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Cite as: 2003 SLT 366, 2003 SC 171, 2002 GWD 26-879, [2002] ScotCS 344, 2002 SCLR 881, [2002] UKHRR 1189

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Adams & Ors [2002] ScotCS 344 (31 July 2002)

OUTER HOUSE, COURT OF SESSION

P557/02

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD NIMMO SMITH

in Petition of

TREVOR ADAMS AND OTHERS

Petitioners;

for

Judicial Review of the Protection of Wild Mammals (Scotland) Act 2002 and the Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002

________________

Petitioners: Cullen, Q.C., D.E.L. Johnston; Balfour & Manson (for Levy & McRae, Solicitors, Glasgow)

First Respondent: Tyre, Q.C.; Solicitor to the Advocate General for Scotland

Second Respondent: Moynihan, Q.C., W.J. Wolffe; Solicitor to the Scottish Executive

 

31 July 2002

Introduction

[1]      This application for judicial review raises important issues about the legislative competence of the Scottish Parliament and the relationship between this court, the Parliament and the Executive in respect of legislation enacted by the Parliament. It was described to me by counsel for the Lord Advocate as the first challenge in the courts to an Act of the Scottish Parliament in which petitioners who (either in person or through representative organisations) actively campaigned against and made representations about the policy of the legislation during its progress through the Parliament seek to continue the debate about that policy through the courts after Royal Assent has been given.

[2]     
The Protection of Wild Mammals (Scotland) Act 2002 ("the Protection of Wild Mammals Act") was passed by the Scottish Parliament on 13 February 2002 and received the Royal Assent on 15 March 2002. One of the principal effects of the Act is to make it a criminal offence to engage in the activity of mounted foxhunting with dogs, or to permit land or dogs to be used for this activity. By section 12(2) of the Act the preceding sections are to come into force on such day as the Scottish Ministers may by order made by statutory instrument appoint. By the Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 ("the Commencement Order"), made by the Scottish Ministers in the exercise of these powers, the day appointed for the coming into force of the Act is 1 August 2002.

[3]     
The petitioners are aggrieved by the prohibition of an activity in which they have hitherto engaged. It is averred that the first petitioner, Trevor Adams ("Mr Adams"), is a self-employed manager of foxhounds for the Duke of Buccleuch's Hunt (commonly known as "the Buccleuch Hunt"). The second petitioner, Nigel Murray ("Mr Murray"), is a farmer. The third petitioner, Richard Holman-Baird ("Mr Holman-Baird"), is a landowner, as is the fourth petitioner, Joe Scott Plummer ("Mr Scott Plummer"). The fifth petitioners, the Fife Hunt, are an unincorporated association engaged in traditional mounted hunting and the Chairman and Master thereof. The sixth petitioners, the Buccleuch Hunt Supporters Club, are an unincorporated association engaged in supporting the activity of traditional mounted hunting and the Chairman and Secretary thereof. The seventh petitioners, the Jedforest Hunt, are an unincorporated association engaged in traditional mounted hunting in the Scottish Borders. The eighth petitioners, the Countryside Alliance, formerly called the British Field Sports Society, are an unincorporated association and the Chairmen of the Association and of the Scottish Steering Committee thereof. Their objects are to represent, promote and preserve the rights and interests of their members as people involved in the life of the countryside, including countryside dwellers and workers, sportsmen and sportswomen, farmers, landowners and suppliers of countryside goods and services. They have a substantial number of members in Scotland. The first to sixth petitioners are members of the Countryside Alliance. The ninth petitioners, the Masters of Foxhounds Association ("the MFHA") are an unincorporated association and the Chairman and Secretary thereof. They are the governing body for foxhunting. The office-bearers of each of the above-mentioned associations are duly authorised to pursue the present proceedings on their behalf.

[4]     
The petitioners challenge the validity of the Protection of Wild Mammals Act on the grounds that it is, et separatim certain provisions of it are, incompatible with Articles 8 and/or 14 of, and/or Article 1 of the First Protocol to, the European Convention on Human Rights ("the Convention"). They aver that on those grounds the Act is outside the legislative competence of the Scottish Parliament. They further aver, separatim, that the Parliamentary proceedings on the Bill prior to its being passed were vitiated by procedural impropriety and, separatim, the provisions of the Act are so unreasonable that it does not constitute a proper exercise of the Scottish Parliament's legislative powers, and that for each of these reasons the Act is ultra vires the Scottish Parliament. During the course of the hearing there were deleted from the petitioners' pleadings: (1) averments that the Act is, et separatim certain provisions of it are, incompatible with Article 7 of the Convention because the scope of the new criminal offences created by the Act is unclear and uncertain; (2) an averment that the Commencement Order was not promulgated in bona fide; and (3) certain further averments, consequentially upon the main deletions.

[5]     
The petition came before me for a first hearing, which took place on eight days, from 2 to 11 July 2002.

The statutory context

[6]     
It is convenient at this stage to set out the main provisions of the Human Rights Act 1998 ("the Human Rights Act") and the Scotland Act 1998 ("the Scotland Act") which were referred to in the course of the hearing.

[7]     
The Articles of the Convention relied on by the petitioners, as set out in Schedule 1 to the Human Rights Act, are in the following terms. Article 8, entitled "Right to respect for private and family life" 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."

Article 1 of the First Protocol, entitled "Protection of property", 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."

Article 14, entitled "Prohibition of discrimination", 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, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

[8]     
The rights and fundamental freedoms set out in these Articles are among those referred to as "the Convention rights" in the Human Rights Act. By section 3(1) of the Act, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. By section 21(1) "primary legislation" means inter alia any public general Act, and "subordinate legislation" means inter alia any Act of the Scottish Parliament. By section 6(1) it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 6(3) "public authority" is given a definition of sufficient breadth to extend to the Scottish Parliament and to this court.

[9]     
By section 7(1) of the Human Rights Act a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may inter alia bring proceedings against the authority under the Act in the appropriate court. By section 7(4), if the proceedings are made by way of a petition for judicial review in Scotland (i.e. in this court), the applicant is to be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act; and by sub-section (7), for the purposes of section 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. This Article of the Convention, as amended by Protocol No.11, provides inter alia that the European Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.

[10]     
The Scotland Act contains provisions which are the counterpart of those in the Human Rights Act. The Scottish Parliament is established by section 1 of the Act. There is provision in the Act for there to be a Presiding Officer of the Parliament (section 19); a Scottish Parliamentary Corporate Body ("the Parliamentary corporation"), the members of which are the Presiding Officer and four members of the Parliament (section 21); the participation of the Lord Advocate and the Solicitor-General for Scotland (the Scottish Law Officers) in the proceedings of the Parliament (section 27); a First Minister (section 45) and a Scottish Executive (section 44), whose members are the First Minister, such Ministers as he may appoint under section 47 and the Scottish Law Officers, all referred to collectively as "the Scottish Ministers"; and an Advocate General for Scotland (section 87; "the Advocate General").

[11]     
Section 28 makes provision for legislation by the Scottish Parliament, in these terms:

"(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.

(2) Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill such become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.

(3) A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty's own hand signifying Her Assent are recorded in the Register of the Great Seal.

(4) The date of Royal Assent shall be written on the Act of the Scottish Parliament by the Clerk, and shall form part of the Act.

(5) The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.

(6) Every Act of the Scottish Parliament shall be judicially noticed.

(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland."

Section 29, however, sets limits to the legislative competence of the Scottish Parliament. By sub-section (1) it provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament, and by sub-section (2) that a provision is outside that competence so far as inter alia it relates to reserved matters or it is incompatible with any of the Convention rights (which expression has the same meaning as in the Human Rights Act) or with Community law. Reserved matters are defined in Schedule 5. The effect of treating them in this way is that, within the limits otherwise set by the Act, an Act of the Scottish Parliament may relate to any matter which is not a reserved matter. The provisions of the Protection of Wild Mammals Act do not relate to reserved matters, and to this extent are within the legislative competence of the Scottish Parliament.

[12]     
Further provisions are relevant to the question of legislative competence. Section 54 provides by sub-section (1) that references in the Act to the exercise of a function being within or outside devolved competence are to be read in accordance with that section, and by sub-section (2) that it is outside devolved competence (a) to make any provision by subordinate legislation which would be outside the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or (b) to confirm or approve any subordinate legislation containing such provision. By section 126(1) it is provided that the expression "subordinate legislation" has the same meaning as in the Interpretation Act 1978, section 21(1) of which provides that the expression includes orders and other instruments made or to be made under any Act, and also includes an instrument made under an Act of the Scottish Parliament. By section 52(1) of the Scotland Act statutory functions, which by sub-section (7) means functions conferred by any enactment, may be conferred on the Scottish Ministers by that name and their functions may be exercisable by any member of the Scottish Executive. The Commencement Order, signed by a member of the Scottish Executive, was made in exercise of this function, and is subordinate legislation within the meaning of the Scotland Act. The effect of section 54(1) is that, if the Protection of Wild Mammals Act is outside the legislative competence of the Parliament, the Commencement Order is outside devolved competence. The position is no different from what it would have been if the Scottish Parliament had seen fit to provide by section 12 of the Protection of Wild Mammals Act that the Act was to come into force on 1 August 2002, without the need for a commencement order.

[13]     
Various safeguards have been built into the Scotland Act to ensure so far as possible that there is no breach of the limits of the Scottish Parliament's legislative competence. Section 31(1) provides that a member of the Scottish Executive who is in charge of a Bill shall, before its introduction, state that in his view it is within the legislative competence of the Parliament. Section 31(2) requires the Presiding Officer, on or before the introduction of a Bill, to decide whether the Bill would be within the legislative competence of the Parliament and to state his decision. Section 31(1) applies only to what may be termed "Government" Bills, while section 31(2) applies to all Bills, including members' Bills. As Lord Hope pointed out in A v The Scottish Ministers 2002 SC (PC) 63, in a passage at pps.66-67 on which I have drawn elsewhere in this paragraph:

"Important though these two safeguards may be in practice to the work of the Scottish Parliament, they are no more than statements of opinion which do not bind the judiciary. With that in view section 33 enables the Advocate General, the Lord Advocate or the Attorney General to refer the question of whether a Bill or any provision of a Bill would be within the Parliament's legislative competence to the Judicial Committee for its decision. This procedure is available to the Law Officers after the passing of the Bill but before it receives Royal Assent: see section 32(2)."

By section 33(2), any reference by a Law Officer in relation to a Bill must be made within a period of four weeks beginning with the passing of the Bill. I do not need to discuss the consequences of a decision by the Judicial Committee that a Bill, or any provision of it, would not be within the legislative competence of the Parliament, because in the present case there was no intervention by any of the three Law Officers either before the passing of the Bill or within the period of four weeks thereafter. As Lord Hope explained, however, in the same passage, the fact that the Law Officers decided not to test the matter in this way is of no consequence at this stage. The court has power to deal with it as a devolution issue under Schedule 6 to the Scotland Act (which I shall discuss in a moment) after the Bill has been enacted if a member of the public claims that the provision was outside the Scottish Parliament's legislative competence.

[14]      So far as this court is concerned, sections 100-102 of the Scotland Act are of considerable importance. Section 100(1) provides inter alia that the Act does not enable a person (a) to bring proceedings in a court on the ground that an act is incompatible with the Convention rights, or (b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act) if proceedings in respect of the act were brought in the European Court of Human Rights. By sub-section (4) "act" means (a) making any legislation, or (b) any other act or failure to act, if it is the act or failure of a member of the Scottish Executive. Section 101 provides:

"(1) This section applies to -

(a) any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and

(b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the Scottish Executive,

which could be read in such a way as to be outside competence.

(2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.

(3) In this section 'competence' -

(a) in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and

(b) in relation to subordinate legislation, means the powers conferred by virtue of this Act."

By section 102, where inter alia any court decides that an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve, the court may make an order removing or limiting any retrospective effect of that decision, or of suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected. This power is subject to the considerations mentioned in sub-section (4), and by sub-sections (4)-(7) the court which is considering whether to make an order under the section is to order intimation of that fact to be given to the Lord Advocate and (where the decision relates to a devolution issue within the meaning of Schedule 6) to the appropriate Law Officer, who in relation to proceedings in Scotland is the Advocate General.

[15]     
Schedule 6 makes provision in relation to devolution issues. In terms of paragraph 1, a "devolution issue" means inter alia a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament. By paragraph 5 intimation of any devolution issue which arises in any proceedings before a court or tribunal is to be given to the Advocate General and the Lord Advocate, and by paragraph 6 a person to whom intimation is given in pursuance of paragraph 5 may take part as a party in the proceedings, so far as they relate to a devolution issue. By paragraph 33 the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland may require inter alia any court to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party, and by paragraph 34 any of these Law Officers may refer to the Judicial Committee any devolution issue which is not the subject of proceedings.

[16]     
It remains to mention the position of the Parliamentary corporation. By section 21(1) the corporation is to perform the functions conferred on it by the Scotland Act or any other enactment. Sub-section (3) provides that the corporation shall provide the Parliament, or ensure that the Parliament is provided, with the property, staff and services required for the Parliament's purposes. Schedule 2 makes further provision about the corporation. There are provisions relating to its membership, to the holding of property and the appointment of staff by it, to ancillary powers, to the delegation of its functions, and to its proceedings and business, and for Crown status to be conferred on it by Order in Council, in particular so that it may be treated as a Crown body in respect of employment under it, land held, used or managed by it and operations carried out by it. By section 40(1) proceedings by or against the Parliament are to be instituted by or (as the case may be) against the Parliamentary corporation on behalf of the Parliament. Section 40(3) provides that, in any proceedings against the Parliament, the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator. "Order" includes an interim order (sub-section (5)). There is further provision in section 40 about inter alia proceedings against any member of the Parliament, the Presiding Officer or a deputy, any member of the staff of the Parliament, or the Parliamentary corporation, and by sub-section (4) the court is not to make such an order if the effect of doing so would be to give relief against the Parliament which could not have been given in proceedings against the Parliament.

The Advocate General and the Parliamentary corporation

[17]     
It has been necessary to set out the provisions relating to the Advocate General and the Parliamentary corporation at some length because of submissions about their respective positions on which I was asked to make a decision at the outset of the hearing. The matter arises in this way. The petition clearly raises a devolution issue within the meaning of paragraph 1(a) of Schedule 6 to the Scotland Act, that is to say a question whether an Act of the Scottish Parliament is within the legislative competence of the Parliament. By paragraph 5 of Schedule 6 to the Act, intimation of this devolution issue required to be given to the Advocate General and the Lord Advocate, either of whom might, by paragraph 6, take part as a party in these proceedings. By rule 25A.2 of the Rules of Court, read with the definition of "relevant authority" in rule 25A.1.1, the petition required to be served on both the Advocate General and the Lord Advocate. (Reference may be made to rule 14.7 and the annotations thereto for an explanation of what is meant by service and by intimation to a named person, as distinct from intimation on the walls of the court.) By rule 25A.5(1) intimation of a devolution issue in pursuance of inter alia paragraph 5 of Schedule 6 to the Scotland Act requires to be given in accordance with that rule, paragraph (2) of which provides that when the devolution issue is raised in the principal writ, service of the principal writ on the relevant authority shall be treated as such intimation.

[18]     
The petitioners were accordingly bound to serve the petition upon, and thereby intimate it to, both the Advocate General and the Lord Advocate. In terms of the schedule for service annexed to the petition, service in common form was sought on the Advocate General and the Scottish Ministers, and intimation (not service) was sought on the Lord Advocate as an interested party. As I understand it, the petition was served on the Advocate General in accordance with an interlocutor dated 15 May 2002. It is not entirely clear from this interlocutor, and from a subsequent interlocutor dated 6 June 2002 (which appointed intimation of the petition, as amended in terms of that interlocutor, on the Lord Advocate for any interest he might have), whether the petition was served on, as distinct from intimated to, the Lord Advocate, but no point is taken about this. At all events, both the Advocate General and the Lord Advocate had notice of the petition, and answers were lodged by each of them. Answers were lodged by the Lord Advocate as representing the Scottish Ministers and in the public interest. These are the main answers to the petition. The Advocate General also lodged answers, but only for the purpose of advancing certain preliminary submissions that (a) the Advocate General is not an appropriate respondent in respect of any challenge to the validity of an Act of the Scottish Parliament; (b) the appropriate respondent in respect of any such challenge is the Parliament; and (c) since proceedings against the Parliament must be instituted against the Parliamentary corporation in terms of section 40(1) of the Scotland Act, the Parliamentary corporation ought to have been called as a respondent. These contentions were not supported by either the petitioners or the Lord Advocate. By letter to the court dated 1 July 2002 on its behalf it was stated that the Parliamentary corporation was aware of the petition and had concluded that it should not enter process, on the basis that once a Bill has been passed and has received Royal Assent, thereby becoming an Act of the Scottish Parliament, in terms of section 28(2) of the Scotland Act, the Parliamentary corporation is not an appropriate respondent, whatever may have been the position prior to this stage having been reached.

[19]     
This is a convenient point at which to refer to a previous case relating to an earlier stage of the legislative process which led to the enactment of the Protection of Wild Mammals Act. In Whaley v Lord Watson 2000 SC 340 the petitioners (one of whom was Mr Adams) were refused an interim interdict against Lord Watson of Invergowrie "from doing anything in his capacity as a member of the Scottish Parliament relating to the proposed Protection of Wild Mammals Bill and in particular from introducing the Bill in Parliament and from encouraging any other member to do likewise." Lord Watson was the first respondent, and the Parliamentary corporation was allowed to lodged answers as the second respondent. It is not of direct relevance for present purposes to go into the reasons why interim interdict was sought and refused, but there are passages in the opinions which were delivered in the Inner House which have a bearing on the relationship between the Parliament and the courts. At pps.348-349 the Lord President (Lord Rodger) spoke of "the fundamental character of the Parliament as a body which - however important its role - has been created by statute and derives its powers from statute." He went on to say:

"As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law. In the 1998 Act Parliament did, however, put one important limitation on the powers of the court in proceedings involving the Scottish Parliament. In section 40(3) and (4),.... it provided that in such proceedings the court should not grant an order for suspension, interdict, reduction or specific performance but might instead grant a declarator; nor should it grant any order against an individual which would have equivalent effect.... Subject to section 40(3) and (4), however, the court has the same powers over the Parliament as it would have over any other statutory body and might, for instance, in an appropriate case, grant a decree against it for the payment of damages.

Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, in many democracies throughout the Commonwealth, for example, even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments. Indeed I find it almost paradoxical that counsel for a member of a body which exists to create laws and to impose them on others should contend that a legally enforceable framework is somehow less than appropriate for that body itself."

Further down p.349, Lord Rodger said:

"Since sub-sections (3) and (4) of section 40 have been specifically enacted to exclude certain powers of the court in relation to proceedings against the Parliament, the inference must be that in other respects the law applies in the usual way to both the Parliament and to members of the Parliament."

At pps.357-358, Lord Prosser said:

"The contention that the court did not have jurisdiction to deal with the issues raised in this case was one I found hard to grasp. As I understood the submissions, the argument seemed to rest upon some broad view that since the Scottish Parliament was a parliament, rather than for example a local authority, the jurisdiction of the courts must be seen as excluded, as an unacceptable intrusion upon the legislative function which belonged to Parliament alone. A variant of this argument appeared to be that if the court's jurisdiction was not actually excluded as a matter of law, the court should nonetheless be slow or hesitant or reluctant or unwilling to use the jurisdiction which it had, in order to avoid an undesirable intrusion on Parliament's freedom in relation to legislation. Both forms of argument appear to me to be entirely without foundation. If and in so far as a parliament may have powers which are not limited by any kind of legal definition, there is no doubt scope for concepts of 'sovereignty', with the courts unable to enforce boundaries which do not exist. But if and in so far as a parliament and its powers have been defined, and thus limited, by law, it is in my opinion self-evident that the courts have jurisdiction in relation to these legal definitions and limits, just as they would have for any other body created by law. If anything, the need for such a jurisdiction is in my opinion all the greater where a body has very wide powers, as the Scottish Parliament has: the greater the powers, the greater the need to ensure that they are not exceeded. But the jurisdiction of the courts and the legal definition of the body seem to me to be merely two sides of the same coin. Faced with the suggestion that the courts might abstain from exercising a jurisdiction which they have, allowing the Parliament perhaps to exercise power beyond its legal limits, from a fear that enforcement of those limits might be seen as stopping Parliament from doing what it wanted to do, I am baffled: a defined parliament is there to do not whatever it wants, but only what the law has empowered it to do. In the odd, and perhaps unsatisfactory, context of 'sovereign' or undefined powers, the courts may be faced with problems; but these are very precisely problems of a kind which do not arise, and can afford no guidance, where the issue is one of law, and jurisdiction is its inevitable counterpart. The nature and functions of the Parliament, and of any particular provisions, will of course be matters which must be taken into account, whenever the courts in exercising their jurisdiction require to interpret or apply the provisions which the law has made in relation to the Parliament. But that is a quite different matter."

