Whaley v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 June 2003 |
| Docket Number | No 5 |
| Date | 20 June 2003 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Brodie
Constitutional law - Scottish Parliament - Legislative competence - Whether Act of Scottish Parliament outwith legislative competence - Whether Act required to be in conformity with international treaty obligations of the United Kingdom - Whether Act incompatible with the European Convention on Human Rights - Whether relevant averments that Act interfered with private life, freedom of thought or conscience, freedom of expression, freedom of assembly and association, the prohibition of discrimination, the prohibition of abuse of rights or the safeguard for existing human rights contrary to arts 8, 9, 10, 11, 14, 17 or 53 - Scotland Act 1998 (cap 46), secs 28, 29, 30, 35, 57, 58, 100, 101, sched 7 - Human Rights Act 1998 (cap 42), secs 1, 4 - Protection of Wild Mammals (Scotland) Act 2002 (asp 6), sec 1
Section 1 of the Protection of Wild Mammals (Scotland) Act 2002 contains provisions which make mounted foxhunting with dogs a criminal offence. The Act was passed by the Scottish Parliament on 13 February 2002 and received the Royal Assent on 15 March 2002. A petition was raised seeking declarator that sec 1 was incompatible with arts 8-11, 14, 17 and 53 of the European Convention on Human Rights and did not comply with the United Kingdom's international obligations under the Rio Convention on Biological Diversity of 1992, the Final Act of the Helsinki Conference on Security and Cooperation in Europe of 1975, the United Nations International Covenant on Economic Social and Cultural Rights of 1966, the United Nations International Covenant on Civil and Political Rights with the Optional Protocol of 1966, and the Universal Declaration of Human Rights of 1948.
The first and second petitioners were, respectively, the Master and Huntsman and a follower of the Berwickshire Hunt. The petition was served on the Lord Advocate who appeared in the public interest and on behalf of the Scottish Ministers.
The first petitioner argued that the hunting community was an ethnic group and that his primary characteristic was as a foxhunter. The Act had taken away his lifestyle and endangered his primary characteristic. The hunt was a part of private life and not a public activity open to all; the breeding of fox hounds had no public element at all. The Act affected the first petitioner's freedom of conscience because he required to conform to it thereby resulting in a practice which could result in the maiming of foxes. The Act was discriminatory and any argument that such discrimination was justified on the grounds of the protection of morals was irrational in light of the Scottish Parliament's allowance of hunting for sport and pest control separately, but not together in foxhunting.
The second petitioner submitted that in terms of international obligations, the instruments relied upon applied to him as an indigenous person belonging to the local hunting community. The Scottish Parliament had a positive obligation to implement the international obligations of the United Kingdom in domestic law if only by implication under para 7 of sched 5 to the Scotland Act 1998. In relation to the Convention rights, the second petitioner did not seek to advance any argument in relation to art 17, but submitted that art 53 entrenched all rights and fundamental freedoms domestic law provided, in respect of which he founded on the Coronation Oaths Act 1688. In relation to art 8, it was submitted that foxhunting fell to be regarded as part of private life in relation to which the protection of the Convention had the effect of protecting any minority, including the ethnic minority of fox hunters, in the absence of any overriding considerations of pressing social need. Article 9 was not limited to religious belief but also extended to the petitioners' freedom of conscience to hunt foxes in a humane fashion, not as required under the 2002 Act. Article 10 extended to the activity of foxhunting itself as the expression of the physical and visible participation in the cultural life of their community. Article 11 included the right of peaceful assembly to pursue the petitioners' way of life in foxhunting. Article 14 prohibited discrimination against those who wished to engage in foxhunting as opposed to other methods of killing of animals.
The respondent argued that the averments anent international law insofar as unincorporated into domestic law were irrelevant as were the averments anent infringement of Convention rights.
Held that: (1) the Scottish Parliament, in the absence of intervention by the Secretary of State in terms of his discretionary powers under secs 35(1) and 58(1) of the Scotland Act 1998, had power to legislate contrary to international law and accordingly the petitioners' averments anent incompatibility of sec 1 of the Protection of Wild Mammals (Scotland) Act 2002 with the specified international instruments were irrelevant (paras 44, 45); (2) arts 17 and 53 of the Convention were not relevant to the petition averments (para 48); (3) foxhunting was an activity which extended beyond the sphere of private life and therefore fell outwith the protection of art 8 of the Convention (para 65); (4) the petitioners' convictions in relation to foxhunting did not amount to a belief in the art 9 sense (para 74); (5) art 10 protected the freedom to express ideas or information rather than the carrying on of the particular activity of foxhunting (para 77); (6) art 11 was not infringed by the Act's regulation of the nature of the quarry to be hunted and the method of kill (para 80); and (7) no relevant averments disclosed any art 14 discrimination in the absence of specific identification of comparators in an analogous situation to the petitioners (para 97); and petition dismissed.
