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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Whaley & Anor v. Lord Advocate [2003] ScotCS 178 (20 June 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/178.html
Cite as: [2003] ScotCS 178, 2003 GWD 22-651, 2004 SLT 425, 2004 SC 78

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Whaley & Anor v. Lord Advocate [2003] ScotCS 178 (20 June 2003)

OUTER HOUSE, COURT OF SESSION

P672/02

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD BRODIE

in the Petition of

JEREMY HAGAN WHALEY and BRIAN LEONARD FRIEND

Petitioners;

against

THE LORD ADVOCATE,

Respondent:

for

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

 

________________

 

 

Petitioners: Parties

Respondent: Moynihan, Q.C., Wolffe;

Solicitor to the Scottish Executive

20 June 2003

Introduction

[1]      The petitioners seek judicial review of the enactment, by the Scottish Parliament, of the Protection of Wild Mammals (Scotland) Act 2002 ("the Protection of Wild Mammals Act"). It is the contention of the petitioners that the Protection of Wild Mammals Act is not within the legislative competence of the Parliament.

[2]     
The Protection of Wild Mammals (Scotland) Bill, which was to become the Protection of Wild Mammals Act, was passed by the Parliament on 13 February 2002. It received the Royal Assent, and thereby, in terms of section 28 (2) of the Scotland Act 1998, became an Act, on 15 March 2002. Section 12(2) of the Protection of Wild Mammals Act provides that 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 Protection of Wild Mammals Act was 1 August 2002.

[3]     
The long title of the Protection of Wild Mammals Act is: "An Act of the Scottish Parliament to protect wild mammals from being hunted with dogs; and for connected purposes." Section 1 of the Protection of Wild Mammals Act is in the following terms:

"1. Offences

(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)." 

Section 10 of the Act provides that: "wild mammal" -

"(a) includes a wild mammal which has escaped, or been released, from captivity, and any mammal which is living wild;

(b) does not include a rabbit;

(c) does not include a rodent;

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."

[4]     
Sections 2 to 6 of the Protection of Wild Mammals Act make provision for exceptions, whereby a person using a dog in certain specified circumstances does not commit an offence. Section 6 empowers the Scottish Ministers to specify further excepted activities which will not constitute an offence under section 1(1). Section 7 confers powers of arrest, search and seizure without warrant upon a constable who suspects with reasonable cause that a person has committed or is committing an offence under the Act. Section 8(1) provides that a person guilty of an offence under the Act is liable on summary conviction to imprisonment for up to 6 months or a fine of up to level 5 on the standard scale or both. Section 9 empowers a court convicting a person under section 1 to make disqualification orders disqualifying that person from keeping a dog. Section 10 provides definitions of certain terms. Section 11 gives effect to consequential amendments. Section 12 gives the short title of the Act and provides for its commencement. The sections of the Act which follow section 1 are accordingly all ancillary to that section and the offences created by it.

[5]     
The Protection of Wild Mammals Act has the effect of prohibiting in Scotland (by rendering criminal) the activity of mounted fox-hunting in which the fox is pursued by hounds with the intention that the hounds kill the fox. I shall refer to this activity as "fox-hunting".

[6]     
The petitioners are Mr Jeremy Hagan Whaley and Mr Brian Leonard Friend. They are persons who have, in the past, and would wish, in the future, to engage in the activity of fox-hunting. Mr Whaley is the Master and Huntsman of the Berwickshire Hunt. Mr Friend described himself during his submissions as a follower on foot of that Hunt. His pedestrian status is, however, consequent upon injury and, he would hope, temporary. When he returns to fitness he would wish to resume mounted fox-hunting, to the extent that it is lawful to do so. The petitioners aver in the petition that they are associate members of the Union of Country Sports Workers (UCSW) and join with others of their community either to ride to hounds or follow the hounds on foot with the Berwickshire Hunt and other hunts. They aver that they follow the ancient cultural activity and lifestyle of hunting with hounds. The petitioners appeared in person. Both addressed me on their own behalf. Mr Friend spoke at the greater length. His submissions were adopted and briefly supplemented by Mr Whaley.

[7]     
The petitioners challenge the validity of section 1 of the Protection of Wild Mammals Act on the grounds that the offences thereby created (referred to in the petition as "the OFFENCES") are incompatible with Articles 8 to 11, 14, 17 and 53 of the European Convention on Human Rights ("the Convention"). They further claim, pursuant on section 58 (4) (a) of the Scotland Act 1998, that the offences created by section 1 conflict and do not comply with certain of the international obligations of the United Kingdom, as created by the following international instruments: the Rio Declaration on Environment and Development of 1992, the Rio Convention on Bio Diversity of 1992, the Final Act of the Helsinki Conference on Security and Cooperation in Europe of 1975, the United Nations International Covenant on Economic Social and Cultural Rights of 1966, the United Nations International Covenant on Civil and Political Rights with the Optional Protocol of 1966, and the Universal Declaration of Human Rights of 1948. In statement 5 of the petition there are set out the petitioners' grounds of challenge to the Protection of Wild Mammals Act. Statement 5 is the following terms:

"THE GROUNDS FOR THE CHALLENGE

a) The petitioners challenge the OFFENCES of the said ACT on the following grounds: pursuant to the Human Rights Act 1998 and the Scotland Act 1998 in that they:-

i) are 'incompatible' and have no 'legal competence' and unlawful under the Convention

ii) are 'incompatible' with UK 'international obligations'

iii) do not pursue a legitimate purpose

iv) are 'not necessary in a democratic society'

v) are 'discriminatory'

(b) Further, the inevitable consequence of the OFFENCES will be that wild mammals, and other creatures, will be killed by methods that invariably inflict more pain and suffering than hunting with hounds. In short when quarry is hunted by hounds it is either alive and free or dead, it is never wounded. No other form of killing can guarantee this except poison which is indiscriminate and environmentally unacceptable."

[8]     
The petition was served on the Lord Advocate. The Lord Advocate appeared as respondent, represented by counsel, Mr Moynihan QC and Mr Wolffe, and lodged Answers to the petition. It was explained by Mr Moynihan that the respondent appeared primarily as Lord Advocate in the public interest but also as one of the Scottish Ministers who had enacted the Commencement Order.

[9]     
The petition came before me for a first hearing, which took place over four days, from 14 to 17 January 2003. By agreement of the parties, that hearing proceeded by way of a debate on the relevancy of the petition. The primary motion on behalf of the respondent was to sustain plea in law 4 in the Answers and to dismiss the petition, which failing, to exclude from probation such subordinate parts of the petition as I should find to be irrelevant or lacking in specification. Neither the respondent's first plea, of no title and interest, nor his second plea, that the petition was incompetent, were argued as separate matters. It was submitted that I should not, in any event, make any interim order. The motion for petitioners was for a second hearing, as provided by Rule of Court 58.9 (2) (ix), in order to lead evidence in support of the propositions contained in the petition. The petitioners confirmed that they did not seek declarator ad interim at this stage.

[10]     
In the course of submissions I was reminded that the validity of the Protection of Wild Mammals Act has been previously considered by Lord Nimmo Smith in an application for judicial review, Trevor Adams and Others Petitioners (since reported as Adams v The Scottish Ministers 2003 SLT 366). The petition in Adams was dismissed after a first hearing before Lord Nimmo Smith. Lord Nimmo Smith's Opinion in Adams is dated 31 July 2002. I was advised that a reclaiming motion against Lord Nimmo Smith's decision is set down for a date in June 2003. As appears from Lord Nimmo Smith's Opinion, the grounds of the application in Adams were partly, but only partly, co-extensive with the grounds in the present petition. Reliance on Articles 8 and 14 was common to both petitions but this petition's reliance on Articles 9 to 11, 17 and 53 of the Convention and upon the international obligations was new. With one minor exception, counsel for the respondent urged me to follow Adams both as to reasoning and result insofar as Lord Nimmo Smith's decision dealt with grounds founded on in the present petition. It was not, however, contended that the decision in Adams operated to support a plea of res judicata in respect of any issue raised in the present petition.

The provisions referred to in the petition

[11]      It is convenient at this stage to set out certain provisions of the statutes (other than the Protection of Wild Mammals Act) and the international instruments which are referred to and relied upon in the petition.

The Human Rights Act 1998 and the European Convention on Human Rights

[12]     
The title of the Human Rights Act 1998 ("the Human Rights Act") explains that its purpose is to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights ("the Convention"). Section 1 of the Human Rights Act provides, inter alia:

"1. (1) In this Act "the Convention rights" means the rights and fundamental freedoms set out in -

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol, and

(c) Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention."

Section 4 of the Human Rights Act provides:

"(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. 

(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.

(4) If the court is satisfied -  

(a) that the provision is incompatible with a Convention right, and

(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.

(5) In this section "court" means -

(a) the House of Lords;

(b) the Judicial Committee of the Privy Council;

(c) the Courts-Martial Appeal Court;

(d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;

(e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.

(6) A declaration under this section ('a declaration of incompatibility') -  

(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b) is not binding on the parties to the proceedings in which it is made."

[13]     
The Articles of the Convention containing Convention rights are set out in Schedule 1 to the Human Rights Act. Those relied on by the petitioners are in the following terms:

"Article 8

Right to Respect for Private and Family Life

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 9

Freedom of Thought, Conscience and Religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10

Freedom of Expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 

Article 11

Freedom of Assembly and Association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. 

Article 14

Prohibition of Discrimination

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.

Article 17

Prohibition of Abuse of Rights

 

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Article 53

Safeguard for Existing Human Rights

Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting party or under any other agreement to which it is a Party."

The Scotland Act 1998

[14]     
The Scotland Act 1998 ("the Scotland Act") makes provision for legislation by the Scottish Parliament. The Scotland Act includes the following sections:

"28.-(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 shall 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. 

29.- (1) 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. 

(2) A provision is outside that competence so far as any of the following paragraphs apply -  

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(c) it is in breach of the restrictions in Schedule 4,

(d) it is incompatible with any of the Convention rights or with Community law,

(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. 

(4) A provision which -  

(a) would otherwise not relate to reserved matters, but

(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters, is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise. 

30.-(1) Schedule 5 (which defines reserved matters) shall have effect ...

35.-(1) If a Bill contains provisions -

(a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or

(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

(2) The order must identify the Bill and the provisions in question and state the reasons for making the order. 

(3) The order may be made at any time during -  

(a) the period of four weeks beginning with the passing of the
Bill,

(b) any period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 36(5),

(c) If a reference is made in relation to the Bill under section 33, the period of four weeks beginning with the reference being decided or otherwise disposed of by the Judicial Committee.

(4) The Secretary of State shall not make an order in relation to a Bill if he has notified the Presiding Officer that he does not intend to do so, unless the Bill has been approved as mentioned in subsection (3)(b) since the notification. 

(5) An order in force under this section at a time when such approval is given shall cease to have effect.

57.-(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.

58.-(1) If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken.

(2) If the Secretary of State has reasonable grounds to believe that any action capable of being taken by a member of the Scottish Executive is required for the purpose of giving effect to any such obligations, he may by order direct that the action shall be taken.

(3) In subsections (1) and (2), 'action' includes making, confirming or approving subordinate legislation and, in subsection (2) includes introducing a Bill in the Parliament.

(4) If any subordinate legislation made or which could be revoked by a member of the Scottish Executive contains provisions -

(a) which the Secretary of State has reasonable grounds to believe to be incompatible with any international obligations or the interests of defence or national security, or

(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe to have any adverse effect on the operation of the law as it applies to reserved matters, the Secretary of State may by order revoke the legislation.

(5) An order under this section must state the reasons for making the order.

100.-(1) This Act does not enable a person -

(a) to bring any proceedings in a court or tribunal 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 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.

(2) Subsection (1) does not apply to the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland.

(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention Rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.

(4) In this section 'act' means -

(a) making any legislation,

(b) any other act or failure to act, if it is the act or failure of

a member of the Scottish Executive.

101.-(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."

The "reserved matters" referred to in section 29(2)(b) of the Scotland Act as being outside the legislative competence of the Scottish Parliament are specified in schedule 5 to the Act. Among the general reservations are foreign affairs. The extent of this reservation is defined in paragraph 7 of Schedule 5 as follows:

"7(1) International relations, including relations with territories outside the United Kingdom, the European Communities (and their institutions) and other international organisations, regulation of international trade, and international development assistance and co-operation are reserved matters.

(2) Sub-paragraph (1) does not reserve -

(a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law,

(b) assisting Ministers of the Crown in relation to any matter to which the sub-paragraph applies."

The International Instruments

[15]      Principle 22 of the Rio Declaration on Environment and Development made at Rio de Janeiro June 1992 and ratified by the United Kingdom government on 19 May 1994 provides:

"Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in achievement of sustainable development."

[16]     
Article 8(j) of the Convention on Biological Diversity signed at Rio de Janeiro on behalf of the United Kingdom on 12 June 1992 and ratified by the United Kingdom government on 17 May 1994 provides:

"Each Contracting Party shall, as far as possible and as appropriate:

...

Subject to it's national legislation, respect, preserve and maintain knowledge innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage sharing of the benefits arising from the utilisation of such knowledge, innovations and practices."

[17]     
Article VII of the Final Declaration of the Conference on Security and Co-operation in Europe, signed on behalf of the United Kingdom government on at Helsinki on 1 August 1975 and laid before Parliament as Command Paper No. 6198 provides:

"i) They (the participating States) will promote and encourage the effective exercise of civil, political, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his full development.

ii) Within this framework the participating States will recognise and respect the freedom of the individual to profess and practice, alone or in community with others, religion or belief in accordance with the dictates of his own conscience.

iii) In the field of human rights and fundamental freedoms, the participating State will act in conformity with the purpose and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights."

[18]     
Article 15 of the International Covenant on Economic, Social and Cultural Rights adopted by the United Nations on 16 December 1966 and ratified by the United Kingdom on 20 May 1976 provides, inter alia:

"1. The State Parties to the present Covenant recognise the right of everyone:

(a) To take part in cultural life; ..."

[19]     
Articles 27 and 50 of the International Covenant on Civil and Political Rights with Optional Protocol adopted by the United Nations on the 16 December 1966 and ratified by the United Kingdom government on the 20 May 1976 provide:

"27. In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

...

50. The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions."

[20]     
Article 27 of the Universal Declaration of Human Rights adopted and proclaimed by General Assembly Resolution of 10 December 1948 provides:

"Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancements and it's benefits."

The submissions of the first petitioner

[21]     
Mr Moynihan spoke first. As I have indicated, he moved me to dismiss the petition. By agreement of the parties, the second petitioner, Mr Friend, responded to Mr Moynihan's attack on the relevancy of a petition. I have recorded Mr Friend's submissions under the headings to which they relate. Mr Whaley followed Mr Friend, adopting what Mr Friend had said and adding his arguments in support of the petition. He was therefore the third to speak. I have nevertheless found it convenient to record what Mr Whaley submitted at this point in my opinion. While alluding to some of the points made by Mr Moynihan, Mr Whaley did not attempt to respond to the very detailed criticisms of the relevancy of the petition which had been advanced. What he did do was to set out, succinctly, the complaints which had led him and Mr Friend to present the petition.

[22]     
Mr Whaley explained that he was keen to make sure that the best case for hunting was put forward. When the Protection on Wild Animals Bill was before the Scottish Parliament, it was appointed to the Rural Affairs Committee. That committee, which, presumably, is concerned with Rural Affairs, concluded that the Bill should not be enacted. However, the Scottish Parliament overruled its own committee. When the Scottish Parliament was being set up, the late Donald Dewar was asked as to whether there should not be a second chamber. His response was that the committees would provide the necessary checks and balances. Here the committee system had not worked. An application for judicial review was necessary to give all the facts a proper hearing. The hunting community formed an ethnic group. Mr Whaley explained that his primary characteristic was that he was a fox-hunter, not just one or two days each week, but every hour of every day of every week of the year. The Protection of Wild Mammals Act had taken away his lifestyle and endangered his primary characteristic. It had been questioned whether fox-hunting was truly a part of private life as that expression is understood in Article 8 of the Convention, given that it was open to the participation of the general public. However, Mr Whaley emphasised, there was no automatic right to join a hunt. Persons must apply. Their admission to the hunt depended on them being similarly minded people to those who were already members, who wished to take part in fox-hunting as it was run by a particular hunt. Fox-hunters must adhere to the rules and ethics of the hunt. If they do not they are sent home. That was not suggestive of the carrying on of a public activity. That the hunt was visible from the public road was a fact of geography not choice. There was no hunting in public parks or on beaches. Mr Whaley explained that an important part of his enjoyment of hunting was the breeding of hounds. This had no public aspect to it whatsoever.

[23]     
The possibility of drag hunting with his fox hounds was simply not an issue for Mr Whaley. An important part of fox-hunting for him, as a master of foxhounds, was travelling his country to identify where foxes might be found and to work out the best way of following a fox in the event of the hounds losing the scent. He needed to develop "fox logic". Hunting a fox had an element of uncertainty. There was a risk of failure. Drag hunting was no substitute. Its purpose was quite different and, accordingly, the purpose of assembly and association for drag hunting was quite different from the purpose of assembly and association for fox-hunting.

[24]     
The Articles of the Convention were worthless unless the freedoms conferred could be exercised for a purpose. What was the point of respect for a private life if one could be deprived of a major part of one's private life? What was the point of freedom of thought and conscience if one could not put that into practice? What was the point of freedom of expression if one was denied the means of expressing one's self? What was the point of freedom of assembly and association if the purpose of assembly and association was removed?

