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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)

HOUSE OF LORDS SESSION 2007-08 [2007] UKHL 52 on appeal from: [2006] EWCA Civ 817 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE 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) (Conjoined Appeals) Appellate Committee Lord Bingham of Cornhill Lord Hope of Craighead Lord Rodger of Earlsferry Baroness Hale of Richmond Lord Brown of Eaton-under-Heywood Counsel Appellants: HR: Richard Gordon QC EC: David Anderson QC Marie Demetriou (Instructed by Clifford Chance) Respondents: Philip Sales QC Jason Coppel (Instructed by DEFRA and Treasury Solictor) Intervener’s Counsel Rabinder Singh QC Kate Cook (Instructed by RSPCA) Hearing date: 10-11,15-18 OCTOBER 2007 ON WEDNESDAY 28 NOVEMBER 2007 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE 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) (Conjoined Appeals) [2007] UKHL 52 LORD BINGHAM OF CORNHILL My Lords, 1.  Fox-hunting in this country is an emotive and divisive subject. For some it is an activity deeply embedded in the tradition, life and culture of the countryside, richly portrayed in art and literature, a highly cherished, skilful, healthy and useful form of communal outdoor exercise. Others find the pursuit of a small animal across the countryside until it is caught and destroyed by hounds to be abhorrent. Both these deeply held views were fully expressed in the discussions and debates which preceded the enactment of the Hunting Act 2004. The House of Lords in its legislative capacity was much involved in these discussions and debates, and the Act became law without its consent. But this appeal comes before the House in its judicial capacity. Our task is to decide the legal issues which have to be decided. We must perform that task without reference to whatever personal views or sympathies individual members of the committee may entertain. These are irrelevant to the legal judgment we are called upon to make. 2.  The issue in these appeals is whether the prohibition of hunting wild mammals with dogs and of hare coursing imposed by the Hunting Act 2004 is incompatible with the European Convention on Human Rights or inconsistent with the Treaty establishing the European Community. 3.  The first group of claimants, headed by the Countryside Alliance, contend that the Act infringes their rights under articles 8, 11 and 14 of and article 1 of the First Protocol to the European Convention, all of them provisions to which domestic courts are required to give effect by the Human Rights Act 1998. These claimants have conveniently been called the human rights, or HR, claimants. 4.  The second group of claimants, headed by Mr Derwin, contend that the Act is inconsistent with articles 28 and 49 of the EC Treaty, and is accordingly invalid. They have conveniently been called the EC claimants. 5.  The HR claimants’ contentions apply to the hunting of foxes, deer and mink and the hunting (and coursing) of hares. The EC claimants’ contentions apply to the hunting of foxes. Fox-hunting, even for the HR claimants, has been the main focus of argument and evidence, no doubt because of its much greater scale and prominence as compared with the other sports, and can best be used to test the strength of the HR claimants’ submissions in the first instance, as well as those of the EC claimants. 6.  The Attorney General and the Secretary of State for the Environment, Food and Rural Affairs, supported by the Royal Society for the Prevention of Cruelty to Animals as interveners, contend that the 2004 Act is not incompatible with the European Convention or the EC Treaty. They prevailed before the Queen’s Bench Divisional Court (May LJ and Moses J: [2005] EWHC 1677 (Admin); [2006] EuLR 178) and also, on very similar but not identical grounds, before the Court of Appeal (Sir Anthony Clarke MR, Brooke and Buxton LJJ: [2006] EWCA Civ 817, [2007] QB 305). The claimants now challenge this judgment of the Court of Appeal. Both the courts below gave very full and helpful judgments, to which reference must be made for a more complete account of the background to these appeals than is given here. 7.  The Divisional Court gave a succinct summary of the effect of the Act in paragraphs 5-10 of its judgment, which the Court of Appeal reproduced in paragraph 5 of its judgment. Further repetition is unnecessary. The Act makes it a criminal offence, punishable by a fine of up to £5000, to hunt a wild mammal with a dog or help another to do so, unless the hunting is exempt, or to participate in hare coursing. Conviction may lead to the forfeiture of any dog, vehicle or other article used for the purpose of prohibited hunting. Certain activities are exempt from the statutory prohibition, including (in specified circumstances) the hunting of rats and rabbits, falconry, the retrieval of hares which have been shot and the stalking of a wild mammal or flushing it out of cover. A single dog may be used below ground to protect game birds for shooting. There is a further exemption for the hunting of a wild mammal with up to two dogs if the hunter reasonably believes that the mammal is or may be injured. 8.  