this activity. By section 12(2) of the Act the preceding sections are to come into force on such day as the Scottish Ministers may by order made by statutory instrument appoint. By the Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 ("the Commencement Order"), made by the Scottish Ministers in the exercise of these powers, the day appointed for the coming into force of the Act is 1 August 2002.
[3]The petitioners are aggrieved by the prohibition of an activity in which they have hitherto engaged. It is averred that the first petitioner, Trevor Adams ("Mr Adams"), is a self-employed manager of foxhounds for the Duke of Buccleuch's Hunt (commonly known as "the Buccleuch Hunt"). The second petitioner, Nigel Murray ("Mr Murray"), is a farmer. The third petitioner, Richard Holman-Baird ("Mr Holman-Baird"), is a landowner, as is the fourth petitioner, Joe Scott Plummer ("Mr Scott Plummer"). The fifth petitioners, the Fife Hunt, are an unincorporated association engaged in traditional mounted hunting and the Chairman and Master thereof. The sixth petitioners, the Buccleuch Hunt Supporters Club, are an unincorporated association engaged in supporting the activity of traditional mounted hunting and the Chairman and Secretary thereof. The seventh petitioners, the Jedforest Hunt, are an unincorporated association engaged in traditional mounted hunting in the Scottish Borders. The eighth petitioners, the Countryside Alliance, formerly called the British Field Sports Society, are an unincorporated association and the Chairmen of the Association and of the Scottish Steering Committee thereof. Their objects are to represent, promote and preserve the rights and interests of their members as people involved in the life of the countryside, including countryside dwellers and workers, sportsmen and sportswomen, farmers, landowners and suppliers of countryside goods and services. They have a substantial number of members in Scotland. The first to sixth petitioners are members of the Countryside Alliance. The ninth petitioners, the Masters of Foxhounds Association ("the MFHA") are an unincorporated association and the Chairman and Secretary thereof. They are the governing body for foxhunting. The office-bearers of each of the above-mentioned associations are duly authorised to pursue the present proceedings on their behalf.
[4]The petitioners challenge the validity of the Protection of Wild Mammals Act on the grounds that it is, et separatim certain provisions of it are, incompatible with Articles 8 and/or 14 of, and/or Article 1 of the First Protocol to, the European Convention on Human Rights ("the Convention"). They aver that on those grounds the Act is outside the legislative competence of the Scottish Parliament. They further aver, separatim, that the Parliamentary proceedings on the Bill prior to its being passed were vitiated by procedural impropriety and, separatim, the provisions of the Act are so unreasonable that it does not constitute a proper exercise of the Scottish Parliament's legislative powers, and that for each of these reasons the Act is ultra vires the Scottish Parliament. During the course of the hearing there were deleted from the petitioners' pleadings: (1) averments that the Act is, et separatim certain provisions of it are, incompatible with Article 7 of the Convention because the scope of the new criminal offences created by the Act is unclear and uncertain; (2) an averment that the Commencement Order was not promulgated in bona fide; and (3) certain further averments, consequentially upon the main deletions.
[5]The petition came before me for a first hearing, which took place on eight days, from 2 to 11 July 2002.
The statutory context
[6]It is convenient at this stage to set out the main provisions of the Human Rights Act 1998 ("the Human Rights Act") and the Scotland Act 1998 ("the Scotland Act") which were referred to in the course of the hearing.
[7]The Articles of the Convention relied on by the petitioners, as set out in Schedule 1 to the Human Rights Act, are in the following terms. Article 8, entitled "Right to respect for private and family life" provides:
"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."
Article 1 of the First Protocol, entitled "Protection of property", provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
Article 14, entitled "Prohibition of discrimination", provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
[8]The rights and fundamental freedoms set out in these Articles are among those referred to as "the Convention rights" in the Human Rights Act. By section 3(1) of the Act, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. By section 21(1) "primary legislation" means inter alia any public general Act, and "subordinate legislation" means inter alia any Act of the Scottish Parliament. By section 6(1) it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 6(3) "public authority" is given a definition of sufficient breadth to extend to the Scottish Parliament and to this court.
[9]By section 7(1) of the Human Rights Act a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may inter alia bring proceedings against the authority under the Act in the appropriate court. By section 7(4), if the proceedings are made by way of a petition for judicial review in Scotland (i.e. in this court), the applicant is to be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act; and by sub-section (7), for the purposes of section 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. This Article of the Convention, as amended by Protocol No.11, provides inter alia that the European Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.
[10]The Scotland Act contains provisions which are the counterpart of those in the Human Rights Act. The Scottish Parliament is established by section 1 of the Act. There is provision in the Act for there to be a Presiding Officer of the Parliament (section 19); a Scottish Parliamentary Corporate Body ("the Parliamentary corporation"), the members of which are the Presiding Officer and four members of the Parliament (section 21); the participation of the Lord Advocate and the Solicitor-General for Scotland (the Scottish Law Officers) in the proceedings of the Parliament (section 27); a First Minister (section 45) and a Scottish Executive (section 44), whose members are the First Minister, such Ministers as he may appoint under section 47 and the...
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