[25]     
The Protection of Wild Mammals Act adversely affected Mr Whaley's freedom of conscience because, in order to comply with the Act, he carries out a practice which can result in maiming foxes. In twenty-two years of fox-hunting, he has never gone home and left an injured fox in the countryside whereas in the two months during which he has been working within the terms of the Act (by working with what is described as a gun pack), twenty-two foxes have been shot at, of which eight were killed, two were caught by hounds after wounding and three have been wounded and left to die over time. In conventional fox-hunting, Mr Whaley has never been responsible for that. He described an incident which explained why he felt so strongly on the matter. A fox had been flushed from cover towards the guns. The fox had been shot, breaking its lower jaw. The second shot missed. The fox gained cover with its jaw hanging down. The fox was thereafter caught and killed only with some difficulty. Mr Whaley found this a deeply upsetting incident which had deeply affected him. He proposed to continue working with a gun pack until the current legal proceedings were exhausted but, because of his conscience, if these proceedings should go against him, he will give up fox-hunting which has been a very important part of his life for twenty-two years.

[26]     
That the Protection of Wild Mammals Act is discriminatory had been established in Adams but the protection of morals argument was used to legitimate discrimination. According to Mr Moynihan the court should leave it to the Scottish Parliament to make judgments in matters relating to the protection of morals but if it does so, what is the point of the Convention? Almost any point could be argued by reference to morals. For example, here it is seriously argued that morals are put in danger by fox-hunting. In judging the morality of fox-hunting, it has to be compared with other activities which are presumably considered to be moral. It had been argued that the Protection of Wild Mammals Act was part of a step by step process of legislation. However, submitted Mr Whaley, the other Acts referred to by Mr Moynihan were not intended to protect animals against cruelty. Rather, their intention was to prevent poaching and the extinction of the otter. Hunting for sport and pest control, when considered separately, are apparently acceptable to the Scottish Parliament. Together, they are apparently unacceptable. This is irrational. The fox is a pest species but we now have a situation, under the Protection of Wild Mammals Act, where a fox cannot be hunted whereas a rat, a mouse or a rabbit can be. Why should this be the case? Do rats, mice and rabbits not suffer pain and stress also? The special status given to the fox is irrational. Traditional fox-hunting allowed the fox to use its skills to escape. Now it is legal to hunt a fox from cover, shoot and kill it; hunt it from cover and wound it and thereafter hunt it with hounds; hunt it from cover, wound it and leave it; hunt it from cover, wound it, allow it to go to ground and then put in a terrier to kill it. The result of the Protection of Wild Mammals Act will be to increase the number of foxes killed and to increase the number of foxes wounded. What, Mr Whaley asked was so clearly moral about the following legal activities: snaring, shooting but not killing, gassing, the rearing of birds for the purpose of them being killed for sport, fishing where the fish may be played for an hour before being returned to the water? Shrinking the pool of comparable activities which remained lawful, there were a number of instances where it remained permissible to set one animal on another. Dogs could be set on birds and ferrets could be set on rabbits for the purpose of shooting. Falconry which was the setting of falcons on birds, rabbits and hares, remained legal. Ironically, falconry is sometimes carried out on horseback. What is it that is peculiar about fox-hunting which requires it to be treated differently? The answer is that there is nothing peculiar about fox-hunting. The Act is irrational and not justifiable. The Act contravenes Articles 8 to 11 and 14 of the Convention. All the evidence calls into question the motive of the Scottish Parliament. Public morals are simply not endangered by fox-hunting. A second hearing would allow the petitioners to lead very compelling evidence to the effect that the Protection of Wild Mammals Act contravenes the Convention and, accordingly is unlawful. A second hearing was what Mr Whaley moved me to allow.

Structure and overview of the respondent's argument

[27]     
As I have already indicated, it was Mr Moynihan who spoke first and it was the structure of his argument that dictated the form which the debate took. In opening his submissions, he identified the issue raised by the petition as being whether the activity of fox-hunting (as defined in paragraph [5] above) can lawfully be criminalised. That question involved the making of a series of judgments as to the proper characterisation of that activity including whether it is a sport or a necessary means of pest control and whether or not it involves cruelty. That, in turn, Mr Moynihan submitted, raises the issue as to whether it is appropriate for this court to re-open the judgments of others, and, in particular, the judgment or series of judgments which were made by the Scottish Parliament.

[28]     
Mr Moynihan then turned to the legislative context within which, he submitted, the Act fitted. It was to be seen as a continuation of a progressive approach to the prevention of cruelty to animals. As had been submitted in Adams, the prevention of cruelty to animals has long been recognised as being in the public interest and as being a fit subject for legislation. Counsel for the petitioners in Adams had not sought to take issue with that. Moreover, there are differences in the relevant legislation as between Scotland, on the one hand, and between England and Wales, on the other. In Adams reference had been 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 the Conservation of Seals Act 1970, and the Wild Mammals (Protection) Act 1996. In the hearing before me Mr Moynihan confined himself to mentioning two provisions, section 17(3) of the Deer (Scotland) Act 1996 which provides that the only permitted method of killing deer is by shooting and section 9(1), taken with Schedule 5, of the Wildlife and Countryside Act 1981, which makes otters a protected species and prohibits killing them. The prohibition of killing deer other than by shooting is unique to Scotland. In parts of England deer are still hunted with hounds. The Deer (Scotland) Act 1996 is therefore an example of the Westminster Parliament prohibiting a method of hunting a particular species in one part of the United Kingdom while not prohibiting it in another. The Wildlife and Countryside Act 1981 is another example of Westminster legislation which either prohibits hunting which had formerly been carried out using hounds, or restricts the method by which a wild animal might be killed. This was part of a long legislative tradition of preventing activity regarded as involving cruelty to animals while permitting activities which could be objectively justified.

[29]     
Taking an overview of the submissions that he intended to develop, Mr Moynihan explained that his main thrust would go to relevancy but that a significant theme in what he would have to say was lack of specification in the petitioners' case because of the paucity of facts averred on crucial issues. The primary facts relied on by the petitioners were not set out by way of averment in the petition. I would observe, parenthetically, that in Adams, as I was informed, and as can be seen from paragraphs [35] to [42] of the opinion (supra at 379C to 381I), not only had there been more by way of averment in the petition than there was in the present petition, but the parties in that case had agreed to extensive reference being made to a report by Dr Garry Marvin of the University of Surrey, dated 15 June 2002. The report by Dr Marvin is one of the many documents lodged with the present petition but it was not referred to and there was no agreement that I might refer or otherwise have regard to it. Mr Moynihan explained that he did not intend to go into the documents which had been produced by parties for two reasons. The first of these reasons was that the background to the Protection of Wild Mammals Act was set out in Lord Nimmo Smith's opinion in Adams (supra at 378G to 383H). The second of Mr Moynihan's reasons for not going into the documents was that it was inappropriate, he said, to pick and choose among the various items in a vast body of lodged material which was not entirely consistent with itself. For example, there was material to the effect that fox-hunting was conducive to biodiversity because fox-hunting farmers preserved habitat in which foxes, and, incidentally, other wildlife, could thrive, with the object of there being foxes to hunt. There was also material which argued for the continuation of fox-hunting as a means of pest control.

[30]     
Mr Moynihan indicated the structure of his proposed submissions. They fell under three headings: first, the legal order, the relevance of international obligations and the scope of the Convention; second, the relevance of the various "other" international obligations relied upon in this petition; and, third, the Convention. Under the third of these headings, the Convention, there were four sub-headings, each stated as a question: are Articles 8 to 11 engaged?, if so, is interference with the rights protected under Articles 8 to 11 justified as being necessary for the protection of morals?, has the legislation exceeded the "margin of appreciation"?, and what is the relevance of Article 14?

[31]     
Mr Moynihan drew my attention to the averments in the petition. They include the following, which appear in statements 6 and 7:

" ... hunting with dogs, hereinafter called hounds, is an historical and cultural activity that meets every legal and literal definition of a culture and is a cultural life that is followed by an ethnic group; namely, a group of people with a common national and cultural tradition and, with their involvement with hunting, the petitioners share with other Scots and the inhabitants of the UK the following:

i) a long group history with a cultural tradition of its own including family and social customs evolved over centuries and,

ii) a sufficient combination of shared customs and beliefs, traditions and characteristics from a common or presumed common past to be distinguishable from others in the population.

Thus being group of people with a common cultural or national tradition.

...

i) The petitioners claim that their way of life, centred as it is upon the hunt at the core of their community, is an assured right.

ii) Contracting states have a positive obligation to facilitate such a way of life not only in the petitioners' interest but to preserver a cultural diversity of value to the whole community."

The petition, said Mr Moynihan, relies on these features of fox-hunting, and those who would wish to participate in fox-hunting, as engaging the protection of the Convention and the specified international obligations, with the result that the Act, which prohibits fox-hunting, should be declared incompatible or non-compliant or not in conformity with the Convention and the obligations. However, so Mr Moynihan submitted, the Convention has a narrower scope than some other comparable international instruments. This is in order to render the rights created by the Convention effective and enforceable. The Convention does not give a substantive right to the preservation of culture, nor does it prohibit discrimination per se (see R (Pretty) v DPP [2002] 1 AC 800, Lord Steyn at 833 C). The international treaties or other international instruments mentioned in the petition make reference to the particular position of indigenous peoples and ethnic groups and to cultural rights, but these instruments do not form part of the domestic law of Scotland and the court should not be seduced into construing Convention rights, which do form part of domestic law, under reference to international documents which do not form part of domestic law (see Chapman v UK (2001) 33 EHRR 399 at paragraphs 93 and 94). Any international obligation that there may be to promote cultural diversity is too vague for the more specific Convention. International treaties and other instruments give rise to enforceable rights and obligations under domestic law only if and to the extent that they are incorporated into domestic law by legislation. The legislative competence of the Scottish Parliament is not qualified by reference to international obligations other than Community Law and the Convention. It is accordingly free to legislate in contravention of such other international obligations.

 

International obligations (other than Convention Rights)

[32]      Having concluded the preamble which I have recorded at paragraphs [27] to [31] above, Mr Moynihan turned to consider that part of the petition which was founded on treaties and other international instruments, other than the Convention. It was Mr Moynihan's submission that international treaties and other such international instruments give rise to enforceable rights and obligations under domestic law only if and to the extent that they are incorporated into domestic law by legislation. He distinguished the position of the Convention. The Convention has been incorporated into domestic law. The other international treaties and similar instruments referred to in the petition have not been. Accordingly, all references to these international instruments are irrelevant. Mr Moynihan drew my attention to Lord Hoffmann's speech in R v Lyons [2002] 3 WLR 1562 at 1575F. As was said by Lord Hoffmann, international treaties do not form part of English law and the English courts have no jurisdiction to interpret or apply them. Mr Moynihan submitted that the same was so with Scots law and the Scottish courts. In Lyons Lord Hoffmann went on, at 1576B, to explain that the sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether or not that would involve the Crown in breach of an international treaty. In Lyons Lord Hoffman was addressing himself to the case of the sovereign Westminster Parliament. That parliament is supreme. The Scottish Parliament is not supreme. Its powers are derived from the Scotland Act. As was observed by the Lord President in Whaley v Lord Watson 2000 SC 340, at 348G-349E and 349H-350E, it is therefore a statutory body and, in a sense, it may be described as a subordinate statutory body. That does not detract from the traditional proposition that international obligations unincorporated into domestic law are unenforceable in this court. In Lyons the House of Lords rejected the argument that the court and the Director of Public Prosecutions, as subordinate organs of the state, had an obligation to respect the terms of the Convention at any time prior to the incorporation of Convention rights into the domestic law by the enactment of the Human Rights Act. As was discussed by Lord Nimmo Smith in Adams at paragraphs [52] to [63] (supra at 383I to 386D), the legislative competence of the Scottish Parliament is circumscribed by section 29 of the Scotland Act, but it is circumscribed only by that section. As Lord Nimmo Smith put it at paragraph [63] of his opinion (Adam supra at 386A), this means that it is not open to this court to find that an Act of the Scottish Parliament (or any provision of such an Act) is not law, unless it is outside the legislative competence of the Parliament in one of the respects provided by section 29. The United Kingdom executive retains discretion, in terms of sections 35 and 58 of the Scotland Act, to intervene if it becomes concerned that the Scottish Parliament or the Scottish Executive is acting in breach of international law but, in the absence of such intervention, the Scottish Parliament is free to legislate in contravention of international law. Accepting that the Scottish Parliament is a subordinate statutory body, Mr Moynihan submitted that, where the matter is not regulated by the Scotland Act, there is scope for the application of traditional rules of constitutional law as developed in relation to the Westminster Parliament. That traditional principles might be applied where the relevant statute is silent had been recognised in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, The Times 26 July 2002, in relation to questions raised as to the effect of the Northern Ireland Act 1998 in relation to the Northern Ireland Assembly. Mr Moynihan referred in particular to the speeches of Lord Bingham at paragraphs [11] - [12] and Lord Hoffmann at paragraph [31]. Just as the Westminster Parliament is not obliged to legislate in terms of international law, neither is the Scottish Parliament. When paragraph 7 (2) of schedule 5 to the Scotland Act provides that observing and implementing international obligations are not reserved matters, that means that it comes within the legislative competence of the Scottish Parliament whether or not to observe international obligations, subject to the discretion, conferred by sections 35 and 58, on the Secretary of State to intervene. The position under the Scotland Act therefore, has remained consistent with the law as decided by the High Court of Justiciary in Mortensen v Peters (1906) 8 F (J) 93. That the jurisdiction of the court is limited to the application of domestic law rather than international treaties is also consistent with what was said in a case upon which the petitioners particularly found, R v Home Secretary ex parte Brind [1991] 1 AC 696 and, in particular, by Lord Donaldson at 718B, and Lord Bridge at 748B.

[33]      Mr Moynihan submitted that if the argument summarised in the preceding paragraph was accepted, then the petitioners' whole case insofar as it referred to international obligations was irrelevant and should not be admitted to probation, but there was, in any event, good reason why the Secretary of State had not exercised his discretion to intervene in relation to the Act. Principle 22 of the Rio Declaration related to communities with knowledge relevant to environmental management and development. Is it being said that a member of the Berwickshire Hunt is part of such a community? If so, it was not averred in the petition. Article 8(j) of the Convention on Biological Diversity relates to in-situ conservation. It is stated to be subject to national legislation and includes the qualification "as far as possible and as appropriate". It is relevant to the maintenance of biodiversity. There is no averment in the present petition that fox-hunting is relevant to biodiversity. Moreover, as appears from Birnie & Boyle International Law and the Environment (second edition) at page 569, the need to secure a consensus among the prospective parties to the Convention on Biological Diversity resulted in a text with many ambiguities and omissions, much bland language and qualified commitments. Even at the international level, the Convention on Biological Diversity is no more than a framework document lacking the precision necessary to constitute enforceable specific obligations or to confer specific rights. This is a worldwide compromise, intended as a basis for negotiation, which simply does not lend itself to judicial application. As is explained in Bloed The Conference on Security and Co-operation in Europe: Analysis and Basic Documents, 1972-1993, at page 22, the Final Declaration of the Conference on Security and Co-operation in Europe does not even have the status of an international treaty. It falls to be considered as a political and not a legal document. It is a generally worded framework document which is not intended as a basis upon which a domestic court might question municipal legislation. The recognition by Article 15.1(a) of the International Covenant on Economic, Social and Cultural Rights of the "right" to take part in cultural life is not intended to give rise to a legal right, enforceable against a national government. The Convention, it is to be remembered, does not guarantee participation in cultural life. But, in any event, there is no suggestion in the petition that the Protection of Wild Mammals Act prevents the petitioners from pursuing a culture. They may ride across country. They may ride to hounds as long as they do not hunt wild mammals. They may, for example, take part in drag hunting. Article 27 of the International Covenant on Civil and Political Rights is, in those States in which those minorities exist, concerned with the protection of the rights of ethnic, religious and linguistic minorities. It may be assumed here that no issue arises over any religious minority. If what is said to be involved is an ethnic or linguistic minority, what is meant by that? Is it the same as an ethnic group, which the petition asserts, but with no factual averments in support, which follows the cultural life of hunting with dogs? These are questions which the court is ill-equipped to answer. Frankly, this court does not have the wherewithal to understand, with the degree of precision which would be required if they were to translated into enforceable rights, the concepts and language which are used to express the agreements between nation states which are articulated in international treaties. Mr Moynihan made no separate submission in relation to article 50 of the International Covenant on Civil and Political Rights. He recognised that article 27 of the Universal Declaration of Human Rights provides that everyone has the right freely to participate in the cultural life of the community, but even in international law it is not it a legally binding instrument (see Clayton and Tomlinson, The Law of Human Rights paragraph 2.42). It is an aspirational document (see R (Pretty) v DPP [2002] 1AC 800 at 833C). There is accordingly a question as to the proper interpretation of these treaties, their proper legal characterisation, and their application, which gives good reason why the Secretary of State did not intervene and good reason for the court to refrain from attempting to interpret or apply them. These international obligations do not form a basis upon which the Protection of Wild Mammals Act can be impugned.