At the stage at which the court was considering the matter, Lord Watson had gone no further than to submit a draft proposal for a Bill, and the Presiding Officer had signed a statement to the effect that the provisions of the Bill would be within the legislative competence of the Parliament, thus leaving the way clear for Lord Watson to introduce the Bill. So the court was obviously not called on to consider who would be the correct respondent or respondents once the Bill had been passed and had received the Royal Assent.

[20]      As has been seen, the Advocate General is not a member of the Scottish Executive. The effect of section 87(1) of the Scotland Act, and the additions to the statutory provisions therein referred to which relate to ministerial offices and the salaries of the Law Officers, is to create a new post of Advocate General for Scotland in the United Kingdom Government. The present Advocate General has described her approach to the duties of her office in an article entitled "Three Years On: The Role of the Advocate General for Scotland" 2002 S.L.T. (News) 139. As explained by her, her principal role is as the adviser on Scots law to the United Kingdom Government. So far as devolution issues are concerned, she writes, at p.141:

"I intervene, as a UK law officer, where I consider there is good reason to do so. The reasons for intervention will vary according to the circumstances and the criteria I apply cannot be rigid. Intervention may occur, for example, where a provision of UK-wide legislation is at issue and a judgment in the Scottish courts may have an influence on the position in England and Wales, or when significant matters of principle arise and I consider that my submissions may be different from the submissions of the existing parties. Most of my 24 interventions have been at appeal or Privy Council level and not at first instance in the lower courts, because experience has shown that the vast majority of devolution issues involving human rights are disposed of successfully by the courts at first instance, without any need for intervention. If they have not been satisfactorily resolved by that stage, this may show that intervention is needed in the JCPC [the Judicial Committee of the Privy Council]....

I may, of course, intervene at first instance or appeal stage where the circumstances require it. There may be very good legal and policy reasons for non-intervention and my role as Advocate General is not to intervene in cases at any level, at significant public expense, merely because there is an interesting legal point being debated.

I intervene for the interest of the UK Government whereas the Lord Advocate represents different interests. Depending on the case we may have points of similarity and we may co-operate as appropriate. The Government is ultimately responsible for implementation of the ECHR in the UK, and decisions in Scotland may have implications for the rest of the UK, so I have an interest in ensuring that Convention rights are properly applied and that the courts take a balanced and reasonable view."

[21]     
Counsel for the Advocate General submitted that her role in relation to Scottish legislation is limited in terms of the Scotland Act. Under section 33(1) she has a discretion, not a duty, to refer a Bill to the Judicial Committee of the Privy Council. A decision by her not to refer a Bill to the Judicial Committee creates no duty on the Advocate General to defend the validity of the Bill against challenge. Where a devolution issue arises, by paragraph 5 of Schedule 6 intimation to her is the correct procedure, rather than calling her as a respondent. Under paragraphs 33 and 34 of Schedule 5, the Advocate General has a discretion, not a duty, to require the court to refer to the Judicial Committee a devolution issue which has arisen in proceedings before it, or to refer to the Judicial Committee any devolution issue which is not the subject of proceedings. By Rule 2.12(4) of the Judicial Committee (Devolution Issues) Rules Order 1999 it is open to the Advocate General to intervene as a respondent to an appeal to the Judicial Committee. So there is no obligation on the Advocate General to intervene at all, or at any particular stage, in proceedings in which a devolution issue is raised. For that reason, counsel submitted, the observations by Lord Hardie in Davidson v The Scottish Ministers 2002 SC 205 at p.429 about the decision of the Advocate General not to be represented in that case were unjustified. Not all cases raise constitutional issues which make it appropriate for the Advocate General, in the exercise of her discretion, to intervene. She has a discretion as to whether to take part as a party in the proceedings at the outset under paragraph 6 of Schedule 6, or at the stage at which the court is considering whether to make an order under section 102, in terms of section 102(5). Counsel referred to the Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee (Cm.5240, December 2001), paragraphs 26 and 27, and submitted that it is the intention of both the United Kingdom Government and the Scottish Ministers that intervention should be avoided where possible.

[22]      In the present case, counsel submitted, the Advocate General has been called, not merely as a possible intervener, but as the first respondent, the person regarded as responsible for defending at least some of the acts complained of by the petitioners. As a Law Officer of the United Kingdom Government she is not answerable to this court for the acts of the Scottish Parliament or the Scottish Executive. She must remain free to adopt whatever position she considers appropriate from the point of view of the United Kingdom Government, which might or might not involve supporting an Act of the Scottish Parliament. She is entitled, and bound, to maintain a position which is independent of that of the body which made the law. Different considerations would arise in relation to proceedings before the European Court of Human Rights, because the respondent in such proceedings is the United Kingdom Government. In such proceedings the United Kingdom might or might not be represented by the Advocate General. This is of no relevance to a challenge, such as the present petition, before the domestic courts, including the Judicial Committee of the Privy Council. The correct respondent in the domestic courts is the person who was responsible for carrying out the act complained of. Counsel went on to submit that the Scottish Parliament was responsible for carrying out the act complained of. This, he submitted, is borne out by the scheme of the Scotland Act. If the petitioners are victims in terms of section 100(1), the act complained of in terms of section 100(4) is making the Protection of Wild Mammals Act. Under section 28(1) it is the Scottish Parliament which makes laws. As for the Royal Assent, counsel referred to a submission to be advanced for the Lord Advocate, that once Royal Assent had been granted the Act was a legislative measure produced by one branch of the legislative pillar of the State, so that these proceedings are not merely concerned with the activities of the Parliament itself. Counsel submitted that the "legislative pillar" is nothing other than the Parliament itself. Royal Assent is a step in the process by which laws are made by the Parliament: the Sovereign assents to what has been done by Parliament. The need to obtain Royal Assent does not alter the fact that the making of legislation is a function of Parliament. Counsel said that there is very little authority on the matter. He referred to the Royal Assent Act 1967, Bradley & Ewing, Constitutional and Administrative Law (12th ed., 1997), at p.209 and Erskine May, Parliamentary Practice (22nd ed., 1997), pps.563-564. He submitted that, while Royal Assent is required to give Bills passed by both Houses of the United Kingdom Parliament "the complement and perfection of a law" (see Erskine May at p.563), the need for Royal Assent to be given to an Act of the Scottish Parliament does not detach it from the Parliament. It remains an act of the Scottish legislature. No distinction could be drawn between the Scottish legislature on one hand and the Scottish Parliament on the other: the Royal Assent is not external approval. Under reference to the passages which I have quoted from Whaley v Lord Watson, supra, counsel submitted that, as a statutory body which must act within statutory powers, there is no reason why the Parliament should not be answerable to this court in respect of the legislative competence of its legislation. So the only appropriate respondent in proceedings which challenge the validity of its legislation is the Scottish Parliament. Having regard to the provisions of section 40(1) of the Scotland Act, the Parliamentary corporation ought to have been called as a respondent. For this reason, he submitted, the petition is incompetent and should be dismissed. So far as the position of the Lord Advocate is concerned, while there is no difficulty about his representing the Scottish Ministers and the public interest, his proposed representation of the Scottish Parliament is more difficult. He is entitled to intervene, but it is not always necessarily the case that his position will coincide with that of the Parliament, for example after a change of Government.

[23]     
Counsel further submitted that, if the correct respondent is the Parliamentary corporation, the court is precluded from granting an order for reduction (i.e. annulment) of the Protection of Wild Mammals Act, in terms of section 40(3); the court can only grant a declarator. It should not be possible for the petitioners to avoid the effect of this provision by proceeding against the Advocate General. The only competent remedy available to the petitioners is a declarator, in terms of section 29(1), that the Act is not law, as being outside the legislative competence of the Parliament. The "decision" referred to in section 102(1) is, he submitted, a decision to make a declarator. Counsel concluded by saying that, insofar as the petition founds on alleged procedural impropriety it is incompetent: see section 28(5) of the Scotland Act. In this respect, he adopted the submissions to be advanced for the Lord Advocate. For all these reasons counsel submitted that the petition is irrelevant and incompetent and in any event the conclusion for reduction of the Protection of Wild Mammals Act is in any event incompetent.

[24]     
Counsel for the petitioners submitted that the Advocate General is properly called as a respondent. The petitioners have complied with the Rules of Court, which make it clear that the appropriate respondent is the Advocate General. There is a very good reason for this. By contrast with the position under the Government of Wales Act 1998, in which the appropriate respondent to legal proceedings would be the Welsh Assembly, the appropriate respondent in proceedings in this court is the "relevant authority", that is to say the Advocate General and, in the case of a devolution issue, the Lord Advocate. It is, he submitted, a surprising feature of this case that the Advocate General has fundamentally misunderstood her role as a Law Officer of the Crown. She has responsibilities, including responsibilities to the court, when matters arise such as the validity of an Act of the Scottish Parliament. The petitioners have complied with rule 25A.2 by serving the petition on the Advocate General as the relevant authority, whose role, in a case of this type, is to represent the public interest and to assist the court. The question of the validity of legislation almost always is a matter of general public importance in which the attitude of the Crown is likely to assist the court. Counsel referred to Northern Ireland Road Transport Board v Benson [1940] N.I. 133, in which the Attorney General was invited to argue certain questions which had arisen in the course of the proceedings as to whether a legislative provision was ultra vires the Parliament of Northern Ireland. At p.169 Murphy L.J. said:

"In my opinion not merely is the Court entitled to request the Attorney- General to appear and to assist them, but in a case where a question arises as to the legality of a statute of Northern Ireland, the Attorney-General by virtue of his high office and as a person responsible for the proper administration of justice, would be entitled to intervene at any stage. The right of the court to invite him to intervene is in my opinion inherent in the court, and the Attorney-General's right to intervene is also inherent in his high office."

Counsel submitted that this was echoed by Lord Hardie in Davidson v The Scottish Ministers, supra. The court should be concerned to ensure that the position of the United Kingdom Government is properly explained. It is a matter of surprise and concern, he submitted, that the Advocate General takes such a different view. Counsel referred to section 99(1) of the Scotland Act, which provides that rights and liabilities may arise between the Crown in right of Her Majesty's Government in the United Kingdom and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment as they may arise between subjects. Clearly, he submitted, the Crown in right of Her Majesty's Government has a major and legitimate interest in ensuring that a subordinate legislature does not exceed the powers given by a sovereign legislature. The United Kingdom Government has a close interest in whether a legislature established by an Act of the Westminster Parliament has acted within or outside its powers. Had Parliament intended that the Parliamentary corporation, representing the Scottish Parliament, should be a respondent in cases of this nature, it would have said so. The Advocate General has the responsibility for ensuring that the Scottish Parliament acts consistently with the Treaty obligations of the United Kingdom. The various provisions enabling the Advocate General to intervene in legal proceedings show that she has a major stake in devolution issues.

[25]     
Counsel went on to submit that the Parliamentary corporation is not an appropriate respondent, because its functions do not extend to constitutional matters. He compared the provisions of the Scotland Act relating to the Parliamentary corporation with provisions of the House of Commons (Administration) Act 1978 and the Parliamentary Corporate Bodies Act 1992 in support of a submission that the functions of such a body relate to the holding of property, the employment of staff, and similar administrative functions. The functions of the Parliamentary corporation do not extend to constitutional matters. Once Royal Assent has been given to a Bill, the Scottish Parliament is functus officio. Counsel concurred with a submission to be advanced for the Lord Advocate that, once Royal Assent has been given, an Act of the Scottish Parliament is an act of the State.

[26]     
On the question of the remedies available in this court, counsel submitted that, in terms of section 4 of the Human Rights Act, the court is confined to making a declaration of incompatibility where it finds that a provision of the primary legislation by a sovereign legislature, i.e. the United Kingdom Parliament, is incompatible with a Convention right. Nothing in the Scotland Act suggests that the powers of the court are similarly restricted in relation to an Act of the Scottish Parliament. If the court was not to have power to reduce an Act of the Scottish Parliament as being ultra vires the Parliament, that would have been stated explicitly in the Act. This court has power to reduce an Act of the Scottish Parliament, which, as provided by the Human Rights Act, is subordinate legislation. The powers of the court are the same as they are in relation to a by-law made by a local authority: see, for example, Scottish Motor Traction Co v Lanarkshire County Council 1929 S.C. (H.L.) 110. Reduction is one of the normal remedies for an ultra vires act.

[27]     
In conclusion, counsel for the petitioners submitted that it cannot have been the intention of the United Kingdom Parliament that the Scottish Parliament should have been convened as a respondent in a challenge to its legislation. To make the Advocate General a respondent does not restrict the scope of her discretion as to whether to become involved in the proceedings. Counsel accepted that it is a matter for her judgment as to whether or not to advance a substantive argument. The United Kingdom Government has an important interest in seeing that a devolved body does not act ultra vires. The Advocate General has, he submitted, no interest to argue that the Parliamentary corporation should have been called as a respondent.

[28]     
Counsel for the Lord Advocate said that, while he agreed with the substance of the submissions for the petitioners, he did not adopt their reasoning. He had no submissions to make about the wider role of the Advocate General. This, he said, is a matter for her discretion. It is, he submitted, necessary to use the term "respondent" with care, as it is not used in the Rules of Court. The true question is whether the participation of the Parliamentary corporation in the proceedings is necessary: Wilson v Independent Broadcasting Authority 1979 S.C. 351 at p.356. In practical terms, the Parliamentary corporation has indicated that it does not wish to participate. The Lord Advocate, he submitted, is the general contradictor. He has power to refer the matter to the Judicial Committee of the Privy Council and in a sense, when he has chosen not to do so, he is defending his own decision when there is a challenge to an Act of the Scottish Parliament. Counsel referred to R v Secretary of State for the Home Department, Ex parte Fire Brigades Union [1995] 2 AC 513, per Lord Browne-Wilkinson at pps.550-551, in support of a proposition that, where legislation imposes on the Executive a duty to bring it into force, by extension, once it has been brought into force, it is the duty of the Executive to defend it. Reference was also made to the speech of Lord Lloyd at p.571.

[29]      Counsel went on to submit that under section 40(3) of the Scotland Act the restriction on remedies is engaged only in proceedings against the Parliament. He agreed with counsel for the Advocate General that under section 100 it is necessary to see what act is complained of. In the present case the petitioners complain of the passing into law of the Protection of Wild Mammals Act. In terms of the Scotland Act, there is a distinction between a Bill and an Act. A Bill becomes law only when Royal Assent has been given: section 28(2). The passing of a Bill by Parliament is only one step. The Bill is transformed into an Act by the Royal Assent, the responsibility for which rests with the Crown. The provisions of Schedule 6 make it clear that when an Act of the Scottish Parliament is subject to challenge, intimation is to be given to the Law Officers, and not to the Scottish Parliament. Finally, counsel submitted that, since section 40 does not apply to proceedings such as the present, the usual remedies in an application for judicial review are available, including the remedy of reduction.

[30]     
I do not accept the submissions for the Advocate General. It is clear from the terms of the various provisions of the Scotland Act which allow the Advocate General to intervene at various stages that whether, and if so at what stage, to appear in legal proceedings is a decision which lies within her discretion. For this very reason, her decision not to intervene at all or at any particular stage should not, without good reason, be the subject of comment by the court. No doubt in considering how to exercise her discretion the Advocate General would have regard to the submissions proposed to be advanced by the Lord Advocate. The service of the present proceedings on the Advocate General was not, in terms either of the pleadings or the Rules of Court, intended to, and moreover could not, oblige her to act as principal contradictor of the petition, or indeed a contradictor at all, and thus to fetter the exercise of her discretion. As I have said, the petition should have been served on, and not merely intimated to, the Lord Advocate; and it was for him, as a Scottish Law Officer and one of the Scottish Ministers, to take the point if he was of the view that another person was the appropriate contradictor. Even if the appropriate contradictor had not yet received service or intimation, that would not oblige the Advocate General to enter legal proceedings or to advance submissions when she was not otherwise minded to do so. I do not accordingly agree with the complaint of the Advocate General that she was wrongly called as a "respondent", or with the petitioners' reasons for saying that she should nevertheless have participated in these proceedings.

[31]     
In my opinion the Parliamentary corporation would not be an appropriate contradictor in proceedings in which a devolution issue such as the present is raised, and accordingly service on or intimation to that body was not required. This is so for a number of reasons. It seems to me to be clear from the terms of section 28 of the Scotland Act that an Act of the Scottish Parliament, which by definition has received Royal Assent, has a specific character such that its enactment is not merely an act of the Parliament. The Act has passed out of its hands. Accordingly, proceedings in which a question is raised whether an Act of the Scottish Parliament is within the legislative competence of the Parliament are not proceedings against the Parliament within the meaning of section 40(1), which require to be instituted against the Parliamentary corporation. Had the United Kingdom Parliament intended otherwise, express provision would have been made in Schedule 6 to the Scotland Act for intimation of the proceedings to the Parliamentary corporation. Moreover, the functions of the Parliamentary corporation do not extend to appearing as a contradictor in such proceedings, with or without intimation. It appears to me to be clear from the scheme of the Scotland Act that the Lord Advocate is regarded as being the appropriate contradictor in such proceedings, as befits his role as a Scottish Law Officer acting in the public interest. I have already commented on the position of the Advocate General as a possible contradictor. Nothing said during the course of the hearing suggested that the Protection of Wild Mammals Act has implications for the United Kingdom Government such that she might reasonably be expected to intervene. At present there is no legislation for England and Wales which corresponds to the Protection of Wild Mammals Act in prohibiting mounted foxhunting with dogs. No doubt the Countryside Alliance and the MFHA have concerns about the prospect of similar legislation in England and Wales, and I formed the impression that these petitioners would have liked the Advocate General to intervene in the present proceedings on behalf of the United Kingdom Government so that what was said on her behalf might be exploited by the petitioners elsewhere. As it is, the Lord Advocate is in my opinion the proper Law Officer to defend the Protection of Wild Mammals Act against the challenge mounted in these proceedings. It also follows, incidentally at this stage, that in the event of a successful challenge the remedy of reduction of the Protection of Wild Mammals Act would be competent, because section 40(3) of the Scotland Act would not apply.

[32]     
The submissions about the Advocate General and the Parliamentary Corporation occupied much of the first day of the hearing. I considered them overnight, and on the second morning of the hearing I gave reasons, in terms similar to the foregoing, for rejecting the submissions of the Advocate General. At this, counsel for the Advocate General sought leave to withdraw and I allowed him to do so, on the understanding that, should intervention by the Advocate General subsequently appear to be necessary, he would be allowed to return to make further submissions. In the event, there was no further intervention by the Advocate General. Since, as I understand it, her answers were lodged solely to allow the submissions which I have rejected to be advanced, and she does not regard herself as having any locus otherwise in these proceedings, the appropriate course appears to me to repel all the pleas-in-law for the Advocate General, and I shall do this. Counsel for the petitioners moved for the expenses of the first day of the hearing to be awarded against the Advocate General, but I said that I would reserve all question of expenses meantime, so this remains to be disposed of.

The Protection of Wild Mammals Act and the factual, historical and procedural context

[33]     
With these preliminary issues out of the way, I now turn to the main substance of the first hearing. Counsel for the Lord Advocate moved me to sustain the first, second and seventh pleas-in-law for the Lord Advocate and to dismiss the petition. These pleas relate respectively to the title and interest of the petitioners, the competency of the petition and the relevancy of the petitioners' averments. Counsel for the petitioners moved me to allow a second hearing on the petition and answers, at which evidence would be led about disputed matters of fact. They also moved me to pronounce an interim order, which I shall discuss in due course. It was agreed between counsel that the first hearing should take the form of a debate which would be opened by junior counsel for the Lord Advocate, taking the petitioners' averments pro veritate at this stage. It is to be understood from this that, where I refer to averments of fact in the petitioners' pleadings, I am not to be taken as accepting that they, or any of them, are necessarily true: evidence would require to be led at a second hearing to prove these averments, so far as not admitted by the Lord Advocate.

[34]     
Since the main focus of the debate is of course the Protection of Wild Mammals Act, it is appropriate at this stage to set out its terms more fully. The long title of the Act is: "An Act of the Scottish Parliament to protect wild mammals from being hunted with dogs; and for connected purposes." Section 1 provides:

"(1) A person who deliberately hunts a wild mammal with a dog commits an offence.

