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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Countryside Alliance & Ors, R (on the application of) v Attorney General & Anor Rev 2 [2006] EWCA Civ 817 (23 June 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/817.html
Cite as: [2007] Eu LR 139, [2007] QB 305, [2006] 3 WLR 1017, [2006] HRLR 33, [2006] UKHRR 927, [2006] EWCA Civ 817

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Neutral Citation Number: [2006] EWCA Civ 817
Case No: C1/2005/2071 (Y)
C1/2005/2072

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

[2005] EWHC 1677

C1/2005/2072
Royal Courts of Justice
Strand, London, WC2A 2LL
23/06/2006

B e f o r e :

THE MASTER OF THE ROLLS
LORD JUSTICE BROOKE
and
LORD JUSTICE BUXTON

____________________

THE QUEEN (on the application of) THE COUNTRYSIDE ALLIANCE
& OTHERS
Appellant
- and -

(1) H.M. ATTORNEY GENERAL
(2) THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
Respondent

AND BETWEEN:


THE QUEEN
(on the application of)

FRANCES DERWIN
& OTHERS
Appellants
- and -

H.M. ATTORNEY GENERAL
THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
RSPCA (INTERVENER)
Respondent

____________________

Richard Gordon QC (instructed by Allen & Overy LLP) for the 1st Appellant
David Anderson QC and Marie Demetriou (instructed by Clifford Chance) for the 2nd Appellants
Brian Friend and Hugh Thomas ( in Person)
Philip Sales; Jason Coppel (instructed by The Treasury Solicitor and DEFRA) for the Respondents
Rabinder Singh QC and Kate Cook (instructed by RSPCA Legal Department) for the Intervener

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    The Master of the Rolls:

    This is the judgment of the court, dismissing both appeals and refusing permission to appeal to Messrs Friend and Thomas.

    INDEX

    Preliminary §§ 1-21
    These appeals 1-4
    The Hunting Act 2004 5
    The Parliamentary history 6
    The nature of hunting: background 7
    A summary of the parties' cases 8-21
    Hunting in some more detail §§ 22-40
    The various quarries 22-29
    The reasons for and effect of hunting 30-40
         Pest control 31-34
         Sport and recreation 35-37
         Hunting as a way of life 38
         Hunting as an industry 39-40
    The facts on which these appeals proceed §§ 41-51
    The policy objectives of the Hunting Act §§52-63
    Introduction 52-54
    The correct approach to legislative policy 55
    Our findings as to the policy objectives. 56-63
    The HR appeal §§ 64-125
    Preliminary: the Human Rights Act 64-66
    The HR ' case 67-70
    Article 8 71-105
         Autonomy 74-86
         Culture/community 87-92
         Loss of livelihood/home 93
         Use of home 94-97
         The Divisional Court's approach 98-99
         Our Conclusions on Article 8 100-105
    Article 11 106-107
    Article 1 of the First Protocol 108-115
    Justification and proportionality 116-125
    The EC Appeal §§ 126-172
    Introduction 126-129
    Article 28 130-146
    Article 49 147-157
    Justification and proportionality in Community terms 158-172
    The application for permission to appeal of Messrs Friend and Thomas §§ 173-179
    Summary §§ 180-193
    Details of the Individual Appellants Appendix I
    Excerpts From The Burns Report Appendix II

    Preliminary

    These appeals

  1. This case concerns an issue that has been prominent, and highly controversial, in English public life for many years, and which reached its climax in the much-debated Hunting Act 2004 that (put shortly) prohibited the hunting with dogs of certain wild mammals. There are before the court two appeals from a single judgment of the Divisional Court [2005] EWHC 1677; [2006] EuLR 178 and an application for permission to appeal. We deal with the latter at the end of this judgment. In the first, "human rights", appeal the Appellants are the Countryside Alliance and a number of individuals. In the second, "European Community", appeal the Appellants are all individuals. They are identified in Appendix I to this judgment, where we reproduce the description of those Appellants and of some of the witnesses that was given in §§ 31-55 of the judgment of the Divisional Court. The Respondents took issue with some of the claims made by those persons about their situation and the effect on them of the Hunting Act. The Appendix nonetheless serves conveniently to identify the parties and what they say about their own particular cases.
  2. There is a very substantial overlap between the two appeals. The facts asserted by the one group of are accepted and relied on by the other group of Appellants. The benefit of a successful appeal in the one case would redound to the Appellants in the other case. However, it became clear before us, rather more so than it had before the Divisional Court, that the contentions in the two appeals differ from each other in some respects, not all of which are matters of detail. In what follows we will address the appeals as a single case, whilst taking care where appropriate to identify the differences between them. We adopt the practice of the Divisional Court of speaking summarily of the HR appeal and the EC appeal.
  3. A striking feature of the appeals is the burdensome nature of their presentation. The Divisional Court commented in strong terms on the weight of material that had been placed before it in an attempt to explicate the arguments: see §57 of its judgment. Despite the Divisional Court's very full account of that material, which the parties on specific enquiry by this court only criticised in marginal respects, the 32 files of evidence that were before the court below have only been reduced in number to 15, to which must be added the three volumes of material and six files of authorities filed by Mr Friend in support of his application for permission to appeal. It is right to say that most of the material emanates from the Appellants. Moreover, the comparative modesty that has been exercised by the parties to the appeal in respect of evidential material has not been matched in the citation of authorities. No effective attempt had been made to provide a consolidated index to these authorities, whether alphabetical or chronological, to ease our way through the maze of cases that were cited. Leaving Mr Friend aside, there are now before the court 18 files of authorities, containing the truly extraordinary number of 189 items. In addition, counsel between them filed 164 pages of skeleton argument, and addressed the court for the better part of five days.
  4. All this means that, like the Divisional Court, our first duty is to distinguish the wood from the trees. In dealing with the background issues (which we suspect will be well-known to most or all of those who persevere with this judgment) we will largely rely on the work of the Divisional Court. Anyone who thinks that he needs to know more can find it in the full and impressive judgment of that court.
  5. The Hunting Act 2004

  6. It will be convenient first to set out the summary of the Hunting Act given by the Divisional Court. No criticism was made of the accuracy of this summary, though some reference was made to further parts of the Act.
  7. 5. Section 1 of the Hunting Act provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt. Classes of hunting which are exempt are specified in Schedule 1. It is a defence for a person charged with an offence under section 1 to show that he reasonably believed that the hunting was exempt (section 4).
    6. Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1.
    7. Section 5 bans hare coursing.
    8. Part 2 of the Act has provisions for enforcement. A person guilty of an offence under the Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale – currently £5,000.
    9. Section 11(2) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and one or more dogs are employed in that pursuit, whoever employs, controls or directs the dogs.
    10. Schedule 1 provides for exempt hunting. Exempt hunting includes:
    (i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include:
    a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause;
    b) that it does not involve the use of more than two dogs; nor
    c) the use of one dog below ground otherwise than in accordance with paragraph 2.
    The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground.
    ii) hunting rats (paragraph 3) or rabbits (paragraph 4);
    iii) retrieving hares which have been shot (paragraph 5);
    iv) flushing a wild mammal from cover for falconry (paragraph 6); and
    v) rescuing an injured wild mammal using not more than 2 dogs above ground on condition that reasonable steps are taken as soon as possible to relieve its suffering.
    It is the defendants' case that hunting is by definition intentional. Subject to that, the offences created by the Hunting Act are absolute in the sense that there is no provision equivalent to those in section 1 of the Protection of Animals Act 1911, where an element of some of the offences of cruelty to animals is that the offender causes the animal unnecessary suffering. Hunting wild mammals with a dog is banned, unless it is exempt hunting, whether or not it causes unnecessary suffering.

