| EUROPEAN COMMUNITY — Freedom of Movement — Goods and services — Statute prohibiting hunting of wild mammals with dogs — Restriction imposed to prevent or reduce suffering to wild mammals — Whether having effect of quantitative restrictions on imports and on interstate trade in services — Whether restriction lawful and proportionate — Hunting Act 2004 ( c 37) — EC Treaty, arts 28 EC, 49 EC
Human rights — Statutory provision — Compatibility — Right to respect for private and family life and home — Right to freedom of assembly — Right to enjoyment of possessions — Statute prohibiting hunting of wild mammals with dogs — Restriction imposed to prevent or reduce suffering to wild mammals — Whether restriction in fringing Convention rights of hunters — Whether restriction justified and proportionate — Human Rights Act 1998 ( c 42), Sch 1, Pt I, arts 8, 11 and 14, Pt II, art 1 — Hunting Act 2004
R (Countryside Alliance and others) v Attorney General and another; R (Derwin and other) v Same: [2007] UKHL 52
HL(E): Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry; Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood: 28 November 2007
The prohibition of hunting wild mammals with dogs and hare coursing imposed by the Hunting Act 2004 was not incompatible with the European Convention on Human Rights as scheduled to the Human Rights Act 1998 or inconsistent with the Treaty establishing the European Union.
The House of Lords so held when dismissing appeals by (1) the Countryside Alliance and others (“the HR claimants”) and (2) Francis Derwin and others (“the EC claimants”) from the dismissal by the Court of Appeal [2007] QB 305 of their appeals from the Divisional Court [2006] EuLR 178 which had refused claims for judicial review against the Attorney General and the Secretary of State for the Department of the Environment, Food and Rural Affairs, by (1) the HR claimants for declaratory relief that the 2004 Act was incompatible with arts 8,11,14 of and art 1 of Protocol 1 to the Convention; and (2) the EC claimants seeking to quash the Act alternatively for a declaration that it was inconsistent with art 28 EC (free movement of goods) and art 49 EC (freedom to provide and receive services) of the EC Treaty.
LORD BINGHAM said, with regard to the HR claims, that the purpose of art 8 was to protect individuals from unjustified intrusion by state agents into the private sphere within which they expected to be left alone to pursue their personal affairs and live as they chose. Fox hunting was a very public activity, carried out in daylight with considerable colour and noise, a spectacle attracting on-lookers’ attention. No analogy could be drawn with the Strasbourg jurisprudence relating to personal autonomy, cultural lifestyle, use of the home or loss of livelihood. Art 8 was inapplicable. Art 11 was not inapplicable: if people assembled to act in a certain way and the activity was prohibited, the effect was to restrict their right to assemble. But interference could be justified under art 11(2). The right guaranteed by art 14 against discrimination was not engaged, since the claimants’ complaint of adverse treatment, as compared with those who did not hunt, on the ground of their “other status” could not be linked to any personal characteristic which could constitute such “status”. Art 1 of Protocol 1 was applicable in respect of those claimants who complained of loss of control of their possessions. But the article was not to impair the state’s right to enforce such laws as were deemed necessary to control the use of property in the general interest. The objective of the Act, to prevent or reduce unnecessary suffering to wild animals on the basis that to do so for sport was unethical, was a legitimate aim and a wide margin of discretionary judgment was to be accorded to a democratically elected assembly in matters of such social policy. The Act was proportionate and any interference under the article was justifiable. With regard to the EC claims, it was unclear whether the prohibition imposed by the Act would engage either article 28 EC or article 49 EC but since resolution of that issue was unnecessary for the House’s decision a preliminary ruling from the ECJ was not required. An impugned measure might be justified in Community law on public policy grounds, in respect of which national authorities enjoyed a margin of discretion within the limits of the EC Treaty, provided there was a genuine and sufficiently serious threat to a fundamental interest of society. The 2004 Act was a measure of social reform which was not directed to the regulation of commercial activity; it bore more heavily on those within the UK than on those outside it, and any impediment it contained to the intra-Community provision of goods or services was a minor and unintended consequence. The prevention of unnecessary suffering to animals was deeply rooted in public policy and Parliament was entitled to conclude that the Act was necessary to prevent activities they considered cruel if engaged in for sport; no less far-reaching measure could have achieved that objective. The Act was justifiable under Community law.
LORD HOPE, LORD RODGER, BARONESS HALE and LORD BROWN delivered opinions concurring in the result.
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Appearances: Richard Gordon QC (Clifford Chance LLP) for the HR claimants; David Anderson QC and Marie Demetriou (Clifford Chance LLP) for the EC claimants; Philip Sales QC and Jason Coppel (Treasury Solicitor and Solicitor, Department of the Environment, Food and Rural Affairs) for the respondents. Rabinder Singh QC and Kate Cook (Legal Department, RSCA) and Philip Engelman (Edwards Duthie) by written submissions for the RSPCA and Dr Malik respectively.
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