[34]      In responding to the criticisms, made on behalf of the Lord Advocate, of the petitioners' reliance on the terms of international obligations, Mr Friend began by stating that the terms of the instruments were clear. So was their authority. They applied to him. He was an indigenous person in terms of principle 22 of the Rio Declaration. He belonged to a local community. It was known as the hunting community. Mr Moynihan had argued that the Convention on Biological Diversity was wishy-washy, born of consensus and all things to all men. Mr Friend submitted that that in no way detracted from its validity as an international treaty, and it should have been taken into account by the Scottish Parliament. Mr Friend referred me to a letter, dated 19 May 1994, from the then Foreign Secretary of the United Kingdom, addressed to the then Secretary General of the United Nations, which formed part of item 1/7 of the petitioners' list of authorities. The letter referred to the United Kingdom's instrument of ratification of the United Nations Convention on Biological Diversity, which contained an undertaking, on behalf of the United Kingdom, faithfully to perform and to carry out all the stipulations contained therein. As a member of the hunting community he was concerned to safeguard the land and to safeguard wildlife and biodiversity. Preservation of the natural heritage was a benefit, albeit an incidental benefit, of the culture of the hunting community. The rights of the hunting community to pursue its own culture are further recognised in Article VII of the Final Declaration of the Conference on Security and Co-operation in Europe, Article 15.1(a) of the International Covenant on Economic, Social and Cultural Rights, Article 27 of the International Covenant on Civil and Political Rights and Article 27 of the Universal Declaration of Human Rights. As the petitioners will demonstrate, if allowed a second hearing, the hunting community is one which goes back hundreds of years and has a distinct cultural life. As appears from Clayton and Tomlinson, supra at paragraph 2.42 and 2.43 (and the cases there cited - R v The Secretary of State for the Home Department ex p Findlay, The Times, 23 May 1984, Waddington v Miah [1974] 1 WLR 683 at 690H, and Kiam v Neill [1994] EMLR 1), the Universal Declaration of Human Rights had been used in English law. Mr Friend accepted that legislation had to be enacted in order to incorporate international obligations into domestic law. However, paragraph 7 of Schedule 5 to the Scotland Act placed a responsibility on the Scottish Parliament, if only by implication. Sections 35(1) and 58(1) of the Scotland Act conferred discretion on the Secretary of State to intervene in the event that he has reasonable grounds to believe that any Bill before the Scottish Parliament or any proposed action by a member of the Scottish Executive, would be incompatible with any international obligation. There was accordingly a responsibility on the part of the Scottish Parliament, submitted Mr Friend, to prevent such intervention and, therefore, in effect, a positive obligation on the Scottish Parliament to seek out the international obligations of the United Kingdom and to implement them by enacting them into domestic law. This is of such constitutional importance as to merit, on its own, a second hearing of the petition. Seeking to have the Protection of Wild Mammals Act declared to be incompatible with the international obligations of the United Kingdom was what Mr Friend described as the route forward to challenging the legality of the Act or, as he also put it, a way to find out who to sue. He explained that what he was saying by way of oral submission is what might have been the subject of averments in the petition and would be the subject of averments if a second hearing was allowed.

[35]      Section 29 (1) of the Scotland Act provides that an Act of the Scottish Parliament is not law insofar as any provision of the Act is outside the legislative competence insofar Parliament and section 29 (2) provides that a provision is outside that competence so far as, inter alia, it is incompatible with any of the Convention rights or with Community law. Section 57 (2) provides that a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law. Making a commencement order would be an example of "any other act" but, although section 57 (2) is referred to in the petition, given the terms of section 29 (2), it does not appear to me that it is necessary to consider it further. Certainly, parties gave no particular attention to section 57 (2) in the course of their submissions.

[36]     
The effect of section 29 (2) of the Scotland Act is that the Scottish Parliament, unlike the Westminster Parliament, is not sovereign. Unlike the Westminster Parliament (except where the matter is subject to Community law), the Scottish Parliament is therefore under legal control (cf Wade & Forsyth Administrative Law (8th edition) page 4). The Convention limits the powers of the Parliament. This feature of the Scottish Parliament is discussed, in the following terms, by Lord President Rodger in Whaley v Lord Watson 2000 SC 340 at 348G:

"The Lord Ordinary gives insufficient weight to 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. 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 [Scotland Act 1998] 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. It is unnecessary for present purposes to consider the position where Community law rights are involved. Cf. R. v. Secretary of State for Transport ex parte Factortame Ltd. [1990] ECR I-2433 at paragraph 21. 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."

[37]      Mr Friend was therefore, in my opinion, correct to say that the Scottish Parliament is governed by what is, in effect, a mini-constitution. By that I took him to mean that, in the Scotland Act, the Convention and Community law, there are written sources of law which have primacy over what the Scottish Parliament may purport to enact. In other systems, that of the United States, for example, the primary source of law is the written Constitution. In such systems, statutes may be held by the courts to be invalid, as being contrary to the Constitution. By his use of the expression "mini-constitution", I understood Mr Friend to be drawing an analogy as between the Scotland Act and the Convention, on the one hand, and such a written Constitution, on the other. The Scotland Act contains a number of provisions designed to prevent the Scottish Parliament enacting legislation which is incompatible with the Convention (these provisions are reviewed by Lord Nimmo Smith in Adams supra at 371K to 372C), but there is no question but that this court has the power to determine, in proceedings at the instance of a party who alleges that he is a victim for the purposes of Article 34 of the Convention, that a purported Act of the Scottish Parliament is incompatible with the Convention and, as a result, that such purported Act is not law.

[38]     
I have therefore accepted Mr Friend's submission that the Scottish Parliament is not a sovereign body and that it is subject to control by the court. That is clear from the terms of section 29 and was not disputed on behalf of the respondent. However, I must make it clear that I reject, as entirely irrelevant, the considerations urged on me by Mr Friend in support of his motion that I allow a second hearing, that there was no upper chamber in the Scottish Parliament, and that the Rural Affairs Committee of the Parliament had recommended that the Bill which was enacted as the Protection of Wild Mammals Act be not passed (the proceedings of the committee are summarised in Adams supra at 382H to 383F). The Scottish Parliament is constituted as it is constituted. Neither are its powers reduced nor are the powers of the court increased by the fact that the Parliament is a unicameral rather than a bicameral body. The court does not, as Mr Friend submitted it did, "serve the function of an upper chamber". That is not a power conferred upon the court but, in any event, "serve the function of an upper chamber" is an entirely meaningless expression when used of a unicameral institution. No criticism is made in this petition of the procedures by which the Protection of Wild Mammals Act was enacted. The Parliament was entitled to reject the recommendations of the Rural Affairs Committee. In any event, in terms of section 28 (5) of the Scotland Act, 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.

[39]     
The Convention is an international treaty. It creates international obligations. An Act of the Scottish Parliament must be compatible with the Convention. That is not simply because the Convention is an international treaty but because it is given a particular status by section 29 of the Scotland Act (as is Community law). I was referred in the course of submissions to three authorities which discuss the status of international treaties in the domestic law of England or Scotland: the decisions of the Court of Appeal and the House of Lords in R v Home Secretary ex parte Brind; R v Lyons, a decision of the House of Lords; and Mortensen v Peters, a decision of a Full Bench of the High Court of Justiciary. In Brind and Lyons the international treaty under discussion was the Convention but in relation to the state of the law as it was prior to the enactment of the Human Rights Act (and the Scotland Act) and therefore at a time when it fell to be regarded in the same way as any other international treaty. In Mortensen the appellant had relied on the terms of the North Sea Fisheries Convention of 1883 as authoritative in determining what waters fell outside the territorial jurisdiction of the British Crown.

[40]     
Brind was an application by certain journalists for judicial review of directives issued to the British Broadcasting Corporation and the Independent Broadcasting Authority by the Secretary of State for the Home Department in pursuance of section 29(3) of the Broadcasting Act 1981 requiring the recipients to refrain from broadcasting words spoken by persons representing proscribed terrorist organisations. The applicants founded on an alleged contravention of Article 10 of the Convention. The application was dismissed by the Divisional Court. The applicants appealed. The appeal was dismissed by the Court of Appeal. The applicants then appealed to the House of Lords. That appeal was dismissed. In the Court of Appeal, Lord Donaldson MR said this ([1991] 1 AC 696 at 717F to 718B):

"The Convention is contained in an international treaty to which the United Kingdom is a party and, by article 1, binds its signatories to 'secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.' The United Kingdom Government can give effect to this treaty obligation in more than one way. It could, for example 'domesticate' or 'patriate' the Convention itself, as has been done in the case of the treaties mentioned in European Communities Act 1972, and there are many well-informed supporters of this course. Their view has not, as yet, prevailed. If it had done so, the Convention would have been part of English domestic law. Alternatively, it can review English common law and statute law with a view to amending it, if and in so far as it is inconsistent with the Convention, at the same time seeking to ensure that all new statute law is consistent with it. This is the course which has in fact been adopted. Whether it has been wholly successful is a matter for the European Court of Human Rights at Strasbourg and not for the English courts. By contrast, the duty of the English courts is to decide disputes in accordance with English domestic law as it is, and not as it would be if full effect were given to this country's obligations under the Treaty, assuming that there is any difference between the two."

[41]      Lord Donaldson went on to recognise an exception to the general rule that the English courts will be wholly unconcerned with the terms of the Convention and that is when the terms of primary legislation are truly ambiguous in the sense of being fairly capable of bearing two or more meanings. Then, as a matter of construction of the primary legislation, the court would apply the presumption that Parliament intended to legislate in a manner which was consistent, rather than inconsistent, with the United Kingdom's treaty obligations. However, in the absence of ambiguity, the Convention was simply irrelevant. As Lord Donaldson had explained, it was simply not part of English law. When Brind came to the House of Lords, Lord Bridge recognised, at 748B, what he described as the "mere canon of construction" which permitted resolution of ambiguity by reference to the presumption which had been referred to by Lord Donaldson. This, he said, involved "no importation of international law into the domestic field". Lord Ackner, in his speech in Brind, at 762A, observed: "The Treaty, not having been incorporated in English law, cannot be a source of rights and obligations and the question 'Did the Secretary of State act in breach of article 10?' does not therefore arise". By way of further explanation, Lord Ackner then quoted, at 762B, what had been stated by Lord Oliver in J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry (the International Tin Council case) [1990] 2 AC 418, 500:

"Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."

[42]     
In R v Lyons the four appellants appealed to the House of Lords against the refusal of the Court of Appeal, on a referral by the Criminal Cases Review Commission, to quash convictions, recorded in 1990, in proceedings where the court had permitted the prosecution to lead evidence, pursuant to section 434 (5) of the Companies Act 1985, of statements made by the appellants under compulsion of law. In 1996 and 2000 the European Court of Human Rights had made rulings that the admission of the statements had infringed the appellants' right to a fair trial, as guaranteed by article 6 (1) of the Convention. In his speech, after having noticed the authority to the effect that the Human Rights Act did not have retrospective effect, Lord Hoffmann said this, at 1575D:

"26 What, then, is the effect of the ECHR rulings upon the question of whether the appellants' convictions are safe? The Convention is an international treaty made between member states of the Council of Europe, by which the High Contracting Papers undertake to 'secure to everyone, within their jurisdiction the rights and freedoms defined in section 1 of this Convention'. Article 19 sets up the ECHR 'to ensure the observance of the engagements undertaken by the High Contracting Parties'. It has jurisdiction under article 32 to decide 'all matters concerning the interpretation and application of the Convention'. And by article 46 the high contracting parties undertake 'to abide by the final judgment of the court to which they are parties'.

27 In other words the Convention is an international treaty and the ECHR is an international court with jurisdiction under international law to interpret and apply it. But the question of whether the appellants' convictions were unsafe is a matter of English law. And it is firmly established that international treaties do not form part of English law and the English courts have no jurisdiction to interpret or apply them: J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990 2 AC 418 (the International Tin Council case). Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283: 'I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention].'

28 But for present purposes the important words are 'when I am free to do so'. The sovereign legislator in the United Kingdom is Parliament, If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not."

[43]      These are pronouncements by English courts. The following passage from the opinion of Lord Justice-General Dunedin in Mortensen v Peters (1906) 8 F (J) 93 would indicate that the law of Scotland is the same of the law of England in this matter. Lord Dunedin said this, at 100 to 101:

"In this Court we have nothing to do with the question of whether the Legislature has or has not done what foreign powers may consider a usurpation in a question with them. Neither are we a tribunal sitting to decide whether an Act of the Legislature is ultra vires as in contravention of generally acknowledged principles of international law. For us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms. ... It is trite observation that there is no such thing as a standard of international law extraneous to the domestic law of a kingdom, to which appeal may be made."

[44]     
The petitioners seek decree of declaration of incompatibility (the words "non-compliance" and "nonconformity" are also used but I did not understand there to be significance in the precise words used) as between section 1 of the Protection of Wild Mammals Act and the international obligations of the United Kingdom, created by the identified treaties and instruments. This appears to me to be an invitation to the court to do precisely what Lord Dunedin said the court had no business to do and no jurisdiction to do (Lord Dunedin was speaking of the High Court of Justiciary rather than the Court of Session, but nothing turns on that). Mortensen v Peters is a decision by a Full Bench. The majority simply concurred with the opinion of the Lord Justice-General. If the law remains as it is stated in the opinion of the Lord Justice-General, then the present petition, in so far as founding on international obligations of the United Kingdom other than those contained in the Convention is fundamentally irrelevant. With a view to persuading me that, whatever might be the case in England (he challenged nothing of what was said in Brind or Lyons), Mr Friend argued that the enactment of the Scotland Act and, in particular, paragraph 7 of Schedule 5 and sections 35(1) and 58(1), had changed the position, with the result that there was a positive obligation on the Scottish Parliament, with a view to preventing intervention by the Secretary of State, to seek out the international obligations of the United Kingdom and to implement them by enacting them into domestic law. The ramifications of this ambitious submission were not explored by either party. I therefore feel entitled to deal with it quite shortly. The legislative competence of the Scottish Parliament is circumscribed, in specific ways, by the terms of section 29 of the Scotland Act. Certain international treaties, the Convention and those treaties which underpin Community law, are identified as, in part, defining that legislative competence. The very fact that Convention rights and Community law are specifically referred to in section 29 whereas other international obligations of the United Kingdom are not, suggests that other international obligations have no bearing on the legislative competence of the Scottish Parliament. Specifically referring to an international treaty or reiterating its terms in domestic statute is consistent with what Mr Friend expressly accepted was the rule in both Scotland and England that legislation has to be enacted in order to incorporate international obligations into domestic law. That is what section 29 does with the Convention and the Community treaties. It does not do so with any other international treaties. This difference in treatment cannot be other than of significance. Mr Friend founded on a supposed obligation on the Scottish Parliament to enact into domestic law all the international obligations of the United Kingdom (presumably insofar as not relating to reserved matters or otherwise outside its competence). It was not clear to me why, assuming such an obligation, a failure fully to implement it by enacting sufficient in the way of legislation, should have any impact on legislation which actually has been enacted. However, I do not find there to be any such obligation. I have to confess that I find the notion of a democratic parliament having an obligation to enact anything to be a strange one. Measures are proposed, debated and, if they commend themselves to a majority, passed. In any event, as is clear from the authorities referred to above, the Parliament of the United Kingdom has no obligation to enact into domestic law treaties which the executive may have made with other countries. Parliament may enact a treaty into law but no consequences flow from a failure to do so. As with any power, the power to enact particular legislation may be exercised or it may not be. I find nothing in the Scotland Act to put the Scottish Parliament in a different position. Section 29(2)(b) provides that a provision is outside the competence of the Scottish Parliament so far as it relates to the matters which are reserved to the United Kingdom Parliament. Schedule 5, which is given effect by section 30, defines reserved matters. Paragraph 7 has the result of including among reserved matters, "international relations", but excludes from "international relations", observing and implementing international obligations. The Scottish Parliament therefore has the power to legislate with the object of observing and implementing international obligations. Having the power to do something does not necessarily bring with it the duty to do that thing. Nothing in paragraph 7 or section 30 imposes a duty or obligation to legislate on the Scottish Parliament. Nothing in sections 35(1) or 58(1) does so either. Sections 35(1) and 58(1) confer powers on the Secretary of State to intervene by making orders prohibiting the Presiding Officer from submitting a Bill for Royal Assent or directing that proposed action be not taken by a member of the Scottish Executive, if he has reasonable grounds to believe that a Bill or proposed action would be incompatible with the international obligations of the United Kingdom. The Secretary of State's powers are discretionary. He may exercise them or not as he may determine. Any order he may make can only be prohibitory. There is nothing in this scheme which has the result of imposing a duty upon the Scottish Parliament to do something. I consider that Mr Moynihan was correct to say that, in the absence of intervention by the Secretary of State, the Scottish Parliament is free to legislate in contravention of international law. I consider that he was also correct to say that the position under the Scotland Act remained consistent with the law as decided by the High Court of Justiciary in Mortensen v Peters. In my opinion, it follows that the references in the petition to international obligations other than what arises from the specified articles of the Convention are irrelevant. Putting the point slightly differently, it would be without any legal consequence (and, indeed, meaningless) for the court to declare that the Protection of Wild Mammals Act is incompatible with or non-compliant or not in conformity with any of the international treaties specified in the petition other than the Convention.

[45]     
Part of Mr Moynihan's attack on the averments in the petition relating to international obligations undertaken by treaties other than the Convention related to the concepts and language used in these instruments. He submitted that the court does not have the wherewithal, as he put it, to understand, with the degree of precision which would be required if they were to translated into enforceable rights, the concepts and language which are used to express the agreements between nation states which are articulated in international treaties. I see the force of that submission but, had it been necessary for me to consider whether to do so, I would have found it difficult to give it decisive effect. Within the last thirty years, Scots lawyers have had to become familiar with new sources of law, albeit with the assistance of established jurisprudence. I particularly have in mind Community legislation and the Convention. These sources have called for new approaches to interpretation. I do not accept that simply because an international treaty, for example, is not expressed with the precision and in the detail which is to be expected of an Act of Parliament, that it could not be a source of law or that it could not be understood by a Scottish court. It is interesting to read what appears in paragraph 56 of Lord Steyn's speech in R (Pretty) v DPP supra 823E about the language adopted in drafting the Convention. In 1950 the Lord Chancellor (Lord Jowitt) described it as "vague and indefinite, so that all parties, hoping and expecting that these terms will be construed according to their separate points of view, could be induced to sign." In 2001 Lord Steyn described the same language as "open textured" permitting "the adaption of the European Convention to modern conditions." In my opinion, that a text does not have the quality of precision that one looks for in a written statement of law, may be a pointer to its author or authors not intending it to have that status. It can be no more than that. I have accepted Mr Moynihan's submission that the international instruments referred to in the petition are not part of domestic law but had it been otherwise, it would have been the duty of the court, however lacking in wherewithal, to use Mr Moynihan's expression, to interpret them and give them meaning, when required to do so. However, the averments relating to the specified international instruments are irrelevant and I shall not admit them to probation.