(2) It is an offence for an owner or occupier of land knowingly to permit another person to enter or use it to commit an offence under subsection (1).

(3) It is an offence for an owner of, or person having responsibility for, a dog knowingly to permit another person to use it to commit an offence under subsection (1)."

By section 10(1) the expression "to hunt" is defined as including to search for or course, and references to hunting with, or the use of, "a dog" are to be interpreted as also applying to hunting with, or (as the case may be) the use of, two or more dogs. There are also definitions relating to the "owner" or "occupier" of land. By sections 2 to 6 certain activities are excepted from the ambit of section 1, so that persons who engage in them do not commit an offence under section 1(1). Since nothing turns for present purposes on the details of these provisions, an outline of them is sufficient. By section 2 a dog under control (as that expression is defined in section 10(4)) may be used to stalk a wild mammal, or flush it from cover above ground, for various purposes, but only if action is taken to ensure that, once the target wild animal is found or emerges from cover, it is shot, or killed by a bird of prey, once it is safe to do so. An offence is not committed if a dog kills a wild mammal, being of a pest species (the definition of which in section 10(1) includes foxes), if the dog is being used with the intention of flushing the wild mammal from cover or from below ground in order that it may be shot or killed by lawful means. It is not an offence to use a dog under control to flush a fox from below ground or from an enclosed space within rocks or other secure cover above ground, but only for specified purposes and if reasonable steps are taken to ensure that the fox is flushed as soon as reasonably possible after it is located and shot as soon as possible after it is flushed. Section 3 excepts the use of a dog in connection with falconry and shooting, section 4 excepts the use of a dog for a search by an authorised person and section 5 excepts the use of a dog for retrieval and location in certain circumstances, including the use of a dog under control below ground in order to locate a fox which the person using the dog reasonably believes is orphaned (as that expression is defined in section 10(1)), but only if that person takes reasonable steps to ensure that the fox, once located, is despatched by a single dog or otherwise killed as humanely as possible. Section 6 makes provision for certain further activities to be excepted, as may be specified by the Scottish Ministers by order made by statutory instrument approved by resolution of the Scottish Parliament. No such order has yet been made.

[35]     
It was not disputed before me that one of the principal effects of the Act is to render unlawful mounted foxhunting with dogs. It was also agreed that foxes are the only species of wild mammal still to be hunted in this way in Scotland. The persons principally aggrieved by the legislation are those with an interest in the continuation of mounted foxhunting with dogs. I propose at this stage to refer to the petitioners' pleadings, and certain other material referred to therein, so that it can be seen what the petitioners allege are the effects of the prohibition. As averred by the petitioners, Mr Adams is a member of the MFHA. He and his wife regularly take part in mounted hunting and the many social activities associated with it in the area where they live. Mr Murray is a past Master of the Lauderdale Hunt, which he permits to hunt over his farmland. Mr Holman-Baird runs a pack of foxhounds in Kincardineshire. Mr Scott Plummer is Joint Master of the Buccleuch Hunt, with which he regularly hunts. Hunting foxes with dogs has long been a lawful activity and has indeed been exempted from the scope of recent animal-welfare legislation such as the Wild Mammals (Protection) Act 1996, as well as earlier statutes. There are ten Hunts in Scotland, most of them based in the Borders, while the Fife Hunt are based in Fife. The Fife Hunt and the other Hunts are funded by subscription and from the proceeds of regular fund-raising events, many of them organised by Hunt Supporters Clubs such as the Buccleuch Hunt Supporters Club. Many of the members of the Countryside Alliance and all of the members of the MFHA are closely involved in mounted hunting, and some of them depend on it for their livelihood or as an important part of their way of life or both. Hunting foxes with dogs is an activity central to the ethos of the Borders communities in which Mr Adams, Mr Murray and Mr Scott Plummer are resident and the Buccleuch Hunt Supporters Club and the Jedforest Hunt carry on their activities. It is largely carried out on private land, always with the full consent of the landowners in question. Local stock farmers in the country over which the Fife Hunt and the Jedforest Hunt (and other Hunts respectively) hunt regard the control of foxes as essential; since the nature of the terrain means that there is no practical alternative to hunting with dogs, the Fife Hunt, the Jedforest Hunt and other Hunts are invited to hunt over these farmers' lands.

[36]     
The petitioners go on to aver that hunting is a long-established activity in which people from many different walks of life participate. It is well-organised

and subject to detailed regulation. The MFHA are the governing body for hunting foxes. They recognise Hunts, each of which has its own constitution but each of which must also operate under the MFHA's Rules and Code of Conduct. The MFHA also register Hunt terrier men. The rules are designed to ensure that hunting is carried on as humanely as possible, and that all terrier work conducted in association with hunting under the MFHA's rules meets proper and humane standards. Adherence to the rules is ensured by the existence of disciplinary processes. Each pack of hounds registered with the MFHA hunts over a specified area of land registered by the

MFHA (a "country"). These areas vary from 100 to 400 square miles. Each

Hunt has a Master or Masters who must be members of the MFHA. They are generally unpaid and are responsible for employing and supervising Hunt staff; meeting and maintaining contact with farmers and landowners within the Hunt's area; arranging the programme of hunting days; and directing events on each day's hunting. The area to be covered in a day's hunting requires careful planning, since this depends on the goodwill and the agreement of local farmers and landowners, whose wishes are as a matter of course taken into account in planning the day's hunting. During the Hunt it is the Huntsman who controls the hounds, by means of his voice and his horn. The hounds look to him for direction. The Huntsman liaises with the Master in arranging the land to be hunted over; selecting the hounds that are to hunt on a particular day; arranging for the hounds and horses to arrive at the Hunt meet; and finding and hunting foxes throughout the day. The Huntsman is assisted by a Whipper-in. A Field Master is also designated to marshal the mounted followers in order to ensure that they do not enter land which they do not have permission to enter; that they follow routes that do minimum damage to crops and grazing land; and that they do not impede the hounds or the work of the Hunt's staff. The Hunt will also have a terrier man who is responsible for any terrier work that is necessary during the day. This usually involves the digging out and humane shooting of a fox that has gone to ground. Under MFHA rules, when a fox is run to ground, it may be dug out only at the request of the landowner, farmer or shooting tenant. The rules do not allow a fox which is in a natural earth to be flushed to be hunted further. The terrier man also carries out earth-stopping before a day's hunting.

[37]     
The petitioners further aver that the number of mounted followers is variable. While the rules of the various Hunts differ, anyone who can ride competently and pays a modest subscription is usually welcome to join the Hunt. Followers on foot, on bicycle or by car may well outnumber the mounted followers. Hunting contributes, they aver, to the social cohesiveness of the rural communities in which it is carried on. Most of the Border Hunts hunt two or three times a week. For many of those who take part, hunting is the principal and most important activity outside their work and a vital part of their lives. Many retired people have no other activity that regularly brings them into contact with other members of the community. Many members of the Buccleuch Hunt Supporters Club have no recreation other than the events organised by the Club. Studies carried out by the Borders Foundation for Rural Sustainability have shown that the Border Hunts and their Hunt Supporters Clubs provide the focus for a large number of events within the community. The activities of Hunt Supporters Clubs such as the Buccleuch Hunt Supporters Club also involve those who are not members of the Club, so promoting interaction between the Hunts and the wider community. The cessation of mounted hunting in the Borders would result in a profound social and cultural impoverishment for those petitioners who live or are based there and for numerous members of the Borders community.

[38]     
Reference is made in the petitioners' pleadings to a report by Dr Garry Marvin, a senior lecturer in the School of Sociology and Social Policy at the University of Surrey, Roehampton and Director of the Centre for Research in Animals, Society and Culture at the same university. He has a special research interest in human/animal relations and, in addition to his existing publications in that area, he is writing an anthropological account of foxhunting. His report is dated 15 June 2002. This was of course after the date when the Protection of Wild Mammals Act received Royal Assent, but counsel for the Lord Advocate did not object to reference being made to its contents, since it is referred to in the petitioners' pleadings and if I were to allow a second hearing evidence would be led from Dr Marvin as an expert witness. In the introduction Dr Marvin states:

"The aim of this paper is to offer an interpretive account of foxhunting as a cultural and social practice and its place in the rural communities of the Scottish Borders region. What will be stressed is that the activity of hunting per se, although it is the focus of the hunting world, it is not the limit of that world. For more than two centuries foxhunting has drawn together people of this region into a sociality that creates for them the basis for a powerful sense of community. Foxhunting cannot be understood as simply the hunting of foxes - it is a multi-faceted event that is intimately and essentially connected with the fabric of rural life and the lived landscapes of the region." (emphasis in original)

After tracing the history of the emergence of foxhunting as "a formal, sporting, practice" Dr Marvin goes on to discuss statistics, which suggest that the five Borders Hunts (the Berwickshire, the Buccleuch, the Jedforest, the Lauderdale and the Liddesdale) between them hunt for a total of 365 days during the season, which lasts for seven months of the year, during the autumn and winter, with over 1000 participants, both mounted and non-mounted, who each participate on an average of twenty or so days per season. In this passage, Dr Marvin describes foxhunting as "an intensely social activity" and says that the participants "constitute and create a community whose lives are tightly interconnected through the event".

[39]     
Dr Marvin then goes on to discuss participation in hunting practice. He says that "foxhunting is a unique sports hunting event because it is only the hounds who are hunting". At no point during foxhunting does a human attempt to directly find, pursue and kill the quarry. Humans create the conditions in which this form of hunting can be enacted but they are not directly involved in hunting per se. He goes on to say that "the point that is fundamental for the paper is that all human participants are participating at one remove from the central act of hunting; indeed they may not participate directly in hunting." He then makes the point that "in an important sense, there is no distinction between those on horseback on those on foot/in cars - at one level they both participate in the same way - both sets of people are present as active observers of hunting." The mounted and non-mounted participants enact the second level activity of attempting to follow the hounds: "The pack of foxhounds attempting to pursue a fox across the countryside creates the conditions and possibilities for a unique equestrian, sporting, event for the mounted participants". After giving reasons why mounted and non-mounted participants join in the activity, he says that "there are no spectators of hunting" because: "Each person who deliberately sets out on a hunting day to follow the activity of the hounds across the countryside is fully engaged with that event and in that event and, given that the only involvement that any of them can have with the hunting act is one of observation, it could be argued that, despite the differences in the ways in which they enact this observation, they are all equal as participants. In terms of countryside pursuits foxhunting is unique in terms of its shared, communal, quality." In other passages, Dr Marvin says that foxhunting is "a collective event", it is "a way of life", it is "not a sport put on for the benefit of others who simply come to watch" but "is one created by its participants for themselves" and that the Hunts are "directly responsible for creating a significant part of the living fabric of rural life."

[40]     
Dr Marvin finds that foxhunting is central to the entire social life of a range of people associated with the Border Hunts. Hunting allows for "wider social interactions than any other institution or association in the rural world." At p.22, he states:

"Foxhunting is not simply a leisure pursuit, a way of spending time; it is one that is deeply embedded in the rural world and involves a passionate commitment of time to the everyday life of that world. For those people who participate in the world of hunting this is no mere interest, hobby or pastime, it is not something that 'diverts' them from the everyday but one that necessarily connects them closely with rural society, rural affairs, rural activities and the countryside. The world of foxhunting is a community in itself but it is also an expression and a celebration of the wider community of which it is part."

When he comes to his conclusions, Dr Marvin repeats some of these points, before going on to say:

"Without the actual hunting of foxes in the traditional manner on horseback and with a pack of hounds Hunts would cease to exist and with this cessation would come the collapse of an entire social and cultural world.... The removal of foxhunting from the Scottish Borders would result in a profound and deeply felt social and cultural impoverishment, a collapse of sociality and a loss of the community that has been created by it: and this at a time when there are pressures on community and sociality and when the loss of both clearly creates conditions of social isolation and exclusion."

[41]     
The petitioners aver that while hunting is partly a recreational activity, it is also an effective means of controlling the numbers of foxes. It is generally accepted that foxes are pests whose numbers need to be controlled. This is the reason for earth-stopping, which prevents foxes from remaining underground or going to ground soon after they are found. On a hunting day a Hunt might expect to cull one or two foxes. Of equal importance, however, is the fact that during a day's hunting the fox population will be dispersed over a wide area, so reducing the potential for damage to be done by foxes. In addition the Hunts, such as the Fife Hunt, provides services which are valued by local farmers, such as knackering and disposal of fallen stock. The activity of hunting foxes also contributes to the local economy and to employment within rural communities. After reference to general economic assessments by the Macaulay Land Use Research Institute and the Borders Foundation for Rural Sustainability, the petitioners aver that a substantial proportion of those employed in connection with hunting live, as does Mr Adams, in accommodation which is tied to their employment.

[42]     
Elsewhere in their pleadings, the petitioners aver that foxes prey on lambs, poultry, piglets, game and ground-nesting birds. It is generally accepted that they are a pest species and that, in order to limit the damage caused by them, their population requires to be culled. The result of a temporary suspension of mounted hunting in 2001 owing to the outbreak of foot and mouth disease has been a substantial increase in the number of foxes killing livestock. Most of those involved in land management consider such culling to be necessary. There are currently only four legal methods of controlling the fox population, namely shooting, trapping, snaring and hunting with dogs. Methods of shooting foxes include "lamping" (shooting at night using high-powered rifles) and gun packs, which involve the use of dogs and guns in woodland areas. In some areas (for example in parts of the Borders) there is no practicable method apart from hunting with dogs for controlling the numbers of foxes; in particular, the use of gun packs is not possible, for reasons of safety, in areas where there are houses nearby. Hunting, the petitioners aver, is a selective means of controlling the fox population, since fit and healthy foxes generally escape unharmed and this contributes to a healthy, balanced and sustainable population of the species. In addition Hunts such as the Fife Hunt and the Jedforest Hunt and their members and supporters voluntarily carry out important work in the countryside that benefits conservation and the maintenance of habitats. The banning of foxhunting will accordingly have an adverse effect on conservation of habitats and habitats of species. There is some reference, to which I shall return in due course, to the numbers of foxes killed by, and to the effectiveness of, and the degree of suffering caused by, these various methods of hunting.

[43]     
Counsel for the Lord Advocate drew my attention to various statutory provisions intended to prevent cruelty to animals. I do not propose to go into these in detail. Reference was made to the Cruelty to Animals (Scotland) Act 1850, the Protection of Animals (Scotland) Act 1912 (as amended by the Protection of Animals (Scotland) Act 1912 Amendment Act 1921, and by the Protection of Animals (Amendment) Act 1988), the Protection of Animals Act 1934 and the Wild Mammals (Protection) Act 1996. Mention was made in particular of the Conservation of Seals Act 1970, section 1 of which prohibits certain methods of killing seals, section 11 of the Wildlife and Countryside Act 1981, which prohibits certain methods of killing or taking wild animals, and the Protection of Badgers Act 1992, which contains provisions relating to the taking, injuring, killing or cruel ill-treatment of badgers. Mention was also made of two species which have historically been hunted with hounds in Scotland. Deer have not been hunted with hounds for many years, and by section 17(3) of the Deer (Scotland) Act 1996 the only permitted method of killing deer is by shooting. Otters have been hunted with hounds more recently, but I was told that this had been discontinued some time before the coming into force of the Wildlife and Countryside Act 1981, which by section 9(1) and Schedule 5 makes otters a protected species and prohibits killing them. Counsel for the Lord Advocate submitted, in light of these provisions, that the prevention of cruelty to animals has long been recognised as being in the public interest and as being a fit subject for legislation, and counsel for the petitioners did not seek to take issue with this. The point was also made that there are differences between Scotland on the one hand and between England and Wales on the other: in the latter, for example, there is still mounted hunting of deer with hounds.

[44]     
In the pleadings for the Lord Advocate there is an account of unsuccessful attempts which have made since 1986 to have hunting with dogs prohibited by legislation by the United Kingdom Parliament. I see no need to repeat this. One step that was taken was the appointment in December 1999 by the Home Secretary of a committee, chaired by Lord Burns, to carry out an inquiry into hunting with dogs. The committee reported on 9 June 2000. My attention was drawn in particular to Chapter 6 of the report, which relates to animal welfare. The committee stated that the three main aspects of foxhunting which gave rise to concern on welfare grounds are the chase, the "kill" by the hounds above ground, and digging-out/terrierwork. They said that there is a lack of scientific evidence about the welfare implications of hunting, which needed to be compared with those which arise from other models such as shooting and snaring. At paragraph 6.49 they stated:

"The evidence which we have seen suggests that, in the case of the killing of a fox by hounds above ground, death is not always effected by a single bite to the neck or shoulders by the leading hound resulting in the dislocation of the cervical vertebrae. In a proportion of cases it results from massive injuries to the chest and vital organs, although insensibility and death will normally follow within a matter of seconds once the fox is caught. There is a lack of firm scientific evidence about the effect on the welfare of a fox of being closely pursued, caught and killed above ground by hounds. We are satisfied, nevertheless, that this experience seriously compromises the welfare of the fox."

[45]     
My attention was also drawn to passages in speeches delivered by Lord Burns and by Lord Soulsby, a member of the Burns Committee, in a debate in the House of Lords on 12 March 2001, when Lord Burns said that, in the passage I have quoted, the Committee were not implying that hunting is cruel, because there were not sufficient verifiable evidence or data safely to reach views about cruelty, and Lord Soulsby said that the report did not imply that the whole of the procedure of chasing an animal with hounds was cruel, and that a compromise of animal welfare was found only in the terminal stages of the hunt.

[46]     
Counsel for the petitioners also referred to a Veterinary Opinion on Hunting with Hounds by L H Thomas and W R Allen, published on the Internet in July 2001 and supported at that time by 294 members of the Royal College of Veterinary Surgeons (a number, which I was told, had grown to 400 by the date of the hearing). In the conclusion, the authors submitted that hunting by hounds is the most natural and humane way of controlling the population of fox, deer, hare and mink in the countryside. "Humane, since at all times the wild animal remains in its natural environment and the relatively short period of physiological stress that may be suffered in the final phase of the hunt, followed by the almost instantaneous kill is not only acceptable but is the preferred method of culling a wild animal."

[47]     
Mention was also made of Appendix 9 to the Burns Report in which there is discussion of hunting with dogs and its regulatory background in various countries. There is no need to go into this in any detail, beyond observing that in only a few countries is mounted foxhunting with dogs practised, there are more countries where hunting on foot with dogs is practised, and European countries where it is not practised or is largely banned include Spain, Belgium, Germany, Sweden, Denmark, Finland and Norway. So there is no uniformity of approach among European countries.

[48]     
The proceedings of the Scottish Parliament are, by section 22(1) of the Scotland Act, regulated by standing orders, which by section 36(1) include provision for three stages. In the first stage, there is general debate on a Bill with an opportunity for members to vote on its general principles, the second stage is for the consideration of, and an opportunity for members to vote on, the details of a Bill, and the final stage is that at which a Bill can be passed or rejected. Lord Watson first announced his intention of sponsoring the Wild Mammals Bill in July 1999, and introduced it into the Parliament on 1 March 2000 as a member's Bill. Throughout the proceedings the Scottish Executive was neutral on the question whether the Bill should be enacted. The long title of the Bill was the same as that of the Act. The Rural Affairs Committee (later called the Rural Development Committee) of the Parliament ("the Committee) was assigned as the lead Committee. It was charged with preparing a report to the Parliament on the general principles of the Bill and whether they should be agreed to. The Committee began to consider the Bill in April 2000. It sought evidence from twenty organisations, including the Countryside Alliance. It received detailed comments on the Bill from most of these organisations, and also a submission from the MFHA. It received about 4,600 letters about the Bill. It took oral evidence from a number of organisations, including the Countryside Alliance and the MFHA. All of this evidence and correspondence was made available to members of the Parliament at all stages of the Bill.

[49]     
On 12 July 2001 the Committee published its Stage 1 report. Mounted hunts were discussed at paragraphs 45-66 of the report, the primary sources of information being the Countryside Alliance and the MFHA. At paragraph 61 the Committee stated:

"The mounted hunt, attended by hunt followers, does not appear to be a very necessary activity: it is a form of entertainment, an inefficient means of controlling fox numbers and there are alternative methods available."

In paragraph 62, the Committee stated that "the spectator, or sporting element of mounted hunting relates to the chase, and not the kill, which few people actually witness." On the basis that the chase might be protracted to ensure good sport, the Committee reflected that foxes probably do suffer stress when chased by mounted hunts. At paragraph 63 they stated:

"There is no single scientific opinion to substantiate either the claims or the counter-claims of the speed of the kill by a pack of hounds. The Burns Inquiry concluded that the great disparity between the size and weight of the fox and the hounds means that the time to insensibility and death is usually no more than few seconds. The Committee agreed that a conclusion on this point must be left to the moral standpoint of the individual."