The Divisional Court recounted the parliamentary history of what eventually became the 2004 Act in paragraphs 12-21 of its judgment, which the Court of Appeal (with some addition) reproduced (paragraph 6). This account need not be further repeated. The salient points are these. The government had committed itself to a free vote on the banning of hunting. Measures introduced by private members failed for lack of time. In 1999 a committee chaired by Lord Burns was appointed to inquire into the practical aspects of hunting and the likely consequences of any ban. The committee reported in 2000, and its report (not seeking to address the ethical aspects of the subject) informed the subsequent debate. The Court of Appeal included excerpts of the report’s summary and conclusions in Appendix II to its judgment. A bill was introduced in December 2000, but was lost in the following year on the calling of a general election. After the election the proposal was revived, and public hearings were held by the responsible minister, Mr Alun Michael MP, at Portcullis House. In December 2002 the government introduced the Hunting Bill 2002, known as “the Michael Bill". This prohibited the hunting of deer and hare coursing. But it permitted the hunting of foxes and mink with a dog if (but only if) the hunting was either exempt or registered. The grounds of exemption very largely foreshadowed those later enacted in the 2004 Act. Registration depended on satisfying a registrar that two conditions were satisfied: first, that the hunting was likely to make a significant contribution to the prevention or reduction of serious damage which the wild mammal to be hunted would otherwise cause to livestock, game birds, crops, growing timber or other property; second, that this result could not reasonably be expected to be made in a manner likely to cause significantly less pain, suffering or distress to the wild mammals to be hunted. This proposal proved acceptable to neither House of Parliament. In the Commons the Michael Bill was heavily amended, so as to substitute what is now the 2004 Act. It was rejected by the House of Lords. After prolonged debate and amid much controversy the 2004 Act received the royal assent, without the approval of the House of Lords, pursuant to the Parliament Acts 1911-1949. The HR claims 9.  The Divisional Court gave particulars of the individual HR claimants in paragraphs 32-41 of its judgment, reproduced by the Court of Appeal in Appendix 1 to its judgment. Its summary need not be repeated. The HR claimants fall into two broad groups. The first is composed of people professionally involved in hunting or hare coursing or activities closely related to these, dependent on the sport for their occupation, livelihood and continuing business (a professional huntsman of staghounds, the owner and manager of a livery business, a professional terrier man, a self-employed farrier, a trainer of hare coursing greyhounds). The second group comprises landowners and tenant farmers, masters of hunts and of a beagle pack, active participants in hunting who permit hunting across their land and, in one case, manage their land specifically for hunting. Common to some members of both groups is a strong psychological and social commitment to hunting as a traditional rural activity involving the individual, the family and the community more deeply than any ordinary recreation. The Divisional Court found (paragraph 135) and the Court of Appeal accepted (paragraph 38) that there are those for whom hunting is a core part of their lives. 10.  The HR claimants relied, first, on article 8 of the Convention (“Right to respect for private and family life”) which provides “1.  Everyone has the right to respect for his private and   family life, his home and his correspondence. 2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The content of this right has been described as “elusive” and does not lend itself to exhaustive definition. This may help to explain why the right is expressed as one to respect, as contrasted with the more categorical language used in other articles. But the purpose of the article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose. 11.  The HR claimants helpfully presented their article 8 case under four headings. The first was “private life and autonomy". The authorities principally relied on were Pretty v United Kingdom (2002) 35 EHRR 1, PG and JH v United Kingdom (Reports of Judgments and Decisions 2001-IX, p 195), Peck v United Kingdom (2003) 36 EHRR 719 and Brüggemann and Scheuten v Germany (1977) 3 EHRR 244. From the court’s judgment in Pretty the claimants drew recognition (para 61) that “private life” is a broad term, not susceptible to exhaustive definition, but covering the physical and psychological integrity of a person, sometimes embracing aspects of an individual’s physical and social identity, protecting a right to personal development and the right to establish relations with others in the outside world, and extending to matters within (paras 61, 62) the personal and private sphere. The court held the notion of personal autonomy to be an important principle. The court was not prepared to exclude the possibility (para 67) that denial of a right to procure her own death was an interference with the applicant’s right to respect for private life. In PG and JH the court accepted (para 57) that a person’s reasonable expectations as to privacy may be a significant, if not conclusive, factor. In Peck the court repeated (para 57) that article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world, potentially including activities of a professional or business nature. In Brüggemann, a 1977 decision of the Commission, reference was made (para 55) to private life as embracing a sphere within which the individual can freely pursue the development and fulfilment of his personality, but it was recognised (para 56) that not all laws having some immediate or remote effect on the individual’s possibility of developing his personality by doing what he wants to do constitute an interference with the individual’s private life within the meaning of the Convention. 