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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43.  As is evident from the terms of articles 8 and 11 of the Convention (cited in paras 10 and 16 above respectively) what would otherwise be impermissible interferences with protected rights may be justified if three conditions are met. The first of these, that the interference should be “in accordance with the law” or “prescribed by law” is clearly met, since it is the law of which the HR claimants complain.

44.  The second condition is that the interference for which the law provides should be directed towards one or more of the objects or aims specified in the second paragraph of the respective articles. Relevant in each of these cases is “for the protection of…morals". This was in my opinion the aim of this Act, since the majority judged that the hunting of wild mammals (with the exceptions already noted) and the coursing of hares by greyhounds was morally objectionable and moral ends would be served by bringing the practice to an end. This does not fall outside the aims permitted under these articles.

45.  The third condition is that the interference in question is necessary in a democratic society, raising the familiar questions whether there is a pressing social need for it and whether it is proportionate to the legitimate aim pursued. There are of course many in England and Wales who do not consider that there is a pressing (or any) social need for the ban imposed by the Act. But after intense debate a majority of the country’s democratically-elected representatives decided otherwise. It is of course true that the existence of duly enacted legislation does not conclude the issue. In Dudgeon v United Kingdom (1981) 4 EHRR 149 and Norris v Ireland (1988) 13 EHRR 186 legislation criminalising homosexual relations between adult males was found to be an unjustifiable interference with the applicants’ rights under article 8. But the legislation under attack had been enacted in each case in 1861 and 1885 and was not enforced in either Northern Ireland or Ireland. During the intervening century moral perceptions had changed. Here we are dealing with a law which is very recent and must (unless and until reversed) be taken to reflect the conscience of a majority of the nation. The degree of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.

46.  If, as has been held, the object of the Act was to eliminate (subject to the specified exceptions) the hunting and killing of wild animals by way of sport, no less far-reaching measure could have achieved that end. As already noted, the underlying rationale could have been relied on to justify a more comprehensive ban. The Michael Bill was rejected because it did not go far enough. I am of the opinion that the 2004 Act is proportionate to the end it sought to achieve.

47.  Article 1 of the first protocol, as noted above (para 19), is not to impair in any way the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. The 2004 Act is a law to control the use of property. It is, in the first instance, for Parliament to decide what laws are necessary in accordance with what it judges to be the general interest. It has decided that the 2004 Act is necessary in accordance with the general interest. As already pointed out, Parliament’s judgment is not immune from challenge. The national courts in the first instance, and ultimately the Strasbourg court, have a power and a duty to measure national legislation against Convention standards. But for reasons already given, respect should be paid to the recent and closely-considered judgment of a democratic assembly, and no ground is shown for disturbing that judgment in this instance.

48.  Article 28 of the EC Treaty is qualified by article 30 which, so far as relevant, provides:

“The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants …Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”

Article 46, applicable to article 49 by virtue of article 55, provides so far as relevant:

“The provisions of this chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.”

Common to both provisions is the possibility of justifying an impugned measure on grounds of public policy, although article 30 makes reference also to public morality and protection of the health or life of animals.

49.  The test of justification under Community law is a strict one and is subject to the overall control of the ECJ. The relevant principles are conveniently set out by the court in its recent judgment in Omega, above, paras 28-31:

“28  Concerning justification for the restriction of the freedom to provide services imposed by the order of 14 September 1994, Article 46 EC, which applies here by virtue of Article 55 EC, allows restrictions justified for reasons of public policy, public security or public health. In this case, the documents before the Court show that the grounds relied on by the Bonn police authority in adopting the prohibition order expressly mention the fact that the activity concerned constitutes a danger to public policy. Moreover, reference to a danger to public policy also appears in Paragraph 14(1) of the OBG NW, empowering police authorities to take necessary measures to avert that danger.

29  In these proceedings, it is undisputed that the contested order was adopted independently of any consideration linked to the nationality of the providers or recipients of the services placed under a restriction. In any event, since measures for safeguarding public policy fall within a derogation from the freedom to provide services set out in Article 46 EC, it is not necessary to verify whether those measures are applied without distinction both to national providers of services and those established in other Member States.

