Judgments - R (on the application of Countryside Alliance and others and others (Appellants)) v Her Majesty's Attorney General and another (Respondents)R (on the application of Countryside Alliance and others (Appellants) and others) v Her Majesty's Attorney General and another (Respondents)

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22.  Since this article is in my opinion clearly applicable to the complaints of certain of the HR claimants, it is necessary to consider whether the interference imposed by the Act is justifiable, an issue addressed below.

23.  Article 14, on which, lastly, the HR claimants relied, 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, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

As the language of this article makes clear, and as has often been held, this is not a free-standing provision. But nor does it require that any other article should be shown to have been violated. It is enough that there should have been discrimination on a proscribed ground within the ambit of another article of the Convention. The HR claimants say that they are subject to adverse treatment as compared with those who do not wish to hunt and are in no way involved in hunting. This, they say, is on the ground of their “other status".

24.  The expression “other status” is plainly incapable of precise definition. The Strasbourg court in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56, spoke of “discriminatory treatment having as its basis or reason a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other". The House adopted this test in R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1WLR 2196, para 48, and again in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484, paras 27-28, and imprecise though it is it may be hard to formulate any test which is more precise. In the present case, assuming in the HR claimants’ favour that they are the subject of adverse treatment as compared with those who do not hunt and are in no way involved in hunting, and assuming further that their complaints fall within the ambit of one or more articles of the Convention, I cannot link this treatment to any personal characteristic of any of the claimants or anything which could meaningfully be described as “status".

The EC claims

25.  The Divisional Court gave particulars of the individual EC claimants in paragraphs 43-52 of its judgment, also reproduced by the Court of Appeal in its Appendix I. They include Irish breeders of and dealers in hunters and greyhounds which they formerly sold into the English market; providers in this country of hiring and livery services and hunting-based holidays for customers visiting from other EU member states and elsewhere; visitors from other EU member states coming to this country to hunt and keeping or hiring hunters here for the purpose; and English dealers buying hunters in Ireland and selling on to English and other EU customers. The evidence of those in business is that the Act has had a very severe adverse effect. The evidence of the foreign visitors is that they will no longer come to this country to hunt if the ban remains in force.

26.  The EC claimants relied, first, on article 28 (formerly 30) of the EC Treaty. This provides:

“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.”

This article can readily be recognised as laying down a fundamental condition of the common market which the Treaty of Rome sought to establish, since if member states were free to introduce or maintain national measures which, whether by design or not, protected their own products and impeded the entry of goods from other member states, the free movement of goods between member states would be to that extent impeded.

27.  No doubt because of its fundamental importance, article 28 was generously interpreted by the European Court of Justice. In Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837, 852, para 5, the court laid down what has since been accepted as the governing principle:

“All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions.”

This principle was applied in later cases. But the court came to appreciate that, taken entirely literally, the principle was being applied to cases to which it should not be applied. So in Joined Cases C-267/91 and C-268/91 Bernard Keck and Daniel Mithouard [1993] ECR I-6097, 6131, paras 14-17, the court modified its earlier ruling:

“14  In view of the increasing tendency of traders to invoke Article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other Member States, the Court considers it necessary to re-examine and clarify its case-law on this matter.

15  It is established by the case-law beginning with ‘Cassis de Dijon’ (Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649) that, in the absence of harmonization of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30. This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods.

16  By contrast, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

17  Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty.”

28.  The distinction between product rules and selling arrangements has been explored in a number of later cases to which the House was referred, among them Case C-12/00 Commission of the European Communities v Kingdom of Spain [2003] ECR 1-459 and Case C-71/02 Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] ECR 1-3025.

29.  The EC claimants contended that the ban on hunting imposed by the 2004 Act impeded the free movement of goods from Ireland to the UK and was not a selling arrangement within the Keck exception. That the impediment is minor is irrelevant, there being (as is accepted) no de minimis principle in this aspect of Community law. Therefore the ban fell within the Dassonville prohibition.

30.  I would for my part accept that the ban on hunting cannot be characterised as pertaining to selling arrangements. But I have difficulty in recognising it as a trading rule or a product rule either. The same could have been said, however, of the provisions considered in Case C-67/97 Ditlev Bluhme [1998] ECR I-8033 and Case C-36/02 Omega Spielhallen-und Automatenaufstellungs - GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I - 9609, or that discussed by the advocate-general in Case C-142/05 _klagaren v Percy Mickelsson and Joakim Roos (14 December 2006), yet in these cases article 28 was held to apply or to be potentially applicable.