    The Parliamentary history

  8. The Act had a remarkable Parliamentary history, which plays a significant role in these appeals. That can again be accurately taken from the judgment of the Divisional Court. That summary makes reference to the "Burns Report", the report of a committee headed by Lord Burns appointed by the then Home Secretary in December 1999 to enquire into:
  9. The practical aspects of different types of hunting with dogs and its impact on the rural economy, agriculture and pest control, the social and cultural life of the countryside, the management and conservation of wildlife, and animal welfare in particular areas of England and Wales;
    The consequences for these issues of any ban on hunting with dogs; and
    How any ban might be implemented.

    The Burns Report plays a large part later in the argument. The Divisional Court valuably appended a summary of that report to its judgment, and we reproduce that summary in Appendix II. As to the Parliamentary history the Divisional Court said this, in its §§12-21:

    12. The Hunting Act was passed after a series of previous attempts, since a Labour government was elected in 1997, to ban hunting with dogs. The Labour Party's 1997 manifesto said that the party would ensure greater protection for wildlife. It had advocated new measures to promote animal welfare, including a free vote in Parliament on whether hunting with hounds should be banned. The party's 2001 manifesto also said that hunting was rightly a matter for a free vote.
    13. A private member's bill was introduced in 1997 by Michael Foster MP. It ran out of time in the House of Commons and went no further. The same happened to a bill presented by Ken Livingstone MP in 1999.
    14. In 2002, the Protection of Wild Animals (Scotland) Act 2002 was passed by the Scottish Parliament, receiving the Royal Assent on 15th March 2002. The validity of this legislation was unsuccessfully challenged on human rights grounds in Scottish courts in Adams v Scottish Ministers [2002] UKHRR 1189 (Outer House) and [2004] SC 665: Scot CS 127 (Inner House). The Scottish statute is broadly similar to, but not identical with, the Hunting Act. The challenge in the Scottish courts was on broadly the same human rights grounds as are relied on by the Human Rights Appellants in the present proceedings, although there are differences in the evidence relied on and the circumstances of the individual Appellants.
    15. The Burns Report (see later in this judgment) was published in June 2000.
    16. In December 2000 the Government introduced the Hunting Bill 2000. This offered members of Parliament three choices: regulation, supervision or prohibition. The House of Commons voted by a large majority to ban hunting, rejecting the other two choices. In February 2001, the House of Lords rejected a total ban and regulation, and voted for supervision. The Bill was lost as a result of the 2001 General Election.
    17. The same choices were presented to both Houses of Parliament in 2002 in the form of a Parliamentary Motion. The House of Commons again voted for prohibition: the House of Lords for regulation. Alun Michael MP, the minister for Rural Affairs, then conducted public hearings on the subject at Portcullis House.
    18. In December 2002, the Government introduced the Hunting Bill 2002 ("The Michael Bill"). This would have banned deer hunting and hare coursing (clauses 6 & 7), but permitted fox, hare and mink hunting subject to registration of individuals or groups by a registrar (clauses 1 and 2). There were to be two tests for registration, of which the registrar had to be satisfied. These tests were labelled the utility test and the least suffering test (clause 8). The utility test was that the proposed hunting was likely to make a significant contribution to the prevention or reduction of serious specified damage which the quarry would otherwise cause. The least suffering test was that an equivalent contribution could not reasonably be expected to be made in a manner likely to cause significantly less pain, suffering or distress to the quarry.
    19. The Michael Bill was amended at the report stage in the House of Commons to reject registration and replace it with a ban on hunting with dogs, subject to exceptions, in terms which eventually became the Hunting Act. In this form, it was passed in the House of Commons. The House of Lords amended the Bill to remove a ban and replace registration. The Bill did not complete all its stages in the House of Lords in that session of Parliament and so fell without returning to the House of Commons.
    20. On 15th September 2004, the Michael Bill, in the form in which it had previously been amended by the House of Commons banning hunting subject to exceptions, was introduced and passed in the House of Commons. It did not pass in the House of Lords, who were in favour of a system of regulation. This Bill eventually, on 18th November 2004, became the Hunting Act under the provisions of the Parliament Act 1911 as amended by the Parliament Act 1949.
    21. Thus in short, the Hunting Act was enacted by being passed in the House of Commons alone by a substantial majority on a free vote. The ban on hunting with dogs which it imposed did not represent legislation promoted by the Government following the Burns Inquiry and the Portcullis hearings. The legislation promoted by the Government was that in the original Michael Bill, which, in the case of fox, hare and mink hunting, provided for registration, not an outright ban. As Mr Bradley, the civil servant in the Department of Environment, Food and Rural Affairs responsible to the Minister for Rural Affairs says in paragraph 6 of his witness statement, "the Hunting Act 2004 does not represent the policy of the Government, but rather the will of the House of Commons as expressed on a free vote". Mr Bradley also points out that the length of Parliamentary time spent on the issue of hunting since 1997 is virtually unprecedented in modern times. The Hunting Act was passed by a large majority of Members of Parliament from all major parties.

