Countryside Alliance & Ors v HM Attorney General & Ors, Court of Appeal - Administrative Court, July 29, 2005, [2006] EuLR 178,[2005] EWHC 1677 (Admin)

Resolution Date:July 29, 2005
Issuing Organization:Administrative Court
Actores:Countryside Alliance & Ors v HM Attorney General & Ors
 
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Case No: CO/835/2005; CO/2446/2005;CO/967/2005;Neutral Citation Number: [2005] EWHC 1677 (Admin)IN THE HIGH COURT OF JUSTICEDIVISIONAL COURT Royal Courts of JusticeStrand, London, WC2A 2LL Friday, 29 July 2005Before :THE RT HON LORD JUSTICE MAYandTHE HON MR JUSTICE MOSES- - - - - - - - - - - - - - - - - - - - -Between :| |(1)THE COUNTRYSIDE ALLIANCE & OTHERS |Claimant || |(2) FRANCES DERWIN & OTHERS | || |(3) BRIAN FRIEND & HUGH THOMAS | || |- and - | || |(1)H.M. ATTORNEY GENERAL |Defendant || |(2)THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS AND ANOTHER | || |RSPCA (INTERVENER) | |- - - - - - - - - - - - - - - - - - - - -(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)- - - - - - - - - - - - - - - - - - - - -Richard Gordon QC; Richard Lissack QC; Nicholas Bowen and Robert-jAN Temmink (instructed by Allen & Overy LLP) for the 1st ClaimantsDavid Anderson QC and Marie Demetriou (instructed by Clifford Chance) for the 2nd ClaimantsBrian Friend and Hugh Thomas (3rd Claimants)Philip Sales; Jason Coppel and Tom de la Mare (instructed by The Treasury Solicitor and DEFRA) for the DefendantsRabinder Singh QC and Kate Cook (instructed by Herbert Smith LLP) for the Intervener- - - - - - - - - - - - - - - - - - - - -JudgmentLord Justice May: 1. This is the judgment of the court to which we have each contributed. It has been prepared under some considerable time pressure and will have rough edges. We have supposed, however, that the parties would prefer the giving of the judgment not to be delayed beyond the end of July.Introduction 2. Various claimants in these three applications for judicial review challenge the lawfulness and integrity of the Hunting Act 2004. Broadly speaking, they do so on the ground that the Act is a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market freedoms protected by European law; and an unjust interference with economic rights. They say that the Act is oppressive legislation, enacted irrationally by a majority of the members of the House of Commons, who rejected a rational compromise promoted by the Government; legislation which, so far from achieving its avowed aim of preventing cruelty to animals, will in fact promote such cruelty. The other side of the controversy, espoused by the House of Commons majority, and supported in this court by the RSPCA, is that hunting wild animals with dogs for sport is not only cruel, but unethical, and should be stopped. The Act is proportionate legislation to achieve that legitimate aim which withstands human rights and European law objections. 3. We have concluded that it was within the rational, proportionate and democratic competence of Parliament to make this enactment and that the court should not intervene. Our route to that conclusion has to pick its way through a mass of dense undergrowth cultivated by human rights and European legislation and jurisprudence. It is often hard to see the overgrown wood for the trees. We acknowledge that some of our intermediate judgments are more finely balanced than others, but that does not, in our view, apply to the main conclusion.The Hunting Act 2004 (“The Hunting Act”) 4. We here set out a summary descriptive account of the main relevant provisions of the Hunting Act. It should not be taken as definitive, if there were, for instance, a prosecution for alleged offences under the Act. 5. Section 1 of the Hunting Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt. Classes of hunting which are exempt are specified in Schedule 1. It is a defence for a person charged with an offence under section 1 to show that he reasonably believed that the hunting was exempt (section 4). 6. Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1. 7. Section 5 bans hare coursing. 8. Part 2 of the Act has provisions for enforcement. A person guilty of an offence under the Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale – currently £5,000. 9. Section 11(2) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and one or more dogs are employed in that pursuit, whoever employs, controls or directs the dogs. 10. Schedule 1 provides for exempt hunting. Exempt hunting includes: i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include: a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause; b) that it does not involve the use of more than two dogs; nor c) the use of one dog below ground otherwise than in accordance with paragraph 2. The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground. i) hunting rats (paragraph 3) or rabbits (paragraph 4); ii) retrieving hares which have been shot (paragraph 5); iii) flushing a wild mammal from cover for falconry (paragraph 6); and iv) rescuing an injured wild mammal using not more than 2 dogs above ground on condition that reasonable steps are taken as soon as possible to relieve its suffering. 11. It is the defendants’ case that hunting is by definition intentional. Subject to that, the offences created by the Hunting Act are absolute in the sense that there is no provision equivalent to those in section 1 of the Protection of Animals Act 1911, where an element of some of the offences of cruelty to animals is that the offender causes the animal unnecessary suffering. Hunting wild mammals with a dog is banned, unless it is exempt hunting, whether or not it causes unnecessary suffering.Parliamentary history of the Hunting Act 12. The Hunting Act was passed after a series of previous attempts, since a Labour government was elected in 1997, to ban hunting with dogs. The Labour Party’s 1997 manifesto said that the party would ensure greater protection for wildlife. It had advocated new measures to promote animal welfare, including a free vote in Parliament on whether hunting with hounds should be banned. The party’s 2001 manifesto also said that hunting was rightly a matter for a free vote. 13. A private member’s bill was introduced in 1997 by Michael Foster MP. It ran out of time in the House of Commons and went no further. The same happened to a bill presented by Ken Livingstone MP in 1999. 14. In 2002, the Protection of Wild Animals (Scotland) Act 2002 was passed by the Scottish Parliament, receiving the Royal Assent on 15th March 2002. The validity of this legislation was unsuccessfully challenged on human rights grounds in Scottish courts in Adams v Scottish Ministers [2002] UKHRR 1189 (Outer House) and [2004] SC 665; Scot CS 127 (Inner House). The Scottish statute is broadly similar to, but not identical with, the Hunting Act. The challenge in the Scottish courts was on broadly the same human rights grounds as are relied on by the Human Rights claimants in the present proceedings, although there are differences in the evidence relied on and the circumstances of the individual claimants. 15. The Burns Report (see later in this judgment) was published in June 2000. 16. In December 2000 the Government introduced the Hunting Bill 2000. This offered members of Parliament three choices: regulation, supervision or prohibition. The House of Commons voted by a large majority to ban hunting, rejecting the other two choices. In February 2001, the House of Lords rejected a total ban and regulation, and voted for supervision. The Bill was lost as a result of the 2001 General Election. 17. The same choices were presented to both Houses of Parliament in 2002 in the form of a Parliamentary motion. The House of Commons again voted for prohibition: the House of Lords for regulation. Alun Michael MP, the minister for Rural Affairs, then conducted public hearings on the subject at Portcullis House. 18. In December 2002, the Government introduced the Hunting Bill 2002 (“The Michael Bill”). This would have banned deer hunting and hare coursing (clauses 6 and 7), but permitted fox, hare and mink hunting subject to registration of individuals or groups by a registrar (clauses 1 and 2). There were to be two tests for registration, of which the registrar had to be satisfied. These tests were labelled the utility test and the least suffering test (clause 8). The utility test was that the proposed hunting was likely to make a significant contribution to the prevention or reduction of serious specified damage which the quarry would otherwise cause. The least suffering test was that an equivalent...

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