Jeremy Hagan Whaley and Brian Leonard Friend presented a petition under the judicial review procedure in the Court of Session seeking declarator that sec 1 of the Protection of Wild Mammals (Scotland) Act 2002, an Act of the Scottish Parliament, was incompatible with the European Convention on Human Rights and conflicted with certain international obligations of the United Kingdom. The Lord Advocate was called as respondent.
The petition and answers came before the court for a first hearing, on 14 to 17 January 2003, before the Lord Ordinary (Lord Brodie).
Cases referred to:
Abdulaziz v United KingdomHRC (1985) 7 EHRR 471
Adams v Scottish MinistersSC 2003 SC 171
Attorney General v Guardian Newspapers Ltd (No 2)ELR [1990] 1 AC 109
BBC Scotland v SousterSC 2001 SC 458
Banner v Sweden (1989) 60 DR 128
Beckers v Netherlands Application No 12344/86
Beeson v Dorset County Council [2002] HRLR 15
Botta v Italy (1998); 26 EHRR 241
Brüggemann and Scheuten v Federal Republic of GermanyHRC (1983) 3 EHRR 244
Buckley v United Kingdom (1997); 23 EHRR 101, 129
Chapman v United KingdomHRC (2001) 33 EHRR 18, 399
Chassagnou v FranceUNK (2000); 29 EHRR 615; (1999) 7 BHRC 151
Commission for Racial Equality v DuttonELR [1989] QB 783
Crown Suppliers v DawkinsICR [1993] ICR 517
Dove v Scottish Ministers 2002 SLT 1296
Dudgeon v United KingdomHRC (1981) 4 EHRR 149
Fredin v Sweden (No 1)HRC (1991) 13 EHRR 784
Friedl v Austria (1996); 21 EHRR 83
G and E v Norway (1984); 35 DR 1
Handyside v United KingdomHRC (1976) 1 EHRR 737
International Transport Roth GmbH v Secretary of State for the Home DepartmentWLR [2002] 3 WLR 344
Johnston v IrelandHRC (1986) 9 EHRR 203
Kara v United KingdomHRC (1998) 27 EHRR CD 272
Kian v Neill [1994] EMLR 1
Kjeldsen v DenmarkHRC (1976) 1 EHRR 711
Konkama and Thirty Eight Other Saami Villages v Sweden Application No 270033/95
Kroon v NetherlandsHRC (1994) 19 EHRR 263
Laskey, Jaggard and Brown v United KingdomHRC (1997) 24 EHRR 39
Malone v United KingdomHRC (1985) 7 EHRR 14
Mandla v Dowell LeeELR [1983] 2 AC 548
Michalak v London Borough of WandsworthUNK [2002] EWCA Civ 271
Mortensen v Peters (1906) 8 F (J) 93
National and Provincial Building Society v United KingdomHRC (1998) 25 EHRR 127
Nelson v United Kingdom (1986) 49 DR 170
Niemetz v GermanyHRC (1992) 16 EHRR 97
Norris v IrelandHRC (1988) 13 EHRR 186
Pretty v United KingdomHRC (2002) 35 EHRR 1
R v Chief Constable of South Yorkshire, ex parte SUNK [2003] 1 All ER 148
R v DPP, ex parte KebileneELR [2000] 2 AC 326
R v DPP, ex parte PrettyELR [2002] 1 AC 800
R v LyonsWLR [2002] 3 WLR 1562
R v Secretary of State for the Home Department, ex parte BrindELR [1991] 1 AC 696
R v Secretary of State for the Home Department, ex parte Findlay, The Times 23 May 1984, unreported
R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR I-2433
R (Alconbury Developments Ltd) v Secretary of State for the EnvironmentWLR [2001] 2 WLR 1389
R (Personal Representatives of Christopher Beeson) v Dorset County Council and the Secretary of State for Health, 13 November 2001 and 18 December 2002, unreported
Rasmussen v DenmarkHRC (1984) 7 EHRR 371
Rayner (J H) (Mincing Lane) Ltd v Department of Trade and IndustryELR [1990] 2 AC 418
Robinson v Secretary of State for Northern IrelandUNK [2002] UKHL 32, The Times 26 July 2002
Sidiropoulos v GreeceHRC (1998) 27 EHRR 633
Southwark London Borough Council v St BriceWLR [2002] 1 WLR 1537
Stevens v United Kingdom (1986) DR 245
Stjerna v Finland (1994) EHRR 194
Sunday Times, The v United KingdomHRC (1979) 2 EHRR 245
Thorgeirson v IcelandHRC (1992) 15 EHRR 843
Vogt v Germany (1996) EHRR 205
Waddington v MiahWLR [1974] 1 WLR 683
Wemhoff v Germany 1 EHRR 55
Whaley v Lord WatsonSC 2000 SC 340
Textbooks etc referred to:
P Birnie and A Boyle, International Law and the Environment (2nd ed, Oxford University Press, 2002)
A Bloed, The Conference on Security and Co-operation in Europe: Analysis and basic documents, 1972-1993 (1993, Brill)
R Clayton and H Tomlinson, The Law of Human Rights (2000, Oxford University Press), paras 2.42, 2.43, 17.79
Singh and...