    The nature of hunting:background

  10. The Divisional Court also gave in its §§22-26 a graphic account of the nature of hunting in England and Wales, to which it added some comment of its own that we would respectfully adopt. That factual account is largely uncontentious, but to explain some of the issues in the case we will later have to identify some particular further features of the background. The Divisional Court said:
  11. 22.The validity of the Hunting Act is challenged by and on behalf of those who have hunted, and wish to be able to choose to continue to hunt, foxes, deer, hares and mink. Some different considerations apply to each of these quarries. Many more people are concerned with hunting foxes than the other three quarries. The proceedings have therefore tended to concentrate on fox hunting. But we must not overlook those who hunt deer, hare or mink.
    23. An account of the history of hunting with hounds is given in paragraphs 8 to 30 of the first witness statement, largely unchallenged factually, of Baroness Mallalieu, the President of the Countryside Alliance. It has been part of British rural life "since before recorded history". Mr Friend and Mr Thomas say that its origin "lies in the dawn of time" in the Iron Age and before and during the Roman occupation. There are important links between property ownership and hunting, but it is and always has been socially inclusive in rural Britain. Foxes were hunted as vermin to safeguard farm stock. The "Master" of a Hunt denoted a leader of the local society as well as being in charge of the local pack. The bond between a community and its pack is immensely strong. Historically deer hunting reduced with the clearance of forests. Foxes became the most popular quarry from the mid-18th century. The excitement of jumping fences in pursuit of hounds led to present day sports, including cross-country riding, steeplechasing, national hunt racing, eventing and hunter trials. Hunting survived the advent of the railways in the 19th century and of roads, urban development and arable farming in the 20th century. Hunting is supported by the vast majority of farmers and land owners who allow it to take place on privately owned land. They benefit from hunting because it helps to control the fox population without extinguishing it; and because hunts voluntarily provide valuable services including retrieving and disposing of fallen stock and repairing fences and hedges.
    24. Baroness Mallalieu assembled estimated statistics (paragraph 79ff of her first witness statement) showing that there is an estimated fox population in England and Wales of 217,000 foxes before each breeding season. We understand that the population more than doubles during the breeding season, but that a number of foxes, broadly equivalent to the annual number of cubs born, dies from one cause or another by the start of the next breeding season. Of these, an estimated 21,000 to 25,000 were killed by hunts – that is, less than 10% of those who died from all causes. An estimated 100,000 foxes are killed on the roads each year. Many of the rest are shot – one estimate refers to 80,000. Mr Bradley (paragraph 58) highlights other statistics derived from the Burns Report. These include that, of the 21,000 to 25,000 foxes killed by hunting, up to 11,000 may be dug out by terriers. The defendants further point to evidence indicating that, even in upland Wales, rather more foxes were culled by shooting (46%) than by hunting (35%).
    25. In England and Wales, there are 174 registered fox hunting packs, one fox hunting club, 65 beagle packs, 12 harrier packs, 8 basset packs, 3 deerhound packs, 23 minkhound packs and 6 fell packs (with 2 affiliated fell packs). There are 27 registered Welsh gun packs and 56 registered Welsh hunting packs, although those registered with the Federation of Welsh Packs are only a proportion of the total number of packs in Wales. Hunting by registered packs takes place from early Autumn until the Spring, not in the close Summer breeding season. Most hunts go out twice a week.
    26. Thus hunting is embedded in the rural community. Yet it is, and has been for a long time, highly controversial. Many of those concerned with animal welfare and protection regard hunting with dogs as an ethically unacceptable "blood sport" which expression we understand to connote chasing an animal with hounds and exhausting it, and then, for foxes at least, having the hounds kill it often in an unacceptable manner; and this for sport. Those who support and defend hunting maintain that hunting foxes does not cause them unnecessary suffering; in particular that a hunted fox is normally rendered insensible and killed instantly or within a few seconds; and, importantly to these proceedings, that there is no other method of culling foxes, an admitted necessity, which has been shown to cause less suffering. We must examine some of the evidence here, but it is no part of our function to form or express any judgment as to the balance of the highly emotional ethical issue. We do not do so. We simply acknowledge that a strongly held division of view exists. We note that there is an articulated feeling among some in the rural community that the Hunting Act represents oppression of a rural minority by an elected Parliamentary majority. We also note that the Appellants in the present proceedings do not attribute bad faith to the elected Parliamentary majority.

    A summary of the parties' cases

  12. This section gives a summary account, intended only to put what follows in the substantive part of the judgment into context. It is not a substitute for scrutiny of the parties' cases as reviewed in detail later in the judgment. It will be convenient first to mention the various bases on which it is alleged that articles of the ECHR and EC Treaty are engaged, before then mentioning issues of justification and proportionality.
  13. The HR case. In some limited respects the Hunting Act will directly infringe rights under the ECHR. However, more widely, the Act will indirectly infringe rights under the ECHR, in that it is alleged that the effect of the Act will be significantly to reduce the extent of hunting in England and Wales, so that many hunts will close down or reduce the extent of their activities. The engagement of various articles of the ECHR is said to be as follows.
  14. Article 8. The Act will have a direct effect in two respects. First, landowners who at present use their land for hunting by themselves or others will be prevented from doing so. That is an interference with the right to respect for their home created by article 8. Second, people who currently want to hunt and enjoy doing so will be prevented from engaging in what is for them an important part of their lives. That is an interference with the respect for their private lives and their right to personal autonomy that article 8 protects.
  15. The Act will have an indirect effect in a variety of ways. The most important of them are based on the position of hunt servants who will lose their employment if their hunts close down. First, interference with their employment is interference with their personal autonomy. Second, those who live in accommodation tied to their employment will be evicted from their homes, thus infringing their rights to respect for their homes under article 8.
  16. Article 11. The Act directly infringes rights under article 11, because it prohibits the assemblies that hunt meetings constitute, and prohibits or significantly interferes with the freedom of association of persons in and around hunting.
  17. Article 14. The Hunting Act in its various effects falls within the ambit of articles 8 and 11 and article 1 of the First Protocol. It discriminates by imposing unequal handicaps either on the hunting community at large; or on specific groups, such as countryside dwellers or dwellers in particular rural areas such as parts of Somerset. This contention was rejected by the Divisional Court, which did not grant permission to appeal in this respect. We granted that permission on the basis that no argument was addressed to us on it, the point being reserved for potential use elsewhere.
  18. Article 1 of the First Protocol. The asserted a very wide range of respects in which the Act deprived persons of property rights, or interfered with the peaceful enjoyment of those rights. These are best set out as listed by the Divisional Court in its §162. Items (i)-(ii) and (ix)-(xi) allege direct control of the use of property by the actual terms of the Act; the remainder, indirect interference, following upon the expected effects of the Act on the hunting industry:
  19. In respect of land
    i) Use of land to hunt by the owner;
    ii) Permitting others to hunt over one's own land;
    iii) The value of land;
    iv) Expense associated with the removal of buildings and equipment which is of use only in the hunting industry;
    v) The reinstatement of land which has been modified specifically for hunting with dogs;
    In respect of livelihoods
    vi) An individual's job and/or his livelihood;
    vii) The benefit of an existing contract of employment or contract for services;
    viii) Goodwill in and/or the value of existing businesses which are reliant on the hunting industry for a large proportion of their income and even the viability of their business;
    In respect of other Property
    ix) Dogs;
    x) Horses; Vehicles;
    xi) Miscellaneous equipment.