After discussing the treatment of foxes who have gone to ground, the Committee went on at paragraphs 65 and 66 to state:

"65 The purpose of this examination was to identify whether the Bill would end those things that are cruel (i.e. the imposition of unnecessary suffering), and whether it would interfere with things that are not cruel. Bringing all three elements of the mounted hunts together, the Committee found that the evidence on their necessity and the suffering imposed by them produced different opinions amongst members.

66 The Committee noted that, while the call-out service [provided by a huntsman on foot with a small number of hounds, as a response to specific cases of predation by foxes] may be deemed a necessary activity, mounted hunts are primarily a form of sport and may involve unnecessary suffering."

[50]     
The evidence before the Committee allowed it to reach certain conclusions based on statistics. The ten mounted hunts in Scotland kill altogether an average of 543 foxes a year, while hill packs kill about 850, about 12,600 are shot, about 3,240 are snared and about 2,160 are killed by terrier work (paragraph 16). In comparing the efficiency of the mounted hunts with that of the hill packs (which carry out fox control outwith the Borders and other lowland areas), the Committee stated, at paragraph 86:

"What is different in the hill packs is the use of guns, backed up where necessary by lurchers and terriers to improve the efficiency of the operation in which 90% of foxes found are killed, as opposed to only 10% in mounted hunts."

The Committee's conclusions and recommendation were contained in paragraphs 98 to 102. In the last two of these paragraphs, the Committee stated:

"101 The Bill is so controversial, and the evidence on cruelty in hunting so inconclusive, that a moral stance has been adopted. The Committee was unable to find consensus on hare coursing and mounted hunts.

102 The principle of this Bill is focussed on the use of dogs which, while well intentioned, misses the point that dogs can be used in both a cruel and a humane way, and are not the common factor in determining cruelty. The Committee, on division, believed that it is difficult or impossible to amend the Bill into a form which will adequately meet the aim of ending cruelty and for this reason recommends that the general principles of this Bill should not be agreed to."

[51]     
Notwithstanding this recommendation, following the Stage 1 debate on 19 September 2001 the Scottish Parliament agreed to the general principles of the Bill. The Committee was charged with the detailed consideration of the Bill at Stage 2. Thereafter the Committee considered and, in some cases, accepted amendments to the Bill. During this stage, the Committee received written submissions from a number of individuals and organisations, including the Countryside Alliance. On 30 October 2001 it decided to hear oral evidence from three organisations (the Scottish Gamekeepers Association, the Scottish Hill Packs Association and the National Working Terrier Federation). As I understand it, this was in connection with the drafting of exceptions to the general prohibition in what was then Clause 1. The Bill completed Stage 2 on 4 December 2001. It completed Stage 3 on 13 February 2002. At all stages in the Bill's progress through the Parliament the votes in the Parliament were free votes. The papers before me include reports of the entire proceedings in the Parliament, which show that there was extensive discussion of the Bill by the members of the Parliament, who expressed a wide range of opinions.

Common law remedies: competency

[52]     
As I have said, in addition to their case under the Convention, the petitioners bring their case on the common law grounds of procedural impropriety and unreasonableness, which, they aver, render the Protection of Wild Mammals Act ultra vires the Scottish Parliament. I propose at this stage to consider the competency of the common law case.

[53]     
There are familiar grounds upon which an application for judicial review may be brought at common law. In CCSU v Minister for Civil Service [1985] 1 A.C. 374, in a well-known passage at pps.410-411, Lord Diplock classified under three heads the grounds upon which administrative action is subject to control by judicial review. He called these illegality, irrationality and procedural impropriety. He said that by "illegality" as a ground of judicial review he meant that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. By "irrationality" he meant what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. By "procedural impropriety" he meant not only basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision, but also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such a failure does not involve any denial of natural justice. This passage is of course by no means the last word on the scope of judicial review, which will no doubt be re-examined in light of the Human Rights Act: see, for example, certain remarks in R (Daly) v Secretary of State for the Home Department [2001] UK (HL) 26. Irrationality and procedural propriety are accordingly two of the recognised grounds for judicial review. The question, however, is whether judicial review on such grounds is competent in the present case, having regard to the provisions of the Scotland Act.

[54]      The petitioners submit that this court ought to reduce the Protection of Wild Mammals Act on grounds which may be summarised as follows: the Act is not a bona fide or reasonable exercise of limited legislative powers; it is unnecessary for the good government of Scotland; it is partial and unequal in its operation; it involves oppressive or gratuitous interference with rights; it will have damaging and disproportionate economic and social effects; it is based on incompletely informed views as to the moral desirability or appropriateness of criminalising certain types of conduct; proceedings on the Bill were vitiated by procedural impropriety, especially owing to reformulation of its scope at Stage 2; and the Scottish Parliament failed to take account of limitations on its legislative powers. They aver that the legislative powers of Parliament are limited because it can only enact legislation that is reasonable and necessary for the legitimate aims of good government in Scotland.

[55]     
Counsel for the Lord Advocate submitted that the identification of the limits placed by the United Kingdom Parliament on the Scottish Parliament by the Parliament Act is a matter of construction of the Act. In Whaley v Lord Watson 2000 SC 340 the Lord President at p.348 (in a passage more fully quoted by me in paragraph [19]) said that the Parliament has been created by statute and derives its powers from statue. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. Counsel submitted that, as a matter of construction of the Scotland Act, section 29 defines the scope for judicial interference on the ground that an Act of the Scottish Parliament is outside its legislative competence. Parliament did not envisage any other grounds of review. This is reinforced by sections 101 and 102. It could not have been the intention that persons in the position of the petitioners could avoid this by invoking the common law grounds of judicial review, which are accordingly excluded by the Act.

[56]      Counsel next submitted that the Parliament has become a general legislative body. The provisions referred to by Lord Hope in A v The Scottish Ministers 2002 S.C. (P.C. ) 63 at p.67 are an important part of the balance struck in the Scotland Act between the Parliament and the courts. It would be surprising if this could be overthrown otherwise than on the grounds articulated in section 29. Schedule 6 does not anticipate that there will be challenges on any grounds other than can be raised in devolution issues. Section 28 confers on the Parliament the power to make laws, which have all the characteristics of public general statutes. By section 28(5) a challenge on the ground of procedural impropriety is expressly excluded. This reflects, counsel submitted, what was said about the United Kingdom Parliament by Lord Morris in British Railways Board v Pickin [1974] AC 765 at p.790:

"It must surely be for Parliament to lay down the procedures which are to be followed before a Bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its Standing Orders and further to decide whether they have been obeyed: it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires... It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those procedures were effectively followed."

Counsel submitted that the Scottish Parliament is in the same position as the United Kingdom Parliament, because it is expected that, except that in reserved matters, the Scottish Parliament will be the legislature which enacts public general statutes.

[57]      Counsel went on to submit that this is not a challenge to the actings of the Scottish Parliament as an institution, but to an Act of the Scottish Parliament, which is an instrument passed by Parliament and has also received the Royal Assent. It has thereby become an act of the State. An Act of the Scottish Parliament, like an Act of the United Kingdom Parliament, is subject to the United Kingdom's obligations under Community law and the Convention, and this is reflected in the Scotland Act. It would be astonishing if a public general statute made by the Scottish Parliament could be challenged on the grounds of irrationality with no provision to that effect in the Scotland Act. There is no provision in the Act that the Parliament can only enact legislation that is reasonable and necessary for the legitimate aims of good government in Scotland. In East Kilbride District Council v Secretary of State for Scotland 1995 S.L.T. 1238 Lord Penrose held inter alia that, although the court had jurisdiction to review the making of a statutory instrument which had become final upon the expiry of the statutory time limits for a negative resolution in Parliament, according to the Scottish authorities such a statutory instrument could only be held to be ultra vires on the grounds that it had not been authorised by the enabling statute or that the procedure required by the statute had not been followed: and while subsequent English authority was in favour of challenges on the additional grounds of bad faith, improper motive or manifest absurdity, the first two of these arose only rarely and the third could be satisfied only in the most extreme and extraordinary circumstances, so that it could not be said that the Scottish authorities had omitted anything of practical importance. Counsel submitted that, a fortiori, an Act of the Scottish Parliament is not reviewable on these grounds. The Scottish Parliament is not exercising powers delegated on a specific basis, as is usual when subordinate legislation in the form of a statutory instrument is made, but has a general law-making power subject to certain reservations and other limitations. Sections 28, 29, 100, 101 and 102 and schedule 6 form a very specific code, unique to Acts of the Scottish Parliament. Such safeguards as are required are provided by reference to the Convention, which prevents the Parliament from acting in an arbitrary or perverse manner, contrary to human rights.

[58]     
In reply to these submissions, counsel for the petitioners took as their starting point the passages from the opinions of the Lord President and Lord Prosser in Whaley v Lord Watson which I have previously quoted. This court, they submitted, has jurisdiction over the Scottish Parliament, just as it would have over any other body created by law. Counsel went on to submit that the ordinary rule of construction is that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words: Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] A.C. 260 per Viscount Simonds at p.286. The legislation of the Scottish Parliament is subordinate legislation: it is defined as such by section 21(1) of the Human Rights Act. It is in principle subject to judicial review by the courts, as is any subordinate legislation. Although there might be a degree of deference accorded to the decisions of such a body, this does not affect the principle.

[59]     
Counsel went on to refer to three cases. In Kruse v Johnson [1898] 2 Q.B. 91 a specially constituted court held that in determining the validity of by-laws made by public representative bodies, such as county councils, the court ought to be slow to hold that a by-law is void for unreasonableness. A by-law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes, or unjust, or made in bad faith, or clearly involves an unjustifiable interference with the liberty of those subject to it. At p.98 Lord Russell C.J. said that, notwithstanding that the procedure for making a by-law provided safeguards, including the possibility of its being disallowed by the Queen, with the advice of her Privy Council,

"the presence of these safeguards in no way relieves the Court of the responsibility of inquiring into the validity of by-laws where they are brought in question, or in any way affects the authority of the court in the determination of their validity or invalidity."

This approach was accepted in Scotland, in Aldred v Miller 1925 J.C. 21. Reference was also made to R. v Immigration Appeal Tribunal, ex parte Manshoora Begum [1986] Imm A.R. 385 per Simon Brown J. at pps.393-394. Counsel submitted that these authorities show that, although the court might be slow to interfere with subordinate legislation, it nevertheless has jurisdiction to do so.

[60]     
Counsel went on to submit that it is implicit in a statute which delegates power that the power is to be exercised not only within its bounds but reasonably. The decision of Lord Penrose in East Kilbride District Council v Secretary of State for Scotland is not inconsistent with this, given that Lord Penrose was not considering the question of reasonableness in that case. Counsel accepted that section 28(5) of the Scotland Act excludes scrutiny of what is done in the Scottish Parliament on procedural grounds, but the petitioners rely, they explained, on the concept of procedural impropriety to demonstrate that the Parliament did not identify any legitimate aim for the Protection of Wild Mammals Act and did not act rationally; the fundamental complaint was with the substance, not the procedure. The reformulation of the Bill at Stage 2 led the Parliament into irrationality. The protection of section 28(5) is only available to a valid Act of the Scottish Parliament: if the Act is not law because it is outside legislative competence, then section 28(5) does not apply.

[61]     
Counsel submitted, finally, that sections 29(2), 101, 102 and Schedule 6 do not expressly exclude the jurisdiction of the courts on traditional common law grounds. If the submissions for the Lord Advocate were correct, section 54 would have the effect of excluding such grounds even in relation to subordinate legislation within the meaning of that section, i.e. statutory instruments made by the Scottish Ministers.

[62]     
In my opinion the question whether the jurisdiction of this court to review Acts of the Scottish Parliament on traditional common law grounds is excluded must be decided on a proper construction of the Scotland Act as a whole. Obviously, as was held in Whaley v Lord Watson, and was not disputed before me, the jurisdiction of this court over the Parliament is not excluded by the Act, and to that extent the Parliament is not sovereign. But, despite the reference in the Human Rights Act to Acts of the Scottish Parliament being subordinate legislation, such Acts have in my opinion far more in common with public general statutes of the United Kingdom Parliament than with subordinate legislation as it is more commonly understood. Indeed, the definition of "subordinate legislation" in the Scotland Act makes this distinction clear. The Parliament is a democratically-elected representative body. It has under section 28(1) a general law-making power, except in relation to reserved matters and the other matters specified in section 29(2). In consequence of this, it can not only pass its own Acts, it can amend or repeal, in their application to Scotland, pre-devolution acts of the United Kingdom Parliament. An Act of the Scottish Parliament, once passed, requires Royal Assent to become law. It is of a character which has far more in common with a public general statute than with subordinate legislation, though it might be preferable to regard it as being sui generis.

[63]     
What appears to me to be of significance is that the Scotland Act is clearly intended to provide a comprehensive scheme, not only for the Parliament itself, but also for the relationship between the courts and the Parliament. I agree with the submission for the Lord Advocate that sections 28, 29, 100, 101, 102 and Schedule 6 are definitive of the extent of the court's jurisdiction and of the procedure to be followed when a devolution issue is raised. It necessarily follows that traditional common law grounds of judicial review are excluded, and that there is no room for the implication of common law concepts in considering the legislative competence of the Parliament. This means that it is not open to this court to find that an Act of the Scottish Parliament (or a provision of it) is not law, unless it is outside the legislative competence of the Parliament in one of the respects provided by section 29, that is to say, for present purposes, incompatibility with Convention rights. When I asked counsel what the common law would add to the statute (provision for the concept of illegality being provided by section 29, and procedural impropriety as a ground of judicial review being excluded by section 28(5)), counsel said that it would extend title and interest to sue to persons other than "victims" within the meaning of section 100(1). It seems to me that the intention of the United Kingdom Parliament was to exclude interference by busybodies (counsel's expression), and to confine the challenge to an Act of the Scottish Parliament (or a provision of it) to such persons as can claim the necessary title and interest as "victims". Section 54 may be construed consistently with this approach. It would not be appropriate for me to express a concluded view as to whether the effect of section 54 is to exclude traditional grounds of judicial review in relation to subordinate legislation within the meaning of that section, but it may be that the intention is indeed to confine the challenge to subordinate legislation to the grounds set out in section 29, and thus, so far as Convention grounds are concerned, to those who can claim "victim" status.

[64]     
In my opinion, therefore, the petition is incompetent in so far as it proceeds on traditional common law grounds.

 

 

 

 

 

Title and interest

[65]     
Given my decision that the challenge to the Protection of Wild Mammals Act as being outside the legislative competence of the Parliament is confined to that part of the petitioners' case which alleges that the Act is incompatible with Convention rights, it appears to me to be appropriate to take as my next topic the question which of the petitioners has title and interest to bring the present proceedings. The starting point is section 100(1) of the Scotland Act, which enables only those persons who could claim to be victims for the purposes of Article 34 of the Convention to bring proceedings on the ground that an act is incompatible with the Convention rights. No difficulty accordingly arises in respect of the four individual petitioners, whose claims to be victims of violations of their Convention rights I discuss under the appropriate headings. Problems arise, however, in relation to the Fife Hunt, the Buccleuch Hunt Supporters Club, the Jedforest Hunt, the Countryside Alliance and the MFHA. Each of these is an unincorporated (or voluntary) association, which does not in law have an existence distinct from that of its members. It is for this reason that an unincorporated association cannot at common law sue or be sued in its collective name alone; the names either of all the members, or of responsible members such as office bearers, must be added: Renton Football Club v McDowall (1891) 18 R. 670; Pagan & Osborne v Haig 1910 S.C. 341 (a case relating to the Fife Fox Hounds). It is for this reason that the instance of the present petition was amended at an early stage to add the names of appropriate office bearers. But this does not dispose of the question of title and interest to sue. As Lord McLaren said in Renton Football Club v McDowall at p.674, every assemblage of persons who may conceive that their collective rights have been invaded must be entitled to redress by taking proper means for having their case judicially considered. But "collective interest" is not the same as the individual interests of each of the members, even if those interests are identical.

[66]     
The only Scottish case on title and interest to sue in an application for judicial review to which reference was made in the course of the hearing is Scottish Old People's Welfare Council, Petitioners 1987 S.L.T. 179. At p.185 Lord Clyde considered the question of the title and interest of the petitioners, a voluntary association whose members included a very considerable number of individual members of the public, local clubs and other unincorporated associations. He said:

"If the case is one where any member of the public has title to sue, I can see no reason in principle, and none was suggested to me in argument, why, simply because a group of members of the public combine to sue where each could do so as an individual, the mere fact of their combining together into an association should deprive them of a title..... [I]f the individual members of the public who directly or by membership of their local clubs have a title to sue as members of the public, I find it hard to see why the association to which they belong cannot sue. But this is not to hold that such an association necessarily acts in any representative capacity."

In the special context of an actio popularis, he said, a representation of the public by one or more members of the public is recognised. So in an actio popularis a voluntary association might act in a representative capacity. In the circumstances of the case, however, Lord Clyde held that the interest of the petitioners was too remote to give them a right to challenge the validity of the circular in question. The circular related to statutory benefits in the form of extra payments for severe weather conditions. Among the reasons for holding that the necessary interest had not been averred, Lord Clyde noted that there was no averment that the association or any of its members had claimed the benefit in question, or were intending to do so.

[67]     
In addressing me on this matter counsel for the petitioners accepted that it is not competent to make an abstract challenge to legislation on grounds relating to human rights, because of the requirement that the petitioner should claim to be a victim. Accordingly, they accepted that there is no scope for an actio popularis in proceedings of this kind. For that reason, there was no dispute about the submission by counsel for the Lord Advocate that the function of this court is to address the question whether, having regard to the effect that the legislation would have on each of the petitioners considered in turn, it could be said that any of their Convention rights have been infringed.

[68]     
Counsel for the Lord Advocate referred to a number of decisions of the European Court of Human Rights. In Klass v Germany (1978) 2 EHRR 214 the court said at paragraph 33:

"Article 25 [the predecessor of Article 34] does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment."

The court went on to discuss circumstances in which it could be said that a law might by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In Young, James and Webster v United Kingdom (1981) 3 E.H.R.R 20 at paragraph 53 the court emphasised that, in proceedings originating in an individual application, it has, without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it. It accordingly limited its examination of the closed shop system complained of by the applicants to the effect of that system on them. In Krone-Verlag GmbH v Austria, application number 31564/96, admissibility decision of 7 March 2000, the court, in paragraph 2, said that by the term "victim", Article 34 of the Convention means the person directly affected by the act or omission which is in issue. Article 34 of the Convention may not be used to found an action in the nature of an actio popularis. Reference was also made to Dudgeon v United Kingdom (1981) 4 EHRR 149 and ADDB v Netherlands, application number 37328/97, admissibility decision of 31 August 1999.

[69]      On the basis of these authorities, counsel submitted that a person can only claim to be a victim for present purposes if the Protection of Wild Mammals Act has a direct effect on him individually. In so far as the petition contains averments about the impact of the Act which are not directed to the effect on the petitioners' enjoyment of their Convention rights, counsel submitted that these averments are irrelevant and should be excluded from probation. So far as unincorporated associations are concerned, counsel referred to two further cases. In Norris v Ireland (1989) 13 EHRR 186 the applicant claimed that Irish legislation penalising certain homosexual acts in private between consenting male adults violated his right to respect for his private life under Article 8. He also made other claims, which the Commission held to be inadmissible. The National Gay Federation, an unincorporated association, joined with the applicant in the application, but the Commission declared its entire complaints to be inadmissible, because the Federation as such was not directly affected by the impugned legislation and, consequently, might not claim to be a victim of the alleged violation of the Convention within the meaning of Article 25 (now Article 34): see decision of 16 May 1985 on the admissibility of application number 10581/83. In Purcell v Ireland (1991) 70 D.R. 262 the applicants were a number of individuals and two unions who complained that a ministerial order made under legislation relating to broadcasting infringed their rights under Article 10 of the Convention. The Commission rejected the application in so far as brought by the two trade unions, saying at p.273 that the measure complained of did not affect the rights of the applicant unions themselves: the ministerial order did not refer to the exercise of any of their rights. The fact alone that the trade unions considered themselves as guardians of the collective interests of their members did not suffice to make them victims within the meaning of Article 25. It followed that in so far as the application was brought by the two trade unions, it was incompatible ratione personae with the provisions of the Convention and must be rejected. Counsel submitted on the basis of these authorities that unincorporated associations may have title and interest to sue only if their own Convention rights have been infringed: they are not entitled to complain about the alleged violation of their members' rights.