To continue reading
Request your trial
-
Whaley v Lord Advocate
...refusing a reclaiming motion by the appellant, Brian Leonard Friend, against an interlocutor of the Lord Ordinary (Lord Brodie) ( Whaley v Lord Advocate, 2004 SC 78) dismissing a petition in which the appellant and Jeremy Hagan Whaley sought judicial review of the enactment by the Scottish......
-
R (Countryside Alliance and Others) v Attorney-General and Another
...the absence of such evidence. 18 The Court of Appeal (para 107), in agreement with the Divisional Court (para 82) and Lord Brodie in Whaley v Lord Advocate 2004 SC 78, para 80, rejected the HR claimants' complaint under this head, holding that the effect of the hunting bans in England and ......
-
Apprentice Boys Of Derry, Bridgeton Against Glasgow City Council
...the very essence of the right of assembly” (Friend, supra, para. 50). This accords with the reasoning of 25 Lord Brodie at first instance (2004 SC 78) and of the Inner House on appeal (2006 SC 121) in Whaley v Lord Advocate, and with Lord Brown of Eaton-under-Heywood in R (Countryside Allia......
-
R (Countryside Alliance and Others) v Attorney General and another
...of any activity would infringe article 11. We agree entirely with the conclusion of Lord Brodie on this question in Whaley v Lord Advocate (2004 SC 78). As his Lordship said in that case, the 2002 Act does not prohibit the assembling of a hunt, on horseback or otherwise, but rather an activ......
-
Peter Cumper, the United Kingdom and the U.n. Declaration on the Elimination of Intolerance and Discrimination Based on Religion or Belief
...Id. Sec. 3(1). 33 Id. Sec. 4. 34 See, e.g., R v. Taylor, [2001] EWCA (Crim.) 2263 (Wales). 35 Whaley v. Lord Advocate, [2003] ScotCS 78, [2004] S.C. 78, 118-199, 134 (Scot.). 36 See The Human Rights Act, 1998, c. 42, Sec. 2 (stating only that courts and tribunals must take these previous ru......
-
Crofting: Securing the Future of the Scottish Highlands Through Legislative Challenge and Cultural Legacy
...with liberty guaranteed by the Convention art. 6); Adams v. Scottish Ministers [2003] S.L.T. 366 and Whaley v. Scottish Ministers [2004] S.C. 78 (a challenge to the Protection of Wild Mammals (Scotland) Act 2002 as incompatible with the ECHR art. 8 right to respect for private and family li......
-
Fundamental Rights or Hand-me-down Restrictions: the Specter of Sumptuary Law in Clothing Expression Doctrines of the U.k., the U.s., & Canada
...U.S. Const. amend. I ("Congress shall make no law . . . abridging the freedom of speech . . . .").84. Whaley v. Lord Advocate, [2004] S.C. 78, 119-20 (Scot.) (finding two foxhunters could not justify striking the Protection of Wild Mammals Act for preventing expression of their foxhunting c......
-
The Enjoyment of Rights and Freedoms: A New Conception of the ‘Ambit’ under Article 14 ECHR
...question for the court was whether the unfairdismissallaws^ which on their ownwould have endorsedthe employer’s dismissaldecision61 [2004] SC 78 at [6 3^65], [93].62 [2002] SCLR881 at [102^103],[136].63 Sidabras [2004] ECHR 395 at[42^50]. For protection ofemployment by other ECHR articles s......