30  However, the possibility of a Member State relying on a derogation laid down by the Treaty does not prevent judicial review of measures applying that derogation (Case 41/74 Van Duyn [1974] ECR 1337, paragraph 7). In addition, the concept of ‘public policy’ in the Community context, particularly as justification for a derogation from the fundamental principle of the freedom to provide services, must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any control by the Community institutions (see, by analogy with the free movement of works, Van Duyn, paragraph 18; Case 30/77 Bouchereau [1977] ECR 1999, paragraph 33). Thus, public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society (Case C-54/99 Église de Scientologie [2000] ECR I-1335, paragraph 17).

31  The fact remains, however, that the specific circumstances which may justify recourse to the concept of public policy may vary from one country to another and from one era to another. The competent national authorities must therefore be allowed a margin of discretion within the limits imposed by the Treaty (Van Duyn, paragraph 18, and Bouchereau, paragraph 43).”

In paragraph 36 the court added:

“However, measures which restrict the freedom to provide services may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives cannot be attained by less restrictive measures …”

50.  I approach the issue of justification on the assumption that articles 28 and 49 apply, but also on the basis that the measure to be justified is a measure of social reform, not directed to the regulation of commercial activity, of which any impediment to the intra-Community provision of goods or services is a minor and unintended consequence and which bears more hardly on those within this country than outside it. In Omega, para 32, the German authorities considered, and the ECJ accepted (para 40), that “the exploitation of games involving the simulated killing of human beings infringed a fundamental value enshrined in the national constitution, namely human dignity". Here, Parliament considered that the real killing of foxes, deer, hares and mink by way of recreation infringed a fundamental value expressed in numerous statutes and culminating in the 2004 Act. For reasons already given, I am of the clear opinion, in agreement with the Divisional Court (paras 350-351) and the Court of Appeal (para 193) that the 2004 Act is justifiable in Community law. No ruling by the ECJ is necessary to enable the House to decide this appeal.

51.  No distinction is to be drawn between the hunting of foxes on the one hand and the hunting of deer, hares and mink, or the coursing of hares, on the other. My conclusions, if accepted by my noble and learned friends, make it unnecessary to distinguish between the individual HR and EC claimants.

52.  For those reasons I would dismiss both appeals. The parties are invited to make submissions on costs within 14 days.

LORD HOPE OF CRAIGHEAD

My Lords,

53.  I cannot improve on my noble and learned friend Lord Bingham of Cornhill’s masterly introduction to the facts of this case and his description of the historical background, which I have had the privilege of reading in draft and adopt with gratitude. I wish to concentrate on the questions of law that are before us. As my Lord points out, it is the answer to those questions that must determine whether the prohibitions in the Hunting Act 2004 are incompatible with the claimants’ Convention rights or with Community law.

The HR claims

54.   I agree that the claims of the HR claimants cannot be brought within the scope of article 8 of the Convention. We are not concerned in this case with personal autonomy in the sense referred to in Pretty v United Kingdom (2002) 35 EHRR 1, paras 61 and 66. This case is not about the choices that a person makes about his or her own body or physical identity. It is not about respect for the home as the place where a person is entitled to be free from arbitrary interference by the public authorities: see Harrow London Borough Council v Qazi [2004] 1 AC 983, para 50. In Giacomelli v Italy (2006) 45 EHRR 871, para 76, the European Court said that a home will usually be the place, the physically defined area, where private and family life develops and that the individual has a right to the quiet enjoyment of that area. But that is not what this case is about either. It is about the claimants’ right to establish and develop relationships with other human beings and the outside world. But this right is protected only “to a certain degree": Niemietz v Germany (1992) 16 EHRR 97, para 29.

55.  As the Lord Justice Clerk (Gill), delivering the opinion of the court, said in Adams v Scottish Ministers, 2004 SC 665, para 63, it is fallacious to argue that, because a certain activity establishes and develops relationships with others, it is on that account within the scope of private life. For many people hunting with hounds is a way of life. This is not just about how people spend their own time when they wish to be left alone. It affects how they behave with other people too. Not all activities of that kind lie outside the scope of protection. But in this case it is possible to distinguish very clearly between what is public and what is private. Hunting with hounds, by its very nature, is carried on in public and it has many social aspects to it which involve the wider community. Moreover the prohibition is directed at activities that are carried on in public, not what people who hunt do in private when they are not hunting. They lie outside the private sphere of a person’s existence which is protected by article 8. Of course, it has a rich cultural tradition of its own which has been built up over many years. The customs and beliefs which are shared by those who participate in it are different from those shared by others in the population generally. But they are a minority in numerical terms only. They are not part of a recognised ethnic or national group such as the Saami people in the north of Norway to whose traditional activities article 8 extends its protection: G and E v Norway (1983) 35 DR 30. So it is not applicable on that ground in this case.

