Judgments - Whaley and another (Appellant) v Lord Advocate (Respondent) (Scotland)

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24.  Article 11 says that everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. The Inner House in Adams said that this article was engaged if a person was prohibited from doing something so long as he is a member of a particular association or is adversely treated by reason of his membership of it: para 81. But a restriction which prohibits an activity without reference to any association, with the result that persons cannot associate for the purpose of carrying it out, was in a different category: para 82. The Court of Appeal in R (Countryside Alliance) v Attorney General, in agreement with the Lord Ordinary in this case at 2004 SC 78, para 80, was of the same opinion. All the Act did was to prohibit a particular activity once the participants had assembled: para 107. In my opinion this is not a sufficient answer to the argument that the claimants are within the protection of article 11.

25.  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 freedom 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. In the field of public protest it would, I think, be wrong to say that the article had no application because the activity on which they were engaged did not begin until after the participants had assembled.

26.  But here again 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 Unité Jurassienne v Switzerland (1979) 17 DLR 93, 119. The situations to which it applies must relate to activities of comparable importance, of which the right to form and join a trade union to 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 Mr Friend seeks to assert is really no more than a right to gather together in a public place to take part in an activity which the Strasbourg court, agreeing with the Commission at para 105, has held to be mainly for pleasure and recreation: 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 Mr Friend’s position is no different from that of any other person who wishes to assemble with others 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 to Mr Friend’s case.

Article 14

27.  This article provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Mr Friend maintains that he is being discriminated against by the Act because he follows the ancient practice of hunting with hounds which others find offensive. He said that he was a member of a particular social group, which Labour politicians had denigrated not for what they did but because they were perceived, wrongly, to be toffs and Tories. It accorded different treatment to others, because it permitted the killing and pursuit of quarry species by methods that could not guarantee not to inflict more pain, and thus unnecessary suffering, than the use of hounds.

28.  The Grand Chamber of the Strasbourg Court has held that article 14 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.”

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.”

The paradigm case is one where the state, having set up an institution such as a school or other educational establishment, takes discriminatory measures within the meaning of article 14 read with article 2 of the First Protocol which are based on differences in the language of children attending schools in unilingual regions: 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 for the 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.

29.  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”

The word “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.

30.  The question is whether, applying these principles, the Act is outside the competence of the Scottish Parliament because it is incompatible with article 14. In my opinion Mr Friend’s argument that it is incompatible with that article fails on both points. For the reasons already given, I do not think that any of the other articles that he relies on are engaged. Article 14 would be if he could show that this case nevertheless fell within, or was at least close to, the core of the values guaranteed by any one or more of those articles. But this is not something that can be plucked out of the air. It must be related to something 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 it, restrict it or take it away on grounds that would conflict with any of the core values. That however is not this case. The 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. That is the principal reason why I would hold that Mr Friend’s 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 he complains is not directed at him 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 Mr Friend as an individual, it is not on the ground of his political or other opinion or any other status that he is able to identify that this action has been taken. The real reason for it lies in the nature of the activity, not any personal characteristic of his or of any of the many other people of all kinds and social backgrounds who participate in hunting.


31.  If, as I would hold, none of the Convention rights on which Mr Friend founds are engaged in this case, it would follow that there is no need consider whether the incompatibility of which he complains is justified and proportionate. Had this been necessary however I would have held that these requirements were satisfied. The issues were considered by the Inner House in Adams v Scottish Ministers: 2004 SC 665, paras 30-52. On its analysis, with which I agree, the broad legislative aim of the 2002 Act was to prevent cruelty to animals. Mounted foxhunting with hounds was considered to be cruel, as killing foxes by this method was done predominantly for sporting enjoyment and because there were thought to be other more effective and no more painful forms of pest control.

32.  Mr Friend vigorously disputed these conclusions. But I agree with the Inner House that there was adequate factual information to entitle the Scottish Parliament to conclude that foxhunting inflicted pain on the fox and that there was an adequate and proper basis on which it could make the judgment that the infliction of such pain in such circumstances constituted cruelty. The social impacts of the proposed legislation were for the legislature to judge. As the Lord Justice Clerk observed in para 47, the prevention of cruelty to animals has for over a century fallen within the constitutional responsibility of the legislature. The 2002 Act is to be seen as one more step on a long legislative sequence in which animal welfare has been promoted by the legislature in relation to contemporary needs and problems. The question whether the measures proposed were now necessary in a democratic society was pre-eminently one for the Parliament. Mr Moynihan was right to describe the effect of the Act, in the light of the activities which are excepted from the prohibition by sections 2 to 5, as a restriction on mounted fox hunting, not a ban. That is how its effect has proved to be in practice. The legislative aim was achieved in a way that was proportionate.

Article 6

33.  Mr Friend has invoked article 6 on the grounds that the right to hunt with hounds is a civil right and that he is entitled to a determination of his right to do so by an independent and impartial tribunal. He maintains that the Lord Ordinary’s decision to dismiss the petition following a first hearing, without hearing evidence, has deprived him of a full and impartial hearing pursuant to his right under the article. He did not suggest that there were grounds for doubting the impartiality of the Lord Ordinary. In essence his complaint is that, because his petition was dismissed because his averments were irrelevant, he has not had a fair trial.

34.  I see no reason to doubt that the right to fish or hunt is a civil right within the meaning of article 6: Könkämä v Sweden (1996) 87-A DR 78. In fact, the issue that has to be determined in this case is not whether Mr Friend has a right to hunt but whether it was within the legislative competence of the Scottish Parliament to interfere with, or limit, that right. This point however is immaterial, as his right to have this issue too determined is a civil right. Nor does it dispose of his reason for invoking article 6. The question is whether a hearing on evidence is an essential component of a fair trial in a case where the judge is satisfied that, as the litigant’s averments are irrelevant, no good purpose would be served by continuing with the case for a determination as to whether the petitioner is able to show that his averments are true.