31.  Both the Divisional Court (para 228) and the Court of Appeal (para 146) reached the clear conclusion that the 2004 Act does not engage article 28 of the EC Treaty. I would incline to the same conclusion, for the detailed reasons which those courts respectively gave. But I find it hard to say, on the present state of the ECJ authorities as I understand them, that this conclusion is clear beyond the bounds of reasonable argument. If, therefore, it is necessary to decide this question to enable the House to give judgment, I would regard it as incumbent on the House, as the final domestic court of appeal, to seek a definitive ruling from the ECJ.

32.  The EC claimants relied, secondly, to article 49 (formerly 59) of the EC Treaty which, so far as relevant, provides:

“Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.”

This provision, it was contended, plainly applied, since some of the EC claimants are restricted in their freedom to provide services for nationals of other EU states. There is, again, no de minimis exception. And whatever doubt might attach to article 28, there was no room for doubt here, since in relation to services there is no Keck exception.

33.  The principle on which the EC claimants relied was that stated by the ECJ in Case C-405/98 Konsumentombudsmannen (KO) v Gourmet International Products AB (GIP) [2001] ECR I-1795, 1828, paras 37-39:

“37  In that regard, as the Court has frequently held, the right to provide services may be relied on by an undertaking as against the Member State in which it is established if the services are provided to persons established in another Member State (see, in particular, Case C-18/93 Corsica Ferries Italia v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783, paragraph 30, and Case C-384/93 Alpine Investments [1995] ECR I-1141, paragraph 30).

38  That is particularly so where, as in the case before the referring court, the legislation of a Member State restricts the right of press undertakings established in the territory of that Member State to offer advertising space in their publications to potential advertisers established in other Member States.

39  A measure such as the prohibition on advertising at issue in the proceedings before that court, even if it is non-discriminatory, has a particular effect on the cross-border supply of advertising space, given the international nature of the advertising market in the category of products to which the prohibition relates, and thereby constitutes a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (see, in that regard, Alpine Investments, cited above, paragraph 35).”

Similar rulings are to be found in other authorities cited to the House, among them Case C-224/97 Erich Ciola v Land Vorarlberg [1999] ECR I-2517, 2535, para 11; and Case C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-6279, 6318, [2003] QB 416, 439, para 29.

34.  The Divisional Court, for reasons which it gave in paragraphs 231-243 of its judgment, held that the hunting ban did engage article 49. The Court of Appeal (paras 147-157) differed. But it considered (para 157) that the jurisprudence leading to this conclusion was not entirely clear, and considered that a reference under article 234 might be called for if it were not of the clear opinion that the ban on hunting could be justified in Community terms.

35.  I would for my part incline to share the view of the Divisional Court, strange though I find this result in the case of a measure not directed to the regulation of any form of commercial activity and wholly non-discriminatory, since bearing more hardly on people and undertakings in this country than on people and undertakings elsewhere. But I do not regard the matter as acte clair and would think it necessary to refer if resolution of this question were necessary to the decision of the House.

Justification and proportionality

36.  In paragraph 47 of its opinion in Adams v Scottish Ministers 2004 SC 665, the Inner House of the Court of Session said, with reference to the Scottish Parliament’s moral judgment expressed in the Protection of Wild Mammals (Scotland) Act 2002,

“The starting point on this issue, in our opinion, is that the prevention of cruelty to animals has for over a century fallen within the constitutional responsibility of the legislature. The enactment of every statute on the subject has necessarily involved the making of a moral judgment. In our view, the 2002 Act should be seen as a further step in a long legislative sequence in which animal welfare has on numerous occasions been promoted by legislation related to contemporary needs and problems.”

This succinct statement is, as I respectfully think, entirely correct.

37.  As recounted in Animal Welfare in Britain: Regulation and Responsibility, (M Radford, 2001, chapter 3), parliamentary efforts to protect the welfare of animals began in 1800 with a measure seeking to prohibit bull-baiting. These attempts were unsuccessful, The Times applauding the rejection of the first bill in 1800 (see Radford, p 34):

“It should be written in letters of gold that a Government cannot interfere too little with the people; that laws, even good ones, cannot be multiplied with impunity; and that whatever meddles with the private personal disposition of a man’s time or property is tyranny.”

