R (on the application of the Countryside Alliance and others) v Attorney General and others; R (on the application of Derwin and others) v Attorney General and others [2007] UKHL 52, [2007] All ER (D) 437 (Nov)
House of Lords
Lord Bingham, Lord Hope, Lord Rodger, Baroness Hale and Lord Brown
28 November 2007
The Hunting Act 2004 (HuA 2004) is not inconsistent with the European Convention on Human Rights or the Treaty of Rome.
Richard Gordon QC (instructed by Clifford Chance) for the human rights claimants.
David Anderson QC and Marie Demetriou (instructed by Clifford Chance) for the EC claimants.
Philip Sales and Jason Coppel (instructed by the Treasury Solicitor and DEFRA) for the defendants.
Rabinder Singh QC and Kate Cook (instructed by RSPCA Legal Department) for the RSPCA, as intervener.
HuA 2004 imposed a ban on the hunting of wild mammals with dogs and of hare coursing. The claimants sought to challenge that prohibition as being incompatible with the European Convention on Human Rights (the Convention) or inconsistent with the EC Treaty. The first group of claimants, known as the human rights (HR) claimants, argued that HuA 2004 infringed their rights under Arts 8 (respect for family life), 11 (right to peaceful assembly) and 14 (freedom from discrimination) of, and Art 1 of the First Protocol (peaceful enjoyment of possessions) to, the Convention. The second group of claimants, known as the EC claimants, argued that HuA 2004 was inconsistent with Arts 28 and 49 of the EC Treaty. The claims failed before the Divisional Court and the Court of Appeal, and the claimants appealed to the House of Lords. The human rights claim pursuant to Art 8 was brought under four headings:
(i) private life and autonomy;
(ii) cultural lifestyle;
(iii) use of the home (as defined broadly in European authorities such as Pretty v United Kingdom (Application 2346/02) (2002) 35 EHRR 1, [2002] All ER (D) 286 (Apr)); and
(iv) loss of livelihood/home.
As to Art 11, the HR claimants argued that since the only purpose of their assembling or associating was to hunt foxes, the prohibition of such hunting effectively restricted their right to assemble and associate. They argued that the prohibition of hunting was not shown to reduce the overall level of suffering endured by foxes as compared with the situation which pertained before HuA 2004. The EC claimants argued that the issues which they raised needed to be referred to the European Court of Justice for a preliminary ruling.
LORD BINGHAM:
His lordship was not persuaded that the claims could be brought within the scope of Art 8 under any of the four heads relied on. Fox-hunting was a very public activity, carried out in daylight with considerable colour and noise, often attracting the attention of onlookers attracted by the spectacle. No analogy could be drawn with the very personal and private concerns at issue in cases such as Pretty v United Kingdom. The Lapps in G and E v Norway (1983) 35 DR 30 and the gipsies in Buckley v United Kingdom (Application 20348/92) (1996) 23 EHRR 101, to which the claimants had referred, belonged to distinctive groups, each with a traditional culture and lifestyle so fundamental as to form part of its identity. The hunting fraternity could not plausibly be portrayed in such a way. The social and occupational diversity of that fraternity, often relied on as one of its strengths, left no room for such an analogy.
“Home” had been accepted as an expression with an autonomous Convention meaning, and Niemietz v Germany (Application 13710/88) (1993) 16 EHRR 97 showed that the expression could cover premises other than the place where a person laid her head at night. But it was one thing to recognise that the meaning of home should not be too strictly defined or circumscribed, and quite another to suggest that the expression could cover land over which the owner permitted or caused a sport to be conducted and which would never, in any ordinary usage, be described as home. Sidabras and Džiautas v Lithuania [2004] ECHR 55480/00, on which the claimants relied, was a very extreme case on its facts, but even there the court did not find a breach of Art 8, contenting itself with finding a breach of Art 14 in the ambit of Art 8.
His lordship did find that Arts 11 and Art 1 of the First Protocol were engaged, however. That gave rise to issues of proportionality and justification, which were also relevant for the EC claims.
What would otherwise be impermissible interferences might be justified if three conditions were met. The first, that interference should be “in accordance with the law” was clearly met, since it was the law of which the HR claimants complained.
The second condition was that the interference should be directed towards one or more of the objects or aims specified in the respective articles. “For the protection of…morals” was relevant. That was within the aim of HuA 2004, since the majority of Parliament had judged that the hunting of wild mammals was morally objectionable and moral ends would be served by bringing the practice to an end. That did not fall outside the aims permitted by the articles in question.
The third condition was that the interference in question was necessary in a democratic society. Again, the majority of Parliament had considered that the interference with the claimants’ rights was necessary. The case was pre-eminently one in which respect should be shown to what the House of Commons had decided. If the object was to eliminate the hunting and killing of wild animals by way of sport, no less far-reaching measure could have achieved that end. Accordingly, HuA 2004 was proportionate to the end it sought to achieve. Article 1 of the First Protocol was not to impair in any way the right of a state to enforce such laws as it deemed necessary to control the use of property in accordance with the general interest. Respect should be paid by the courts to the recent and closely-considered judgment of a democratic assembly, and no ground had been shown in this case for disturbing that judgment.
For the purposes of justification it was not necessary to distinguish between the individual HR and EC claimants.
The appeals would therefore be dismissed.
LORD HOPE:
His lordship agreed that Art 8 was not engaged. He disagreed that Art 11 was engaged. The claimants’ position was no different from that of any other people who wished to assemble with others in a public place for sporting or recreational purposes. It fell well short of the kind of assembly whose protection was fundamental to the proper functioning of a modern democracy and was, for that reason, guaranteed by Art 11. Article 11 was therefore inapplicable.
Article 14 was not engaged either. HuA 2004 was not directed at anything that the state itself had provided or sought to provide. Its sole purpose was to restrict an activity in which people could engage if they wished but in which the state itself was not involved at all.
Further, the discrimination of which the claimants complained was not directed at them on any of the grounds mentioned in Art 14.
His lordship agreed, however, that Art 1 of Protocol 1 was applicable.
No good purpose would be served by seeking a preliminary ruling on the EC issues if it was clear that the house would be bound to hold, applying the relevant test, that any such restrictions as result of the ban were justified on grounds of public policy and were proportionate. His lordship agreed with Lord Bingham that the prohibitions satisfied the requirement of proportionality in accordance with EC law.
Baroness Hale, Lord Rodger and Lord Brown delivered speeches agreeing with Lord Hope that Art 11 was not engaged, and agreeing that the appeals would be dismissed.