The Convention: Articles 17 and 53

[46]     
Before giving his more detailed attention to Articles 8 to 11 and 14, Mr Moynihan wished to exclude, as clearly irrelevant, Articles 17 and 53. He drew attention to the fact that Article 53 is not one of the Articles which set out Convention rights in terms of the Human Rights Act. It is therefore to be regarded purely as an international obligation which is not part of our domestic law and which is not enforceable. Mr Moynihan submitted that the point is, however, academic. The purpose of Article 53 is simply to make clear that the Convention is intended to create additional rights as opposed to limit or to derogate from existing rights. Article 17, on the other hand, does confer Convention rights in that section 1 of the Human Rights Act provides that the rights and fundamental freedoms set out in the identified Articles are to be "read with" Articles 16 to 18. What that was thought to mean is that the Convention could not be used with the intention of destroying any of the rights and freedoms set out in the Articles which contained Convention rights. As is observed by Clayton and Tomlinson, supra at paragraphs 6.111 and 6.112, it is an unusual Convention right in that it can be used both by the individual against the state and the state against the individual. Thus, the state can use Article 17 to protect itself against a threat of totalitarianism. It is aimed, submitted Mr Moynihan, at the prevention of the subversion of a democratic government but, in any event, it did not add anything. If, in the present case, the Protection of Wild Mammals Act breached Articles 8 to 11 or 14, the court did not need to consider Article 17. If the Act did not breach these other Articles, there would be no breach of Article 17. Therefore, although Article 17 set out Convention rights, it had no substantive relevance to this case.

[47]     
When he came to respond, Mr Friend doubted whether Article 17 of the Convention advanced his argument. He did, however, seek to rely on Article 53, notwithstanding that it did not provide Convention rights. He referred in this regard to the judgment of Lord Donaldson in Brind supra at 717E to 718C. Although not specifically averred in the petition, it was Mr Friend's contention that the Protection of Wild Mammals Act denied the petitioners the protection of the custom of hunting provided by the Coronation Oaths Act 1688. His argument, as I understood it, was that as Article 53 stated that nothing in the Convention was to be construed as limiting or derogating from any of the human rights and fundamental freedoms which might otherwise be ensured under the laws of any of the High Contracting parties, the article had the effect of entrenching all "rights and fundamental freedoms" that domestic law provided, with the result that they could not thereafter be abridged. In the petition it is averred that the Protection of Wild Mammals Act denies the petitioners the protection of "existing statutes that preserve their rights and customs" and "those relevant International Covenants and Conventions to which the United Kingdom is a Party." The only candidate put forward as an existing statute that preserved the rights and customs of the petitioners in respect of fox-hunting was the Coronation Oaths Act 1688.

[48]     
As Mr Friend did not found on Article 17 as advancing his argument or dispute what Mr Moynihan said about it, I do not propose to consider this article further. I take reference to it as not being relevant. I also consider any reference to Article 53 to be irrelevant. For reasons explained above, the provisions of an international treaty, including the Convention, which do not have the status of Convention rights in terms of the Human Rights Act and the Scotland Act, are simply not part of the law of Scotland. Thus, Article 53 does not confer any rights on which the petitioners can found. No more do the "International Covenants and Conventions to which the United Kingdom is a Party" referred to in statement 7 of the petition. I would add that the Coronation Oaths Act 1688 is not, in any event, part of the law of Scotland. It is a statute of the former English Parliament. Had it been necessary for me to consider the question, I would not have been persuaded that the Coronation Oaths Act has anything to do with protecting the custom of hunting, whatever that might mean, but that is not a matter that requires decision.

The Convention: the engagement of Articles 8 to 11

[48]     
Having argued that reference to Articles 17 and 53 was clearly irrelevant, Mr Moynihan turned to what he described as the Articles which merited discussion (8 to 11 and 14), with a view to considering them under reference to the questions which I have stated at paragraph [30] above. The first of these questions was whether the various Articles referred to in the petition were engaged, by which I understood Mr Moynihan to mean whether the rights conferred by these Articles were applicable to the activity of fox-hunting and thus whether a prohibition of fox-hunting impinged on Convention rights. Counsel invited me to answer this first question in the negative under reference to each of the Articles of the Convention which were referred to in the petition. He then turned to consider each of Articles 8 to 11 separately.

Article 8

[50]     
Mr Moynihan reminded me that Article 8 (1) provides that everyone has the right to respect for his private and family life, his home and his correspondence. The proposition advanced by the petitioners in plea-in-law 1 of the petition is that the enactment of the Protection of Wild Mammals Act is incompatible with the petitioners' "right to their way of life". It is their contention that their way of life "centred as it is upon the hunt at the core of their community" is a right assured by Article 8. Mr Moynihan's reading of the petition was that, in contrast to Adams, it only put in issue private life, rather than family life, home or correspondence. Mr Moynihan accepted that the European Court of Human Rights had recognised that private life may include the right to develop relationships with others. He submitted that there are, however, limits to private life. In particular, one must not confuse the protection of private life with the promotion of cultural rights. Admittedly, they are not necessarily opposites. There is scope for overlap, but there is also a danger of simply equating private life and cultural rights, and whereas the Convention confers a right to respect for private life, it has a narrower scope than other international instruments which confer cultural rights as autonomous human rights. What is relied on here goes beyond any possible overlap between right of respect for private life and cultural rights. Fox-hunting is a sport pursued in public by a non-exclusive section of the public. It provides a public spectacle. Having regard to these features, it is not an aspect of private life. The cultural aspect of fox-hunting was considered by Lord Nimmo Smith in Adams and this court should follow Adams. The petitioners in the present case are going beyond the cultural argument in Adams only in respect that they assert that, as persons who have participated in fox-hunting, they are members of an ethnic group. Once one removes the notion of ethnic group there is no way of distinguishing this case from what was put forward in Adams and, accordingly, this court should follow the decision in Adams. Mr Moynihan adhered to the argument which had been presented for the Lord Advocate in Adams and which is set out by Lord Nimmo Smith in paragraphs [93] to [103] of his opinion (supra at 392F to 395F). Mr Moynihan drew particular attention to the passages from the decisions of the European Court of Human Rights in Niemietz v Germany (1992) 16 EHRR 97 and Brüggemann and Scheuten v Federal Republic of Germany (1983) 3 EHRR 244 which are quoted by Lord Nimmo Smith at paragraph [96] of his opinion (supra at 393F to K). Counsel commended the conclusion reached by Lord Nimmo Smith as to the nature of fox-hunting which appears in the latter part of paragraph [103] of his opinion (supra at 395E to F).

[51]      Botta v Italy (1998) 26 EHRR 228 was, in Mr Moynihan's submission, an important decision. There, a disabled Italian who was prevented from going onto a private bathing beach because of lack of provision for access, argued that the activity which he had been prevented from taking part in was one which affected the development of his personality and therefore he had not been accorded respect for his private life. The Court held, however, that Article 8 was not applicable. The right asserted: to gain access to the beach and sea at a place distant from the applicant's normal residence concerned interpersonal relations of broad and indeterminate scope. There was no direct link between the steps that the state was urged to take in that case (to secure ramps and public toilets suitable for use by the disabled) and the applicant's private life. All existence, submitted Mr Moynihan, involved association with other human beings. Such association is not private life. Private life is a concept to which there are limits. The limits are reached once the activity under consideration brings the individual into the sphere of interpersonal relations of broad scope which can be identified as public life. This is illustrated by the decision of European Court of Human Rights in Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39, a case where there had been a prosecution of the applicants and a number of other homosexual men by reason of their participation in certain sado-masochistic activities. Mr Moynihan referred me to the discussion of this case by Lord Nimmo Smith in paragraph [96] of his opinion in Adams (supra at 393D to E). Sexual life might be considered to be one of the clearest aspects of private life but, in the opinion of the European Court, there are bounds even to that. In questioning whether the Article 8 protection of private life was engaged, in Laskey the Court made reference to the number of people involved and the extent to which members of the public were invited to participate, through, for example, the distribution of video films showing the activities in question. Fox-hunting is pursued in public. It is not exclusive. Rather, it is inclusive of anyone wishing to participate. It is a public spectacle: a spectator sport, and once what one is concerned with is a spectator sport one is beyond the limits of private life.

[52]      In referring me to the features that fox-hunting is pursued in public and that it involves a spectacle that can be viewed by others, Mr Moynihan was relying on what he described as the core of judicial knowledge about fox-hunting. He stressed, however, the exiguous nature of the petitioners' averments as to what were the features of fox-hunting which made its prohibition incompatible with the Convention rights founded on. As he put it, this petition tells the court nothing about fox-hunting. There are no averments to indicate where on the spectrum from what is clearly private life to what is clearly public life the activity of fox-hunting lies. The concept of private life is a flexible one. In this petition there are no averments to indicate that the petitioners can bring fox-hunting within the private sphere. Thus, submitted Mr Moynihan, whereas enough was known judicially about fox-hunting to characterise it as a public activity, in the absence of averment, there was nothing to suggest why it should be considered to be a private activity. The position in relation to the amount of information available to the court was to be contrasted with that in Adams where the contents of Dr Marvin's report had been treated as if they were averred. Adams can therefore be regarded as having taken what Mr Moynihan described as the hunting lobby's case at its highest. Even then, he reminded me, the court had not been persuaded that fox-hunting fell within the sphere of private life.

[53]     
Mr Moynihan recognised that the present petition had added to what was before the court in Adams the contentions that the petitioners were members of an ethnic group with hunting, at "the core of their community". However, he submitted, that added nothing relevantly new to distinguish this petition from Adams. In the course of the debate in Adams, the Marvin report had been relied on as central to differentiating the football fan, on the one hand, and the hunt supporter, on the other. Absent the Marvin report, there was nothing to suggest that participation in fox-hunting was an aspect of private life at all. The significance of the Marvin report is that reference to it enabled an argument to be made that fox-hunting was not simply the attendance at an isolated event, but was a "core feature" of the lifestyle of the people involved, albeit that this association of an activity with a lifestyle was held in Adams not to engage Article 8 because of the public quality of the acts in question (supra at 395 A to F). Mr Moynihan urged me to follow Adams. Merely to characterise fox-hunting as a lifestyle was not enough.

[54]     
Notwithstanding what is averred in the petition, Mr Moynihan submitted that the Convention does not enshrine a right or freedom to hunt (see Chassagnou v France (1999) 29 EHRR 615 at paragraph 113). Given that the petition introduces an ethnic or cultural dimension, Mr Moynihan turned to consider cases which, he submitted, demonstrated that recognition of an overlap between private life and cultural rights has so far been confined to internationally recognised minorities. The applicant in Chapman v United Kingdom (2001) 33 EHRR 18 was a gypsy who lived with her family in a caravan on her own land. She complained that refusal of planning permission and consequent enforcement measures contravened her right to respect for family life as provided by Article 8. She argued that the measures complained of threatened her private life as a gypsy with a traditional lifestyle of living in mobile homes. The Court accepted that the applicant's occupation of her caravan was an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle and, accordingly, measures which affected her ability to maintain her identity as a gypsy and to lead her private life in accordance with that tradition put in issue her right to respect for her private life (see Chapman supra paragraph 73). Even then, Mr Moynihan pointed to the Court not being persuaded that what had been described by the European Roma Rights Centre, an intervening party, as the growing consensus amongst international organisations about the need to take specific measures to address the position of roma people (see supra paragraphs 89, 93 and 94), was sufficiently concrete to alter the margin of appreciation to be allowed to national governments. At the very least, submitted Mr Moynihan, what is key to Chapman is that it was an internationally recognised ethnic group that was being referred to. The same was true of G and E v Norway 35 DR 1. This was an application by Norwegian Lapps, otherwise Saami (Mr Moynihan explained that while the report uses the expression Lapps, this is not entirely respectful, Saami being the preferable term), arising out of a prosecution for failure to obey a police order requiring the applicants to end a political demonstration outside the Norwegian Parliament building. The demonstration was in protest against the building of a hydroelectric dam. One of the applicants was a reindeer herdsman, the other a hunter and fisherman. They relied on their membership of a minority group with a long history of working with reindeer, hunting and fishing, which for long had been disadvantaged in Norwegian society. The applications were declared inadmissible by the Europe Commission of Human Rights. However, the Commission was prepared to accept that, in principle, under Article 8, a minority group, such as the Saami, was entitled to claim the right to respect for the particular lifestyle it may lead as being "private life", "family life" or "home". It further accepted that the consequences of constructing a hydroelectric plant, including the environmental impact, could constitute an interference with a private life which included the moving of reindeer herds and fishing. Again, Mr Moynihan said, this was a case about a nationally and internationally recognised minority. The Saami spoke a different language from that of the majority group in the countries in which they lived. They were poorly educated and largely illiterate. In every literal and figurative sense they were being incorporated into a society which they did not understand and which did not understand them. Mr Moynihan contrasted that with the situation of the present petitioners and commended the opinion expressed by the authors in an article by Singh and Thomas The Human Rights Act implications of a ban on hunting with dogs [2002] EHLR 28 that with hunting there is no recognised minority in the Article 8 sense and, further, that hunting does not fall within the concept of private life at all. He referred to Beckers v The Netherlands Application No. 12344/86. There the applicant wished to live in his mobile home. He complained of action taken to make him vacate it because he did not qualify for the necessary permit under the relevant statute. He invoked Article 8 of the Convention. The European Commission on Human Rights accepted that the scope of the right to respect for private life is such that it secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. It accepted that in the case before it, the applicant's right to respect for his private life had been interfered with, as he was not allowed to live in his mobile home. It nevertheless observed, before concluding that the restriction arising from the relevant statute was an interference necessary in a democratic society, that while a minority's life style may fall under the protection of private life, family life or the home, the applicant in the present case did not belong to the minority of traditional mobile home dwellers, nor was there any need for him to live in a mobile home. As identified by Singh and Thomas supra, a distinction was to be drawn between a minority group, on the one hand, and what are merely the followers of a minority activity, on the other, but, submitted Mr Moynihan, it was difficult to pursue a debate about this distinction very far in the context of this petition. He returned to what he described as the problem of averment. Do the petitioners, Mr Moynihan asked rhetorically, disavow the feature of inclusiveness identified by Lord Nimmo Smith in Adams at paragraph [103] of his opinion (supra at 395D) or that of bringing together people from disparate backgrounds and fostering and maintaining a sense of community, identified at paragraph [99] (supra at 394G)? As Mr Moynihan put it, are they Chapmans or are they Beckers?

[55]      Given the averment by the petitioners that they were members of an ethnic group, Mr Moynihan referred to a series of cases under the Race Relations Act 1976. The first of these was the decision of the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548, where it was held that the Sikhs were a racial group for the purposes of section 1 of the 1976 Act. In his speech, at 561D to 562G, Lord Fraser considers the characteristics which can be used to identify an ethnic group. Mr Moynihan took the petitioners to attempt to bring themselves within the notion of an ethnic group, as identified by Lord Fraser, but, in contrast to what was required by Lord Fraser (at 562D), the petition did not aver that the petitioners were members of a group which regarded itself and was regarded by others, as a distinct community. In Commission for Racial Equality v Dutton [1989] 1 All ER 306 the court had distinguished between the term "travellers", which did not connote ethnic origin, with "gypsies", which did. Again, in Crown Suppliers v Dawkins [1993] ICR 517, the Court of Appeal held that there was nothing to distinguish Rastafarians from the rest of the Afro-Caribbean community so as to render them as a separate group, defined by reference to their ethnic origins and, accordingly, they did not come within the provisions of the Race Relations Act 1976. Mr Moynihan then referred to the majority opinion in BBC Scotland v Souster 2001 SC 458 at 464G to 465B, 468E to F and 469E to 470C. What he took from these passages was that an ethnic group must be a distinct community and, accordingly, to concentrate simply on Lord Fraser's two essential conditions: long history and common social customs was, as Mr Moynihan put it, to take the eye of the ball. A common philosophy might, said Mr Moynihan, be enough, but he was not offering a definition of what would amount to constituting a minority ethnic group for the purpose of attracting Article 8 protection of the distinctive features of its lifestyle. He reminded me that the Convention did not protect cultural rights, nor did it provide a freestanding protection against discrimination. The challenge, therefore, was to identify the boundary between private life and cultural rights. Equally, the challenge was to identify where one was going beyond Article 14 into a general prohibition on any sort of discrimination (a matter he was to return to). Mr Moynihan emphasised the importance attached by the Court in Chapman to its recognising only a concrete international consensus as to the rights to be accorded to minorities (see Chapman supra, paragraphs 93 to 95). Simply to brand oneself as a member of a minority was not enough. Article 8 does not confer a freedom as to choice of lifestyle. Simply to say that a given lifestyle is shared with others does not convert it into an aspect of private life, as that expression is used in Article 8. There is nothing averred in the petition to allow the activity of following fox-hunting to be regarded as an aspect of private life any more than was the activity of following the fortunes of a particular football team. There was therefore nothing to distinguish this petition from Adams.