[70]     
In a related submission on interest to sue, counsel said that the interest of the petitioners, either separately or together, is the prohibition by the Protection of Wild Mammals Act of mounted foxhunting with dogs, as it has been practised by the Hunts. The issue before the court is therefore, they submitted, whether that prohibition infringes any of the petitioners' Convention rights. The question whether the prohibition of that or any other activity affects somebody else's Convention rights does not arise.

[71]     
Counsel for the petitioners responded to these submissions by emphasising that their complaint is that the legislation has the effect of criminalising their way of life: the risk of being prosecuted and convicted if they continue to engage in it. This way of life is, they submitted, built around the unique activity of mounted foxhunting with dogs, which goes wider and deeper than a leisure pursuit. Article 34 allows a claim to be made by a non-governmental organisation or group of individuals. An association should not be excluded from bringing an application if a significant part of their membership includes persons who would be directly affected by the act complained of. There are compelling reasons of policy why in appropriate cases pressure groups should not be discouraged. In the present case, the associations are duly authorised to sue by their membership.

[72]     
Counsel for the petitioners sought to rely on Scottish Old People's Welfare Council, Petitioners, supra, and to distinguish the cases founded upon by counsel for the Lord Advocate. They submitted that every person who engages in the prohibited activity will be at risk of prosecution, so that each individual member of the unincorporated associations has rights that are infringed. The two Hunts are made up of people who hunt, and the Supporters Club is made up of people who support hunting. If hunting becomes illegal, the Hunts will cease to exist and there will be no Hunts for the Supporters Club to support. The legislation is accordingly directed at the very thing that the associations do and is their raison d'être. Counsel submitted that it is not clear from Norris v Ireland why the application by the National Gay Federation (assuming it to be an incorporated association) was not admitted. In Klass v Germany, the test of being directly affected favours the petitioners. Unlike the position in Purcell v Ireland, the legislation is directed at the very activity that the petitioners have in common. Counsel also mentioned Open Door Counselling Ltd and Dublin Well Woman Centre Ltd v Ireland (1992) 14 EHRR 131, (1992) 15 EHRR 244, in which the Commission, at 14 EHRR 131, paragraph 64, concluded that there had been no violation of Article 8 in respect of the first applicant company, whose claim was a general one concerning the rights of its clients. This, counsel submitted, could be distinguished because the company was a separate legal person, unlike an unincorporated association.

[73]     
It is in my opinion clear from section 100(1) of the Scotland Act that the question of the petitioners' title and interest must be tested by reference to the decisions of the European Court of Human Rights as to those persons who would be regarded as victims, persons who are directly affected by the acts of which they complain. I was not addressed on the meaning of "non-governmental organisation" in Article 34, or on the question whether, when an application to the court is made by a group of individuals, they must do so in their individual names or whether they may use a group name (like "Scottish Old People's Welfare Council"). I was referred to no instance, however, where a complaint to the European Court of Human Rights by an organisation, whether or not incorporated, has been held to be admissible except where its interests as such are said to be directly affected. As I shall discuss in due course, Article 8 of and Article 1 of the First Protocol to the Convention are said to be engaged because the Protection of Wild Mammals Act prohibits the activity of mounted foxhunting with dogs and controls the associated use of land and of dogs. It may be the case that all the members of each of the Fife Hunt and the Jedforest Hunt are directly affected by the legislation in that they will be prohibited from continuing an activity in which they have hitherto engaged. The European Court might admit applications by each of these groups under these names, provided it was satisfied of the necessary direct effect on all the members so that it could be said that the Hunts as such are affected: but I say this with hesitation, because the case law to which I was referred points in the opposite direction, and the recognised practice, where a fairly large number of people are said to be directly affected by the act complained of, is to admit an application by a number of individuals who may among them be regarded as typical of the rest. But if there are members of either of the Hunts who cannot claim to be directly affected, because they support hunting rather than engaging in the activity themselves, then the matter becomes a great deal more difficult. If, as is accepted, an unincorporated association is no more than the aggregate of its individual members, this would mean that the use of the association name would in effect bring in as petitioners persons who could not individually claim to be directly affected and thus to be victims. At the very least, it appears to me that amendment of the petition would be required in order to make it clear whether or not all the members of each Hunt are directly affected, so that they could be regarded as victims. At present I am not satisfied that it has been relevantly averred that these two Hunts have the necessary title and interest to bring these proceedings. On the face of it, however, their authorised office bearers have, as individuals, the necessary title and interest. Because there may be scope for amendment, I do not think it appropriate to reach a concluded view about the title and interest of these Hunts at this stage.

[74]     
A complicating factor in relation to the Hunts is the ownership of their packs of hounds. I raised during the course of the hearing the question whether Hunt property, such as hounds, is held by trustees. I do not recall having been given a clear answer to this, but I find that the rules of the MFHA provide by paragraph 32 that a pack of foxhounds which belongs to a country (the area over which a Hunt hunts) should be vested in the name of the trustees (of each recognised Hunt) by a deed. No deeds relating to the Fife Hunt and the Jedforest Hunt have been produced, but it appears from one provision of the Minute of Agreement relating to the employment of Mr Adams by the Committee of the Buccleuch Hunt that this Hunt's pack is held by trustees, and I think it likely that there are similar arrangements for the Fife Hunt and the Jedforest Hunt. Thought could no doubt be given to possible amendment in respect of this matter also.

[75]     
The Buccleuch Hunt Supporters Club appear to me to be in a different position. They are said to be engaged in supporting the activity of traditional mounted hunting. It is not said that any of their members engage in this activity themselves. It may be that some of them engage in hunting, at least in the sense of being hunt followers, but this is not averred. In any event, I do not believe that the European Court would admit a claim by an association some only of whose members could claim to be victims in the sense of being directly affected by the legislation.

[76]     
I was told little about the Countryside Alliance. Clearly their objects, which I have previously quoted, would make membership attractive to people who engage in a wide range of activities and not necessarily in mounted foxhunting with dogs. Perhaps more to the point for present purposes, I was told that the Countryside Alliance have a substantial number of members in Scotland. I was not told how many of these members themselves engage in foxhunting, and there is no averment about this. I understand that the Countryside Alliance have many members in England and Wales, perhaps the majority. I was given no idea how many of these have ever hunted in Scotland or would wish to do so in future. The Countryside Alliance give every appearance of being a pressure group, one of whose main objectives is to oppose the introduction of statutory controls over traditional countryside pursuits, perhaps most notably mounted foxhunting with dogs. To support such an activity is by no means the same as to engage in it. So far as I can tell from the pleadings and the information placed before me, the Countryside Alliance are no better placed in these proceedings than the National Gay Federation were before the European Court. Some of their members may be directly affected by the legislation, but only if all their members were directly affected would the Countryside Alliance even arguably have the necessary title and interest.

[77]     
Much the same considerations apply to the MFHA. As I understand it the ten Hunts in Scotland are recognised by the MFHA and their Masters are members of the MFHA. I was told that in the United Kingdom as a whole there are 362 recognised Hunts. While there may be a certain amount of cross-Border activity for various reasons, the vast majority of these Hunts do not hunt in Scotland. I was not told that any member of the MFHA who regularly hunts in England and Wales also hunts in Scotland: certainly there is no averment to this effect. Again, I am not satisfied that it is relevantly averred that the MFHA have the necessary title and interest. I have a distinct impression, as I did when dealing with the position of the Advocate General, that the Countryside Alliance and the MFHA are as much concerned about possible legislation in England and Wales as they are about the Protection of Wild Mammals Act; and nothing said by counsel for the petitioners served to dispel this impression.

[78]     
I have not overlooked the "way of life" argument for the petitioners, founded on Dr Marvin's report. I simply do not regard it as relevant for the purpose of establishing title and interest. The European case-law gives no hint of this approach to establishing that a person is a victim, and for this reason I have concentrated on the test of direct effect. The "way of life" argument adds nothing in answering the question whether a person who has previously participated in hunting is now prohibited from doing so by the Protection of Wild Mammals Act and is thus directly affected in the necessary sense by the legislation.

[79]     
As indicated above, in my opinion it is not relevantly averred that the Buccleuch Hunt Supporters Club, the Countryside Alliance or the MFHA have the necessary title and interest, and the averments relating to the Fife Hunt and the Jedforest Hunt are at best of doubtful relevancy. During the course of the hearing counsel for the Lord Advocate tendered a copy of the pleadings showing which passages in their submission should be excised if I were to allow a second hearing but were also to hold that some or all of the unincorporated associations have no title and interest to sue. After some discussion, it was agreed that if I were minded to follow this course, I would put the case out By Order so that I could hear further submissions about the pleadings. No doubt account would also be taken of some of my observations about possible amendments. The matter is not straightforward, because the interests of the unincorporated associations as a whole may be relevant to the considerations which arise from Article 8(2) of and the second paragraph of Article 1 of the First Protocol to the Convention.

[80]     
For present purposes, however, what I have had to say about the unincorporated associations does not affect what I have to decide about the petitioners' claims under the Convention, because it was not suggested to me that in this respect the claims of the associations add anything to the claims of the individual petitioners: indeed they could not, for the very reason, as counsel accepted, that an association is no more than the aggregate of its members. The claims of the individual petitioners embrace the whole range of the claims under the Convention. My views about the title and interest of the unincorporated associations therefore have no direct bearing on the next four sections of this opinion.

The discretionary area of judgment of the Scottish Parliament

[81] Before I consider the specific Articles of the Convention and the First Protocol upon which the petitioners allege that the Protection of Wild Mammals Act is outside the legislative competence of the Scottish Parliament as being incompatible with their Convention rights, I think it appropriate to discuss submissions about the approach that should be taken to the Parliament's exercise of its legislative power. The focus of these submissions was principally on considerations arising from the provisions of Article 8(2) of and the second paragraph of Article 1 of the First Protocol to the Convention.

[82]     
Counsel for the Lord Advocate submitted that the Parliament has a wide margin of appreciation, such that its judgment as a legislature should be respected unless it is manifestly without reasonable foundation. In support of this, they referred to a number of authorities. In Handyside v United Kingdom (1976) 1 EHRR 737 the European Court of Human Rights said at paragraph 48 that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines. It is not possible to find in the domestic law of the various Contracting States any uniform European conception of morals. The court then said:

"The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements...".

Counsel also referred to Wingrove v United Kingdom (1996) 24 EHRR 1, at paragraph 59. In Lithgow v United Kingdom (1986) 8 EHRR 329, which related to nationalisation of certain of the applicant's interests under United Kingdom legislation, the European Court of Human Rights said at paragraph 122:

"A decision to enact nationalisation legislation will commonly involve consideration of various issues on which opinions within a democratic society may reasonably differ widely. Because of their direct knowledge of their society and its needs and resources, the national authorities are in principle better placed that the international judge to appreciate what measures are appropriate in this area and consequently the margin of appreciation available to them should be a wide one.... Accordingly, the court's power of review in the present case is limited to ascertaining whether the decisions regarding compensation fell outside the United Kingdom's wide margin of appreciation; it will respect the legislature's judgment in this connection unless that judgment was manifestly without reasonable foundation."

[83]      Counsel next submitted that a similar approach applies in the domestic context. In R v Director of Public Prosecutions, Ex parte Kebilene [2000] 2 AC 326 Lord Hope, in a passage at pps.380-381, referred to the doctrine of the margin of appreciation before going on to say that in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. He then said:

"The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality. In this area different choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention."

He said that this was appropriately described as "the discretionary area of judgment". In Brown v Stott 2001 SC (PC) 43 Lord Bingham said at pps.58-59:

"Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to these bodies... The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law."

Reference was also made to the speech of Lord Hoffmann in R. (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2001] UK (HL) 23 at paragraphs 69-73.

[84]      Counsel submitted that the nature of the legislative judgments which the Parliament had to make in the present case included deciding whether mounted foxhunting with dogs was properly to be regarded as a sport and whether it could be described as cruel. The latter question, in particular, involved making a moral judgment, which by its nature was subjective. It was entirely open to the Parliament to conclude that it was morally wrong to cause a pack of animals to pursue and kill another animal, as an occasion for spectator sport. In any event, there was material before the Parliament to support such a view: reference was made to the passages from the Burns Report and the report of the Rural Development Committee which I have previously quoted. Counsel submitted that it is of the essence of all legislation that lines will be drawn between acceptable and unacceptable behaviour. The present case was particularly complex because of the range of different issues and judgments which had to be taken into account. The legislature had to make a series of judgments, no doubt all controversial, but in the end it was for it to exercise a judgment which was within the discretionary area available to it.

[85]     
On the question of what is "necessary in a democratic society" for the protection of morals, within the meaning of Article 8(2), or what is "necessary to control the use of property in accordance with the general interest", within the meaning of the second paragraph of Article 1 of the First Protocol, counsel referred to Smith and Grady v United Kingdom (1999) 29 EHRR 493, in which the European Court of Human Rights, at paragraph 88, said that a margin of appreciation is left often to Contracting States in the context of this assessment, which varies according to the nature of the activities restricted and of the aims pursued by the restrictions. At paragraph 87 the court said that the hallmarks of a democratic society include pluralism, tolerance and broad-mindedness. This, counsel submitted, allowed a variable standard of scrutiny which would take account of the extent to which the democratically-elected Parliament had legislated on the basis of a moral judgment.

[86]      In reply to these submissions, counsel for the petitioners accepted that the Parliament may make moral judgments, and that deference is due to it in that regard. It was also accepted that, in principle, the prevention of cruelty to animals is capable of amounting to a legitimate aim. But, counsel submitted, the present legislation is not directed at any legitimate aim because there is no good evidence that mounted hunting involves unnecessary suffering for the fox. It is not in dispute that fox numbers need to be controlled by some means and, given the adverse welfare implications of other forms of hunting, it is not possible for the legislation to be justified. Under reference to Smith and Grady v United Kingdom, counsel submitted there has to be proper justification for interference with a Convention right.

[87]     
Counsel went on to submit that it is manifest that the Protection of Wild Mammals Act is not rationally connected with the proportionate pursuit of any legitimate aim. Reference was made to the three-stage test for proportionality approved by the Privy Council in de Freitas v Ministry of Agriculture [1999] 1 AC 69 at p.80:

"whether: (i) the legislative object is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative object are rationally connected to it; (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

Applying this test, counsel submitted that the Protection of Wild Mammals Act is disproportionate in the absence of a rational connection with any legitimate aim.

[88]      Turning to the margin of appreciation, counsel submitted that Vogt v Germany (1995) 21 EHRR 205 gives a helpful description of what the margin of appreciation entails. At paragraph 52 the European Court of Human Rights said inter alia that its task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review the decisions they delivered pursuant to their power of appreciation. The court then said:

"This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and to determine whether it was 'proportionate to the legitimate aim pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient'."

In so doing, the court had to satisfy itself inter alia that the national authorities based their decisions on an acceptable assessment of the relevant facts.

[89]     
Counsel submitted that a more important question is the proper level of deference to be shown by the domestic court. There has to be a pressing social need for legislation of this kind to be regarded as falling within the margin of appreciation. Counsel referred to Brown v Stott per Lord Steyn at p.66, Alconbury per Lord Hoffmann at paragraphs 69 to 72 and Kebilene per Lord Hope at p.381. There are standards to be observed, and the court, as the guardian of human rights, is there to see that they are observed. This is not a question of substituting the court's own judgment, but of ensuring that there are proper reasons for interference with human rights. Counsel for the petitioners relied heavily on passages from the judgment of Laws L.J. in The Prolife Alliance v The British Broadcasting Corporation [2002] EWCA Civ 297, which related to censorship of a party election broadcast at the time of a General Election. In paragraph 32 he said:

"[T]he scope or width of the margin of appreciation which in any given case the European Court of Human rights will accord to the national authorities depends at least in part upon the court's judgment of the extent to which, giving full weight to municipal culture and practice, there may in principle be a range of different views and approaches relating to the matter in hand."

At paragraph 33 he said:

"The English court is not a Strasbourg surrogate. The very difference between the international margin of appreciation and the municipal margin of discretion illustrates the confusion that would arise if the court so regarded itself. Our duty is to develop, by the common law's incremental method, a coherent and principled domestic law of human rights."

At paragraph 36 he said that we "are long past the point when interference with fundamental rights by public authorities can be justified by a bare demonstration of rationality or reasonableness."

[90]      Finally, counsel for the petitioners relied on passages in the judgment of Simon Brown L.J. in International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158. At paragraph 54 he said that judges nowadays have no alternative but to apply the Human Rights Act. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts. At paragraphs 83-85 he derived four principles from the authorities: (1) greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure; (2) there is more scope for deference "where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified" (per Lord Hope in Kebilene); (3) greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less where it lies more particularly within the constitutional responsibility of the courts; and (4) greater or lesser deference will be due according to whether the subject-matter lies more readily within the actual or potential expertise of the democratic powers or the courts.

[91]      Counsel for the petitioners accepted that the State has a proper role in moral questions, but submitted that there is no proper justification for this here because the evidence is lacking to identify any pressing social need, there being no solid evidence that the practice of mounted foxhunting with dogs is cruel.

[92]     
Having considered the authorities to which reference was made, I find that what appears to me to be the most correct and helpful expression in considering the extent to which this court will defer to the Scottish Parliament, whose act is said to be incompatible with the Convention, is the "discretionary area of judgment" recognised by Lord Hope in Kebilene and Lord Bingham in Brown v Stott. I also find assistance in the principles derived from the authorities by Laws L.J. in International Transport Roth. Counsel for the petitioners recognised that in principle the prevention of cruelty to animals is capable of amounting to a legitimate aim of legislation. This may be regarded as having traditionally fallen within the constitutional responsibility of the legislature. There has for many years been legislation having as its aim, or one of its aims, the prevention of cruelty to animals, and such legislation makes provision inter alia for the species of animals that may be killed, the methods by which they may be hunted and otherwise treated, and so on. The enacting of such legislation necessarily involves the making of moral judgments. There is no doubt that there is considerable public controversy about questions such as whether mounted foxhunting with dogs should be prohibited; this is reflected in the whole history of the attempts, ultimately successful in Scotland, to introduce legislation having this effect. Issues of this kind are, in general, recognised as being more appropriate for decision by a democratically-elected representative legislature than by a court. I have already discussed the position of the Scottish Parliament as a legislature having power to pass Acts having the character of public general statutes. This, moreover, is an area in which the Parliament required to strike a balance between the aim of the legislation and the interests of those affected by it; the Convention rights relied upon by the petitioners require to be weighed against the public interest. To regulate the way in which animals may be hunted and killed appears to me to be far more within the constitutional responsibility of the Parliament as the elected legislature than within the constitutional responsibility of the courts. All of these considerations appear to me to point to its being appropriate for this court to defer to a greater rather than to a lesser extent to the Scottish Parliament in respect of legislation such as the Protection of Wild Mammals Act. Moreover, this is not an area where the subject-matter lies more readily within the actual or potential expertise of the courts: the making of a moral judgment is more suitable for a legislature than for a court, and the Scottish Parliament has procedures which enabled it to obtain such evidence as it thought appropriate in order to make the judgment. In that the Parliament took it upon itself to form judgments as to whether mounted foxhunting with dogs is a sport, whether it can be described as cruel, whether it can be distinguished from other methods of controlling fox numbers in terms of the efficiency, the relative suffering of the fox and so on, these all appear to me to fall within the discretionary area of judgment to which the court should defer. It follows that if and in so far as a balancing exercise requires to be carried out, the prohibition of mounted foxhunting with dogs is capable of being regarded as necessary in a democratic society for the protection of morals (Article 8(2)) and necessary in accordance with the general interest (the second paragraph of Article 1 of the First Protocol). I shall examine questions of proportionality in my discussion of each of these provisions.

Article 8 of the Convention
[93] The petitioners allege that their rights under Article 8 are engaged by the provisions of the Protection of Wild Mammals Act. The banning of mounted foxhunting constitutes an interference with their private lives and also with the homes of Mr Murray, Mr Holman-Baird and Mr Scott Plummer. The principal interests which are said to be in issue are: Mr Adams' participating in hunting and in hunt-related social activity; Mr Murray's use of his own land and hunting; Mr Holman-Baird's use of his own land, hunting and running a pack of foxhounds; Mr Scott Plummer's use of his own land, hunting and acting as joint Master and member of the Buccleuch Hunt; the hunting of the Fife Hunt and the Jedforest Hunt, both of which are likely to cease to exist as a result of the Act; the social and other hunting-related occasions of the Buccleuch Hunt Supporters Club, which is also likely to cease to exist; the Countryside Alliance on behalf of its members (who include the first to sixth petitioners); and the MFHA on behalf of its members, Mr Adams among them. The petitioners rely on averments which I have already quoted at paragraphs [35] to [37] and on Dr Marvin's report, from which I have also quoted at paragraphs [38] to [40].