  20. The EC case asserts that the hunting ban imposed by the Hunting Act directly infringes various articles of the EC Treaty. It is not in dispute that, for instance, horses are bred in at least one other member state for use in hunting in England & Wales, an example being the business conducted by the first Claimant, Mr Derwin. It is also established that persons come from other member states in order to hunt in England; thus, as set out in Appendix I, the Claimant Diana Johnson operates a business to provide hunting holidays for foreign visitors, some of whom come from the EU; and the Claimant Viscount Hughes Le Hardy de Beaulieu lives in Belgium but owns a house in Dorset and has been coming to England to hunt for nearly 25 years. He takes part in 35-40 hunts in various parts of England during each hunting season. As a result of the Hunting Act, he will no longer come to England to hunt. Evidence was accepted by the Divisional Court that these activities are substantial in nature, but the EC made clear that any interference at all with interstate trade (for instance, if Mr Derwin were the only importer, and imported only a small number of horses annually) would be sufficient to place the United Kingdom under an obligation to justify the whole of the hunting ban.
  21. The EC claim is that the Hunting Act by rendering hunting illegal has an effect equivalent to a quantitative restriction on such imports (article 28 EC); and restricts the freedom of persons such as Mrs Johnson to provide services to persons from other member states and the freedom of persons such as Viscount Hughes Le Hardy de Beaulieu to come from other member states to receive services connected with the pursuit of hunting (article 49 EC).
  22. The Respondents concede none of the foregoing, save that they accept that the Hunting Act will directly affect the freedom of use of property in some respects, so as potentially to engage article 1 of the First Protocol to the ECHR. The Respondents contest the Appellants' assertions as to the likely effect of the Hunting Act, on which the claims to indirect interference are based. However, even taking those claims as accepted, as did the Divisional Court, the Respondents say that the arguments advanced under article 8 extend the ambit of that article far beyond anything justified by the Strasbourg jurisprudence; that the claim under article 11 is plainly misconceived, because those who presently hunt can still lawfully assemble for purposes permitted by the Act; and that save as admitted none of the alleged possessions count as such for the purposes of the First Protocol. Further, in relation to all of the ECHR claims the Respondents say that even taking the Appellants' case at its highest the interference that is feared will not be of a sufficient weight or level to engage the protection of the Convention.
  23. As to the EC Appellants' claims, the Respondents deny that the Community jurisprudence can be read to enable the provisions of the Hunting Act to be characterised as either equivalent to a quantitative restriction on imports in the terms of article 28 or as imposing a restriction on freedom to provide services as understood by the terms of article 49.
  24. Justification and proportionality If the Respondents are wrong in any of their contentions in §§ 17 and 18 above they have to establish a justification for the various ways in which the two treaties are engaged; and have to do so in any event in ECHR terms because of the concession made in respect of article 1 of the First Protocol. The Respondents say, drawing on a range of material that is legitimately available in the unusual circumstance of legislation that was promoted by the legislature itself rather than by the government, that the reason for the legislation was the prevention of cruelty to animals, overlaid with a specific ethical objection to the infliction of such cruelty for the purposes of sport. Those were legitimate objectives of the state, and in assessing their reasonableness and admissibility the authorities of the state should be accorded a considerable degree of discretion. These arguments applied in broadly the same terms to the HR appeal and to the EC appeal.
  25. There are some significant differences between the Appellants in the cases that they put on justification and proportionality. The HR Appellants contend that it is impossible, within the bounds of what it is permissible to refer to, to ascertain any objective or principle in the Hunting Act. The burden on that issue rests on the Respondents, and it has not been discharged. Even if that is not so, and addressing the claims made by the Respondents, first, the cruelty of hunting has not been established, accordingly it was irrational of Parliament to rely on that as a basis for legislation; second, to the extent that hunting interferes with the welfare of the quarry it is not demonstrated at least in the case of foxes to be more cruel than the only viable alternative in meeting the accepted need to control the fox population, namely shooting; third, it is not established that members of Parliament acted for ethical reasons, and if they did that would have been an impermissible imposition of their own private moral views on those of the hunting community; and fourth, that while the Appellants regarded the Michael Bill itself as an infraction of their rights, for Parliament to reject the Bill's registration scheme dependent on utility and least suffering and substitute a complete ban was, in the context of alleged concern about cruelty, irrational.
  26. The EC Appellants concentrated their case on fox hunting. They told us that they would not have brought proceedings in respect of the Michael Bill had it passed into law, and therefore would however reluctantly have accepted the Bill's complete ban on stag hunting. As to the purpose of the Hunting Act, they asserted that Parliament had sought to apply the tests of utility and least suffering that had been adopted by the Michael Bill, but scrutiny of the facts demonstrated that those objectives did not justify the total ban imposed by the Act. Accordingly, the necessary factual basis had not been laid for any justification of the breaches of articles 28 and 49 that the ban entailed. If, which the EC denied, the legislature had been moved by the "ethical overlay", that was not a permissible source of justification in Community law. And as to the degree of judgement accorded to the member state, it is more difficult in their case than in that of the HR Appellants to establish justification for an interference.
  27. Hunting in some more detail

    The various quarries

  28. The Hunting Act prevents the hunting with dogs of foxes, deer, hare and mink. We should say something shortly about each of these categories.
  29. Fox hunting is the most prominent and discussed form of hunting prohibited by the Hunting Act, and the cases before the Divisional Court and before us largely turned on that activity. As we have seen, the EC Appellants before us limited their submissions to the effect of the Hunting Act upon fox hunting. Statistics produced by the Countryside Alliance are set out in §7 above. It is generally recognised that there is a need to control the fox population in the interests of crops, livestock and game birds. The Burns Report [§§ 5.42-5.43, Appendix II §§ 34-35] found that hunting with dogs of the type addressed by the Hunting Act made only a minor contribution to the management of the fox population in lowland areas; in upland areas, alternative methods were less easily available. With the demise of hunting with dogs, farmers are likely to adopt other methods of control to take its place, the most obvious being shooting and snaring.
  30. Lord Burns and his colleagues were not asked to determine whether any particular form of hunting was "cruel", and they did not do so. They however concluded, in terms to which we revert later in this judgment, that:
  31. There is a lack of firm scientific evidence about the effect on the welfare of a fox of being closely pursued, caught and killed above grounds by hounds. We are satisfied, nevertheless, that this experience seriously compromises the welfare of the fox…..None of the legal methods of fox control is without difficulty from an animal welfare perspective. Both snaring and shooting can have serious adverse welfare implications. [Burns Report, §§ 6.49 and 6.59; Appendix II, §§ 56 and 59]
  32. Deer hunting is much less widely practised than is fox hunting. Although deer are to be found in many areas of the country, the only three registered hunting packs are in Devon and Somerset. In those areas about 1,000 deer need to be culled each year in the interests of agriculture, forestry and conservation. The hunts kill about 160 deer a year, but the Burns Report found that:
  33. because of the widespread support that it enjoys, and consequent tolerance by farmers of deer, hunting at present makes a significant contribution to management of the deer population in the area. In the event of a ban, some overall reduction in total deer numbers might occur unless an effective deer management strategy was implemented, which was capable of promoting the present collective interest in the management of deer and harnessing such interest into sound conservation management. [Burns Report, §5.75; Appendix II §38]
  34. As to the effect of hunting on the quarry, there is available what the EC Appellants described as a highly sophisticated study by Professor Bateson, which was the basis both of the conclusion of the Burns Report that most scientists agree that deer are likely to suffer in the final stages of hunting [Burns Report, § 6.33; Appendix II §51] and of the proposal in the Michael Bill to ban deer hunting entirely, on the basis that the activity could never satisfy the overall principle of the Bill of utility and least suffering. The EC Appellants, but not the HR Appellants, would not contend that such a ban on deer hunting was unlawful. They however pointed out that a study such as that of Professor Bateson had never been carried out on foxes when, they submitted, it easily could have been: the absence of any such evidence in the case of fox hunting in their contention seriously undermined the case for a ban on that activity.
  35. Hares are regarded as, at most, a minor agricultural pest. They are subject to two forms of hunting, hunting with dogs and hare coursing (the latter being a form of organised competition based on the hunting skill of the dogs). Because these are recreational activities hare-friendly habitats tend to be encouraged in order to maintain numbers. For that reason, the effect of the ban might well be to cause numbers to decline. [Burns Report §§ 5.94-5.95; Appendix II §§ 39-41]
  36. The Burns Committee concluded that both forms of hunting seriously compromised the welfare of the hare in the chase, and that although in normal hunting death of the hare usually followed immediately on capture, in coursing there could be a serious delay. [Burns Report §§6.67-6.68; Appendix II §§ 63-64]. The Michael Bill would have banned hare coursing outright, presumably for the same reason as in the case of deer hunting.
  37. Mink are regarded as a pest, preying on a wide variety of other creatures. Trapping is the main method of attempted control, mink hunts having no significant effect on the mink population save, possibly, in some localised cases. Without the benefit of any studies, the Burns Committee assumed on a commonsense basis that the experience of the chase, or of being dug out, seriously compromised the welfare of the mink. [Burns Report, §§ 5.121-5.122 and 6.71; Appendix II §§ 42-44 and 67]
  38. The reasons for and effect of hunting