12.  The second heading advanced by the HR claimants under article 8 pertained to cultural lifestyle. They relied particularly on G and E v Norway (1983) 35 DR 30, which concerned Lapps working as reindeer shepherds, fishermen and hunters living and working in the far north of Norway, and Buckley v United Kingdom (1996) 23 EHRR 101 and Chapman v United Kingdom (2001) 33 EHRR 399 which concerned gipsies seeking to live in their caravans. 13.  The HR claimants’ third heading related to use of the home. They relied on the Commission’s ruling in Buckley (p 115, para 63) that “home” in article 8 is an autonomous concept and on the Court’s ruling in Niemietz v Germany (1992) 16 EHRR 97, paras 29 and 30, that the concept may extend to business premises and a professional person’s office. Reference was made to the Court of Appeal’s decision in Sheffield City Council v Smart [2002] EWCA Civ 4, [2002] LGR 467 and the decisions of the House in Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, and Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465. 14.  The fourth heading advanced on was “loss of livelihood/home", and the authority mainly, and strongly, relied on was Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104. This case concerned two men who had, some years before, been employed as KGB officers within the meaning of a 1998 statute. As a result they were dismissed from their jobs, were debarred from a very wide range of public and private sector employments and complained that they suffered constant embarrassment as a result of being publicly branded as former KGB officers. The court found (para 47) that a far-reaching ban on taking up private sector employment did affect private life. It did not rule on whether article 8 had been infringed (para 63), but found a breach of article 14 of the Convention (para 62) in conjunction with article 8. 15.  Despite the careful argument of Mr Gordon QC for the HR claimants, I am not persuaded that their claims can be brought within the scope of article 8 under any of the four heads relied on:   (1)  Fox-hunting is a very public activity, carried out in daylight with considerable colour and noise, often attracting the attention of on-lookers attracted by the spectacle. No analogy can be drawn with the very personal and private concerns at issue in Brüggemann and Pretty, nor with the interception of private telephone conversations (admitted to be an interference within article 8) in PG and JH, nor with the disclosure in Peck of closed circuit television pictures of the complainant preparing to commit suicide. It is not of course to be expected that there will be a decided case based on facts indistinguishable from those of the case in issue, but none of the decided cases is at all close. With their references to notions of privacy, personal autonomy and choice and the private sphere reserved to the individual, they are in my opinion so remote from the present case as to give no guidance helpful to the claimants.   (2)  The Lapps in G and E and the gipsies in Buckley and Chapman belonged to distinctive groups, each with a traditional culture and lifestyle so fundamental as to form part of its identity. The hunting fraternity (in which I include the HR claimants and the many others dedicated to the sport of hunting) cannot plausibly be portrayed in such a way. The social and occupational diversity of this fraternity, often relied on as one of its strengths, leaves no room for such an analogy.   (3)  "Home” has been accepted as an expression with an autonomous Convention meaning, and Niemietz shows that the expression can cover premises other than the place where a person lays his or her head at night. But it is 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 can cover land over which the owner permits or causes a sport to be conducted and which would never, in any ordinary usage, be described as “home": see Giacomelli v Italy (2006) 45 EHRR 871, para 76. Some of the HR claimants complain of a threat to their continued occupation of the houses in which they live, and this of course brings them much closer to a complaint under article 8. But it is not the necessary or intended consequence of the 2004 Act that they should be put out of their homes; none of them is said to have been evicted as yet; and it may be that they never will be evicted.   (4)  Sidabras was a very extreme case on its facts, since the statutory consequence of employment as KGB officers some years before was disbarment from employment in very many public and private employments, and the applicants complained of constant embarrassment. Effectively deprived of the ability to work, the applicants’ ability to function as social beings was blighted. Such is not the lot of the HR claimants, to whom every employment is open save that of hunting wild mammals with dogs. But even on the extreme facts of Sidabras the court did not, as already noted, find a breach of article 8 but contented itself with finding a breach of article 14 in the ambit of article 8. I judge the HR claimants’ complaints in this case to be far removed from the values which article 8 exists to protect. But in case I am wrong in that conclusion, I shall address below the issue of justification. 16.  The HR claimants relied, secondly, on article 11 of the Convention, which provides: “1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” The essence of the HR claimants’ case was 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. 