35.  The proposition only has to be stated for it to be obvious that it is untenable. The question whether there is a relevant case can be determined on the pleadings. This is always done by taking the averments pro veritate - assuming that they are true. A case which is found to be irrelevant is not assisted by the leading of evidence. As it happens, as can be seen from his careful opinion, the Lord Ordinary was not short of documentary evidence. He had before him the Report of the Rural Affairs Committee which, together with its appendices, provided him with a good deal of background information. He also had all the information that was needed to examine the progress of the Bill after it had reached that stage. Mr Friend was in a position to provide further information at first hand about his own beliefs and personal circumstances, as he did without objection when he was addressing your Lordships. He has been given ample opportunity to present his case. Indeed he went out of his way to express his appreciation of the courtesy that had been shown to him throughout this litigation. I do not believe that there are any grounds for thinking that he has not had a fair trial.


36.  I agree with the Extra Division that the Lord Ordinary was right to dismiss the petition, although I have not reached this conclusion entirely for the same reasons. I would dismiss the appeal.


My Lords,

37.  I have had the advantage of considering the speech of my noble and learned friend, Lord Hope of Craighead, in draft. So far as the “private life” aspect of article 8 is concerned, despite the compelling way that he presented his case, I would hold that Mr Friend’s Convention right is not engaged for the reasons which I have set out in my speech in R (Countryside Alliance and others) v Attorney General and R (Derwin and others) v Attorney General [2007] UKHL 52. In short, when engaged in the public spectacle of hunting, Mr Friend and others who hunt are not entitled to the guarantees relating to the “private life” of individuals. For the rest, I agree with what Lord Hope says and would accordingly dismiss the appeal for the reasons which he gives.


My Lords,

38.  I too agree that this appeal should be dismissed, essentially for the same reasons as those given by my noble and learned friend Lord Hope of Craighead. On the central questions of the scope and applicability of articles 8 and 11, I have explained my reasoning in more detail in the related cases of R (Countryside Alliance and others) v Attorney General and R (Derwin and others) v Attorney General [2007] UKHL [00] (“Countryside Alliance”). Much of that reasoning is addressed to the case which Mr Friend has put so attractively before us and so I hope that he will refer to it for a fuller explanation. I agree with him entirely that the Human Rights Act is for the benefit of ordinary people who lead ordinary lives: it is to protect them inter alia against arbitrary interceptions of their mail, email and telephone conversations, searches of their homes and persons, arrest, prolonged imprisonment without charge or trial, enforced separation from their children and families, trials in secret before military tribunals, inhuman and degrading treatment in hospital and care homes. In short, the Human Rights Act brings “something for everyone” (Jenny Watson, Something for Everyone: the Impact of the Human Rights Act and the Need for a Human Rights Commission, British Institute for Human Rights, 2002). It may well be that, in practice, the people who have had most need of its protection are rather out of the ordinary; but that does not alter the fact that it is there to protect us all as we go about our everyday lives.

39.  But there is a difference between a fundamental human right and the freedom to do as one pleases. The convention rights were drafted to address specific abuses of power and as a check upon what even a democratically elected Parliament and executive could do. Although their scope can grow and develop over time, they have not yet been developed to cover every interference by Parliament with what we might otherwise want to do. In my view, article 8 “protects the private space, both physical and psychological, within which individuals can develop and relate to others around them. But that falls some way short of protecting everything they might want to do even in that private space; and it certainly does not protect things that they can only do by leaving it and engaging in a very public gathering and activity": Countryside Alliance, para 116. Article 11 is addressed to public as well as private gatherings. It “protects the freedom to meet and band together with others in order to share information and ideas and to give voice to them collectively". Taken together, articles 10 and 11 “protect the freedom to share and express opinions, and to try to persuade others to one’s point of view, which are essential political freedoms in any democracy": ibid, para 118. They do not protect everything which a group of people might wish to do when they get together.

40.  If a particular piece of legislation does fall within the scope of the rights protected by articles 8, 9, 10, and 11, then Parliament can be called upon to justify it. On the face of it, the justifications permitted by those articles are quite narrowly drafted. I sympathise with Mr Friend’s difficulty in understanding how the hunting ban could be said to be “necessary in a democratic society". My answer is that “when the Convention was written it would not have crossed anyone’s mind that there might be a prima facie right to hunt wild animals with dogs. If the Convention has to be expanded to encompass such a right, then the qualifications have to be expanded too. The concept of what may be ‘necessary in a democratic society’ has to take into account the comparative importance of the right infringed in the scale of rights protected": ibid, para 124. When it comes to the protection of morals, the Convention also has to take account of the very different importance attached to certain moral values in different member states. The British have long attached importance to protecting animals from harm and the hunting ban is simply the latest in a long line of legislation to that end. The fact that Parliament might have gone further or done differently does not mean that what it has done cannot be justified.

41.  If we could confidently predict that the European Court of Human Rights would find that the hunting ban did engage these Convention rights and could not be justified, then in my view it would be our duty to say so. Even though it is the recently enacted Act of a democratic Parliament, we could not wash our hands of the matter. But we certainly cannot confidently so predict in this case. We must, I think, leave it to Strasbourg to tell the United Kingdom if it has got it wrong. That, in short, is why Mr Friend’s attractive appeal must fail.


My Lords,

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