  39. In this section we review the various reasons that are to be found in the evidence as to why hunting takes place, and the effects in society of the activity that the Hunting Act forbids. The evidence on these matters was largely based on the experience of fox hunting and, to a lesser extent, deer hunting. We also treat it mainly in that context, while attempting to continue to have in mind the interests of the other quarries and of those who hunt them.
  40. Pest control

  41. This issue has featured very largely in the debate on hunting, and in the submissions in this case, but we have had difficulty in determining the weight to give to it. Fox hunting accounts for a modest proportion of the total of foxes killed: see the figures given by Baroness Mallalieu, quoted in § 7 above; the Burns Committee concluded that the effect of a ban on hunting of deer and hares with dogs might be to cause a decrease in the numbers of the pest, rather than the increase to be expected if hunting were an effective method of control (see §§ 25 and 27 above); and mink hunting makes only a very modest contribution to the control of the species (see §29 above). Those figures are consistent with the evidence (Baroness Mallalieu's first statement, §189) that hunts take active steps to preserve the natural habitat of quarry species.
  42. It is also difficult to reconcile some of the evidence most relied on in this case with any view of hunting as primarily an exercise in pest control. It is hard to think that persons who come from Belgium and Portugal to hunt in England have as their principal motive participation in a pest control exercise.
  43. The correct assessment of this point is, in our view, that the central importance of hunting for its participants is as an exercise in sport and recreation: see §§ 35-37 below. In the course of that sport, and as a direct incident of it, some services in pest control, differing significantly in their importance as between the various quarries, are provided to the farming community. The hunting ban means that alternatives have to be found to take the place of such pest control as is provided by the hunts. It is the comparison between the effect on the quarry of those alternatives, particularly shooting and snaring, on the one hand; and the effect on the quarry of the hunting that those alternatives will replace on the other; that is the basis of the argument about whether the ban will in overall terms reduce cruelty, alternatively reduce the compromise of animal welfare identified by the Burns Committee.
  44. This issue is of some importance, not least because it is plain that the point of departure of the Michael Bill was pest control. It will be recalled that the Bill's tests for "registration" that is, for permission to continue to hunt, were utility and least suffering. "Utility" was described thus in clause 8(1) of the Bill:
  45. The first test for registration in respect of proposed hunting of wild mammals is that it is likely to make a significant contribution to the prevention or reduction of serious damage which the wild mammals to be hunted would otherwise cause to-
    (a) livestock,
    (b) game birds…..,
    (c) food for livestock,
    (d) crops….,
    (e) growing timber,
    (f) fisheries,
    (g) other property,
    (h) the biological diversity of an area.

    This test therefore assumes pest control as the main possible justification for hunting. We will need to bear in mind that, and the evidence as to the actual contribution of hunting to pest control, when reviewing the criticism made by all the Appellants of Parliament's decision to depart from the principles and structure of the Michael Bill.

    Sport and recreation

  46. There is no doubt, and it is not disputed, that all of the types of hunting that are banned by the Hunting Act are seen by those who participate in them as a valuable form of sport and recreation. And all of the types of hunting share the common characteristic, important to the participants, of involving the chasing by hounds of a live quarry. That is why the still permitted alternative of drag hunting (where hounds and riders follow a pre-laid trail) is not acceptable to the Appellants, and in their view would not enable the present hunt structure to survive. As Baroness Mallalieu put it in §93 of her second witness statement, "Drag hunting centres around the relationship between horse and rider whereas the appeal of fox hunting comes from the relationship between hound and huntsman."
  47. The same point was made by Mr Joseph Cowen, Senior Master of the Fernie Foxhounds, in §39 of his first witness statement, in relation to the interests not only of those who ride to hounds but also of those who follow the hunt on foot:
  48. The opponents of fox-hunting have suggested that hunts should convert to drag-hunting. This is not a realistic alternative. The essence of fox-hunting is following the hounds at work. Drag-hunting is an entirely different activity. Most members of the Fernie would not be interested in drag-hunting, which lacks the unpredictability of tracking a live quarry, and is more about hard cross-country riding. I personally would not be interested in drag-hunting, for precisely these reasons. Even if some of the mounted followers took up drag-hunting, it would be no substitute at all for many of our foot followers.

    The same sentiments were expressed by others. For instance, Mr Jason Vickery, a member of the South and West Wilts Hunt, said in §9 of his witness statement:

    I really enjoy the sport of hunting and find it exhilarating. When 30 hounds get excited, there is nothing like the thrill of the chase. The sport is very unpredictable as you never know where the fox is going to go.
  49. It is also clear, importantly for the issues in this appeal, that it is these features of English hunting that make the sport attractive to visitors from abroad. As it was put in §4 of her witness statement by Mrs Diana Johnson (see §15 above):
  50. I launched the [hunting holiday] business with the intention of providing hunting holidays to foreigners because I felt that the unique English style of hunting would become popular with foreign visitors who would enjoy the specific experience that English hunting brings.

    Hunting as a way of life

  51. There is a good deal of evidence that for some of those who work in the hunting industry, and for some of those who participate in hunting, hunting is, as they put it in their evidence, a way of life. The Divisional Court considered this aspect of hunting in connexion with its analysis of the claims under article 8 of the ECHR, a matter to which we will have to return. It was however satisfied that there were people, though it thought probably a small number, for whom hunting was more than just a sport or a source of employment. The Divisional Court put it thus in its §135:
  52. A person, or family perhaps, who from time to time enjoys watching the spectacle of a hunt from a public road or who follow a hunt by car or on foot, but whose main occupation and interests lie elsewhere, may be sorry if they can no longer do this. But the ban scarcely impinges on their personality or its development, nor intrudes upon essential social relationships. On the other hand, those for whom hunting is a core part of their lives, and perhaps has been a core part of the community in which they have lived all their lives; those for whose families hunting has been a central, personal and community activity for generations, may stand differently. So also those for whom hunting provides their only, or main, source of employment and income.