56.  I have reached the same conclusion on the question whether their claims can be brought within article 11 of the Convention. The principles on which the right of assembly has evolved have largely been developed in the context of political demonstrations: Clayton and Tomlinson, The Law of Human Rights (2000), para 16.57. The two freedoms referred to in article 11 - the freedom of peaceful assembly and the freedom of association with others- may overlap, as where people assemble or move in procession in support of their right to belong to a trade union. The right to exercise these freedoms, combined with the protection to hold opinions and the freedom to express them guaranteed by article 10, is essential to the proper functioning of a modern democracy. Taken together they provide protection for persons who, without belonging to any particular association or without any previously conceived plan or purpose, assemble for the purposes of a demonstration on a matter of public interest.

57.  As Lord Bingham has noted, the courts below, in agreement with the Lord Ordinary (Lord Brodie) in Whaley v Lord Advocate, 2004 SC 78, para 80, with whom the Inner House in its turn also agreed in Friend v Lord Advocate [2005] CSIH 69; 2006 SC 121, para 21, rejected the claims on the ground that the effect of the hunting ban was not to prohibit the assembly of the hunt but to prohibit a particular activity which the hunt might engage upon once it had assembled. I agree that this is not a sufficient answer to the argument that the claimants are within the protection of article 11. In the field of public protest, for example, it would be wrong to say that the article had no application because the activity on which the participants were engaged did not begin until after they had assembled.

58.  That argument having been rejected, however, the question remains whether article 11 is nevertheless engaged. But here again, as in the case of article 8, there are limits. There is a threshold that must be crossed before the article becomes applicable. The essence of the freedom of assembly that article 11 guarantees is that it is a fundamental right in a democracy and, like the right to freedom of expression, is one of the foundations of such a society: Rassemblement Jurassien et Unité Jurassienne v Switzerland (1979) 17 DR 93, p119. The situations to which it applies must relate to activities that are of that character, of which the right to form and join a trade union which article 11 refers to is an example. The purpose of the activity provides the key to its application. It covers meetings in private as well as in public, but it does not guarantee a right to assemble for purely social purposes. The right of assembly that the claimants seek to assert is really no more than a right to gather together for pleasure and recreation, which the Strasbourg Court, agreeing with the Commission at para 105, has held their activity to be: Chassagnou v France (1999) 29 EHRR 615, para 108. I agree with Lord Bingham that, where the activity which brings people together is prohibited, the effect is in reality to restrict their right to assemble. But the claimants’ position is no different from that of any other people who wish to assemble with others in a public place for sporting or recreational purposes. It falls well short of the kind of assembly whose protection is fundamental to the proper functioning of a modern democracy and is, for that reason, guaranteed by article 11. No decision of the Strasbourg Court has gone that far. I would hold that this article too is not applicable.

59.  As for article 14, the Grand Chamber of the Strasbourg Court has held that it complements the other substantive provisions of the Convention and the Protocols. It has no other independent existence since, according to its own terms, it has effect solely in relation to the enjoyment of the rights and freedoms guaranteed by those provisions. But it does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary, but also sufficient, for the facts of the case to fall within what has been described as “the ambit” of one or more of the Convention articles: Stec v United Kingdom (2005) 41 EHRR SE 295, para 38. The Grand Chamber added this explanation in para 39:

“The prohibition of discrimination in article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each state to guarantee. It applies also to those additional rights, falling within the scope of any Convention article, for which the state has voluntarily decided to provide.”

60.  As Lord Bingham of Cornhill said in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, para 13, expressions such as “ambit” are not precise and exact in their meaning. As he put it:

“They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed.”

That will be so if, for example, the state, having set up an institution such as a school or other educational establishment in unilingual regions, takes discriminatory measures within the meaning of article 14 read with the right to education in article 2 of the First Protocol which are based on differences in the language of children attending these schools: see Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, para 32. Clift’s case provides another example closer to home. It was held that a scheme which had been set up by legislation which gave the right of early release of prisoners fell within the ambit of the right to liberty in article 5 of the Convention. Differential treatment of prisoners otherwise than on the merits gave rise to a potential complaint of discrimination under article 14.