[56]      When he came to respond to the attack upon the petitioners' case insofar as based on the Convention, Mr Friend began by explaining that the petitioners challenged the Protection of Wild Mammals Act in that it was incompatible with the Convention and, accordingly, as provided by Section 29(2) (d) of the Scotland Act 1998, it was outside the legislative competence of the Parliament to enact the Act. It was therefore not law. The petitioners also maintained that the Act discriminated against an ethnic social group while achieving nothing. Indeed, it increased unnecessary suffering. It cannot be regarded as being necessary in a democratic society. It is transparently discriminatory without any justification. The petitioners, Mr Friend explained, would wish to develop their contentions at a second hearing under reference to the documentary productions which had been lodged.

[57]     
Mr Friend described hunting with hounds as a cultural tradition followed by a community with identifiable customs and characteristics which goes back hundreds of years. He himself was a convert to the culture but, nevertheless he was an indigenous person from the British Isles. He submitted that hunting with hounds was a civil and immemorial right affirmed by the Convention. The Act deprived the petitioners of that right. It was proper to regard the hunting community as a distinct ethnic group. Mr Friend referred me to the definition of "ethnic" which is to be found in the Oxford Reference Dictionary. That definition was "of a group of mankind distinguished from others by race or having a common national or cultural tradition". The hunting community, Mr Friend submitted, was a group of mankind distinguished by having a common cultural tradition. In support of his proposition that the hunting community should be regarded as a distinct ethnic group, Mr Friend referred me to the same series of Race Relations Act cases which had been mentioned by Mr Moynihan.

[58]     
Mr Friend took me through Lord Fraser's list from Mandla v Dowell of the characteristics of an ethnic group and argued that, with perhaps the exception of common geographical origin or descent from a common ancestor and common religion, they all applied to the hunting community in the British Isles. The opinion of the majority in BBC Scotland v Souster (supra at 470B), that the cohesiveness which in each case serves to identify the Scots and the English as separate national groups, is largely derived from history and geography but lacks that particular and individual distinctiveness of community which is a mark of the characteristics which Lord Fraser viewed as relevant to the constitution of an ethnic group, was, Mr Friend explained, irrelevant to his argument. He was an Englishman by birth but the ethnicity which he claimed was based on his adherence to a culture which is equivalent to a Jewish culture or an Islamic culture. Mr Friend distinguished the position of members of the hunting community from that of Rastafarians, as discussed in Crown Suppliers v Dawkins. The hunting community was a community which had been established in every part of the British Isles long before 1930 (the date associated with the origin of Rastafarianism). In Commission for Racial Equalities v Dutton it had been held that gypsies, despite their long presence in England and the fact that they were no longer derived from common racial stock, had not merged wholly with the population but remained an identifiable group identifiable by reference to their ethnic origins. So, Mr Friend submitted, it was with the hunting community. The hunting community, accordingly, was and should be, protected by international treaty. Mr Friend accepted, under reference to the decision of the European Commission of Human Rights in Konkama and Thirty Eight Other Saami Villages v Sweden, Application No. 270033/95, that the government could regulate hunting but, in doing so, it could not discriminate against those who engaged in fox-hunting (as oppose to other forms of hunting). Human rights, Mr Friends submitted, were for all and, under reference to Wemhoff v Germany 1 EHRR 55 at paragraph 8, he commended to me an approach to a construction of the Convention which would achieve its objects rather than one which would restrict to the greatest possible degree the obligations of national authorities. It was the petitioners' submission that they were victims of contraventions of Articles 8 to 11, and 14 of the Convention.

[59]     
Turning more particularly to Article 8, Mr Friend accepted that the petition only put in issue private life, as opposed to family life and home and correspondence. He acknowledged that Lord Nimmo Smith in Adams had held that hunting with hounds was not part of private life. In argument in that case (and, indeed, in this case) it had been suggested that participation in fox-hunting was no more a part of private life than attending a football match. Notwithstanding Lord Nimmo Smith's conclusion, it was the position of the petitioners that hunting, shooting and falconry were all aspects of a private life which attracted the protection of Article 8. Certainly, a line had to be drawn between what was private life and what was not. A judgment had to be made and for that reason the petitioners were looking for a second hearing. Mr Friend pointed me to jurisprudence of the European Court of Human Rights which, he submitted, showed a disinclination either to define or otherwise unduly restrict the ambit of private life. He referred to Niemietz v Germany (1992) 16 EHRR 97 at paragraph 29 where the court stated that it did not consider that it was possible or necessary to attempt an exhaustive definition of the notion of "private life" but that it was 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 entirely therefrom the outside world which was not encompassed within the circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. It was not always possible to distinguish clearly which of an individual's activities formed part of his professional or business life and which, for example, did not. Reference was made to Rasmussen v Denmark (1984) 7 EHRR 371 (entitlement to bring proceedings to establish paternity held to concern private life) and Stjerna v Finland (1994) 24 EHRR 194 (entitlement to change ones name held to be an aspect of respect for private life, giving rise to both positive and negative obligations of imprecise definition on the part of the State).

[60]      Although the decision of the majority of the European Court of Human Rights in that case was that there had been no violation of Article 8 of the Convention, Mr Friend found support for his position in what was said by the majority of the Court in Chapman v United Kingdom. Mr Friend drew attention (as had Mr Moynihan) to the Court's observation that there may be said to be an emerging international consensus amongst the contracting states of the Council of Europe recognising the special needs of minorities and the state's obligation to protect their security, identity and lifestyle (Chapman supra at paragraph 93) and the acceptance that the vulnerable position of gypsies as a minority, meant that some special consideration should be given to their needs and their different lifestyle. If the lifestyle of the gypsy was to be protected, asked Mr Friend, why was that as a member of the hunting community not to be protected? He accepted that the function of the court was limited to determining the legality of the Protection of Wild Mammals Act rather than to make a determination on the basis of policy or the consensus of opinion, but where, if not to the court, could the petitioners look for a check on the Scottish Parliament, in the absence of a second chamber? Mr Moynihan had cited the decision of the Commission in Beckers v The Netherlands. There, the Commission had accepted that a minority lifestyle may fall under the protection of private life, family life or the home which is accorded by Article 8, but the applicant in that case was held not to belong to such a traditional minority. That was to be contrasted with the position of the present petitioners, so submitted Mr Friend, who truly were members of a traditional minority. To restrict Article 8 protection simply to what Mr Friend described as visible minorities, for example the Lapps or Saami who were the applicants in G and E v Norway and in Konkama and Thirty Eight Other Saami Villages v Sweden, was too limited. Any minority may be protected by Article 8 and was therefore entitled to come to court to complain of contravention of its rights.

[61]     
That counsel for the Lord Advocate had characterised fox-hunting as immoral points to it being an aspect of private life. Assuming that there is a majority who wish to see fox-hunting banned as immoral, to prohibit it is disproportionate and not justified in terms of Article 8(2) in the absence of pressing social need (see Norris v Ireland (1988) 13 EHRR 186 at paragraphs 42 to 44 and Dudgeon v United Kingdom (1981) 4 EHRR 149 at paragraphs 52, 53 and 56). The essential object of Article 8 was to protect the individual against arbitrary action by public authorities (see Kroon v Netherlands (1994) 19 EHRR 263 it was). It was therefore available, so submitted Mr Friend, for the protection of any minority against the majority.

[62]      In summary, Mr Friend argued that fox-hunting was to be regarded as part of private life (whatever view might be taken of attending at football matches) because of the nature of the activity itself, because it was an activity which formed part of a lifestyle and because the Scottish Parliament had characterised it as an aspect of morals. The European Court of Human Rights had not limited or defined the precise scope of private life and there was no need to do so. A variety of matters such as the living in a caravan, the having of an abortion, being homosexual and carrying out a particular business, had all been held to be aspects of private life. The concept of private life provided a very broad umbrella. It was sufficiently broad to cover the activity of fox-hunting.

[63]     
In my opinion, Mr Friend was correct to say that the jurisprudence of the European Court of Human Rights shows a disinclination either to define or otherwise unduly restrict the ambit of private life. The applicant in Niemietz v Germany complained about a search of his law office. The European Court of Human Rights unanimously held that the search did interfere with the applicant's rights under Article 8 (1). The passage from paragraph 29 of the Court's judgment which was referred to by Mr Friend includes the following:

"The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of "private life". However, it was 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 the circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings."

That the concept of "private life" was not susceptible to exhaustive definition was reiterated by the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1. As Mr Moynihan argued, and Mr Friend accepted, that is not to say that private life is a concept without limits. As Mr Friend accepted, there is a line to be drawn between what was private life and what was not. In Brüggemann and Scheuten v Federal Republic of Germany, 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. As is observed by Lord Nimmo Smith in Adams supra at 393I, in Brüggemann and Scheuten supra 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, the Commission went on in these terms:

"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 Botta the Court explained (supra at paragraph 32) that the guarantee afforded by Article 8 was primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings but it concluded that (supra at paragraph 35):

"...the right asserted by Botta, namely to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns interpersonal relations of such broad and indeterminate scope that there can 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."

Thus, Article 8 is not necessarily engaged whenever the individual is prevented from doing whatever he wants to do. What is to be respected is the "personal sphere" or the "inner circle" of private life (see Friedl v Austria (1995) 21 EHRR 83). There is private life and there is public life. Once the individual brings himself into the public arena through social interaction with others it becomes more difficult to maintain that what is involved is an aspect of purely private life. Thus, for example, while sexual activity is protected as "the most intimate aspect of private life" (see Dudgeon v United Kingdom (1981) 4 EHRR 149 at paragraph 52) once that activity takes on an organised and voyeuristic character it becomes at least open to question as to whether the relevant activities fall within private life (see Laskey, Jaggard and Brown v United Kingdom supra at paragraph 36).

[64]      As a matter of impression, participation in a field sport, such as fox-hunting, has the appearance of engaging in an activity which requires the individual to go well beyond the personal sphere or the inner circle of his personal life. What Lord Nimmo Smith said at paragraph [103] of his opinion in Adams (supra at 395E), by way of conclusion on the engagement of Article 8, was this:

"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."

[65]     
With the benefit of considering the factual material which was before the court in Adams and referred to in the opinion of the Lord Ordinary, it becomes very difficult, indeed impossible, to avoid sharing Lord Nimmo Smith's conclusion that foxhunting has a public rather than private quality. Now, the factual material which was before Lord Nimmo Smith was not before me. That does not mean that I approach the matter as if I knew nothing whatsoever about fox-hunting. I have available to me what is averred in the petition and what these averments suggest to the reasonably well-informed reader: what Mr Moynihan described as the core of judicial knowledge about fox-hunting. That knowledge informs me that fox-hunting involves the pursuit of a wild animal, a fox, by a pack of hounds, bred and trained for the purpose, the purpose being the killing of the fox, the pack of hounds being accompanied by a number of persons mounted on horseback and, perhaps, at a greater distance, by others on foot. Those involved, whether they are mounted or on foot, will be or will include the members of an organised hunt. The hunt is likely to employ persons (such as the first petitioner) to assist in its activities. The hunt will require to make arrangements with proprietors of land in order to secure access for the purpose of fox-hunting. If I have correctly identified the central features of the activity of fox-hunting, then I consider that I am entitled to adhere to my initial impression which is that what has been prohibited by the Protection of Wild Mammals Act is a quite complex social activity, carried on under public gaze, which clearly extends beyond the sphere of purely private life and therefore does not attract the protection of Article 8.

[66]     
If, however, I have not correctly identified the central features of the activity of fox-hunting, it is because of paucity of averments. That does not assist the petitioners. I do not consider it appropriate to look for a high degree of specification of averment in a petition for judicial review but the petition is required to be in Form 58.6 (see Rule of Court 58.6). Form 58.6 requires the petition to state shortly the facts in support of the grounds of challenge. There is good reason for that. It means that the petitioner must identify, in a reasonably intelligible way, by reference to what he claims are the relevant facts as well as the legal arguments, why it is that he claims to be entitled to challenge the decision or other act which is sought to be reviewed. That allows the issues to be identified at a first hearing and, in the majority of cases, resolved. Where the issues cannot be resolved at a first hearing, there may have to be a second hearing but, as appears from Rule of Court 58.9(ix), a second hearing is only to be ordered on such issues as the Lord Ordinary shall specify. The Lord Ordinary has power to order that evidence be led at a second hearing but if he is to do that he must be satisfied that there is a relevant purpose in doing so and he must know what are the facts that the evidence is intended to establish. As a matter of generality, it is to the petition that the Lord Ordinary, and the respondent, are entitled to look for a statement of these facts. The petition should inform both the court and anyone upon whom it is served or to whom it is intimated what the petitioners' case is. Mr Moynihan was therefore entitled to argue, as I understood him to argue, that while the court might be taken to be aware of what is common knowledge about fox-hunting, there must be sufficient averred in the petition to permit the conclusion, assuming the facts stated there were to be admitted or established by evidence, that Article 8 and the other articles of Convention which are relied on are engaged in the sense that the rights and freedoms guaranteed by these articles have been interfered with and that this interference cannot, or, at least, may not, be justified, having regard to the discretionary area of judgment of the Parliament. As far as Article 8 is concerned, I do not find averments which, if admitted or established, would lead me to conclude that fox-hunting, when pursued by the petitioners, is other than an activity conducted outside the private sphere. In his submissions Mr Whaley mentioned his interest in the breeding of foxhounds. He said that had no public aspect whatsoever. He may be correct about that. I can understand that in the breeding of a working dog such as a foxhound, account will be taken of how well particular bloodlines perform in doing the relevant work. If the work cannot be done then that criterion is no longer available to those who breed the dogs. Nevertheless, the Protection of Wild Mammals Act does not prohibit the breeding of foxhounds. It therefore does not contravene Mr Whaley's right to have this part of his private life respected. I should add, however, that there is no mention of this aspect of fox-hunting (if it be an aspect of fox-hunting) in the petition. The respondent had no notice of it. There are no averments relating to it which might be the subject of evidence.

[67]     
I must nevertheless consider Mr Friend's submission that the petitioners, by reason of their way of life, "centred as it is upon the hunt", are to be considered to be in a position analogous to that of gypsies (discussed in Chapman) or Saami hunters and reindeer herders (discussed in G and E v Norway). I must also have regard to the averments that hunting with dogs is a cultural activity followed by an ethnic group - the "hunting community". These two threads of argument rather run together.

[68]     
When addressing the court Mr Whaley had explained that his primary characteristic was that he was a fox-hunter, not just one or two days each week, but every hour of every day of every week of the year. The Protection of Wild Mammals Act, he said, had taken away his lifestyle and endangered his primary characteristic. In my opinion, it is clear from Chapman and G and E v Norway and understandable, that the European Court has recognised that there are individuals whose personal identities are so closely connected with their particular lifestyles that in order that the former be respected so must be the latter. A gypsy who is prevented from living in her caravan is, in a readily comprehensible sense, no longer a gypsy. A Saami who is prevented from having free access to his hunting grounds and reindeer pastures, is, similarly, no longer a Saami. Thus, what is essentially an activity, which extends beyond the purely private sphere, such as caravan dwelling or reindeer herding, is taken as being so central to the life of the gypsy or the Saami, that it falls to be regarded as an aspect of their respective personalities. In that Article 8 guarantees the freedom to develop and fulfil ones personality, in the cases of such individuals, Article 8 can serve to guarantee a freedom to pursue the relevant activity. However, the limitation on this application of Article 8 is "such individuals". Article 8 does not confer a freedom to pursue a particular activity, as part of a lifestyle, simply because the individual wishes to follow that lifestyle. The applicant in Beckers wished to live in a caravan but, not belonging to a minority that traditionally lived in caravans, and having no need to live in a caravan, the Commission held that his chosen lifestyle did not attract the protection of Article 8.

[69]     
There is further the problem, previously alluded to, that the factual averments in the petition provide only very sketchy support for the submissions made by the petitioners. I do not propose to make my decision upon that basis alone. Nor do I intend to imply that I question the sincerity of Mr Whaley when he describes the importance to him of fox-hunting. However, according an activity the status of being considered a part of private life has, on the basis of the authorities cited to me, been done only in very special cases. They were cases where the activity was taken to be central to the lifestyles of minority groups which had been recognised, nationally and internationally, as deserving particular protection. I took Mr Friend to appreciate that. He, indeed, had drawn my attention to what the Court had observed in Chapman: that there may be said to be an emerging international consensus amongst the contracting states of the Council of Europe recognising the special needs of minorities and the state's obligation to protect their security, identity and lifestyle (see Chapman supra paragraph 93, where reference is made to the Framework Convention for the Protection of Minorities of 1995 and the acceptance by the United Kingdom government that gypsies came within the definition); that the acceptance of the vulnerable position of gypsies as a minority meant that some special consideration should be given to their needs and their different lifestyle; and that, to that extent, there was a positive obligation imposed on the contracting states by virtue of Article 8 to facilitate the gypsy way of life (see Chapman supra paragraph 96). Even then, the Court was not persuaded that that justified a reduction in the margin of appreciation to be accorded to States. In my opinion, Mr Friend's question: if the lifestyle of the gypsy was to be protected, why was his as a member of the hunting community not to be protected? gets an answer from the passages he cited from the Chapman judgment. It is because he does not belong to a minority generally recognised as in need of special protection. I would add that I was not convinced by the analogy which Mr Friend and Mr Whaley sought to draw between themselves, on the one hand, and gypsies or Saami herdsmen, on the other. Fox-hunting is an activity, pursued by the first petitioner as a profession and by the second petitioner as a recreation. A person's profession and his recreation may assume great importance in his life. He might describe them as aspects of his lifestyle or way of life. One might imagine a footballer or football supporter, to return to the example used in argument, describing football as part of his way of life. But that situation, in my opinion, is quite different from the situation where an activity is so closely associated with the way of life of a particular group (and generally accepted by others as being so) that it falls to be regarded as integral with the individual personality of every member of that group.