    The Divisional Court thought that Mr Summersgill and Ms Drage (see Appendix I, §§ 33 and 34) were the best examples of such people.

    Hunting as an industry

  53. The EC Appellants, supported by the HR Appellants, said that hunting was a significant economic activity, with marked economic links with other member states of the European Union. The Divisional Court had before it plenty of evidence to demonstrate that hunts themselves are large businesses, charging substantial fees to members and to casual visitors, including those from abroad, and employing a significant number of people. In addition, businesses like that of Mr Derwin, in horse trading, and Ms Johnson in providing hunting holidays, depend on the existence of hunting and, on the case advanced by the Appellants, on the continuation of hunting in the form that it took before the Hunting Act. Various figures, which in our view were largely speculative, were included in the evidence as to the overall value of the hunting industry; but we were told of one specific if extreme example, that in the village of Exford in Somerset 20 per cent of local employment depended directly or indirectly on stag hunting.
  54. In what follows we do not lose sight of the fact that, whilst for hunt followers hunting is a pleasant, albeit to many of them very important, form of pleasure and recreation, for those who are employed by hunts; and for those who have built businesses to supply the needs of hunts and hunt followers; hunting with dogs in its traditional sense is a source of employment and profit.
  55. The facts on which these appeals proceed

  56. There is a particular difficulty attaching to the facts of this case. As we have seen, much of the case does not turn on the direct effect of the Hunting Act, in the sense that it in its terms infringes the rights of the Appellants. Rather, the concern is that the Hunting Act, by prohibiting what is the essence and essential feature of hunting with dogs, the chase of a live quarry, will cause many hunts to fail for want of support; with consequent impact on the employment and possibly the accommodation of hunt employees, and economic damage to businesses that are dependent on hunting. We have already quoted in §§35-37 above some of the evidence as to that central feature of hunting with dogs. The Appellants were adamant that, with that feature permanently removed, as the Hunting Act removes it, hunts would rapidly decline, with the consequences already indicated.
  57. That case was accepted by the Divisional Court as the basis on which it should proceed. It said in §85 of its judgment:
  58. We are distinctly cautious in assessing, so far as we have to, the short, medium or long term effects of a ban on hunting which is regarded as permanent. The evidence of individual Appellants of the actual or anticipated effect on them is unchallenged, other than by general contentions whose force we find unpersuasive. There is bound, we think, to be a decline in riding to hounds. We hesitate to say how sharp that decline might be. The Burns Report was similarly cautious. Fox hunts will not, we suppose, all disband overnight. Still less will related social activities collapse immediately. On the other hand, we cannot but suppose that there would be a substantial contraction of hunting related activities in the medium term. More importantly, for present purposes, we proceed on the scarcely contested basis that a significant number of individuals, of whom the individual Appellants are representative, will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood. The extent to which they may be able to find alternatives is scarcely predictable. Some, no doubt, may not.
  59. The Respondents pointed out that, twelve months after the state of affairs on which the original evidence had been based, there was so far little sign that the feared effects had actually come to pass, and before us filed further evidence that was said to demonstrate that the current hunting season had been even more popular, judged by turn-out of participants, than hunting had been before the Hunting Act had come into effect; the Countryside Alliance had defiantly claimed that hunting would survive, ban or no ban; and therefore the case in support of the Act causing the threatened decline was at best not proven.
  60. As in her evidence before the Divisional Court, so in supplementary evidence before us, Baroness Mallalieu, on behalf of the Countryside Alliance, said [further Witness Statement, §3] that the present situation was essentially temporary or transitional, and indeed dependent on the outcome of these proceedings:
  61. The hunting community is currently maintaining the integrity of its various organisations in the hope or expectation that the Hunting Act will either be repealed by a future Government or declared to be unlawful. [Many of the persons quoted in the respondents' evidence] state that they view the ban as temporary and will seek to maintain their hunt infrastructure until the law is changed.
  62. In addition, Baroness Mallalieu pointed to examples of hunts already cutting back on staff; and the EC Appellants said that some of the hunting-related business activities, for instance that of Mr Derwin in selling hunters into the United Kingdom, had already been significantly affected by the ban.
  63. The EC Appellants, while supporting the submissions of the that we address below, took a robust approach to the way in which this problem affected their case. That case, as we have seen, is that any interference at all with interstate trade was sufficient to engage one or other of the articles of the EC Treaty, and thus to oblige the Respondents to justify that interference in Community terms. Such interference was established by, for instance, the difficulties of Mr Derwin in trading in the United Kingdom, which were continuing at the date of the appeal. Mr Sales submitted that, judged by the views of the Burns Committee, economic effects of that type were likely to be temporary; but that would not appear to be a sufficient answer whilst the interference continues to occur. And as to justification in EC terms, the Appellants said that that did not turn on the extent, nature or length of the interference. Once it was established that the ban engaged one of the articles of the Treaty, it was the ban itself that had to be justified, in EC terms, and without direct reference to the feature of its effects that engaged the court in the first place.
  64. The HR Appellants had no such simple answer, because the indirect effect of the ban upon the viability of hunting and thus of hunts is central to most of the claims under articles 8 and 11 and article 1 of the First Protocol: see §§ 11-14 above. And the issue of justification in its various emanations under the ECHR raises issues of proportionality, that can only be assessed in the context of the extent of the injury to other rights caused by the legislation complained of.
  65. We have not found this an easy matter to resolve. It is, we think, unusual for a court to be asked to declare legislation to be unlawful on the basis not primarily of what the legislation says but rather of how individuals (eg hunt followers) may react to that legislation, and how that reaction may impact, at one or more removes, on other individuals (eg hunt employees). We however think that the correct approach in the circumstances of this appeal is as follows.
  66. First, Mr Gordon QC, for the HR Appellants, was justified in drawing our attention to the forecast of the Burns Committee that a ban such as that imposed by the Hunting Act would have a significant effect on the economy of hunting and of connected activities over something like a ten year period. The Committee said:
  67. In view of all the uncertainties, it is not possible to give a precise figure for the number of jobs which would be lost if hunting were banned. In terms of national employment statistics, the short-term loss would be limited, and extend not much further than those employed by the hunt, and some employed by those hunt followers who immediately reduce their use of horses. In the medium term, say three to five years, more losses would occur as hunt followers brought their horse numbers into line with current use. Losses would also arise in the wider rural economy, in particular the horse economy, although in part they would be offset by other changes, including expenditure being diverted into other activities. In the long term, say seven to ten years, most (if not all) of the effects would be offset as resources were diverted to new activities and the rural economy adjusted to other economic forces [Burns Report, § 3.72; Appendix II, §19].
  68. Second, and following on from that, although some of the more optimistic public statements of the Countryside Alliance are not easy to reconcile with all of the evidence filed on its behalf in this case, it would seem to be established that possible substitutes for chasing a live quarry with dogs would not be of sufficient interest to current hunt followers for it to be likely that support for hunting will remain at its present level in the medium and long-term future. The difficulty is to know when and to what extent that will happen; what hunts will be affected; and how the members and followers of those hunts will adjust their relationship with the hunt. This issue essentially relates to the interests of particular individuals. As the Divisional Court put it in its §134, in the context of the widest of the article 8 claims:
  69. In our judgment, the Article 8(1) "private life" debate has become clouded with imprecision. There are 10 Human Rights Appellants and the Countryside Alliance naturally wishes to represent the hunting community generally. Submissions have tended to generalise the Appellants. But an Article 8(1) challenge has to be made for one or more individuals. Even for individuals, it is a struggle to make a case on the authorities for interference with their private lives. For the hunting community generally the case is, we think, untenable. Mr Gordon's submissions in reply implicitly accept this.
  70. That consideration presents an immediate difficulty for the HR Appellants in these proceedings. What they seek is a declaration under section 4 of the Human Rights Act 1998 that the Hunting Act is incompatible with the ECHR. Mr Gordon submitted that it made no difference to the case whether the Act was alleged to infringe the Convention directly or indirectly, as we have distinguished in the summary of the HR case set out in §§ 9-14 above. We do not agree. Where the complaint is that the terms of the Act directly prohibit or impede activities or interests that are protected by the Convention (as is the case with those article 8 rights that are identified in §10 above; the article 11 rights; and some of the rights under article 1 of the First Protocol), then the issue is simply one of law, of whether the terms of the Act themselves are incompatible with the exercise of those rights. However, where the effect of the Act upon Convention-protected rights is said to be indirect, as is conspicuously the case in relation to the article 8 claim (see the respects identified in §11 above), then it is necessary for the Appellants or at least some of them to establish as a prior condition to consideration of the legal issues that the factual consequences of the Act that are alleged to infringe the Convention have resulted or will result from the passing of the Act. As we have pointed out in the previous paragraph, the extent and intensity of any such outcome, and its impact on any particular Claimant, have not been established. We however consider that in the particular circumstances of this appeal it is simplest, in respect of the claims of indirect infringement of the Convention, to proceed, as in effect did the Divisional Court, on the assumption (we emphasise, an assumption by no means fully supported by the evidence) that the future will be as the Appellants allege.
  71. The policy objectives of the Hunting Act