[94]     
Counsel for the Lord Advocate submitted that the enactment of the Protection of Wild Mammals Act does not involve any lack of respect for private and family life or for the home of any of the petitioners, so as to engage Article 8. He addressed first the position of the four individual petitioners. He submitted that the effect on them is that they are no longer free to choose to engage in foxhunting with dogs in Scotland as they have hitherto done. It is necessary to be careful as to what the Act prohibits and what it does not. It does not prevent any of these petitioners from enjoying a social life or from associating together for sporting or social purposes or for any other lawful purpose. They will remain free to ride across country, together or singly, to keep and to breed dogs and to use them for lawful sporting purposes, and to kill animals, provided that they do so within the limits fixed by the law. What the Act does prohibit is an activity which Parliament has characterised as one involving unnecessary cruelty and one which is moreover an occasion for sport. So the only limitation on the freedom of these four petitioners to live as they wish is that they will be prevented from doing something which Parliament has characterised as cruel.

[95]     
Counsel went on to submit that, on the petitioners' own averments, foxhunting with dogs is a very public activity. It is open to all comers. Those of the petitioners who own land allow all participants in the activity onto their land. It is an inherently public activity, exercised in public, open to the public and watched by the public.

[96]     
Counsel next referred to a number of decisions on private life. In Chassagnou v France (1999) 29 EHRR 615, which related to the French law under which members of approved municipal hunters' associations had the right to hunt on private land, the European Court of Human Rights said, in paragraph 65, that even supposing that French law enshrines a "right" or "freedom to hunt" such a right or freedom is not one of those set forth in the Convention. Other authorities, counsel submitted, while containing no clear statement about the boundary between private life and public life, give some guidance. For example, in Pretty v United Kingdom, application number 2346/02, judgment of 29 April 2002, the court summarised the position as follows, under reference to previous decisions. The concept of "private life" is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometime embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. The Article also protects a right to personal development, and the right to establish and to develop relationships with other human beings and the outside world. Although no previous case had established as such any right to self-determination as being contained in Article 8, the court considered that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees. The court said, in paragraph 62, that the ability to conduct one's life in a manner of one's own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned. At paragraph 67 the court said that the applicant was prevented by law from exercising her choice to commit suicide with the assistance of her husband (it being a crime in England and Wales to assist another to commit suicide), to avoid what she considered would be an undignified and distressing end to her life. The court was not prepared to exclude that this constituted an interference with her right to respect for private life. In Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39, which related to sadomasochistic encounters involving the applicants and a number of other homosexual men, the United Kingdom conceded that the prosecution and conviction of the applicants amounted to interferences with their private life. The court, while seeing no reason to examine this issue of its own motion, nevertheless said at paragraph 36 that, although there could be no doubt that sexual orientation and activity concerned an intimate aspect of private life, a considerable number of people were involved in the activities in question which included, inter alia, the recruitment of new "members", the provision of several specially-equipped "chambers", and the shooting of many video-tapes which were distributed among the "members". The court said it might thus be open to question whether the sexual activities of the applicants fell entirely within the notion of "private life" in the particular circumstances of the case. In Niemietz v Germany (1992) 16 EHRR 97, which related to a search of a lawyer's office, the court held that this constituted an interference with his rights under Article 8. At paragraph 29 the court said:

"The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of 'private life'. However, it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings."

The court went on to say that there was no reason of principle why this understanding of the notion of "private life" should be taken to exclude activities of a professional or business nature. In X v Iceland (1976) 5 DR 86, which related to the prohibition on the keeping of dogs in Reykjavik, the Commission (in declaring the application inadmissible) said that the keeping of a dog did not fall within the sphere of private life of the owner. They said that "private life" does not end with privacy. It comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one's own personality. The Commission could not, however, accept that the protection afforded by Article 8 extended to relationships of the individual with his entire immediate surroundings, insofar as they do not involve human relationships and notwithstanding the desire of the individual to keep such relationship within the private sphere. In Brüggemann and Scheuten v Federal Republic of Germany (1983) 3 EHRR 244 the Commission held that not every restriction on the termination of an unwanted pregnancy constituted an interference with the right to respect for the private life of the mother. At paragraph 55 the Commission said that the right to respect for private life is of such a scope as to secure the individual a sphere within which he can freely pursue the development and fulfilment of his personality, but then in paragraph 56 it said:

"However, there are limits to the personal sphere. While a large proportion of the law existing in a given State has some immediate or remote effect on the individual's possibility of developing his personality by doing what he wants to do, not all of these can be considered to constitute an interference with private life in the sense of Article 8 of the Convention. In fact, as the earlier jurisprudence of the Commission has already shown, the claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests."

In Friedl v Austria (1995) 21 EHRR 83, which arose from the police having photographed the applicant and noted his identity and particulars whilst he was involved in a demonstration, the Commission found that this did not amount to an interference with his right to respect for his private life within the meaning of Article 8. At paragraph 49, it said that there was no intrusion into the "inner circle" of his private life in the sense that the authorities entered his home and took photographs there, and that the photographs related to a public incident, namely a manifestation of several persons in a public place, in which the applicant was voluntarily taking part, and were taken solely for the purpose of recording the character of the manifestation and the conduct of the participants in it.

[97]      Counsel submitted that for present purposes the starting point is the Scottish Parliament's characterisation of the activity as being cruel. If it is cruel, it is not a recognised part of the sphere of personal development (see Laskey). In any event, in their evidence to the Burns Committee the MFHA described hunting as a "public sport". (Counsel could also have referred to paragraph 5 of the MFHA Rules, which states: "Foxhunting as a sport is the Hunting of the fox in his wild and natural state with a pack of Hounds.") If hunting is a public sport, counsel submitted, Article 8 cannot be engaged. Counsel pointed to a statement in the submission by the Borders Foundation for Rural Sustainability to the Rural Development Committee in which it was stated that foxhunting takes place on 62-65% of the Region's area. It is an outdoor pursuit, which Dr Marvin describes as a "spectacle". It is carried out in the presence of spectators and indeed for the pleasure of spectators. It is not confined to private land, and in any event is openly visible to people on public roads. None of this, counsel submitted, points to its being an activity which can properly be regarded as private. On the question of the alleged interference with the first four petitioners' right to respect for their homes, counsel submitted that land of the extent owned by Mr Murray, Mr Holman-Baird and Mr Scott Plummer could not be regarded as their homes. While his tied house could properly be regarded as Mr Adams' home, the fact that the legislation might result in his losing it would not be a direct consequence of the legislation, and would arise from a decision taken by other persons consequentially upon his ceasing to be a self-employed manager of foxhounds for the Buccleuch Hunt.

[98]     
In reply to these submissions, counsel for the petitioners submitted that private life is not confined to an inner circle but extends to the outside world. This could be taken from Niemietz v Germany, supra. In Botta v Italy (1998) 26 EHRR 241, in which the physically disabled applicant complained that the lack of disabled facilities at a seaside resort to which he went on holiday constituted an interference with his rights under Article 8, the European Court of Human Rights said, at paragraph 32, that private life includes a person's physical and psychological integrity; the guarantee afforded by Article 8 is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. At paragraph 35, however, the court held that the right asserted by the applicant, namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerned interpersonal relations of such broad and indeterminate scope that there could be no conceivable direct link between the measures the State was urged to take, in order to make good the omissions of the private bathing establishments, and the applicant's private life.

[99]      Counsel said that the reasoning which led to the conclusion in Botta's case could be distinguished, because of the significance of hunting to the lives of the petitioners. Hunting has a quality which is central to their private lives, and in that respect differs from occasional attendance at events. Counsel referred to various passages in Dr Marvin's report about the extent of participation in foxhunting, which is central to the entire social life of the participants. It is not merely a diversion but something that connects its participants closely with one another, with rural society and affairs, and with the countryside. It is a core part of their lives. In rural communities with relatively limited opportunities for recreation it plays an important part in bringing people from quite disparate backgrounds together. In this way it contributes to fostering and maintaining a sense of community, both at Hunt meets themselves and at hunt-related social activities. The Protection of Wild Mammals Act therefore infringes the petitioners' rights in a manner that goes to the heart of their relations with others. Counsel further submitted that hunting does not involve intrusion on the rights of others. It is carried out on private land, always with the consent of landowners. The case of Laskey is distinguishable because sexual activity is not normally carried on in the presence of others, and it could be said that the right to privacy had been waived in that case. All persons who follow a hunt are participants engaging in a private activity. The social aspect of hunting, they submitted, is an ideal context for the development of relationships. It is wrong to concentrate on the recreational aspect of hunting; it is an efficient way of disposing of foxes as pests. While counsel accepted that there are more efficient ways of killing foxes, they said that this does not make mounted foxhunting with dogs simply a sport. Under reference to the cases of Brüggemann and Scheuten v Germany and Friedl v Austria, counsel submitted that hunting is an aspect of private life, different from the activities discussed in those cases. Here, he submitted, there is no element of public life, so that those two cases are distinguishable on their facts.

[100]     
Counsel went on to submit that the private lives of Mr Murray, Mr Holman-Baird and Mr Scott Plummer will be interfered with by the legislation which will prevent them from making use of their land, which is the home of each of them, as they had hitherto been able to do. Counsel referred to Mabey v United Kingdom (1996) 22 EHRR CD123, which related to a caravan which the applicant had stationed on a piece of land owned by him. At page CD124 the Commission recalled that "whether or not a particular habitation constitutes a 'home' for the purposes of Article 8(1) will depend on the factual circumstances of the particular case, namely, the existence of sufficient and continuous links." In Niemietz v Germany at paragraph 30 the court accepted that "home" could extend to business premises. It said:

"A narrow interpretation of the words 'home' and 'domicile' [the word in the French text] could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of 'private life'."

[101]     
I should mention that in the course of their submissions counsel addressed me on the question of the title and interest of the unincorporated associations to complain of infringement of rights under Article 8. I have taken account of these submissions elsewhere, particularly in paragraphs [73] - [77].

[102]     
In my opinion, on the facts of the present case as averred by the petitioners and as discussed in Dr Marvin's report, Article 8 is not engaged, because mounted foxhunting with dogs is not an activity which falls within the concept of private life as explained in the European jurisprudence. While Mr Adams's tied house is clearly his home, the prohibition on mounted foxhunting with dogs will have, at most, a consequential rather than a direct effect on it, if his employers decide to terminate his employment, and the tied house that goes with it. I do not regard this as interference with his house within the meaning of Article 8. I do not regard the land owned by Mr Murray, Mr Holman-Baird and Mr Scott Plummer as being the "home" of any of them within the meaning of the Article. To deal with the second point first, it is clear from the averments which I quote in paragraph [106] about the extent of the land owned by each of them that each owns a large estate with ample space for a variety of open-air activities to be carried on, well away from their houses. No doubt the concept of "home" is a flexible one, depending on the circumstances of the case, but the principal connotation is of a person's dwellinghouse or habitation and its immediate surroundings. It is only in an extended sense, which I do not believe is the sense used in the European jurisprudence, that it can apply to a large estate.

[103]     
Foxhunting appears to me to have no characteristic that would bring it within the concept of private life. It is carried on in the open air. It involves a fairly large number of participants. It is open to all comers and is thus inclusive rather than exclusive. It may be carried on, principally at least, on private land rather than on public roads, but it is private land to which all who wish to participate are admitted for the occasion. It constitutes a spectacle for them as well as for those who use the public roads to follow the hunt. It is, I believe, because of these features that counsel for the petitioners thought it necessary to place so much emphasis on Dr Marvin's discussion of the social aspects of foxhunting. These very aspects appear to me to emphasise the public rather than the private nature of the activity, because its social consequences are so diffuse. As it was put in Botta v Italy, foxhunting gives rise to interpersonal relations of such broad and indeterminate scope that it cannot be described as the private life of its participants. It goes well beyond the "certain degree" contemplated in Niemietz v Germany, and cannot be regarded as falling with the "personal sphere" recognised by the European Court of Human Rights.

[104]     
If I had had to go on to consider the application of Article 8(2), I would have taken account of the considerations which I have already mentioned in my discussion of the area of discretionary judgment of the Scottish Parliament: see paragraph [92]. I would also have taken account, in considering the question of proportionality, of the fact that the legislation goes no further than to prohibit the method of hunting and killing foxes which the Parliament has decided to characterise as cruel and less efficient than other methods, while providing exceptions for those other methods.

Article 1 of the First Protocol

[105]     
The petitioners aver that the Protection of Wild Mammals Act interferes with the rights of Mr Adams, Mr Murray, Mr Holman-Baird, Mr Scott Plummer, the Fife Hunt and the Jedforest Hunt under this Article. In particular, they aver, the effect of the Act is that Mr Adams will lose his livelihood. He and his wife will lose their farmhouse, which is tied to his present occupation. He will have to wind up his business and sell off his thirteen horses, as well as vehicles, horse-boxes, and equipment associated with keeping horses. The market value of the horses will be reduced by the fact that, owing to the provisions of the Act, there will be a surplus supply of horses on the market. The current total market value of his horses is in the region of 33,000 to 35,000. He is obliged by his contract with the Buccleuch Hunt Committee to return four horses to the Committee at the conclusion of his contract. Of his thirteen horses, six are under the age of 12 and can be re-homed at approximately half their current value. The remaining seven horses are unsuitable for estate work and would have a meat value of approximately 350 per horse. Mr Adams currently owns a Jeep, a lorry for transporting horses and hounds, and two horse boxes, worth about 18,000 in total. These vehicles will require to be sold at a loss. Mr Adams's income under his contract is approximately 15,600 per annum. It is unlikely that the Buccleuch Hunt will be able to retain him beyond 2002-2003 unless the coming into force of the Act is suspended during the subsistence of these proceedings or the Act is held to be ultra vires before then.

[106]     
The petitioners further aver that Mr Murray owns approximately 1,500 breeding ewes which produce some 2,600 lambs annually. The suppression of hunting will result in increased numbers of foxes on his land and consequent loss of stock. A large part of his land is made up of open areas unsuited to fox control by means of a gun pack. It will be necessary to fund an employee to control the fox population. It is further likely that he will lose rental income of 5,000 per annum in respect of a livery stable on his land. This stable is heavily dependent on business generated by hunting. Mr Holman-Baird is the owner of 6,000 acres in Kincardineshire. He owns a pack of forty two foxhounds. They are used for both traditional mounted hunting and "gun days" when foxes are flushed to guns. Gun days are effectively subsidised by income derived from those participating in traditional mounted hunting. He will have to sell two horses which cost approximately 2,500 each, and associated equipment. It is likely that hounds which are kept for hunting (for example by Mr Holman-Baird, the Fife Hunt and the Jedforest Hunt) will need to be put down, since they are bred specifically for hunting and are unsuited to being kept as pets. Mr Scott Plummer owns approximately 940 acres in the Borders. His lands include woodland areas known to be used by foxes as cover. He regularly hunts with the Buccleuch Hunt. That Hunt sometimes begins on his land. Four other Border Hunts sometimes cross his land, with his permission. Mounted hunting is the only form of control of foxes which he allows on his land. He has found it effective in dispersing the fox population. He has reservations about gun packs, which are not selective and do not have the same effect in dispersing foxes. He would not permit shooting of foxes on his land unless hounds were present to dispatch immediately animals that were wounded. Mr Scott Plummer owns a number of horses and associated equipment for the purposes of hunting. Some of these horses and this equipment will be redundant and of little or no value as a consequence of the Act. The same is true of the kennels, hounds, horses, vehicles and other equipment for hunting owned by the Fife Hunt and the Jedforest Hunt. This property will have to be sold off, if any market for it is available. Some horses and many hounds will need to be put down. Foxhounds are unsuitable as domestic pets. Considerable expense is involved in keeping them. They have been bred for hunting foxes. Their bloodlines and pedigrees will be lost. The Act, the petitioners aver, will also have detrimental effects on the various local economies and those whose interests the Countryside Alliance and the MFHA represent. The Fife Hunt and Jedforest Hunt expend much of their income on maintaining their premises, on wages, and on paying feed merchants, veterinary surgeons, farriers, and suppliers of tack and related equipment. All of these people will sustain losses as a result of the Act, and their rights will be curtailed and devalued substantially. Furthermore, landowners such as Mr Murray, Mr Holman-Baird and Mr Scott Plummer will be unable to use (personally or by way of lease or licence) their own land for hunting. The value to them of that land, and their capacity for enjoyment of it, will be correspondingly reduced.

[107]     
The petitioners accordingly aver that these interferences with property rights and with the substance of property rights can be justified only to the extent that they are a proportionate means of pursuing a legitimate aim. The petitioners submit that the means are not proportionate and the aim pursued is not legitimate. In particular the Protection of Wild Mammals Act contains no provision for compensation in respect of any of the losses which the petitioners (and others similarly affected) will sustain. The case law of the European Court of Human Rights requires in general terms that interference with, or control over the substance of, property rights should be compensated to a degree reasonably related to the value of the rights subjected to interference or control. The petitioners accept that the Scottish Parliament is entitled to take the public interest into account in this context. In the present instance, however, no legitimate objective is pursued by the Act, and a substantial and disproportionate burden is imposed on the above-mentioned petitioners. Accordingly, the interferences with the right to property which the Act imposes cannot be justified under Article 1 of the First Protocol to the Convention. The petitioners also aver that the Act will come into force on 1 August 2002. It contains no transitional measures adequate to minimise loss or harm to the petitioners and other interested parties. To introduce a ban on hunting with dogs at short notice imposes an unreasonable, unfair and unnecessary burden on the persons affected. It leaves wholly inadequate time for the petitioners and other interested parties to attempt to mitigate losses which they will sustain as a result of the Act. The Act is therefore outside legislative competence as being incompatible with the petitioners' Convention rights.

[108]     
In the event, only some of these averments were discussed in the course of the debate. It was accepted by counsel for the Lord Advocate that Article 1 of the First Protocol is engaged in so far as the Protection of Wild Mammals Act affects the use which Mr Murray, Mr Holman-Baird and Mr Scott Plummer may make of the land which they own, and the use which Mr Holman-Baird, the Fife Hunt and the Jedforest Hunt may make of the hounds which they own (but see my comments about ownership of the hounds at paragraph [74]). The question as regards the land and the hounds is whether it is necessary to control their use in accordance with the general interest, in terms of the second paragraph of the Article. The issue in relation to Mr Adams is whether the Article is engaged at all in respect of his livelihood as a self-employed huntsman and the tied house, both of which it is averred that he will lose as a result of the Protection of Wild Mammals Act. Counsel for the petitioners expressly said that horses and equipment are plainly not so directly affected by the Act, and in the course of the hearing no mention was made of any of the other losses, or effects on economic interests, which it is averred will flow from the legislation. I shall discuss only those issues which were debated before me.

[109]     
Counsel for the Lord Advocate opened their submissions by referring to Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35. This case related to two areas of real property in an area of a city where redevelopment was planned. Both properties were subject to expropriation permits issued by the Government and to a prohibition on construction. The properties were never in fact expropriated, and after periods of many years the permits were cancelled and the prohibition notices lapsed. The applicants were not compensated for their loss during these periods. The European Court of Human Rights held that there had been an interference with the applicants' right of property and that the consequences of that interference were undoubtedly rendered more serious by the combined use, over a long period of time, of expropriation permits and prohibitions on construction. At paragraph 61 the court said:

"It remains to be ascertained whether or not the interference found by the Court violated Article 1.

That Article comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph.

The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable."

In the circumstances of that case the court held that there had been a violation of the Article.

[110]     
Counsel submitted that the first issue is the characterisation of the legislation. They referred to paragraph 69 of the Court's judgment in Sporrong, where it was said that for the purposes of the first sentence of the first paragraph of the Article, the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance, it said, was inherent in the whole of the Convention and was also reflected in the structure of Article 1. Counsel also referred to R. (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, in which Lord Hoffmann said in paragraph 71:

"All democratic societies recognise that while there are certain basic rights which attach to the ownership of property, they are heavily qualified by considerations of the public interest."

After setting out the terms of Article 1 of the First Protocol, he went on in paragraph 72 to say:

"Thus, under the first paragraph, property may be taken by the state, on payment of compensation, if the public interest so requires. And, under the second paragraph, the use of property may be restricted without compensation on similar grounds. Importantly, the question of what the public interest requires for the purpose of Article 1 of the First Protocol can, and in my opinion should, be determined according to the democratic principle - by elected local or central bodies or by ministers accountable to them. There is no principle of human rights which requires such decisions to be made by independent and impartial tribunals."