[70]     
I do not forget the assertion that the hunting community, of which the petitioners aver they are members, comprises a distinct ethnic group. I should say that it was not made clear to me just how far the petitioners would consider their contention that the enactment of the Protection of Wild Mammals Act interferes with their Convention rights would be advanced if they were considered to belong to a distinct ethnic group. I do see, however, that it may be of relevance in considering the engagement of Article 8 (cf Chapman) and Article 14. It is, however, my opinion, on the basis of the petitioners' averments, as elaborated in argument, and the cases to which I was referred, that the petitioners cannot be regarded as belonging to a distinct ethnic group. In Mandla v Dowell Lee the plaintiff Sikhs could only succeed in complaint of discrimination if they were members of a racial group for the purposes of section 1 of the Race Relations Act 1976. "Racial group" is defined in section 3(1) of the 1976 Act as meaning a group of persons defined by reference, inter alia, to ethnic origins. In the passage to which Mr Friend particularly referred me ([1983] 2 AC 548 at 561D to 562G, Lord Fraser considers the characteristics which can be used to identify an ethnic group. Lord Fraser said this:

"In my opinion, the word "ethnic" still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origins.

For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin or descent from a small number of common ancestor; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within the larger community, for example conquered people (say, the inhabitants of England shortly after the Norman Conquest) and their conquerors might both be ethnic groups."

Mr Friend claimed all but items (3) and (6) on Lord Fraser's list for the hunting community and therefore submitted that members of that community were to be regarded as an ethnic group. That approach, in my opinion, is to ignore the context in which the list is found. Lord Fraser observed that, although used in an extended sense, "ethnic" still retains a racial flavour (and see Crown Suppliers v Dawkins supra at 527 H). Moreover, the list of characteristics were of those characteristics by virtue of which an ethnic group regards itself and is regarded by others as a distinct community. As Mr Moynihan observed, there are no averments as to how those who participate in fox-hunting regard themselves or are regarded by others. A racial flavour is entirely absent. In Crown Suppliers v Dawkins the Court of Appeal held that Rastafarians might be regarded as a separate group but not a separate group defined by reference to their ethnic origins. Allowing for Mr Friend's observation that the history of fox-hunting is longer than that of Rastafarianism, on the averments it is simply not open to the court to find that those who would wish to engage in fox-hunting are a separate group defined by reference to their ethnic origins.

[71]     
Mr Friend also argued that if it was the case that fox-hunting was to be regarded as immoral, which was the way that the Scottish Parliament had characterised it, then it must be considered to be an aspect of private life. I disagree.

Article 9

[72]     
Article 9 guarantees freedom of thought, conscience and religion. Mr Moynihan submitted that Article 9 was not engaged. One had to look at the substance of the matter, not the way in which it was dressed up. Article 9 provided the right to freedom of thought, conscience and religion. This right includes the right to manifest a religion or belief but it does not confer an entitlement to live a particular lifestyle. Mr Moynihan referred me to the decision of the European Court in Johnston v Ireland (1986) 9 EHRR 203. The first and second applicants in that case were Irish citizens who were cohabiting. They were prevented from marrying because the first applicant was a married man who could not obtain a divorce from his wife as this was not permitted under the Irish Constitution. The first applicant alleged that his inability to live with a second applicant, other than in an extra-marital relationship, was contrary to his conscience and that on that account he was the victim of a violation of Article 9 of the Convention. The European Court of Human Rights rejected this contention. It looked to the substance of his complaint which derived, in essence, from the non-availability of divorce under Irish law, a matter to which, in the Court's view, Article 9 could not, in its ordinary meaning, be taken to extend. Mr Moynihan also referred to the decision of the European Court in Pretty v The United Kingdom supra. Mrs Pretty was suffering from a terminal disease. She wished her husband to assist her to commit suicide. She sought an undertaking from the Director of Public Prosecutions that her husband would not be prosecuted if he assisted her to commit suicide in accordance with her wishes. The Director of Public Prosecutions refused to give such an undertaking. Mrs Pretty applied for judicial review of this decision. Among the remedies that she sought was a declaration that section 2 of the Suicide Act 1961 was incompatible with Articles 2, 3, 8, 9 and 14 of the Convention. The Divisional Court refused the application for judicial review. It held that section 2 (1) of the Suicide Act 1961 was not incompatible with the Convention. Mrs Pretty appealed to the House of Lords which dismissed her appeal (see (R (Pretty) v DPP [2002] 1 AC 800 Mrs Pretty then made an application to the European Court of Human Rights complaining, inter alia, of a violation of her rights under Article 9 of the Convention. While not doubting the firmness of Mrs Pretty's views concerning assisted suicide, the Court rejected her contention that there had been a violation of Article 9 (or, indeed, any of the other Articles) of the Convention. The Court observed that not all opinions or convictions constitute beliefs in the sense which was protected by Article 9(1) of the Convention. Mrs Pretty's claims did not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph of the Article. The term "practice" as employed in Article 9(1) does not cover each act which is motivated or influenced by a religion or belief. Mr Moynihan accepted that interference with conscience was inappropriate, but he stressed that Article 9 did not confer a right or freedom to manifest one's conscience. Here, the prohibition on fox-hunting did not impinge on thought, conscience or belief. Parliament was entitled to intervene but even if it were to be assumed that Parliament did not have the right to intervene, that would not be an Article 9 matter. In contrast to the position in Chassagnou v France (1999) 7 BHRC 151, the petitioners here were not being forced to act contrary to their consciences. One must be aware of distorting the scope of Article 9. In reality, what the petitioners were asserting was a right to hunt. That is not conferred by nor is it otherwise a matter for Article 9.

[73]      In responding to Mr Moynihan's attack on the relevancy of the petition insofar as founded on Article 9, Mr Friend stressed that the article conferred on the petitioners a right of freedom of conscience. The relevant beliefs which might inform a conscience need not be traditional, although fox-hunting happens to be so. Freedom of conscience is a developing concept. Mr Friend submitted that if cruelty to animals is to be regarded as a moral question, then it must be a question of conscience. Clearly, Article 9 was not limited to the right to have religious beliefs. Mr Friend accepted, under reference to Chapman supra at paragraph 91, that the Scottish Parliament was to be allowed a margin of appreciation and, accordingly, could make moral judgments. However it could not make arbitrary judgments. It was open to the court to examine the basis upon which the petitioners as fox-hunters were being judged as immoral. Again, where was the pressing social need which justified impinging upon the petitioners' freedom of conscience (see Norris v Ireland supra at paragraph 46 and Dudgeon v United Kingdom)? Mr Whaley, it will be recollected, asked what was the point of freedom of thought and conscience if one could not put that into practice (by participating in fox-hunting)? His freedom of conscience, Mr Whaley said, had been adversely affected because, in order to comply with the Act, he carries out a practice which can result in maiming foxes.

[74]     
I remind myself of Mr Friend's description of hunting with hounds as a cultural tradition followed by a community with identifiable customs and characteristics which goes back hundreds of years and his description of himself as a convert to that culture. I further remind myself about what Mr Friend and Mr Whaley had to say about conscience. I take the freedom conferred by Article 9 "to manifest ... religion or belief, in worship, teaching practice and observance" to comprehend the manifestation of non-religious belief. No doubt, the expression "religion or belief" is capable of wide interpretation. As I have observed, Article 9 extends protection to the manifestation of belief in practice and observance. However, not all opinions or convictions constitute beliefs in the sense protected by Article 9 (1) and not all acts are to be regarded as the manifestation of a belief by means of a "practice" as that expression is used in the article (see Pretty v The United Kingdom supra at paragraph 82). The European Court's treatment of the scope of Article 9 in both the cases cited by Mr Moynihan, Johnston v Ireland and Pretty v The United Kingdom, is quite brief, but having regard to what is said in these cases and bearing in mind also that the freedom to hold opinions and to receive and impart information and ideas gets protection, separately, in Article 10 of the Convention, I do not consider that the prohibition of fox-hunting can be regarded as an interference with the petitioners' freedom to manifest their beliefs, as guaranteed by Article 9. I assume the petitioners to be sincerely convinced of the utility, morality and cultural value of fox-hunting. I am prepared to assume that there are many others who share these convictions. Nevertheless, I cannot regard that as amounting to a belief, in the Article 9 sense. Moreover, what is complained of in the petition is the prohibition of an activity which the petitioners wish to pursue. I accept that they are convinced that it a useful, moral and culturally valuable activity but, as the European Court took the case to be in Johnston, supra (at paragraph 63), the freedom of the petitioners here to have and to manifest their beliefs or convictions is not really in issue. What is in issue is the petitioners' freedom to act in the way they wish. I do not consider that that is a freedom guaranteed by Article 9. As Lord Steyn observed when Mrs Pretty's case was in the House of Lords (R (Pretty) v DPP [2002] 1 AC 800, at 836E) in rejecting the submission that Mrs Pretty was entitled to manifest her belief in assisted suicide by committing it, Article 9 was never intended to give individuals a right to perform any acts in pursuance of whatever beliefs they may hold, for example, to attack places where experiments are conducted on animals. I accept that Mr Whaley considers it offensive to his conscience that he finds himself required to shoot foxes when working with a gun pack. I appreciate that Mr Whaley is a master of fox hounds by profession. I do not question his sincerity. However, as Mr Moynihan submitted, in contrast to the provisions complained of in Chassagnou v France, there is nothing in the Protection of Wild Mammals Act which compels the petitioners here to act contrary to their consciences. It is only because they wish to engage in the hunting of foxes to the extent that that remains lawful, that they are obliged to kill the foxes by shooting rather than with hounds. Mr Whaley can avoid having to shoot foxes by abstaining entirely from the pursuit of foxes. He may not wish to do that but he cannot claim that because he chooses to follow a particular activity his freedom of conscience has been interfered with because he is prohibited by law from following the activity in the precise manner which he would prefer.

 

Article 10

[75]      Mr Moynihan's submission was that in their reliance upon Article 10 of the Convention, the petitioners had misunderstood the scope of "freedom of expression" as it appears in Article 10. In contrast to Article 27 of the Universal Declaration of Human Rights of 1948, Article 10 of the Convention does not extend the protection of freedom of expression to "physical and visible participation in the cultural life of [a] community". The freedom which is protected by Article 10 of the Convention is a freedom to express ideas or information. Mr Moynihan made reference to the decisions of the Commission in Stevens v United Kingdom (1986) DR 245 and Kara v United Kingdom (1998) 27 EHRR CD 272. Article 10, Mr Moynihan submitted, was not engaged.

[76]     
Fox-hunting, submitted Mr Friend, had a ceremonial quality. Indeed as appeared from a letter from Dr Winifred Ewing MSP (production C/12/32), it was the "ceremonial hunt" to which members of the Scottish Parliament objected. The ceremony was an expression of the culture of the fox-hunting community. The Act contravened the petitioners' freedom to express their culture. It is true that they could still, for example, wear hunting clothes but, asked Mr Friend, what now was the point of doing that? The Protection of Wild Mammals Act has taken away the core of the relevant activity. As the European Court of Human Rights stated in Thorgeirson v Iceland (1992) 15 EHRR 843, freedom of expression constituted one of the essential foundations of a democratic society. It is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb. As appears from Vogt v Germany (1996) 21 EHRR 205, freedom of expression is not to be construed as limited to freedom of speech. In that case there was held to have been interference with the right guaranteed by Article 10 where a school teacher was dismissed by reason of her active membership of the German Communist Party. While it was for the national authorities to make the initial assessment of the reality of the pressing social need implied by the nation of "necessity", as provided by Article 10(2), the margin of appreciation to be accorded to the government was not unlimited (see Handyside v United Kingdom (1976) 1 EHRR 737 at paragraphs 48 and 49). The stress was on proportionality. That, said Mr Friend, was where the courts came in. He referred to the decision of the European Court of Human Rights in Malone v United Kingdom (1985) 7 EHRR 14.

[77]      Article 10 (1) provides that everyone has the right to freedom of expression. The petition avers that free expression includes the physical and visible participation in the cultural life of one's community. It is further averred that the wearing of traditional hunting dress is a visible expression of the hunting culture. I fully accept what Mr Friend submitted, under reference to Thorgeirson v Iceland, that the freedom which is protected by Article 10 constitutes one of the essential foundations of a democratic society and extends not only to the freedom to express information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb. No doubt, freedom to express information or ideas which are unwelcome or offensive to the majority in society is the more important aspect of what is guaranteed by the article. As appears from Thorgeirson v Iceland, it is not just the transmission of accurate statements of fact which is protected. I accept that information and ideas may be expressed by means of many media, including what might be described as symbolic behaviour and the wearing of distinctive and perhaps traditional dress. But, what is protected is a freedom to express ideas or information. I have not found identified in the petition or, indeed, in what was said in submission by Mr Friend and Mr Whaley, any idea or piece of information which the petitioners have been prevented from expressing by the enactment of the Protection of Wild Mammals Act. They are not prevented from wearing traditional hunting dress and, accordingly, if by doing so they are expressing ideas, they may continue to do so. Again, the reality of their complaint, as it seems to me, is that they are prevented from carrying on a particular activity. Accepting that it is the core activity in what the petition describes as the cultural life of the fox-hunting community, no entitlement to carry on this activity is conferred by Article 10 of Convention. For reasons which I have already canvassed, I need not consider Article 27 of the Universal Declaration of Human Rights.

Article 11

[78]     
Mr Moynihan drew attention to the averments in the petition asserting that the Act denied the petitioners their right of peaceful assembly to pursue their way of life and that this contravened Article 11 of the Convention. Mr Moynihan submitted that it did no such thing. In support of that proposition he adopted the Opinion of Mr Edward Fitzgerald, Q.C, of the English Bar, which had been instructed by what Mr Moynihan described as the Pro-Hunt Lobby (I took this to be a reference to the Countryside Alliance). This was lodged as number 43 in the list of authorities for the Lord Advocate.

[79]     
In Mr Friend's submission the right of freedom of association conferred by Article 11 of the Convention included the activity of the hunt. As had been observed by the court in Chassagnou v France (1999) 29 EHRR 615 at paragraph 100, freedom of thought and opinion and freedom of expression, as guaranteed by Articles 9 and 10 of the Convention respectively, would have a very limited scope if they were not accompanied by a guarantee of being able to share one's beliefs or ideas in community with others, particularly through associations of individuals having the same beliefs, ideas or interests. Mr Friend disagreed with the opinion of Mr Fitzgerald, Q.C. The position of Scots huntsmen was similar to the position of Sammi hunters which had been considered in Konkama and Thirty Eight Other Saami Villages v Sweden, and G & E v Norway. The petitioners associate in order to hunt with hounds. The Protection of Wild Mammals Act effectively denies the right of assembly for the purpose of hunting. Only convincing and compelling reasons can justify restrictions on freedom of association (see Sidiropoulos v Greece (1998) 27 EHRR 633 at 659).

[80]      I respectfully agree with the conclusion and reasoning which appears in Mr Fitzgerald's Opinion. Article 11 is not engaged by the prohibition of fox-hunting. The Protection of Wild Mammals Act does not prohibit the assembling of a hunt, on horseback or otherwise, but, rather, a particular activity which the hunt might engage upon. Farmers, landowners and riding enthusiasts remain free to assemble together for a mock chase or drag hunt or simply a communal ride. What is subject to regulation is the nature of the quarry and the method of the kill, not the fact or manner of association. I do not consider that the petitioners' position is advanced by anything which may be taken from the Saami hunter cases referred to by Mr Friend, G and E v Norway and Konkama and Thirty Eight Other Saami Villages v Sweden. I have already mentioned G and E v Norway. It is a decision of the Commission. The application was held inadmissible but the Commission seems to have accepted that the Article 11 right to free assembly was engaged where the complaint related to a prosecution arising from a demonstration outside the Norwegian Parliament building. The applicants were Norwegian Saami but nothing turned on that in relation to their complaint under Article 11. Konkama and Thirty Eight Other Saami Villages v Sweden was another application declared to be inadmissible by the Commission. The applicants were Saami villages in Sweden. In their complaint they invoked Article 6 and Article 14 of the Convention in conjunction with Article 1 of the First Protocol. In Swedish law, members of Saami villages are recognised as having a right to hunt and fish which is part of the Saami's immemorial right to herd reindeer. The complaint related to a new system for the granting of hunting and fishing licences which deprived the Saami villages of a right to consultation which they had formerly enjoyed. It did not involve an allegation of contravention of Article 11.

Articles 8 to 11: the discretionary area of judgment

[81]     
It was Mr Moynihan's submission that none of Articles 8 to 11 were engaged by the creation of the offences referred to in the petition but, as a subsidiary argument, were it to be assumed that they were engaged, Mr Moynihan submitted that the Act imposed only such limitations as were permissible, having regard to what was essentially the same derogation found in Articles 8(2), 9(2), 10(2) and 11(2). In making this part of his argument, he stressed that he was entering into an area which was variously described as the margin of appreciation and the discretionary area of judgment. The extent of this area will vary depending, first, on the nature of the right which is being considered and, second, on the nature of the judgment which is required to be made in order to determine whether derogation from a substantive right is justifiable. By way of example, freedom of political expression is a paramount right which is unlikely to admit of derogation. The area is similarly likely to be restricted where the court is well placed to make a judgment about what is put forward by way of justification. The court will, for example, consider itself particularly competent to make judgments as to what may or may not constitute a fair trial. When the European Court of Human Rights looks at the question of what latitude is to be allowed to member states in their observance of the Convention, the expression used to describe the scope for the difference of approach is the "margin of appreciation". Domestic courts, Mr Moynihan explained, do not engage in the same process when reviewing governmental or administrative action. It is accordingly necessary to flag up the difference. Nevertheless there is an equivalent concept and that is the discretionary area of judgment. That applied in relation to all domestic applications, up to and including the enactment of statute by the Westminster Parliament. The discretionary area of judgment is the area within which the primary decision maker is free to operate without interference from the court. The other way of approaching this is to ask the question what is the degree of deference that the court should show to the primary decision maker. For example, what amounts to cruelty might be a matter of judgment which admits of argument, there being no right answer. In such a case should the court intervene or should it defer to Parliament, where Parliament has made a decision as to what amounts to unacceptable cruelty? Putting it otherwise, what is the latitude that is to be allowed to Parliament? Where there legitimately may be a difference of opinion, one is within the margin of appreciation or discretionary area of judgment and no court should substitute its judgment for that of the primary decision maker. That the decision requires the making of a moral judgment is a particular reason to afford latitude to the primary decision maker. Mr Moynihan referred to the decision of the European Court of Human in The Sunday Times v United Kingdom (1979) 2 EHRR 245 where, at 276, approving of dicta in Handyside v UK (1976) 1 EHRR 737, the Court said:

"The Handyside case concerned the 'protection of morals'. The view

taken by the Contracting States of the 'requirements of morals', observed the court, 'varies from time to time and from place to place, especially in our era', and 'state authorities are in principal in a better position than the international judge to give an opinion of the exact content of these requirements'."