    Introduction

  72. We have to deal with this issue separately because the issues of justification and proportionality, that potentially arise in both the HR appeal and the EC appeal, are governed by the court's assessment of what the legislature was seeking to achieve by passing the Hunting Act. First, however, we need to clarify further how this issue relates to the remainder of this judgment.
  73. First, as a contribution to the actual outcome of these appeals analysis of the policy of the Hunting Act is largely, though not entirely, academic. That is because, for the reasons that we set out at length later in this judgment, the Act only engages the law of the ECHR in a limited respect; and (an issue on which we differ from the Divisional Court) does not engage the law of the EC Treaty at all. Second, the Divisional Court dealt with the issues of the policy of the Hunting Act; and the justification for and proportionality of the terms of the Act; together in a single and, if we may respectfully say so, very valuable exposition in §§ 259-351 of its judgment. The Court adopted that approach because it considered that the issues of justification and proportionality, although formally different as between the HR and the EC issues, were in practical terms the same in their outcome in each case. We have been persuaded by Mr Anderson QC that, for the reasons that we explain in §§ 158-159 below, different and more formidable questions arise in the arena of Community law. It is therefore necessary to treat justification and proportionality separately for the HR and for the EC appeals.
  74. Accordingly, the present section of this judgment addresses only the issue preliminary to those questions, of what can legitimately be discerned as the policy objective of the Hunting Act: it being against that objective that the justification for and proportionality of the Act's prohibitions have to be judged. Nonetheless, although our treatment is structurally different from that of the Divisional Court, we have found its analysis of the policy issue of the greatest value. That has enabled us to deal with that issue comparatively shortly; any reader who seeks a fuller treatment can turn with confidence to the judgment of the Divisional Court.
  75. The correct approach to legislative policy

  76. The Divisional Court set out at length, in its §268, the guidance given in the leading authority, Wilson v First County Trust Ltd [2003] UKHL 40, [2004] 1 AC 816. We respectfully agree with the Divisional Court's analysis, which we did not understand to be challenged before us. From that analysis the Divisional Court in its §269 drew important conclusions for the present appeal:
  77. Accordingly, our first task, in the search for the comparative policy objectives upon which we have to make a value judgment, is to look primarily at the Hunting Act itself. We may also look cautiously outside the statute for its background context and underlying rationale; and also on the other side of the comparison for information tending to show its likely practical impact. Where this takes us at the margins may be debateable, but the parties were in broad agreement in their oral submissions as to the relatively confined nature of the evidential material properly available for our consideration. We are clear that we may consider the conclusions of the Burns Inquiry, and we note that opinions have been expressed over the years, at the Portcullis House hearings and elsewhere, in support of or in opposition to the continuation of hunting with dogs, and as to various aspects of the overall debate. We are not, however, called upon to decide the many facets of disagreement; rather to evaluate whether the legislation which the House of Commons enacted was justifiable in Human Rights and European Law terms. Statements by individual Members of Parliament in and out of Parliament are not helpful, nor, we think, admissible. We have not in this respect looked at Hansard. We are extremely cautious about looking to statements by the Minister in promoting his Bill, mainly because his Bill was not enacted. We also disregard what the Minister may have said in criticism of the legislation which the House of Commons eventually enacted, both because to that extent he was not promoting the legislation which was enacted, and because we are "called upon to evaluate the proportionality of the legislation, not the adequacy of the Minister's exploration of the policy options or of his explanations to Parliament" (Lord Nicholls at paragraph 67 of Wilson). Finally, since the House of Commons rejected the registration scheme in the original Michael Bill, we may suppose that the House of Commons considered that scheme to be inadequate to achieve its policy objective. We have therefore to evaluate that rejection, which may also cast light on the policy objective of the legislation which was enacted.

