Whaley v Lord Advocate

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD HOPE OF CRAIGHEAD,LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND,LORD RODGER OF EARLSFERRY
Judgment Date28 Nov 2007
Neutral Citation[2007] UKHL 53
Docket NumberNo 3

[2007] UKHL 53

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

Whaley

and another

(Appellant)
and
Lord Advocate
(Respondent) (Scotland)

Appellants:

Brian Friend (in person)

Respondents:

Gerry Moynihan QC

James Mure

(Instructed by Treasury Solicitor)

Intervener's Counsel

Philip Engleman

(Instructed by Edwards Duthie)

LORD BINGHAM OF CORNHILL

My Lords,

1

I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hope of Craighead. Save that I would, for reasons I have endeavoured to give in R (Countryside Alliance and others) v Attorney General and R (Derwin and others) v Attorney General [2007] UKHL 52, hesitate to conclude that article 11 of the European Convention is not applicable, I am in agreement with my noble and learned friend's reasoning and conclusions. For reasons also given in my opinion in the Countryside Alliance case I would hold that any interference with the appellant's right under article 11, if that article is engaged, is justified. I would accordingly dismiss this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

2

This in an appeal against an interlocutor of an Extra Division of the Court of Session (Lord MacLean, Lady Paton and Lady Smith) ( Friend v Lord Advocate [2005] CSIH 69; 2006 SC 121) 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 Parliament of the Protection of Wild Mammals (Scotland) Act 2002 (asp 6). They sought review of the enactment on the ground that it was incompatible with the European Convention on Human Rights read together with the Race Relations Act 1976 and with a number of international obligations of the United Kingdom. Their case was that, for these reasons, the Act was outside the legislative competence of the Scottish Parliament in terms of section 29 of the Scotland Act 1998. The petition was served on the Advocate General for Scotland, the Lord Advocate and the Scottish Ministers. It was responded to in the public interest by the Lord Advocate. Mr Whaley, who was the first named petitioner, did not insist on his reclaiming motion in the Inner House and is not a party to the appeal.

3

Mr Friend, with the late Hugh Edward Thomas, also brought a claim in England seeking judicial review by way of a declaration of incompatibility of the Hunting Act 2004 with the Convention as scheduled to the Human Rights Act 1998 read together with the Race Relations Act 1976 and the same international obligations as those referred to in the proceedings in the Court of Session. Their claim was dismissed by the Divisional Court on 29 July 2005. Their application for permission to appeal was refused by the Court of Appeal, as it was not thought that the arguments deployed by Mr Friend and Mr Thomas had any real prospect of success: R (Countryside Alliance) v Attorney General [2006] EWCA Civ 817, [2007] QB 305, para 179. Mr Friend's appeal against the interlocutor of the Court of Session has been brought without leave under section 40(1) (a) of the Court of Session Act 1988. He appeared in person before your Lordships to conduct his own appeal, as he has done throughout these proceedings.

4

The Court of Appeal paid tribute to the admirable way in which Mr Friend and Mr Thomas prepared their documentary case and the clarity and moderation with which they presented their oral submissions in that court: para 173. I should like to add my own tribute to the way Mr Friend has conducted his case in your Lordships' House. He brought to life, in a charming and restrained but forceful way, the very real sense of injustice that he and others in his position feel about what these enactments have done to the hunting community.

5

In his petition Mr Friend avers that he is an associate member of the Union of Country Sports Workers and follows what he describes as the ancient cultural activity and lifestyle of hunting with hounds. His home is in Devon but he also owns cottages in Duns and Kelso. He joins with others to follow hounds on foot with the Berwickshire Hunt and other hunts both north and south of the Border. He also used to ride to hounds, but for the time being at least he no longer does so following an injury.

He said that he was an ordinary person who enjoys hunting as a way of life. He is convinced that hunting with hounds causes the least suffering of all methods used to control foxes. As he put it, a fox which is hunted is either alive and free or it is dead. The kill is swift and it is efficient. The risk of wounding by shooting is avoided, as is the suffering that results from poisoning or the use of snares and traps. He felt that the legislators had not been impartial in their assessment of these issues. They had targeted a group of people that they did not like. He was seeking the protection of the European Convention on Human Rights in the belief that these rights are available to everyone including ordinary people like himself. He said that those who sought to take those rights away should answer for their actions in the courts.

6

Section 29(1) of the Scotland Act ("SA") provides that an Act of the Scottish Parliament is not law in so far as any provision is outside the legislative competence of the Parliament. Section 29(2) SA defines the limits of the Parliament's competence. Paragraph (d) of that subsection provides that a provision is outside that competence if it is incompatible with any of the Convention rights. It follows that the Protection of Wild Mammals (Scotland) Act 2002 ("the Act"), like any other enactment of the Scottish Parliament, is open to scrutiny on this ground. Mr Friend, like everyone else, is entitled to the protection of the Convention rights. The Convention exists to protect the fundamental rights and freedoms of each and every individual: A v The Scottish Ministers, 2002 SC (PC) 63, para 34. People who are members of a group that is disliked, as Mr Friend puts it, are as much entitled to that protection as anyone else. The Convention is impartial as to whether one person or minority group is more deserving of protection than another. The protection that it affords is available to everyone. The function of the courts is to ensure that they receive that protection.

7

But the scrutiny to which enactments of the Scottish Parliament can be subjected for their protection does not extend any further than the limits which section 29(2) SA has placed on the legislative competence of the Parliament. It is here that Mr Friend's complaint that the Act is incompatible with the United Kingdom's international obligations such as the Rio Declaration on Environment and Development of 1992, principle 22 of which encourages support for traditional practices and the culture and identity of indigenous peoples, meets an insuperable obstacle.

International obligations

8

Mr Friend submitted that, as observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law are all excluded by para 7(2) (a) of Schedule 5 SA from the list of reserved matters, the Scottish Parliament was obliged to observe and implement international obligations in just the same way as it was obliged to implement and observe the Convention rights and Community law. That however is not how observing and implementing international obligations has been provided for by the Scotland Act. Section 126(10) SA provides that in the Act the expression "international obligations" means any international obligations of the United Kingdom "other than" obligations to observe and implement Community law and the Convention rights. The distinction that is inherent in the definition recognises that it is for Parliament, not the courts, to decide whether the international treaties should form part of domestic law. On the one hand there are the Convention rights which have been incorporated into domestic law by the Human Rights Act 1998 and Community law which has been incorporated into domestic law by the European Communities Act 1972. On the other hand there are international obligations of the kind that have not been incorporated. The international obligations that Mr Friend relies on all fall into the latter category. None of them are enforceable in the domestic courts as part of the law of Scotland. Nor is the Scottish Parliament bound to implement them, although it may choose to do so as they are not among the reserved matters that are outside its legislation competence: section 29(2)(b) SA. As Mr Moynihan QC for the Lord Advocate put it, the Scottish Parliament has the right so to legislate, not a duty to do so.

9

Recognising that international obligations are not part of domestic law, the Scotland Act provides for them in a different way. Section 35 (1) SA provides that the Secretary of State may make an order prohibiting the Presiding Officer from submitting a Bill for Royal Assent if it contains provisions which he has reasonable grounds to believe would be incompatible with any international obligations. Section 58(1) SA provides that the Secretary may also intervene at the stage when a Bill is introduced in the Parliament if he has reasonable grounds to believe that its introduction would be incompatible with any international obligations. He may so do by directing by order that that action shall not be taken. What these provisions do is enable the Secretary of State, who is a minister of the United Kingdom government, to intervene if he thinks it appropriate to do so in the...

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