17.  In advancing this argument the HR claimants relied on the Commission’s observation in Anderson v United Kingdom (1997) 25 EHRR CD 172, 174, that “The right to freedom of assembly is one of the foundations of a democratic society and should not be interpreted restrictively", and also on the Court’s observation in Chassagnou v France (1999) 29 EHRR 615, para 100, that “Freedom of thought and opinion and freedom of expression guaranteed by Articles 9 and 10 of the Convention respectively, would thus be of very limited scope if they were not accompanied by a guarantee of being able to share one’s beliefs or ideas in community with others, particularly through associations of individuals having the same beliefs, ideas or interests.” Attention was also drawn to Segerstedt-Wiberg and others v Sweden (App no 62332/00, 6 June 2006, unreported). In that case the applicants successfully complained that information about them stored on a Secret Police register was an interference with their private life contrary to article 8. The Government argued (para 106) that the applicants’ suspicions that the police were holding information on them did not appear to have had any impact on their opportunities to exercise their article 11 rights and the Court found that (para 107) the applicants had adduced no specific evidence enabling the Court to assess how such registration in the concrete circumstances could have hindered the exercise of their rights under articles 10 and 11. But the Court concluded (para 107), without giving reasons, that the storage of personal opinions which was not justified under article 8(2) ipso facto constituted an unjustified interference with rights protected by articles 10 and 11. This would be an obvious conclusion if there were evidence that knowledge of the police practice deterred the applicants from assembling or expressing opinions, but it is puzzling in the absence of such evidence. 18.  The Court of Appeal (para 107), in agreement with the Divisional Court (para 82) and Lord Brodie in Whaley v Lord Advocate 2004 SC 78, para 80, rejected the HR claimants’ complaint under this head, holding that the effect of the hunting bans in England and Scotland respectively was not to prohibit the assembly of the hunt but to prohibit a particular activity once the claimants had assembled. This is so, but I question whether it is a sufficient answer. A right to assemble and protest is of little value if one is free to assemble but not, having done so, to protest. If people only assemble to act in a certain way and that activity is prohibited, the effect in reality is to restrict their right to assemble. I would not be content to treat article 11 as inapplicable on the present facts. 19.  The HR claimants relied on article 1 of the first protocol to the Convention (“Protection of Property”) which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair 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 or to secure the payment of taxes or other contributions or penalties.” 20.  I do not think that the effect of the 2004 Act is to deprive any of the HR claimants of his or her possessions. This is not a confiscatory measure. But it seems to me indisputable that certain of the claimants have suffered a loss of control over their possessions: there are, for instance, on the largely unchallenged evidence, landowners who cannot hunt over their own land or permit others to do so, those who cannot use their horses and hounds to hunt, the farrier who cannot use his equipment to shoe horses to be used for hunting, owners of businesses which have lost their marketable goodwill, a shareholder whose shares have lost their value, and so on. 21.  Strasbourg jurisprudence has drawn a distinction between goodwill which may be a possession for purposes of article 1 of the first protocol and future income, not yet earned and to which no enforceable claim exists, which may not: see, for instance, Ian Edgar (Liverpool) Ltd v United Kingdom Reports of Judgments and Decisions 2000-I, p 465; Wendenburg v Germany (2003) 36 EHRR CD 154, 169. Thus in Tre Traktörer AB v Sweden (1989) 13 EHRR 309 revocation of a restaurant’s licence to sell alcohol had adverse effects on the value and goodwill of the restaurant and so was held to be a possession because an economic interest connected with running the restaurant. The distinction was less clearly applied in Karni v Sweden (1988) 55 DR 157 where a doctor’s vested interest in his medical practice was regarded as a possession, Van Marle v Netherlands (1986) 8 EHRR 483 where an accountant’s clientele was held to be an asset and hence a possession, and Wendenburg, above, at CD 170, where the same rule was applied to law practices: in these cases no finding was made that the assets were saleable, although this may have been assumed. In R (Malik) v Waltham Forest NHS Primary Care Trust [2007] EWCA Civ 265, [2007] 1 WLR 2092, the Court of Appeal held that the inclusion of Dr Malik’s name on a list of those qualified to work locally for the NHS was in effect a licence to render services to the public and, being non-transferable and non-marketable, not a possession for purposes of article 1. While I do not find the jurisprudence on this subject very clear, I consider that the Court of Appeal reached a correct conclusion in that case basing itself as it did on the very convincing analysis of Mr Kenneth Parker QC in R (Nicholds) v Security Industry Authority [2006] EWHC 1792, [2007] 1 WLR 2067, paras 70-76.

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