But the tide of opinion gradually changed. Martin’s Act, “to prevent the cruel and improper treatment of cattle” (expressed to include horses and sheep), was passed in 1822. The Society for the Prevention of Cruelty to Animals, founded in 1824 to secure “the mitigation of animal suffering, and the promotion and expansion of the practice of humanity towards the inferior classes of animated beings” (see Radford, p 41), added “Royal” to its name, by permission of Queen Victoria, in 1840. Measures to protect the welfare of animals and prevent the causing of suffering to them were enacted in 1833, 1835, 1837, 1844, 1849, 1850, 1854 1876 and 1894. In 1900 the Wild Animals in Captivity Protection Act was passed. It applied to any confined bird, beast, fish or reptile not included in the 1849 and 1854 Acts, and made it an offence wantonly or unreasonably to cause or permit any unnecessary suffering or cruelty to any of these creatures or to abuse, infuriate, tease or terrify it. By section 4, insisted upon, it is said (Radford, p 85), by the House of Lords, the Act was not to apply to the hunting or coursing of any animal which had not been liberated in a mutilated or injured state in order to facilitate its capture or destruction. During the twentieth century the stream of legislation continued, with statutes directed to the welfare, protection and preservation of animals passed in (among other years) 1909, 1911, 1912, 1921, 1925, 1927, 1928, 1933, 1949, 1951, 1952, 1954, 1962, 1973, 1981, 1986, 1987, 1988, 1991, 1992, 1993 and 1996. The familiar suggestion that the British mind more about their animals than their children does not lack a certain foundation of fact. Whatever one’s view of the 2004 Act, it must be seen as the latest link in a long chain of statutes devoted to what was seen as social reform. It may be doubted if any country has done more than this to try and prevent the causing of unnecessary suffering to animals.

38.  The controversy surrounding the 2004 Act was protracted and remains acute. But it cannot be too clearly stated that it is not and never has been a contest between those who oppose cruelty to animals and those who support it. These appellants have not sought to impugn the motives of the proponents and supporters of the Act, who must therefore be taken to believe that fox-hunting in its traditional form causes a degree of suffering to the fox which should not be permitted as a recreational activity. The Attorney General for her part has not suggested, and could not suggest, that the appellants and those who support fox-hunting are in any way tolerant or unmindful of cruelty to animals. They include very many people imbued (unlike many of their urban critics) with a deep knowledge and love of the countryside and the natural world, who would shrink from any act of what they saw as cruelty. But they believe that foxes are a pest; that the fox population must be regularly culled; and that hunting is a more humane means of destruction than the alternatives. They contrast the quick and certain death of a fox caught by hounds with the suffering of a fox which is wounded but not killed by shooting; with the death by starvation of cubs whose mother is shot, there being no close season for shooting as for hunting; and with the slow torture of a fox caught in a snare and not dispatched or released.

39.  Certain facts pertinent to the issues we have to decide may, I think, be taken as agreed or not effectively disputed in these proceedings:

  (1)  The fox population in England and Wales is about 217,000. It doubles during the breeding season and reverts to its starting level as a result of natural and unnatural causes, many foxes being killed on the road (Divisional Court judgment, para 24; Court of Appeal judgment, para 7).

  (2)  Foxes are a pest and the fox population has to be culled (Court of Appeal judgment, para 23).

  (3)  Traditional means of culling have included hunting with hounds, shooting and snaring.

  (4)  In the period before the 2004 Act, some 21,000-25,000 foxes were killed by hunting each year (roughly 10% of those who died from all causes), up to 11,000 of these being dug out by terriers (Divisional Court judgment, para 24; Court of Appeal judgment, para 7).

  (5)  Of those foxes which are not killed each year by hunting or on the road, the great majority, perhaps 80,000, are shot. Even in upland Wales, more foxes are culled by shooting than by hunting (Divisional Court judgment, para 24; Court of Appeal judgment, para 7).

  (6)  The most humane way of killing a fox is by a well-directed shot from a suitable weapon at an appropriate range. By “humane” in this context is meant that death is inflicted in a way that causes minimum suffering to the fox.

  (7)  If a fox is shot, and is wounded but not killed, and is permitted to escape, it may very well endure suffering.

  (8)  If a fox is snared, and is not promptly killed or released, it may very well suffer.

  (9)  No scientific evaluation has been made of the psychological and physiological effects on a fox of its being pursued by a pack of hounds over what may be a considerable distance and for what may be a considerable period of time before it is caught and killed (if it is) by the hounds. But this process compromises the welfare of the fox and probably falls short of standards we would expect for humane killing (Burns Report, paras 6.49, 6.52; Lord Burns, Hansard HL Debates, 12 March 2001, col 533).

  (10)  A fox which is caught by a pack of hounds will not be wounded and escape but will be quickly, if not necessarily instantaneously, destroyed (Burns Report, para 6.49).