Counsel submitted that if the effect of legislation is deprivation of property, in all but exceptional cases compensation is expected to be paid. But if the effect is control of use of property, there is no general requirement to pay compensation, and indeed compensation is not required. The presence or absence of compensation may, however, help in deciding whether the correct balance has been struck.

[111]      Taking the first issue as being characterisation of the legislation, counsel submitted that the starting point is that the Protection of Wild Mammals Act regulates conduct. So far as property is concerned, it prevents people who own dogs from using them in a manner contrary to section 1(1), not falling within any of the exceptions in subsequent sections. It does not prevent an owner from keeping a dog or enjoying any of the other incidents of ownership. It prevents landowners from doing acts which contravene that sub-section or permitting others to do so, contrary to sub-section (2). To that extent the rights of landowners are restricted. Legislation having this effect, counsel submitted, falls to be characterised as control of the use of property.

[112]     
Counsel referred to two cases in this regard. The first was Pinnacle Meat Processors Co v United Kingdom (1998) 27 EHRR CD 217. The applicants' business involved buying cattle heads from abattoirs and then processing head meat. This became illegal as a result of regulations introduced following the spread of BSE among cattle, and all the applicants' cattle head deboning work ceased immediately. Compensation was paid only for the value of unsaleable stocks held on a date shortly after the regulations came into effect. The United Kingdom Government said that it was under no obligation to pay compensation for any loss of opportunity of carrying on a business which might arise from Parliament's properly considered legislative decisions. The applicants did not deny that the Government pursued a legitimate objective in enacting the regulations but contended, inter alia, that in the absence of compensation or other aid for the loss of their livelihood, the regulations placed an excessive burden on them, which amounted to a violation of Article 1 of the First Protocol. In holding the application to be inadmissible, the Commission held that the regulations were directed at controlling the use of specified bovine material, and the loss of business suffered by the applicants must be seen as resulting from the restrictions on the use of specified bovine material, rather than as any form of de facto expropriation. The interference with the applicants' possessions was thus a "control of use" rather than a "deprivation of possessions" (page CD 223). The Commission went on to say that there must be a reasonable relationship of proportionality between the means employed and the aim pursued. It described the aim pursued by the regulations as a "major aim". It discussed the fact that, while the applicants would lose the goodwill of their business, and some specialised plant and tools had no other use, some of the assets, such as premises and motor vehicles, had a value largely independent of the nature of the business. In the circumstances, the Commission did not accept that, overall, the applicants could be said to have suffered an excessive burden.

[113]     
The second case referred to by counsel was Fredin v Sweden (1989) 13 EHRR 784. The application related to the revocation of a licence to exploit a gravel pit on part of land owned by the applicants. The applicants alleged inter alia that the revocation constituted a violation of Article 1 of the First Protocol. In rejecting this, the European Court of Human Rights, at paragraphs 39-56, held that it was necessary to consider the gravel pit in relation to the rest of the applicants' property. Viewing the question from this perspective, the court did not find it established that the revocation took away all meaningful use of the property in question, with consequences so serious as to amount to a de facto deprivation of property. The revocation must be considered as a control of use of property falling within the scope of the second paragraph of Article 1. The court also held that, balancing the aim of the revocation, which was the protection of nature, against the effects on the applicants, and taking account of the margin of appreciation, a fair balance had been achieved between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. There was accordingly no breach of the Article.

[114]     
Counsel submitted, in light of these cases, that legislation may have an impact on people in a variety of ways, and it should not be assumed too readily that legislation which regulates conduct has the effect of de facto expropriation of property. So far as the use of dogs is concerned, the Protection of Wild Mammals Act contains no prohibition on the keeping of dogs or any of the incidents of the ownership of dogs, except that they may not be used for purposes prohibited by section 1. They may continue to be used for a variety of sporting purposes consistently with the Act. It is implicit in the petitioners' pleadings that there is an alternative use for some of them. If the dogs are put down, that is by choice of their owners. The Act does not require that to be done. Since the legislation only involves control of the use of dogs, it does not deprive any of the petitioners who own dogs of their property.

[115]     
So far as the control of use of land is concerned, counsel referred to Baner v Sweden (1989) 60 D.R. 128, a decision of the Commission on admissibility. The Commission held inter alia that the restrictions created by a new Swedish law allowing everyone the right to fish with hand-held tackle in private waters constituted a control of the use of property. The Commission examined whether the interference was lawful, in the general interest and proportionate to the aim. In holding that there had been no violation of Article 1 of the First Protocol, the Commission said that in determining the demands of the general interest, the Contracting States enjoy a margin of appreciation. In paragraph 5 the Commission said:

"It is clear that the applicant has not been formally deprived of his property. He still retains the title to it. The applicant has also not been deprived of his right to fish... What he has lost is his right to exclude others from fishing..."

The Commission went on to say that legislation of a general character affecting and redefining the rights of property owners cannot normally be assimilated to expropriation even if some aspect of the property right is thereby interfered with or even taken away. Consequently, the applicant was not deprived of his possession and the second sentence of the first paragraph of Article 1 did not apply. The restrictions on his property must be examined under the "control of use" rule in the second paragraph of the Article. Under reference to the French text, which speaks of "réglementer l'usage des biens", the Commission said that this provision must be understood to permit the enforcement of laws which are deemed necessary to regulate (its emphasis) the use of property. The Commission then said that the justification of the interference must be examined to establish whether it was "lawful", whether it pursued a "general interest", and whether it was proportionate and therefore could be "deemed necessary". It held that the condition was lawful and that, allowing a wide margin of appreciation to the national legislature, there was a strong public interest to provide for an increased opportunity of leisure activities for the public. As regards proportionality, the Commission considered in particular the absence of any compensation. In paragraph 6 it said:

"The legislation regulating the use of property sets the framework in which the property may be used and does not, as a rule, contain any right to compensation. This general distinction between expropriation and regulation of use is known in many, if not all, Convention countries.

This does not exclude that the law may provide for compensation in cases where a regulation of use may have severe economic consequences to the detriment of the property owner. The Commission is not required to establish in the abstract under which circumstances Article 1 may require that compensation be paid in such cases. When assessing the proportionality of the regulation in question it will be of relevance whether compensation is available and to what extent a concrete economic loss was caused by the legislation."

While there was compensation for those who had derived income from fishing on their land before the new law was introduced, this did not apply to the applicant. The Commission agreed that the introduction of free fishing (which was confined to the use of hand-held tackle) was a comparatively minor interference. Given the State's wide margin of appreciation in this domain the Commission considered that the interference with the applicant's property right could not be held to be disproportionate. Consequently, the Swedish State was entitled to deem necessary the enforcement of the new law with the effects it had on the applicant's property right.

[116]     
Counsel next referred to Chassagnou v France (1999) 29 EHRR 615. This case related to a French law which set up approved municipal hunters' associations, who were allowed to hunt freely through land owned by owners of all but properties of greater area. The applicants owned properties which were smaller in area than the statutory exemption threshold, so they were unable to have them excluded from the hunting grounds, and were obliged to make their land available to the local associations, although they were opposed to hunting on moral grounds. In the passage of their judgment dealing with the applicability of Article 1 of the First Protocol, the European Court of Human Rights said:

"74 The court notes that, although the applicants have not been deprived of their right to use their property, to lease it or to sell it, the compulsory transfer of the hunting rights over their land to an [association] prevents them from making use of the right to hunt, which is directly linked to the right of property, as they see fit. In the present case the applicants do not wish to hunt on their land and object to the fact that others may come onto their land to hunt. However, although opposed to hunting on ethical grounds, they are obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants' enjoyment of their rights as the owners of property. Accordingly, the second paragraph of Article 1 is applicable in the case.

75 It is well-established case-law that the second paragraph of Article 1 of Protocol No.1 must be construed in the light of the principle laid down in the first sentence of the Article. Consequently, an interference must achieve a 'fair balance' between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question...."

The court referred to Fredin v Sweden, supra. The court concluded, in the circumstances of the case, that although originally enacted to protect the general interest, the rules in issue, by imposing a disproportionate burden on small landowners, even where this was incompatible with their beliefs, had broken the balance to be maintained between the need to protect the right of property and consideration of the general interest.

[117]      While recognising that, where the effect of legislation is to control the use of property, it must pursue a legitimate aim and strike a fair balance, counsel submitted that in the present case the control of use of property was within the area of discretionary judgement. In support of this he relied on the decision of the European Court of Human Rights in James v United Kingdom (1986) 8 EHRR 123. This case related to the right of occupying tenants of dwellinghouses subject to long leases in England and Wales to acquire the property on certain conditions. In the passage of its judgment dealing with Article 1 of the First Protocol, the court said at paragraph 46, under the heading "Margin of Appreciation":

"Because of their direct knowledge of their society and its needs the national authorities are in principle better placed than the international judge to appreciate what is 'in the public interest'. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken.... Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.

Furthermore, the notion of 'public interest' is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgement as to what is 'in the public interest' unless that judgement be manifestly without reasonable foundation....".

Counsel submitted that this recognises that one of the functions of a democratic legislature is to deal with the issues on which there is controversy: in the case of James it was a matter of social justice, in the present case it is the moral concern to prevent cruelty to animals. The court would not find the legislative judgment to be outwith the margin of appreciation unless it was manifestly without reasonable foundation. In the present case the legislative aim cannot be said to be manifestly without reasonable foundation, particularly having regard to the subject matter.

[118]      Counsel submitted that the only real question, in deciding whether a fair balance has been struck, is the absence of compensation. On this, counsel had three points to make. First, what is prohibited is conduct which the legislature has characterised as involving cruelty to animals and which is used as an occasion of sport. This, they submitted, has a significant bearing on the present question. It could not seriously be suggested that, for example, any owner of a self-locking snare, the use of which is prohibited by section 11 of the Wildlife and Countryside Act 1981, or badger tongs, the use of which is prohibited by section 2 of the Protection of Badgers Act 1992, should be compensated. Secondly, there is already extensive regulation of the circumstances in which and the ways in which people can do things to wild animals. This is already a heavily regulated sector of activity, particularly in the case of landowners. Thirdly, there is a long-standing controversy as to whether or not mounted foxhunting with dogs should continue to be permitted. The petitioners have for some time been engaged in an activity which they must have known has been the subject of deep controversy. There have been legislative initiatives since before 1986. So, to that extent, the activity is precarious.

[119]     
Counsel referred to the admissibility decision of the European Court of Human Rights in applications No. 37679/97 and 37682/97, Slough and King v United Kingdom, 26 September 2000, which arose from the amendment to the firearms legislation following the Dunblane massacre. The decision related to the facts in the first application only. The applicants in this application manufactured and traded in handguns. They also ran a pistol shooting club and owned a shooting range which was suitable only for handgun shooting. The consequences of the legislation were that the applicants were unable to derive handgun-related income from their businesses, with a consequent depreciation in the value of goodwill and assets, which included machinery specifically designed for the manufacture of handguns. Compensation was only available to people who owned firearms, the possession of which had been rendered unlawful. There was no scheme for compensation to

cover loss of goodwill or other losses sustained by businesses connected with the firearms industry. The court, at p.9, could not find that in deciding to restrict compensation in this way the United Kingdom upset the fair balance between the demands of the general interest of the community and the requirements of the protection of the applicants' property rights by imposing on the applicants an individual and excessive burden. At pps.7-8, the court gave its reasons for this decision. It recalled the case-law that goodwill may be an element in the valuation of a professional practice, but said that future income itself is only a "possession" once it has been earned, or an enforceable claim to it exists. It said that the same must apply in the case of a business engaged in commerce. It considered that the applicants were complaining in substance of a loss of future income, in addition to the loss of goodwill and a diminution in value of their assets, and that element fell outside the scope of Article 1 of the First Protocol. It went on to note that there had been no formal expropriation of any assets of the applicants, whether in favour of the Government or in favour of a third party. The interference with the applicants' possessions in the present case was more akin to that in the case of Pinnacle Meat Processors Co v United Kingdom (supra). To the extent that any loss of business suffered by the applicants resulted from the prohibition on handguns, this interference with their possessions amounted to a "control of use" rather than a de facto "deprivation of possessions". The court then referred to the requirement that there be a reasonable relationship of proportionality between the means employed and the aim pursued. In so far as the legislation might have had an appreciable adverse impact on the goodwill of the applicants' businesses, the court observed that the applicants had at all times had to operate within a framework of legislative control which had become progressively more restrictive. In these circumstances, the court shared the view of the Government that the applicants had no legitimate expectation that the use of particular types of firearms, including handguns, would continue to be lawful. The court also referred to the wide margin of appreciation enjoyed by the national authorities in determining not only the necessity of the measure of control concerned but also the types of loss resulting from the measure for which compensation will be made; the legislature's judgement in this connection will, it said, in principle be respected unless it is manifestly arbitrary or unreasonable.

[120]     
Against this background, counsel submitted that Mr Adams has no possession within the meaning of Article 1. As was held in Slough and King v United Kingdom, an expectation of future income is not a possession. There is no averment that Mr Adams has goodwill which could in effect be regarded as an asset. To say that he will lose his livelihood does not disclose anything beyond the loss of a future income stream. Counsel adopted their submissions in relation to Article 8 in respect of Mr Adams's house. Counsel then went on to discuss the averments relating to the other petitioners, but, as I have said, in due course counsel for the petitioners addressed me only on the effects of the legislation on land and dogs, so I see no need to set out their submissions about the individual petitioners in any more detail.

[121]     
Counsel concluded by submitting that in all the circumstances, the averments for the petitioners do not disclose that the State has exceeded its margin of appreciation in deciding on the balance to be struck between the general interest in the prevention of cruelty to animals and the particular interests of the petitioners. The effects on the petitioners are no more than the inevitable consequences of what the Scottish Parliament has decided. It could not be said that it has exceeded its margin of appreciation, any more than was the case in Pinnacle Meat Processors Co v United Kingdom or Slough and King v United Kingdom.

[122]     
In reply to these submissions, the first main submission by counsel for the petitioners was that the effect of the Protection of Wild Mammals Act is that there is de facto deprivation of the hounds owned by Mr Holman-Baird, the Fife Hunt and the Jedforest Hunt. The leading case for this concept is Sporrong and Lönnroth v Sweden, in which it was recognised at paragraph 63. In the present case, the ownership of hounds carries with it rights which should be practical and effective. If mounted hunting is banned, it takes away all meaningful use of hounds, which will have to be destroyed because there is simply no use for them. Counsel accepted that this would be partly an economic decision, because the expense of feeding the hounds would not be justified in the absence of any practical use for them. If the legislation does not result in de facto expropriation of the hounds, counsel submitted it is in any event a control on their use.

[123]     
Before discussing the control on use of land and, in their alternative submission, of hounds, counsel advanced submissions about the position of Mr Adams. They said that Mr Adams will be deprived in particular of his livelihood and the house which is tied to his current work. The objection that he is not being directly evicted from his tied house is met by taking a practical and effective look at the consequences of the legislation: he will be deprived of his tied house as a direct result of the legislation. Counsel referred to Minutes of Agreement setting out the terms on which Mr Adams occupies the house. They submitted that the word "possessions" in Article 1 (in French "biens") is not confined to property rights but extends to contractual rights as well. So the right to enjoyment of his house is a possession.

[124]     
Counsel then turned to Mr Adams's livelihood, and submitted that his vested interests in acting as a self-employed huntsman are "possessions". They referred in this regard to two authorities. In Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309 the applicant company had its licence to sell alcoholic beverages in a restaurant revoked by an administrative authority. At paragraph 53 the European Court of Human Rights found that the economic interests connected with the running of the restaurant were "possessions" for the purposes of Article 1 of the First Protocol. Indeed, the maintenance of a licence was one of the principal conditions for the carrying on of the applicant company's business, and its withdrawal had adverse effects on the goodwill and value of the restaurant. At paragraph 55 the court found that the withdrawal of the licence to serve alcoholic beverages constituted a measure of control of the use of property, which fell to be considered under the second paragraph of Article 1. There was, however, a long-standing Swedish policy of restricting the consumption and abuse of alcohol. The control of use of the applicant's property pursued a legitimate aim in the general interest and there was no doubt as to the lawfulness of the revocation under Swedish law. Even though the restaurant closed as a result of the revocation of the licence and the financial repercussions were serious because of the absence of a stay of execution, the burden placed on the applicant had to be weighed against the general interest. Taking account of the State's margin of appreciation, and having regard to the legitimate aim of the Swedish social policy concerning the consumption of alcohol, a fair balance had been struck between the economic interest of the applicant company and the general interest of Swedish society. Counsel submitted that in being deprived of his economic interests in operating as a self-employed huntsman, Mr Adams is in the same position as a person who operates a restaurant. The Protection of Wild Mammals Act will, he submitted, have the necessary consequence that Mr Adams's livelihood will cease to exist, and thus he will be deprived of a possession which is of value to him.

[125]      The second case to which counsel referred was Karni v Sweden (1988) 55 DR 157, a Commission decision on admissibility. The applicant, who was a doctor, was excluded from affiliation to the Swedish social security system, for which he had bought equipment and for which he was not compensated. The Commission, in a brief passage on page 165, considered that the vested interests in the applicant's medical practice might be regarded as "possessions" within Article 1, that the question of affiliation to the social insurance system was a decisive element for the running of the practice, and that in the circumstances there had been a control of use of possessions, rather than a deprivation of property. The Commission was, however, satisfied that the non-affiliation of the applicant was lawful under Swedish law and that it was in the "general interest" as part of a more comprehensive reform of the health and medical services.

[126]      Counsel accepted, under reference to Pinnacle Meat Processors Co v United Kingdom and Slough and King v United Kingdom, supra, that future income is not a possession. Mr Adams, however, they submitted, has a vested economic interest in carrying out his current work, which constitutes a possession within the meaning of Article 1, his rights under which are accordingly engaged.

[127]     
To the extent that the effect of the Protection of Wild Mammals Act is to control the use of possessions, counsel turned to the issue of proportionality. They recognised that the legislation must strike a fair balance between the demands of the general interests of the community and the protection of individual rights under Article 1. They submitted that the prohibition on mounted hunting with dogs could not be justified by the balancing exercise required by the Article. Counsel accepted that, so far as control of use was concerned, there was no obligation to pay compensation. Compensation was only payable if there was expropriation. But even in the case of control of use, the absence of compensation was a relevant factor. Proposed amendments to the Wild Mammals Bill, to add provision for compensation, had been discussed and rejected at both Stage 2 and Stage 3. There was also the question of the short period between the passing of the Act and its being brought into force. In Chassagnou v France account had been taken of the freedom of a landowner to use his land in accordance with his own conscience. This legislation impedes that. In addition there are the wider interests of the community: the social fabric discussed by Dr Marvin, the services provided by the Hunts in the collection of fallen stock and so on, and ecological and economic interests. It was recognised in the Macaulay Land Use Research Institute report that many people who do not engage in foxhunting derive an economic benefit from it. Counsel said that their main point is that no general community interest has been made out. There is nothing as compelling as in any of the cases referred to above. The alleged moral justification, for which there is no solid evidence, does not amount to the justification which is required. Since the general interest of the community does not demand that such an excessive burden should fall on the petitioners, it is disproportionate and cannot be justified in terms of Article 1.

[128]     
Senior counsel on both sides of the Bar had a few more points to add to these submissions. Senior counsel for the Lord Advocate said that the submission for the petitioners could be turned on its head: if general legislation had such a wide economic impact on a range of individuals, it could not be said that a disproportionate burden was imposed on the petitioners. Once it is accepted that this method of hunting foxes is cruel, then the ban is legitimate. There is no practicable alternative to an absolute ban. There is no averment of any diminution in the value of the land. There is accordingly no disproportion. In relation to Mr Adams's livelihood, counsel sought to distinguish Karni v Sweden by submitting that in the present case the subject of regulation is not Mr Adams's occupation, but the use of dogs and the use of land for hunting. Mr Adams's livelihood is secondary or consequential. His occupation, and the tied house that goes with it, are not the direct subject of regulation by the Act. The only real issue between senior counsel was whether Karni v Sweden is outside the main line of authority; senior counsel for the petitioners submitted that it is consistent with Tre Traktörer Aktiebolag v Sweden, which is repeatedly referred to in subsequent cases.