61.  But to attract the protection of the article the discrimination must also be on some ground which falls within the list which the article sets out. This list is not exhaustive, but the words “or other status” at the end of the list show that it is not unlimited: R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, para 48, per Lord Steyn. It does not preclude discrimination on any ground whatever. The principle was explained in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56, where the Strasbourg court said:

“Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other. However, there is nothing in the contested legislation which can suggest that it envisaged such treatment.”

62.  The words “envisaged such treatment” in the last sentence (omitted from the quotations from this paragraph in Clift, paras 27 and 56) are important. They suggest that the words “personal characteristic” are sensitive to the context in which the issue arises. Something which might not strike one as a personal characteristic in the abstract may become apparent if it is the reason why the state decides to treat some people differently from other people in similar factual circumstances. It was on this part of his case that the argument broke down in Clift’s case. He was unable to show that the length of his sentence conferred a status, or personal characteristic, on him within the meaning of the article because of which he was treated differently. But I would regard that case as lying close to the borderline.

63.  The question is whether, applying these principles, the Act is incompatible with article 14. In my opinion the argument that it is fails on both points. For the reasons already given, I do not think that article 8 or article 11 is engaged. Article 14 would be if the claimants could show that their case nevertheless fell within, or was at least close to, the core of the values guaranteed by either of those articles. But this is not something that can be plucked out of the air. It must be related to a right that, as it was put in Stec v United Kingdom (2005) 41 EHRR SE 295, para 39, the state has decided voluntarily to provide. Having done so, it cannot limit access to that right, restrict it or take it away on grounds that would conflict with any of the core values. That however is not this case. The 2004 Act is not directed at anything that the state itself has provided or seeks to provide. Its sole purpose is to restrict an activity in which persons can engage if they wish but in which the state itself is not involved at all.

64.  That is the principal reason why I would hold that the claimants’ case is not within the ambit of any of the rights guaranteed by the Convention. But I would also hold that the discrimination of which they complain is not directed at them on any of the grounds mentioned in article 14. As the Lord Justice Clerk said in Adams v Scottish Ministers, 2004 SC 665, paras 113-114, it is the activity of hunting with hounds for sport that has been singled out for differential treatment, not participation in it by a particular sort of people or by people having a particular characteristic. Moreover, looking at the matter from the point of view of the HR claimants as individuals, it is not on the ground of their political or other opinion or any other status that they are able to identify that this action has been taken. The real reason for it lies in the nature of the activity, not in the personal characteristics of the many people of all kinds and social backgrounds who participate in hunting.

65.  For all the reasons that Lord Bingham gives, however, I agree that article 1 of Protocol 1 is clearly applicable to the complaints of some of the claimants and that for this reason it is necessary to consider whether the interference imposed by the Act can be justified and is proportionate.

The EC claims

66.  The EC claimants do not suggest that the issues of Community law are capable of being resolved, without any element of doubt, in their favour. Their position is that the issues which they have raised should be referred to the European Court of Justice for a preliminary ruling under article 234(3) EC. They point out that there is an obligation on your Lordships’ House, as a court from whose decisions there is no judicial remedy, to refer any question of Community law which it is necessary to decide which is not acte clair: Case C-283/81 CILFIT v Ministero della Sanità [1982] ECR 3415, paras 16-20.

67.  As for the scope of that obligation, in Case C-99/00 Lyckeskog [2002] ECR I-4839, para 64, Advocate General Tizzano pointed out that CILFIT was not the outcome of an extempore decision by the court but was set out directly in precise and formal terms in the Treaty, and that it was one of the fundamental and essential principles of the Community legal system. It is sometimes suggested that it has been over-stated, leading to an excessive use of the procedure. But Sir David Edward, “Reform of Article 234 Procedure: the Limits of the Possible", D O'Keeffe (ed) Judicial Review in European Union Law (2000), pp 122-123, has explained that the problem lies not in CILFIT but in the texts. Article 234 leaves no room for any other limitation of the obligation to refer unless there is, in reality, no question on which a decision is necessary to enable the national court to give judgment. In his Mackenzie-Stuart Lecture of 18 October 2002, National Courts - the Powerhouse of Community Law, The Cambridge Yearbook of European Legal Studies, vol 5, 2002-3, 1, 7, Sir David said that the Treaty was, after all, unambiguous and that it seemed to him very odd to suggest that the Court should relax CILFIT when that judgment represented a substantial (even “activist”) relaxation of what the Treaty requires.

 
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