Mr Moynihan next referred me to what had been said by Lord Hope about the discretionary area of judgment in R v DPP ex parte Kebilene [2000] 2 AC 326 at 380E:

"This brings me to another matter on which there was a consensus between counsel and which, I believe, needs now to be judicially recognised. The doctrine of the 'margin of appreciation' is a familiar part of jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court: Buckley v United Kingdom (1996) 23 EHRR 101, 129, paras. 74-75. Although this means that, as the European Court explained in Handyside v United Kingdom (1976) 1 EHRR 737, 753, para. 48, 'the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights', it goes hand in hand with a European supervision. The extent of this supervision will vary according to such factors as the nature of the Convention right in issue, the importance of that right for the individual and the nature of the activities involved in the case.

This doctrine is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hand of the national courts also, the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. 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 difficult choices may have to be made by the executive or the legislator 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. This point is well made at p.74, para. 3.21 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill and Mr Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as the 'discretionary area of judgment'. It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."

[82]      Thus, submitted Mr Moynihan, consideration had to be given to how important was the right under consideration, whether it was stated in qualified or unqualified terms, and whether the issues raised were within the expertise of the court or of others. There was reason to defer on democratic grounds to decisions of the legislature. As Lord Hoffman said in R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 WLR 1389 at 1427C:

"The Human Rights Act 1998 was no doubt intended to strengthen the rule of law but not to inaugurate the rule of lawyers."

Here, the Protection of Wild Mammals Act was the result of the operation of a democratic process. Parliament had heard both sides of the argument and concluded that hunting wild mammals with dogs is unjustifiably cruel. This was a moral judgment by a democratically elected legislator to which this Court should defer. The matter is summed up absolutely correctly by Lord Nimmo Smith at paragraph [92] of his opinion in Adams. The decision of the English Court of Appeal in International Transport Roth GmbH v Secretary of State for the Home Department [2002] 3 WLR 344 was helpful in teasing out what Lord Hope had said in Kebilene as to what was the correct approach when exercising judicial scrutiny of legislation or acts of the executive by reference to the Convention and the Human Rights Act 1998. The court is not applying a fixed standard. In explaining how the appropriate standard was to be arrived at in a particular case, Mr Moynihan advanced three propositions. First, the court does not review the merits of what has been determined upon by the primary decision maker in the sense of substituting its decision on the merits for the decision taken by the decision maker. Second, the court is exercising a supervisory jurisdiction. Consistent with that is that the court will allow a degree of latitude to the decision maker. That process is, in domestic terms, capable of being referred to as a degree of deference within the discretionary area of judgment. That is the domestic devolution of the European Court's concept of the margin of appreciation. Third, the degree of latitude which the court will allow will vary depending upon the nature of the right and its importance; whether the right, as expressed in the Convention, is qualified or not; the nature of the decision maker and the subject matter of the issue. Mr Moynihan referred to freedom of political speech at the time of an election as an example of a right having high importance in respect of which little latitude would be given, were it to be interfered with. Whether or not a right is qualified in the Convention needed no elaboration. In relation to the nature of the decision maker, great deference would be given to Parliament acting within its legislative competence because at the heart of respect for human rights, is respect for democracy. In the present case, the Protection of Wild Mammals Act had been passed by a democratically elected legislator, after consultation with interested parties and consideration in committee. This democratic process was one to which the judiciary ought to show a degree of deference. Just what that degree of defence will be in a particular case will depend upon its subject matter. For example, the courts will be more deferential in the areas of economics or the defence of the realm and less deferential where, for example, the Article 6 right to a fair trial is in issue. That is because a court staffed by lawyers, while able to come to an informed view as to what is necessary for a fair trial, is, frankly, not well equipped to determine matters of economics or national security. Mr Moynihan stressed that what he was talking about was a degree of deference. That was different from abrogation of responsibility. Where the decision maker has a discretion conferred upon him, all the court is saying that it is supervising exercises of that discretion. In an area where there is legitimate scope for difference of opinion, the court will not embark on that supervisory process because for the decision maker to prefer one body of evidence over another does not raise the question of illegality. That a decision may have to be made preferring one body of evidence to another is precisely why the decision is delegated to the decision maker. Thus, there are no absolutes. The court has a supervisory jurisdiction. Its exercise of that supervisory jurisdiction will depend on the subject matter and may be more or less exacting or deferential.

[83]      It was Mr Moynihan's submission that, as appears from the terms of each of Articles 8 to 11 of the Convention, the protection of morals is a legitimate reason for interference with each of these Convention rights. As appears from The Sunday Times v United Kingdom, the court will show deference in relation to moral judgments because moral judgments vary from time to time and place to place, there being no right or wrong answer and, accordingly, a legitimate scope for difference of opinion. What is an issue here is one part of the community imposing its views on another. If one takes the view that the Protection of Wild Mammals Act involves a moral question: whether it is unjustifiably cruel, in the name of sport, to set one mammal (a dog) to kill another mammal (a fox), then there is a moral judgment to be made and if there is a moral judgment to be made, as Lord Nimmo Smith held in Adams, the making of that judgment is one which, in our democracy, it is to be expected should be taken by the democratically elected legislator. Before devolution that was the Westminster Parliament. Now it is the Scottish Parliament. Cruelty is a concept that does not necessarily require scientific evidence to establish it. It involves a moral judgment. If a democratic Parliament takes the view that a practice is cruel, then it can be said that in banning or restricting that practice, Parliament is acting to protect public morals.

[84]     
Counsel turned to the petitioners' wish to lead evidence that the restrictions on fox-hunting imposed by the Protection of Wild Mammals Act will result in additional suffering. The petitioners point to a body of opinion which is to that effect. The point of relevancy arises: because a body of opinion may exist to that effect is not sufficient to establish that the Scottish Parliament, in reaching a contrary view, has acted unlawfully. There may be a body of opinion to the opposite effect. Weighing up these opinions is not a matter of the numbers of persons holding one view or another or the qualifications of those who hold the differing views. It is a matter of how one is persuaded by the argument. The petition does not even acknowledge the existence of the argument or, indeed, offer any criticism of the decision making process. To be relevant the petition would have to set out the considerations leading to the conclusion that fox-hunting was unacceptably cruel, but not in simply in the abstract. Rather, to be relevant the petition must attack the legislative decision to the effect that fox-hunting was unacceptably cruel. Mr Moynihan made reference to R (ex p S) v Chief Constable of South Yorkshire [2003] 1 All ER 148.

[85]      Mr Moynihan went on to refer to and adopt what Lord Nimmo Smith had said in Adams at paragraph [104] (supra at 395F) on the question of proportionality. The Protection of Wild Mammals Act was a restriction and not a ban. It restricted the manner in which foxes may be hunted but it does not ban some of the other aspects of mounted hunting or hunting foxes in general.

[86]     
Mr Moynihan concluded this portion of his submissions by reminding me that the derogations which were contained in Article 8(2), upon which he had focused, are also contained in the second paragraphs of Articles 9 to 11.

[87]     
The rights contained in Articles 8 to 11 of the Convention are what Clayton and Tomlinson supra describe as qualified rights (see eg at paragraph 6.90, also R v DPP ex parte Kebilene). They all entitle a public authority to justify a prima facie restriction on Convention rights by identifying specific objectives which make the restriction legitimate. The objective pointed to by the respondent here is "prescribed by law and necessary in a democratic society,... for the protection of morals." In a detailed submission which I have recorded above, Mr Moynihan set out reasons for according the Scottish Parliament a generous degree of deference within what is its discretionary area of judgment. I found this submission to be entirely persuasive. Mr Moynihan drew my attention to what appears in paragraph [92] of Lord Nimmo Smith's opinion in Adams (supra at 391L). I respectfully agree with everything which appears in that paragraph. However, in that I have found none of Articles 8 to 11 to be engaged, it is unnecessary for me to consider, in relation to any these articles, the extent to which the respective rights may be qualified. Indeed, without a finding of a prima facie restriction, I would find it very difficult to do so. Moreover, with all respect to Mr Friend, whose fluency belied his disclaimer of legal experience, this part of Mr Moynihan's argument went without a contradictor beyond Mr Friend asking the rhetorical question: where was the pressing social need which justified the enactment of the Protection of Wild Mammals Act? In these circumstances, I propose to do no more than to indicate that I agree with Mr Moynihan that where what is under consideration is a conscious decision by the democratically elected Parliament in a matter which came to turn on moral judgments, it is appropriate that the court, in exercise of its purely supervisory jurisdiction, should accord considerable deference to such judgments as the Parliament has made. I agree with Lord Nimmo Smith that the discretionary area of judgment of the Scottish Parliament is to be recognised in the matter as to whether or not fox-hunting involves unacceptable cruelty (see Adams supra at 403K). Accordingly, had I found any of Articles 8 to 11 to have been engaged, I would have nevertheless have held the petition to be irrelevant in the absence of sufficiently specific averments to the effect that the Parliament, acting within its discretionary area of judgment, was not entitled to come to the view that the prohibition of fox-hunting was necessary in a democratic society for the protection of morals.

Article 14

[88]     
Mr Moynihan submitted that Article 14 was not a free-standing prohibition of discrimination. It is a parasitic article in that it is only discrimination in the securing of the substantive rights protected by other articles at the Convention which is struck at. Accordingly, if none of Articles 8 to 11 is engaged, the court must conclude that Article 14 is not engaged. Mr Moynihan conceded what he described as the subtle and correct point which was made in the petition: that there was no derogation from Article 14. However, if it were to be suggested that, as a result, Article 14 was unqualified, then that is to misunderstand Article 14. The considerations which justify derogation of Articles 8 to 11 may be relevant to Article 14. Considerable significance was to be attached to the word "discrimination". To draw a distinction between two groups or between two people, or to treat one person differently from another is not necessarily to discriminate if the distinction or difference in treatment may be justified, either generally or by reference to some specific ground. Counsel referred to the decision of the European Court in Fredin v Sweden (No. 1) (1991) 13 EHRR 784 at 797 where, at paragraph 60, the Court recalled that Article 14 affords protection against discrimination in the sense of treating differently, without objective and reasonable justification, persons in relevantly similar situations. Accordingly, for the claim of violation of Article 14 to succeed, it must be established that the situation of the alleged victim can be considered as being similar to that of persons who have been better treated. Counsel advanced three submissions. First, the petitioners had not given relevant specification of the comparator to which they refer. Second, a proper understanding of Article 14 must include the appreciation that the discrimination which is prohibited by the article is that based upon personal characteristics. Third, in any event, if the court is satisfied that the Protection of Wild Mammals Act is based on a moral judgment as to the acceptability of a particular activity which is restricted by the Act, then that can be viewed as a sufficient objective and reasonable justification. Lord Nimmo Smith had considered the applicability of Article 14 because he concluded that, for some of the petitioners in Adams, the Protection of Wild Mammals Act engaged Article 1 of the First Protocol to the Convention (which was not relied upon here). Lord Nimmo Smith concluded that because there was material before the Scottish Parliament which entitled it to conclude that mounted fox-hunting with dogs was, to a significant degree, less efficient than other methods of hunting foxes and that it caused significantly more suffering to foxes, no relevant case had been made out that the Act would lead to any discrimination against any of the petitioners in the enjoyment of their Convention rights without objective justifications. Mr Moynihan supported that conclusion, but he renewed a submission which had been made to Lord Nimmo Smith that, by prohibiting fox-hunting, the Protection of Wild Mammals Act did not discriminate on any of the grounds set out in Article 14 after the words "such as", or any other ground or "other status". Lord Nimmo Smith had rejected that submission in that he was prepared to accept that engaging in the activity of mounted fox-hunting might be described as having a personal characteristic or status. Regional variations as to the rules in force in the various law districts of the United Kingdom cannot be regarded as discrimination because they do not draw upon the characteristics of individuals. Rather, they depend on geographical differences. The relevant comparators here are not specified, but Mr Moynihan supposed that what was being complained of was a distinction as between different types of the activity of hunting. This raised what counsel described as the "hot issue": whether, or not, for there to be discrimination, the distinction complained of required to be based on personal status or personal characteristics in some shape or form. This hot issue had been recently canvassed in five cases which had not been cited to Lord Nimmo Smith in Adams. The cases were Michalak v London Borough of Wandsworth [2002] EWCA Civ 271, Southwark London Borough Council v St. Brice [2002] 1 WLR 1537, Dove v Scottish Ministers 2002 SLT 12 96, Beeson v Dorset County Council [2001] EWHC Admin 986, [2002] EWCA Civ 1812, and R (S) v Chief Constable of South Yorkshire [2003] 1 All ER 148. Counsel also referred me to Nelson v United Kingdom (1986) 49 DR 1 70. Michalak v London Borough of Wandsworth was one of two Court of Appeal decisions which were in conflict. The other was Southwark London Borough Council v St. Brice. Both cases concerned entitlement to rights under the Housing Act 1985 to succeed to a local authority tenancy. In Michalak, the defendant, as part of his defence to an action for possession of a local authority flat, argued, under reference to Articles 8 and 14 of the Convention and section 3 of the Human Rights Act 1998, that the 1985 Act had to be interpreted in such a way that the defendant was not treated less favourably than other persons he identified as relevant comparators. It was argued in response, relying on the judgment of the European Court of Human Rights in Kjeldsen v Denmark [1976] 1 EHRR 711, that it was necessary to find some "personal characteristics" in common as between the defendant and the comparators relied upon. The Court of Appeal rejected this argument, observing that the approach evidenced in Kjeldsen appeared to have been superseded by more recent decisions of the European Court. In Southwark London Borough Council v St. Brice a local authority tenant challenged the issue of a warrant of possession in favour of his landlord on the ground of contravention of his rights under Article 6 and 14 of the Convention. The action for possession, consequent upon which the warrant of possession had been granted, had been brought by the landlord in the County Court. The tenant contended that he had been discriminated against by reason of being a defendant in the County Court rather than in the High Court where, by reason of differences in the procedure, he would have had specific notice of an application for a warrant of possession. The court dismissed the tenant's application. In dismissing the tenant's appeal against that decision, the Court of Appeal, following Kjeldsen supra, held that in order to establish a claim under Article 14, an individual must show that he has been discriminated against on the basis of "a personal characteristic ('status') by which persons or groups of persons are distinguishable as against each other". The landlord's choice of forum for its action for possession was not based upon any personal characteristic of the tenant capable of founding a claim for discrimination under Article 14. In Dove, an application for Judicial Review of the orders made by Scottish Ministers with the effect of ending the self-governing status of a primary school, the Inner House followed the explanation given in Kjeldsen of what was prohibited by Article 2: discriminatory treatment, within the ambit of the rights and freedoms guaranteed by the Convention, having as its basis or reason a personal characteristic by which persons or groups of persons are distinguishable. Mr Moynihan advised me that it had been anticipated that the conflict as between the two English Court of Appeal decisions in Michalak v London Borough of Wandsworth and Southwark London Borough Council v St. Brice would be resolved in the appeal from the decision of Richards J in R (The Personal Representatives of Christopher Beeson) v Dorset County Council and The Secretary of State for Health 13 November 2001, unreported. However, in the course of the appeal, counsel for the applicants (who were the respondents in the appeal) abandoned the points which related to Article 14 of the Convention. In its judgment, the Court of Appeal stated that he had been entirely right to do so (Secretary of State v The Personal Representatives of Christopher Beeson 18 December 2002, unreported, paragraph 3). Accordingly, the Court of Appeal's judgment in Beeson did not include a decision on the point, but, submitted Mr Moynihan, the decision of Richards J should be taken as having had the support of the Court of Appeal. The application to Richards J was for judicial review of a decision of Dorset County Council that Mr Beeson had deprived himself of a certain property in circumstances which meant that the value of that property fell to be taken into account in assessing his ability to pay for residential care arranged for him by the council. The decision was taken under the National Assistance Act 1948 and related regulations. Richards J allowed the application and, accordingly, quashed the decision, but he rejected the claimants' case in so far as it was based on an allegation of discrimination contrary to Article 14 of the Convention. The argument put forward by the claimants was that Mr Beeson had been discriminated against in that, in contrast to the position of persons who had been refused state benefits for like reasons under other statutory schemes, the National Assistance Act 1948 did not provide him with a right of appeal to an independent tribunal. On behalf of the Secretary of State for Health, it was argued that the claimants had failed to establish that, if there was any discrimination, it was on any of the grounds prohibited by Article 14. Reference was made to the decision in St Brice. Richards J accepted the submission that discrimination, in the sense required by Article 14, had not been established. He observed that, in practice, the question of "status" within Article 14 was closely linked with the need to establish discrimination between persons in a relevantly similar position, with the result that "status" may not be mentioned as a separate issue (see eg National and Provincial Building Society v United Kingdom (1998) 25 EHRR 127). He accepted the submission that the discrimination alleged against Mr Beeson was not based on his personal characteristics. The mere fact that a claimant to, for example, income support, had a right of appeal to an independent tribunal, whereas Mr Beeson had no such right in respect of the charges payable for accommodation offered to him under the 1948 Act, had nothing to do with his personal characteristics. Rather, it arose out of objective differences between the various statutory regimes. That led Richards J into the question as to whether Mr Beeson was in a relevantly similar situation to that of an applicant for income support or like benefit. He accepted the submission that he was not. What, Mr Moynihan submitted, Richards J was saying was that one must first ask whether those who were put forward as comparators to the person complaining of contravention of Article 14 were truly comparable to him. If they were, if there is to be discrimination which does not contravene Article 14, it must be according to objective criteria. This, submitted Mr Moynihan, emphasised the need for the petitioners to highlight who were their comparators in order to allow consideration as to whether they were truly analogous, given that there may be justifiable distinctions made between two groups. If there are not true comparators, there can be no discrimination.