[129]     
To deal with the position of Mr Adams first, it is in my opinion sufficiently clearly averred that his livelihood as a self-employed manager of foxhounds, and the tied house that goes with it, are possessions within the meaning of Article 1 of the First Protocol. The clearest authority which leads me to this conclusion is Tre Traktörer Aktiebolag v Sweden, with which Karni v Sweden appears to me to be consistent. The issue does not appear to me to be so much one of loss of future profits, or loss of goodwill, as the loss simply of an opportunity to make a living by pursuing a particular activity. Mr Adams's economic interest in acting as a self-employed manager of foxhounds appears to me to be as much a "possession" as similar interests in operating a licensed restaurant or in carrying on medical practice. In my opinion, therefore, to the extent that the legislation may have the direct, and not merely consequential, effect of preventing Mr Adams from engaging in an activity in which he has hitherto engaged and from earning a living from day to day by practising the appropriate skills, its sufficiently relevantly averred that the legislation has the effect of controlling the use of this possession. In so far as the tied house forms part of his emoluments, it may be regarded as a tangible demonstration that this possession is a current asset. Accordingly, I regard the Wild Mammals Act as having the effect of controlling the use of this possession. The same, in my opinion, applies to the hounds. On the basis of the authorities referred to above, I regard the prohibition on their being used for a particular purpose as a control of use, rather than de facto expropriation: no rights in relation to the hounds are transferred or otherwise extinguished.

[130]     
It is next necessary to consider the balancing exercise provided by the second paragraph of the Article. As previously discussed in paragraph [92], it was in my opinion within the discretionary area of judgment of the Scottish Parliament to decide to prohibit mounted foxhunting with dogs. Legislation having this effect has been in prospect for some time. It prohibits certain acts. It does not transfer any right to the State or to anyone else. Mr Adams may currently earn his livelihood from this particular method of hunting and killing foxes, but it is by no means certain that he will cease to be employed, or in any event will be unable to continue to earn his living by using skills which he uses at present. The control on the use of land does not affect any activity which is said to be central to its economic exploitation. There is no averment that there will be a loss in the value of the land, or the income derived therefrom, that will be directly rather than consequentially attributable to the prohibition of mounted foxhunting with dogs. There is no certainty that the hounds will be put down, and if they are it will be as a result of a decision made by their owners. Leaving sentiment aside, the hounds are no different from specialised tools. There is no averment, in any event, of the economic value of the hounds. In short, there is no identifiable financial loss in respect of the matters founded upon by the petitioners for which compensation might be expected. This case appears to me to correspond sufficiently with Pinnacle Meats and Slough and King for it to be said that it was open to the Scottish Parliament to strike the right balance by controlling the use of property, in accordance with the general interest in the prevention of cruelty to animals, without paying compensation. I refer again to the views expressed in paragraph [92] of this Opinion, and to the passages quoted above from Chassagnou v France and James v United Kingdom.

Article 14 of the Convention

[131]     
The petitioners allege that the Protection of Wild Mammals Act interferes with their rights under Article 14. They aver that the Act discriminates against the first to seventh petitioners and members of the Countryside Alliance and MFHA in respect of their rights under Article 8 of and Article 1 of the First Protocol to the Convention. There is, they aver, no rational basis for prohibiting mounted hunting under section 1 of the Act yet allowing the continuance of stalking, flushing and shooting wild mammals under section 2 and falconry under section 3. Nor is there any rational basis for making the employment of dogs in hunting the criterion by which the legality of hunting is to be measured. They refer to averments which I have previously discussed.

[132]     
In their attack on the relevancy of these averments, counsel for the Lord Advocate submitted that for Article 14 to be engaged, the petitioners require relevantly to aver that in the enforcement of their Convention rights there is discrimination against them on one of the grounds specified in the Article or because they hold some other status. Since Article 8 is not engaged in this case, none of the petitioners is discriminated against in the enjoyment of their rights under Article 8. To the extent that the Protection of Wild Mammals Act controls the use of property and therefore engages Article 1 of the First Protocol, it applies equally to all who own dogs and all who own or occupy land. It does not discriminate among these on any ground set out in Article 14 or on any other ground or status. The only distinction is between the choices of leisure pursuit. This does not engage Article 1 of the First Protocol.

[133]     
Counsel referred to Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, in which the European Court of Human Rights pointed out at paragraph 56 that 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. The court found that there is a difference in kind between religious instruction and sex education, from the former of which pupils might be exempted in Danish State schools, while the latter was compulsory; the former of necessity disseminated tenets and not mere knowledge while the same did not apply to the latter, so the distinction objected to by the applicants was founded on dissimilar factual circumstances. Counsel submitted that there must be some personal characteristic or status, apart from the activity prohibited by the Protection of Wild Mammals Act, for Article 14 to be engaged. Dr Marvin's report indicates an objective basis for regarding mounted foxhunting with dogs as a unique activity because those in the field are not directly involved in the hunt. As the Rural Development Committee of the Scottish Parliament said, in trying to look at the justification for this activity, efficiency is a factor. The difference between hill packs and mounted hunts is that in the former 90% of foxes found are killed, as opposed to only 10% in the latter (see paragraph [50]. The exceptions in sections 2 to 6 of the Protection of Wild Mammals Act carefully identify those activities for which there can be objective justification. In any event Article 14 does not stand alone. It relates to discrimination in respect of any other protected interest. In so far as there is interference with rights under Article 1 of the First Protocol, there is good reason to make a distinction between mounted foxhunting with dogs and the activities which fall within the exceptions to the Act.

[134]      Counsel for the petitioners submitted that the general principles are to be found in Chassagnou v France (1999) 29 EHRR 615, in which the European Court of Human Rights said at paragraph 89:

"The Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals, placed in similar situations, from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case...".

Counsel submitted that this passage shows that Article 14 is of wide application and may apply to people falling into a wide range of categories. Here the categories are those who participate in mounted foxhunting with dogs and those who participate in other forms of hunting, such as gun packs. Counsel accepted that Mr Holman-Baird is in a different position because he participates in both activities, so it might be paradoxical to make any finding in relation to him.

[135]      Counsel went on to refer to Baner v Sweden (1989) 60 D.R. 128, in which the Commission, in ruling on the admissibility of the application, held that legislation which allowed everyone the right to fish in private waters but granted compensation only to owners who had suffered a loss of income was not discrimination in terms of Article 14 because the difference in treatment was based on an objective and reasonable justification. Counsel submitted that this showed that Article 14 might, in the absence of justification, be engaged where there was a distinction between one group of owners who previously enjoyed income from fishing and another group who did not. This therefore supported the submission that Article 14 has a broad application. The Article could therefore be engaged where there is a distinction between owners of hounds used for mounted hunting and other owners of hounds. There is, submitted counsel, no rational basis for or legitimate aim served by a prohibition on mounted hunting while other forms of hunting are allowed to continue, so there is no objective or reasonable justification for the discrimination (see Chassagnou, supra). There is no objective basis for the view that animal welfare was better served by one method of hunting rather than another.

[136]     
I accept the submissions on behalf of the petitioners about the breadth of application of Article 14. To the extent, therefore, that their rights under the Convention are engaged, the prohibition of mounted foxhunting with dogs would constitute discrimination against those who engage in that activity, which may be described as a personal characteristic or status, as compared with other activities which are excepted from the prohibition. Since, in the circumstances of this case, only Article 1 of the First Protocol is engaged to the extent which I have already decided, it is necessary for discrimination to that extent to be justified. After taking account of the discretionary area of judgment of the Scottish Parliament which in my opinion is to be recognised in the circumstances of the present case, I am of the view that sufficient objective justification can be found for the discrimination between the different forms of hunting. There was material before the Scottish Parliament which entitled the Parliament to conclude that mounted foxhunting with dogs is, to a significant degree, less efficient than other methods of hunting foxes and that it causes significantly more suffering to foxes, both those who are killed and those who escape after being hunted. I am satisfied therefore that no relevant case has been made out that there has been any discrimination against any of the petitioners in the enjoyment of their Convention rights without objective justification.

Interim order

[137]     
Counsel for the petitioners moved me, in the event of my allowing a second hearing, to grant an interim order "that pending final determination of these proceedings in the Outer House of the Court of Session, the operation of the Commencement Order be disapplied." Since I have decided to dismiss the petition, it is not necessary for me to reach a concluded view as to whether such an order should be granted; but it is appropriate nevertheless that I comment on the submissions.

[138]     
Counsel on both sides of the bar were agreed that for present purposes the leading case is R. v Secretary of State for Transport, Ex parte Factortame Ltd (No.2) [1991] 1 AC 603. Counsel for the petitioners said that the terms of the proposed interim order were derived from that case, so I need to consider first what was decided by the House of Lords.

[139]      The applicants in Factortame sought to challenge the legality of certain provisions of the Merchant Shipping Act 1988 and regulations made thereunder relating to registration of fishing vessels as being contrary to Community law. During the course of the proceedings, the Divisional Court of the Queen's Bench Division decided to request a preliminary ruling from the European Court of Justice on the substantive questions of Community law. The Divisional Court also, in granting the applicants' motion for interim relief, ordered that, pending final judgment or further order, the operation of the statutory provisions and the regulations be disapplied and that the Secretary of State be restrained from enforcing the same in respect of the applicants and their vessels so as to enable the existing registrations of the vessels to continue in being. The Court of Appeal set aside this order. On appeal to the House of Lords, their Lordships held that, as a matter of English law, the courts had no jurisdiction to grant interim relief in terms that would involve either overturning an English statute in advance of any decision by the European Court of Justice that the statute infringed Community law or granting an injunction against the Crown. On a reference from the House to the European Court of Justice on the question whether Community law either obliged its national court to grant interim protection of the rights claimed or gave the court power to grant such interim protection, the European Court held that, in a case concerning Community law in which an application was made for interim relief, if a national court considered that the only obstacle which precluded it from granting such relief was a rule of national law it had to set that rule aside. On the reference back to the House of Lords, it was held (1) that in considering whether interim relief should be granted the court had to consider first, the availability to either plaintiff or defendant of an adequate remedy in damages, and secondly, if no such adequate remedy existed, the balance of convenience, taking all the circumstances of the case into consideration; that where a public authority seeking to enforce the law was involved, an adequate remedy in damages would not normally be available to either party, and in considering the balance of convenience the court had to take into account the interests of the public in general to whom the authority owed duties; that there was no rule that the party challenging the validity of the law sought to be enforced had to show a strong prima facie case that it was invalid, and the matter was one for the discretion of the court; but that the court should nevertheless not restrain the public authority from enforcing the law unless it was satisfied that the challenge to its validity was sufficiently firmly based to justify that exceptional course being taken. In the circumstances of the case, the House of Lords granted an interim injunction, the material terms of which were that the Secretary of State was restrained from withholding or withdrawing registration in the register maintained by him pursuant to the 1998 Regulations in respect of any of the vessels in question. At pps.664-665 Lord Goff explained why the order of the House of Lords differed from that of the Divisional Court. One of the main reasons was that the previous register, maintained under the Merchant Shipping Act 1894, had been closed in the meantime, so that the existing registrations of the vessels could no longer continue in being, as provided by the interim order of the Divisional Court. What is significant for present purposes is (1) that the House of Lords granted an interim injunction against a Minister of the Crown from enforcing what was on its face the law of the land; but (2) the scope of the interim injunction was restricted to what was necessary to protect the applicants' interests meantime.

[140]     
It seems clear to me at the outset that the interim order sought by the petitioners is not in terms for which Factortame provides more than superficial support, because it is of entirely general application and goes much wider than is necessary to protect the interests of such of the petitioners as have the necessary title and interest to bring the present petition. An interim order which would truly reflect the interim injunction granted by the House of Lords would have the effect of preventing the Lord Advocate, in his capacity as head of the system of prosecution in Scotland, from prosecuting, or authorising the prosecution of, the petitioners (or such of them as have the necessary title and interest), in the event of their engaging in any activity which would be prohibited by the Protection of Wild Mammals Act after it came into effect. Obviously the terms of any such order would require further discussion, but this is an indication of the kind of order that might be derived from Factortame, which does not provide a precedent for an order of entirely general application, not confined to those who have brought proceedings in which they claim to be victims within the meaning of Article 34 of the Convention.

[141]     
These observations may serve as a focus for the consideration of the competency of an order which, whatever its exact terms, would have the effect of preventing the Crown from enforcing what is on its face the law of the land. I was not very fully addressed on the question of competency, counsel for the Lord Advocate preferring to place their main emphasis on the issues that would fall to be considered if such an interim order were competent, in particular the balance of convenience. Counsel for the Lord Advocate did, however, rely on section 21(1) of the Crown Proceedings Act 1947, which provides:

"In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that:

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties;....".

This section has been considered most recently in the Scottish courts in Davidson v The Scottish Ministers 2002 SC 205, in which an Extra Division held that applications to the supervisory jurisdiction of the court by way of judicial review are "civil proceedings" within the meaning of section 21. In the circumstances of that case, however, the court upheld the Lord Ordinary's refusal to grant an interim order. The court followed McDonald v Secretary of State for Scotland 1994 S.C. 234 and considered M. v Home Office [1994] 1 AC 377. It appears that some references were made to the Scotland Act and the Human Rights Act during the course of the hearing, but the court did not take account of them in reaching its decision. It does not appear from the report that any reference was made to Factortame. In Whaley v Lord Watson 2000 SC 340 the Lord President said at p.349 that it was unnecessary for present purposes to consider the position whether Community law rights are involved, and referred to Factortame. In Matthews v Ministry of Defence [2002] EWCA Civ 773 the Court of Appeal considered a submission that section 10 of the Crown Proceedings Act should be given a purposive interpretation in light of section 3 of the Human Rights Act, but at paragraph 76 of its judgment the court held that section 3 had no application because neither of the Articles of the Convention relied upon by the plaintiff was engaged by the facts of that case. In any event, to imply the additional sentence in section 10 of the Crown Proceedings Act suggested by counsel for the plaintiff would be to go beyond the bounds of what section 3 of the Human Rights Act permitted. I was accordingly referred to no precedent in a case brought under the Human Rights Act for the granting of an interim order against the Crown, either in the terms sought or in the terms which, in my view, would more properly reflect the interim injunction granted by the House of Lords in Factortame.

[142]      In arguing that the making of the interim order which was sought would be competent, counsel for the petitioners referred to section 29(2)(d) and section 57(2) of the Scotland Act, which in their submission put Convention rights on the same footing as Community law. They went on to submit that it was necessary, in applying section 21 of the Crown Proceedings Act, to take account of the fact that the nature of the Crown has changed: for example in section 99 of the Scotland Act it is recognised that the Crown may have rights and liabilities in different capacities. They also referred to sections 6 and 8 of the Human Rights Act, and submitted that an interim order is within the powers of this court within the meaning of section 8(1). They particularly founded on section 3 of the Human Rights Act and the requirement that legislation must be read and given effect in a way which is compatible with the Convention rights. They submitted that section 21 of the Crown Proceedings Act must now be read in light of this. A blanket prohibition on the making of any order, and in particular an interim order, against the Crown would not take account of the duty of the court to interpret legislation so as to protect human rights. Reference was made to the duty of the court under section 6 of the Human Rights Act. Applying the approach to interpretation provided by section 3 of that Act to section 21 of the Crown Proceedings Act, the interim order sought in the present case is not excluded by that section.

[143]     
Counsel for the Lord Advocate resisted this approach, arguing that Factortame is not an authority for granting an order in the terms sought by the petitioners, and that there is no precedent for granting interim suspension of a statutory provision. In the course of their submissions they referred to passages in Factortame per Lord Goff at pps.673 and 674 and Lord Jauncey at p.679 in which their Lordships recognised the importance of upholding the law of the land and the need for the court to be satisfied that the challenge to the validity of the law is prima facie so firmly based or so strong as to justify the exceptional course of granting an interim injunction, even in the terms granted there.

[144]     
Had it been necessary for me to reach a concluded view about the competency of the interim order sought by the petitioners, I would have had great difficulty in accepting that it would be competent to grant such an order, either in the terms sought or in the terms which in my view are properly derived from Factortame. Either version would have the effect of preventing prosecutions which might otherwise take place, and would therefore amount to an interim interdict against the Crown, whether granted in such terms or not. This is clearly contrary to the proviso in section 21(1)(a) of the Crown Proceedings Act. While it may be possible to devise a hypothetical case in which the court might be driven to the conclusion that there was no alternative to the granting of an interim interdict against the Crown in order to prevent infringement of the applicant's human rights, so that it would be necessary to decide whether section 21 of the Crown Proceedings Act must yield to the Human Rights Act, this does not appear to me to be the position here. The normal practice of this court in deciding whether to grant interim interdict is to consider whether there is a prima facie case and, if so, whether the balance of convenience favours the granting of interim interdict, the strength of the prima facie case being a factor of which to take account in weighing the competing considerations: see NWL Ltd v Woods [1979] 1 W.L.R. 1294 per Lord Fraser at p.1310. While our procedure may not provide for an interim declarator as such, there would be scope for the court to indicate whether, following this approach, it would have pronounced interim interdict had it not been precluded from doing so by section 21 of the Crown Proceedings Act. No doubt the Lord Advocate would take account of this in deciding whether subsequently to prosecute any of the petitioners, or any other person for that matter. In any event, if there were a prosecution, the accused would be able to raise a devolution issue, alleging that his or her human rights were infringed by the provisions of the Protection of Wild Mammals Act and by the decision of the Lord Advocate to prosecute. To put the matter more generally, the human rights of an accused can always be raised as a devolution issue in any prosecution, so it cannot be said that the Human Rights Act compels the court to treat as competent an interim order which would prevent the Crown from initiating the prosecution.

[145]     
Had I allowed a second hearing, and had I decided that some form of interim order was competent, I would have had to go on to consider the balance of convenience. By allowing a second hearing I would have held that some at least of the petitioners had a prima facie case that was at least sufficiently relevant for enquiry. It is impossible to say what view I would have taken of the strength of that case. Counsel for the petitioners submitted that there is at least a seriously arguable case that their human rights will be infringed by the Protection of Wild Mammals Act, and that an interim order will do no significant harm to the public. The Protection of Wild Mammals Act affects only a relatively small number of people, but the damage to them might be irremediable. Counsel went on to submit that the issue is clear cut. The petitioners are asking for no more than maintenance of the status quo. If the petitioners eventually succeed, they and many others will suffer great loss if no interim remedy is granted. There is a serious risk of irreparable damage. If the petitioners lose, it is doubtful if anybody will suffer an injustice. There is no strong public interest involved.

[146]     
Counsel for the Lord Advocate, who preferred to place their main emphasis on the balance of convenience, in what they described as a practical approach, submitted that, with appropriate expedition, proceedings in the Outer House might be concluded by August 2003, before the start of the 2003 to 2004 hunting season (which would begin after the harvest). The only petitioner whose livelihood is said to be threatened is Mr Adams, and it appears from the pleadings that this will only be beyond the 2002 to 2003 season. It is not suggested what other irremediable loss might be caused by a ban on mounted foxhunting with dogs for one season.

[147]     
I doubt whether I would have been persuaded that the balance of convenience favoured the granting of interim interdict. I would have had to weigh the importance of upholding the law of the land against the rather vaguely expressed irremediable loss which the petitioners claim that they will suffer. If the petitioners were sufficiently confident of eventual success, they might choose to continue with their hunting activities. The Lord Advocate might decide not to prosecute them, and if they did they could raise a devolution issue. So the protection of an interim order would not clearly have been necessary.

Decision

[148]     
On the whole matter, therefore, I am of opinion that:

(1) the pleas-in-law for the Advocate General should be repelled;

(2) the petition, so far as it seeks judicial review of the Protection of Wild Mammals (Scotland) Act 2002 and the relative Commencement Order at common law, is incompetent;

(3) the averments about the title and interest of the Fife Hunt and the Jedforest Hunt are at best of doubtful relevancy, and the averments about the title and interest of the Buccleuch Hunt Supporters Club, the Countryside Alliance and the Masters of Foxhounds Association are irrelevant;

(4) there are no relevant averments that the 2002 Act interferes with the private life of any of the petitioners having title and interest to sue, within the meaning of Article 8 of the Convention;

(5) there are no relevant averments that the control of the possessions of any of the petitioners having title and interest to sue is contrary to Article 1 of the First Protocol to the Convention; and

(6) there are no relevant averments of discrimination, contrary to Article 14 of the Convention.

Accordingly, I shall, in addition to repelling the pleas-in-law for the Advocate General, sustain the first plea-in-law for the Lord Advocate quoad the sixth, eighth and ninth petitioners; sustain the second plea-in-law for the Lord Advocate quoad the petitioners' case at common law; sustain the seventh plea-in-law for the Lord Advocate; and dismiss the petition.


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