40.  There has been much argument in the House and below about the aim of the legislature in enacting the 2004 Act. The Divisional Court set out its conclusion in paragraph 339 of its judgment, which the Court of Appeal fully accepted (para 56) and which calls for repetition:

“339  We discern from evidence admissible on the principles in Wilson that the legislative aim of the Hunting Act is a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical and should, so far as is practical and proportionate, be stopped. The evidential derivation for this legitimate aim comprises the terms of the legislation and the admissible contextual background. This background includes the Burns Report, the Portcullis House hearings, the ministerial basis for and the terms of the original Michael Bill, the obvious inference that the majority of the House of Commons considered the original Michael Bill inadequate, and the well-known opposing points of view in the prolonged and much publicised hunting controversy.”

Plainly, as I think, the Divisional Court was entitled to have regard to the materials listed, for the reasons it gave at greater length in paragraph 269 of its judgment, and its approach was not challenged, save (by the Attorney General) to suggest that it could have taken account of other parliamentary materials. I consider that the courts below accurately expressed the rationale of the Act. The appellants did not accept this. They pointed out, correctly, that this rationale was nowhere expressed in the Act, that this did not reflect the government’s intention in introducing the bill and that virtually no parliamentary statement expressed the rationale in this way. But, as the Divisional Court recorded in paragraph 12 of its judgment, endorsed by the Court of Appeal in paragraph 6, the Labour Party in 1997 had advocated new measures to promote animal welfare, including a free vote in Parliament on whether hunting with hounds should be banned. So concern for animal welfare was the mainspring of the legislation. It was originally proposed by the government, in the Michael Bill, to achieve that end by prohibiting deer hunting and hare coursing but permitting fox, hare and mink hunting subject to regulation according to the principles of utility and least suffering already noted. But the latter proposal, although enjoying a measure of support in the House of Lords, was plainly unacceptable to a majority in the House of Commons, who did not feel that it went far enough. Why not? I do not think the appellants proffered any answer to this question. The only answer can, I think, be that it was felt to be morally offensive to inflict suffering on foxes (and hares and mink) by way of sport.

41.  The appellants resist this conclusion by pointing out, again correctly, that the Act is very selective: while prohibiting hunting of foxes, deer, hares and mink it permits the hunting of rabbits and rats, is protective of game birds reared for shooting, and does not extend to shooting, fishing or falconry. This selectiveness is relied on as showing that the rationale of the Act cannot be that found by the courts below, for if it were consistency would have required a more far-reaching measure. This is a traditional argument. Thomas Erskine’s unsuccessful Cruelty to Animals Bill of 1809 was attacked by its principal opponent on the ground (see Radford, p 37) that if Parliament were to pass legislation which imposed a punishment for cruelty, while “we continued to practise and to reserve in great measure to ourselves the sports of hunting, shooting, and fishing, we must exhibit ourselves as the most hardened and unblushing hypocrites that ever shocked the feelings of mankind". For nearly two hundred years, the legislative practice in this field has been to address whatever seemed at any given time to the current parliamentary majority to be the most pressing problem. It seems to me clear that this Act was based upon a moral principle, whether one agrees with that principle or not, and I do not think that doubt can be thrown on the rationale of the Act, as expressed by the courts below, by showing that the underlying principle, if carried to its logical extremes, would have justified a much more far-reaching measure.

42.  The real crux of the appellants’ argument is that the prohibition of hunting is not shown to reduce the overall level of suffering endured by foxes as compared with the situation which pertained before the Act. This argument does not of course touch the great majority of foxes comprised within the annual cull which before the Act were either run over on the roads or shot. It concerns the minority of foxes, roughly 10%, which were either pursued or dug out and killed in the course of hunting, and within that minority those which will now, through inexpert shooting, endure a more painful death. I do not for my part think that it is possible to construct any precise calculus of relative suffering. Even if more scientific evidence were available I question if this could be done. There is, however, a body of reputable professional opinion which accepts that the pursuit and digging out of foxes, and their killing by hounds, imposes a degree of suffering. This accords with common sense. To suppose that the contrary is generally true strains one’s credulity to breaking point. The degree of suffering is, I think, unknowable. Unknowable also is the future incidence, in a society increasingly sensitive to animal suffering, of foxes wounded by inexpert shooting and left to die. The exemption in the Act which permits the hunting and destruction by two hounds of wounded foxes is clearly designed to reduce this risk, as is the Secretary of State’s approval of a code of shooting practice intended to encourage effective shooting and so reduce wounding rates. There are detailed statutory provisions governing, for example, the use of snares: see Wildlife and Countryside Act 1981, s 11. Into the calculation must further be injected the element of moral judgment already repeatedly mentioned: there are many people who would accept such minimum suffering as is inherent in the properly conducted humane slaughter of animals for human consumption but would not accept the infliction of any suffering by way of sport.

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