[89]      Mr Moynihan then turned to the decision of the Court of Appeal in R(S) v Chief Constable of South Yorkshire. This was an application for judicial review of a decision by the defendant chief constable to retain fingerprints and samples taken from suspects who had not been convicted, by virtue of a power conferred by section 64(1)(A) of the Criminal Evidence Act 1984, a section inserted into the 1984 Act by the Criminal Justice and Police Act 2001. The claimant complained of contravention of Article 8 of the Convention. He also contended that section 64(1)(A) infringed the prohibition on discrimination in Article 14 by drawing a distinction between two categories of innocent persons - those who had been suspected of an offence and those who had not. The Divisional Court rejected these contentions. The claimant appealed to the Court of Appeal. The appeal was dismissed. The judgment of the Court of Appeal is dated 12 September 2002. It accordingly pre-dates Beeson in the Court of Appeal. The judgment does not mention the conflict between Michalak and St. Brice. It produced a difference of opinion as between Sedley LJ, on one hand, and the Lord Chief Justice and Waller LJ, on the other, as to how the pool of person by reference to which the complaint was to be tested, should be defined. However, it was what Mr Moynihan described as the characteristically broader approach of Lord Wolffe CJ that he commended to me. As appeared from Lord Wolffe's discussion of the Article 14 issue at paragraphs [43] to [47] of his judgment, he saw Article 14 as containing a definitive list of the grounds on which distinction among a number of people can be regarded as amounting to discrimination in respect of enjoyment of their Convention rights. Unless the court is careful in its construction of Article 14, it will inhibit the right of the legislature to draw distinctions in a proportionate way. What might be a temptation to the legislature to enact universal restrictions is to be avoided. It is a fact of life that day and daily the legislature will draw lines on the grounds of expediency. There will always be someone near the boundary. An approach which encourages him to allege discrimination, by comparing himself to a person just on the other side of the boundary, is a bad thing in that it will lead to the legislature imposing wider restraints than are justified. Article 14 has a narrow reach. Simply because a distinction is drawn does not mean that there has been discrimination. Distinction with an objective and reasonable justification is not discrimination, and, in Article 14 terms, a distinction can only amount to discrimination if it is made on what Mr Moynihan described as "such as" characteristics (i.e. the list of characteristics set out in Article 14 which begins with the words "such as", together with "other status"). For example a territorial distinction as between Scotland and England is a distinction, not a case of discrimination (see Nelson v United Kingdom (1986) 49 DR 170). In relation to fox-hunting, the petition does not identify a comparator, but one might contrast it with shooting pheasants for sport and define the pool of persons for the purpose of testing the complaint as the hunting and shooting fraternity. One could argue that Parliament should stop all cruel sports. That would be to impose a greater restriction than that imposed by the Protection of Wild Mammals Act. It is desirable that the legislature should be able to draw distinctions. It must be careful if it uses a "such as" criteria if it is to avoid contravening Article 14 but if it does not, it need not impose wider restrictions than are necessary. The "such as" list in Article 14 is a list of personal characteristics. The distinction drawn in the Protection of Wild Mammals Act is based, not on personal characteristics, but on the nature of the activity (hunting wild mammals with dogs). This was the one respect in which Mr Moynihan invited me to depart from the opinion of Lord Nimmo Smith in Adams. It had been argued on behalf of the Lord Advocate in Adams that the Act did not discriminate on any ground set out in Article 14 but as appears from paragraph [134] to [136] of the opinion in Adams (supra at 403D to L) having been referred to the decisions of the European Court of Human Rights in Chassagnou v France and the decision of the Commission in Banner v Sweden (1989) 60 DR 128, Lord Nimmo Smith rejected the argument advanced on behalf of the Lord Advocate. However, and in this respect Mr Moynihan founded on Lord Nimmo Smith's opinion, Lord Nimmo Smith went on to hold that there was, on the information before him, sufficient objective justification for discrimination between different forms of hunting. Mr Moynihan recognised that a difference between Adams and the present petition was that in Adams Lord Nimmo Smith had proceeded on a concession that liberal use might be made of the documentary material before him. There was no such concession here and, accordingly, although the petitioners had lodged a quantity of documentary productions, the court did not have the evidential material which had been before the court in Adams. Mr Moynihan accepted that the absence of such evidential material in the present petition weakened his reliance on Lord Nimmo Smith's conclusion in Adams that there was objective justification for the distinctions made in the Protection of Wild Mammals Act which Lord Nimmo Smith held amounted to discrimination in relation to the enjoyment of rights conferred by Article 1 of the First Protocol to the Convention. However, he relied on the lack of relevantly specific averment in the present petition that there was discrimination in the Article 14 sense and, in particular, an absence of specific averment, as to, first, the proper range of comparators and, second, the distinctions drawn having no reasonable justification.

[90]     
Mr Friend explained that personal characteristics as discussed in Kjeldsen v Denmark did not apply here. By that I took Mr Friend to be saying that while he contended that there was relevant discrimination, it was not discrimination based on the personal characteristics of the petitioners. Rather, Mr Friend relied on what was said by the European Court of Human Rights in Fredin v Sweden (1991) 13 EHRR 784 at paragraph 60, where the court defined discrimination for the purposes of Article 14 as treating differently, without an objective and reasonable justification, persons in relevantly similar situations, it being necessary to a claim of violation of Article 14 to succeed that it be established, inter alia, that the situation of the alleged victim can be considered similar to that of persons who have been better treated. The comparable individuals or "persons in relevantly similar situations" were persons who killed animals. This comprehended persons who killed animals using the techniques of ritual slaughter and those who killed birds and fish that were bred to be killed for sport. Mr Friend commended to me as a test for discrimination what was quoted by Brooke LJ in Michalak v London Borough of Wandsworth supra, at paragraph 23, from the judgment of the European Court of Human Rights in Abdulaziz v United Kingdom (1985) 7 EHRR 471 at paragraph 82:

"The victim of discrimination within the meaning of Article 14 includes, in general, cases where a person or group is treated, without proper justification, less favourably than another even though the more favourable treatment is not called for by the Convention."

Mr Friend also drew my attention to what appears at paragraph 20 of the judgment of Brooke LJ in Michalak:

"It appears to me that it will usually convenient for a court, when invited to consider an Article 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is "no", then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are:

(i) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see Human Rights Act 1998, section 1(1)?

(ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ("the chosen comparators") on the other?

(iii) Were the chosen comparators in an analogous situation to the complainant's situation?

(iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?

The third test addresses the question when the chosen comparators were in a sufficiently analogous situation to the complainant's situation for the different treatment to be relevant to the question whether the complainant's enjoyment of his Convention right has been free from Article 14 discrimination."

[91]      It was Mr Friend's submission that if I were to go through the four steps identified by Brooke LJ, I would find there to have been discrimination in the present case. I shall have something more to say about Michalak but at this point I have to confess, parenthetically, that I frankly do not understand the answering the four questions with "no" test, as it applies to the final question. It appears to me that, on the approach adopted by Brooke LJ, assuming "yes" answers to the first three questions, the claim will fail on a "yes" rather than a "no" answer to question (iv).

[92]     
Mr Friend then gave the reasons why he said that the Protection of Wild Mammals Act discriminated against those who wished to engage in fox-hunting. The reasons were as follows: (i)   it favours other groups engaged in like activities with more serious animal welfare consequences to the detriment of the petitioners; (ii) it accords to other groups different treatment than that accorded to the petitioners in that other groups are permitted to kill game and pest species by methods that cannot guarantee not to inflict more pain, and thus unnecessary suffering, than the petitioners use of hounds and consequently it is not proportionate to any "legitimate aim" the Scottish Parliament may have; (iii) it allows other groups to engage in divorced activities that cause more painful and/or necessary suffering to animals, for example, e.g. ritual slaughter; (iv) the petitioners belong to a national ethnic group that follows the ancient culture of hunting with hounds which others find offensive, claiming that it is barbaric, cruel and also immoral to kill an animal for pleasure or pastime; (v) it is "not necessary" in a democratic society, noting that there are no derogations prescribed in Article 14; (vi) that a section of the community, no matter how large or small, finds an activity offensive or immoral is not in itself a reason make such an activity illegal and to do so, whilst allowing others to continue with like activities, is discriminatory; (vii) the imposition of a view or a restriction by one group upon another outside the limits of the Convention is discriminatory. In concluding this part of his argument, Mr Friend referred me, very generally, to Fredin, Chassagnou, Chapman, Norris and Dudgeon. He submitted that to interpret Article 14 as had been contended for by Mr Moynihan would be to unduly limit its impact. Rather, he commended the approach of Brooke LJ in Michalak.

[93]     
Article 14 provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination "on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status". Article 14, therefore, can only have any application where other rights and freedoms set forth in the Convention are engaged. As it was put by the European Court of Human Rights in Chassagnou v France, supra, at paragraph 89, Article 14 has no independent existence. Drawing, perhaps, on what appears in Clayton and Tomlinson supra at paragraph 17.79 (citing Harris, O'Boyle and Warbrick Law of the European Convention on Human Rights at page 463), Mr Moynihan explained that Article 14 was not a free-standing prohibition of discrimination, rather, it was a parasitic article, depending upon the existence of other rights in order to have any scope. That is so. As I have not found any of Articles 8 to 11 to be engaged here, it follows that there can be no breach of Article 14. I nevertheless heard quite extensive argument on whether, on the assumption one or other of Articles 8 to 11 were engaged, Article 14 could have any application. I think it appropriate to make some observations on that argument.

[94]     
Mr Friend invited me to have regard to the decisions of the European Court in Chapman, Norris and Dudgeon. I have considered them but have not found them to be of any assistance in relation to Article 14. Mr Friend also referred me to Fredin v Sweden and Chassagnou v France. In Fredin v Sweden the Court said, supra at paragraph 60:

"The Court recalls that Article 14 affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in 'relevantly' similar situations. For a claim of violation of this article to succeed, it has therefore to be established, inter alia, that the situation of the alleged victim can be considered similar to that of persons who have been better treated."

[95]     
In Chassagnou v France, the Court of Human Rights said, supra 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...".

These passages were founded on by Mr Friend in support of his contention that discrimination may be found to occur where there is "clear inequality of treatment in the enjoyment of the right in question" or worse treatment of an alleged victim wherever "the situation of the alleged victim can be considered similar to that of persons who have been better treated." These rather fluid expressions open the door to the argument that there may be Article 14 discrimination where there is difference of treatment as between broadly similarly situated individuals on any ground whatsoever. That is the direction in which I took Mr Friend's argument to point, his conclusion being that (assuming their Article 8 to 11 rights to be engaged) the petitioners were discriminated against when their treatment was contrasted to the treatment of others who killed animals using methods which might be said to be cruel. As Mr Friend appreciated, this broader or "on any ground" approach was not consistent with what had been said by the European Court in Kjeldsen v Denmark. There, supra at paragraph 56, the Court:

"... first points out 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."

As Mr Moynihan indicated, this rather narrower approach to what might amount to Article 14 discrimination, requiring a victim to show that he has been discriminated against by reason of a personal characteristic or some aspect of his status, was that adopted by the European Commission on Human Rights in Nelson. Nevertheless, Mr Friend and Mr Moynihan were agreed that this approach was specifically rejected in Michalak v London Borough of Wandsworth (supra at paragraphs 32 to 34), upon the basis that Kjeldsen had been superseded by later cases, among which was Chassagnou. On the other hand, Kjeldsen was followed by a differently constituted Court of Appeal in Southwark London Borough Council v St. Brice. St. Brice, in turn, was followed by Richards J in R (The Personal Representatives of Christopher Beeson) v Dorset County Council and The Secretary of State for Health (not challenged on appeal). Moreover, although Kjeldsen is not mentioned in the judgment (it is listed as being mentioned in argument), I consider that Mr Moynihan was correct in finding support for his contention that Article 14 only strikes at personal characteristic or "such as" discrimination, in Lord Woolfe's judgment in R(S) v Chief Constable of South Yorkshire. The balance of English authority on what Mr Moynihan described as the "hot issue" would therefore seem to be with the narrower, personal characteristic or "such as" approach to Article 14 discrimination rather than with the broader or "on any ground" approach advocated by Mr Friend. Important as is the guidance which can be taken from the English authority, I have had particular regard to the two Scottish cases which were cited to me and which bear on how Article 14 discrimination is to be identified. These are the decision of the Extra Division in Dove v Scottish Ministers 2002 SLT 12 96 and Lord Nimmo Smith's decision in Adams. Kjeldsen was of importance in Dove because, in the opinion of the court, there was set out in Kjeldsen a statement of the substance of the right to education provided by Article 2 of the First Protocol to the Convention. However, the court also relied on the passage from paragraph 56 of the European Court's judgment in Kjeldsen as indicating how Article 14 discrimination was to be identified. I therefore take the court in Dove as approving what I have described as the personal characteristic or "such as" approach to Article 14.

[96]     
My attention was drawn to Lord Nimmo Smith's conclusion on the application of Article 14 in Adams. At paragraph [136] of his opinion (supra at 403J) he said this:

"[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."

I take from this passage that Lord Nimmo Smith, consistent with the majority position in England and with the approach of the court in Dove, in determining whether there has been Article 14 discrimination, has looked for dissimilar treatment based on a personal characteristic or status (a "such as") ground, as is contended for by Mr Moynihan. Looking to all this authority, I have no difficulty in preferring Mr Moynihan's submission that, as was identified in Kjeldsen, Article 14 prohibits discrimination in the enjoyment of Convention rights which is based on a personal characteristic by which persons or groups of persons are distinguishable from each other: put differently, differentiation by reference to an individual's status. Now, Mr Moynihan took issue with Lord Nimmo Smith's finding that there had been discrimination by reason of the enactment of the Protection of Wild Mammals Act, although not, of course, with his conclusion that, on the hypothesis that there had been discrimination, it was to be taken as being objectively justified. With all respect to Lord Nimmo Smith, I cannot accept his characterisation of being someone who engages in the activity of mounted fox-hunting as having a personal characteristic or status. Rather, I cannot but see it as a common activity engaged in by what, for all that is disclosed in the petition by reasonably specific averment, is a heterogeneous group of individuals. The prohibition introduced by the Protection of Wild Mammals Act is on killing foxes in a particular way. It is not a prohibition on killing foxes by a particular sort of people or people having a particular characteristic. In argument before Lord Nimmo Smith the position of those who participate in mounted foxhunting with dogs was contrasted with those who participate in other sorts of hunting, such as gun packs (Adams supra at 403J), I take it, in order to demonstrate inequality of treatment consequent upon the enactment of the Protection of Wild Mammals Act. Part of what I would see as a difficulty in according "those who participate in mounted foxhunting with dogs" and "those who participate in other sorts of hunting, such as gun packs" separate statuses or separate personal characteristics was illustrated in Adams, in that one of the petitioners participated in both activities. In consequence, counsel recognised that it might be paradoxical to make any finding in relation to him. In the present petition, Mr Whaley, similarly, is someone who, albeit unwillingly, participates in hunting with a gun pack. What is his "status"? Is he one of "those who participate in other sorts of hunting, such as gun packs", although he would prefer not to do so? Is he one of "those who participate in mounted foxhunting with dogs", although he is currently prohibited from doing so by virtue of the Protection of Wild Mammals Act? Does he have both statuses, as counsel in Adams seemed to suggest was the case with the petitioner, Mr Holman-Baird?

[97]     
I would add that I consider Mr Moynihan's criticism of the petitioners' failure to identify a comparator for the purpose of Article 14 with sufficient specification to be well-founded. It is critical, in order to demonstrate difference in treatment and in order to show that it based in a prohibited ground, to identify, with some precision, just who are said to be those who are treated preferentially. The petitioners' reference to "other groups engaged in like activities" simply begs the question as to who are being referred to. In submission, while there was a degree of fluidity in what was said by the petitioners, the comparators appeared to be those persons who killed animals in any circumstances (other than in the course of fox-hunting) which involved the infliction of suffering and yet was lawful. It will be recollected that Mr Friend had urged on me as the touchstone for discrimination the four question test articulated by Brooke LJ in Michalak. The third question there is: were the chosen comparators in an analogous situation to the complainant's situation? Given the large and disparate group which Mr Friend seemed to be putting forward in the course of submission as comprising the comparators, I simply do not understand how that question could be answered. However, relevancy is to be tested by averments and I do not find relevantly averred a basis upon which it could be said that there had been Article 14 discrimination here, even if Articles 8 to 11, or any of them, were engaged.

Decision

[98]     
I shall sustain the fourth plea-in-law for the respondent and dismiss the petition. Meantime I reserve all questions of expenses.


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