    Our findings as to the policy objectives

  78. Here again, we fully agree with the conclusions of the Divisional Court. We set out those conclusions, from §339 of the Court's judgment, and then add some observations on the further arguments addressed to us. The Divisional Court said:
  79. We discern from evidence admissible on the principles in Wilson that the legislative aim of the Hunting Act is a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical and should, so far as is practical and proportionate, be stopped. The evidential derivation for this legitimate aim comprises the terms of the legislation and the admissible contextual background. This background includes the Burns Report, the Portcullis House hearings, the ministerial basis for and the terms of the original Michael Bill, the obvious inference that the majority of the House of Commons considered the original Michael Bill inadequate, and the well-known opposing points of view in the prolonged and much publicised hunting controversy.
  80. First, we reject the opening contention of Mr Gordon QC for the HR Appellants that no legislative aim could be found in the Hunting Act, and therefore that it was impossible for any restriction contained in or flowing from it to be justified in ECHR terms. That narrow approach would make vulnerable a very large proportion of all English legislation. In truth, and confining ourselves to the sources carefully delineated by the Divisional Court as quoted in §55 above, we know a great deal more about the reasons why Parliament legislated as it did in this case than is usually available to a court. Crucial in these respects is the public debate over many years, that was given formal expression in the Portcullis House hearings; and the specific decision taken by Parliament to reject the proposals in the Michael Bill.
  81. Those sources leave no doubt that a principal objection to hunting is the perception that the practice involves cruelty to the quarries. That perception may be right or may be wrong, a matter to which we will have to revert when we address the justification for the legislation; but it is plainly a substantial concern of those who oppose hunting, including the members of Parliament who voted for the ban. And the overwhelming implication of Parliament's rejection of the Michael Bill is that that Bill did not meet members' concerns because it did not sufficiently address the issue of cruelty. As we have seen in §§ 33-34 above, the focus of the Michael Bill was pest control, with hunting that made a contribution to pest control only to be banned if there was an alternative means of control that would cause significantly less suffering to the quarry. In the context of the hunting debate, that limited and pragmatic solution could only have been rejected because members of Parliament saw the cruelty of hunting as the touchstone of their objection to the practice, and not merely an adjunct to regulation of a pest control activity.
  82. The second element in the policy of the Hunting Act is what has been, not entirely happily, described as the "ethical overlay". It goes without saying that animal suffering is an ethical issue, with disagreement turning on the justifications, pragmatic rather than moral, for causing suffering in any particular case. On that issue, as we have seen, the Divisional Court concluded that, in addition to its concerns about suffering as such, Parliament considered that the causing of suffering for purposes of sport and recreation (sport and recreation being, as we have pointed out in §§ 33-37 above, the main interest of those who hunt) is unethical and so far as is practical and proportionate should be stopped. That insight, far from being a subsidiary aspect of the objections to hunting, transforms the terms of the debate. We would respectfully adopt what was said about it by the Lord Justice-Clerk (Gill) when addressing the Protection of Wild Mammals (Scotland) Act 2002 in Adams v Scottish Ministers 2004 SC 665 [41]:
  83. The factual question is whether foxhunting inflicts pain upon the fox. The judgment is whether in the circumstances the infliction of such pain constitutes cruelty. Certain medical treatments, for example, are painful to the patient; but they are done for a beneficial purpose and would not, in the ordinary use of language, be described as cruel. On the other hand, certain conduct which, on one view, could be thought to inflict pain only momentarily, for example the killing of a fox by hounds, may nevertheless legitimately be considered in all the circumstances to be cruel; for example, if it is inflicted for the predominant motive of sporting enjoyment, or if there are other more effective and no more painful forms of pest control.
  84. That is an easily recognisable ethical sentiment, that has played a prominent part in the hunting debate. It was not respected by the Michael Bill; it is respected by the Hunting Act. We agree with the Divisional Court that that sentiment was immanent in Parliament's reasons for rejecting the Michael Bill and in its place legislating as it did.
  85. The HR Appellants however argued before the Divisional Court, and before us, that that understanding of the policy of the Hunting Act was not open to the court, apparently whether or not it could in fact be drawn from the materials before the court, because it was not the legislative policy espoused in the Respondents' evidence. That was clearly seen by the Appellants as a matter of some importance, since they devoted some thirty paragraphs of their skeleton argument to it. We briefly comment as follows.
  86. First, in the passage complained of in the Divisional Court's judgment, §340, that court said that it rejected "the contention that the court should not discern a legislative aim which goes beyond that espoused by the Government, both originally and in this litigation". But that passage principally referred to the fact that the policy of the Hunting Act is not that of the Government, but of the House of Commons. As the Divisional Court went on immediately to explain:
  87. It was rationally open to the House of Commons to espouse a different or modified legislative aim and in particular to supplement the Government's aim with a sustainable ethical overlay.

    Second, it is not correct to say, as did the Appellants, that the evidence of the Respondents' deponent, Mr Bradley, contained no justification for any finding of "ethical overlay". In his §48 Mr Bradley said in terms that:

    any decision about the appropriate measures to be taken for the protection of animals must include an element, and - depending on one's views - potentially a very significant element, of moral or value judgment. Whilst it is important to establish that there was an evidential basis for the decision of the House of Commons to ban hunting, that decision clearly, and necessarily, contained an element of value judgment. It is, accordingly, not susceptible to criticism on purely scientific grounds.

    Third, and more fundamentally, the premise of the ' argument is misconceived. In a matter such as the present, while the parties submit "evidence", much of what they produce is essentially argumentative or expository in nature: as indeed is the passage from Mr Bradley just quoted. The court cannot be bound by what is said in the same way as it is bound by evidence of primary fact. Provided that the court limits itself to consideration of the legitimate materials, as the Divisional Court did in this case, it can and indeed must make up its own mind about what those materials tell it.

  88. That objection out of the way, the dispute before us was not so much about what Parliament's reasons were for its legislative decision, but rather about whether the rules of ECHR and EC law permitted Parliament to act on those reasons. That quite distinct issue is considered below, under the heading of justification and proportionality, and separately in respect of the HR and of the EC appeal.
  89. The HR appeal

    Preliminary: the Human Rights Act

  90. In these proceedings the Appellants originally sought a declaration pursuant to section 4(2) of the Human Rights Act that the Hunting Act was incompatible with articles 6, 7, 8, 11 and 14 of the Convention, and with article 1 of the First Protocol to the Convention. In this court they are relying only on rights contained in article 8(1), article 11(1) and article 1 of the First Protocol. As we have already observed, they are reserving the right to rely on article 14 if this case goes to a court at a higher level. The Attorney-General and the Secretary of State for the Environment, Food and Rural Affairs were nominated as being the proper defendants to the claim for the declaratory relief sought, and not because of any decision either of them have made. The Act does not purport to prescribe rules for standing if a declaration like this is sought, in contrast to the rule in section 7(1)(a), which entitles a person who claims that a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) to bring proceedings against that authority in the appropriate court, but only if he is (or would be) a victim of the unlawful act.
  91. In that context section 7(7) provides that for the purposes of section 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights. By that article that court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. Strasbourg case law treats a person as a victim within the meaning of article 34 if they run the risk of being directly affected by a law or other act of state interference which violates their Convention rights (see Marckx v Belgium (1979) 2 EHRR 330; Institut de Prêtres Français v Turkey 92-A DR 15 (1998) Appl. No. 26308/95). In the present proceedings there has been no suggestion that the Appellants do not have standing to seek the proposed declaration, and at the centre of their concern is the fear that the Hunting Act creates the risk of violating their Convention rights.
  92. They assert that the language of the Hunting Act is so uncompromising that it is not possible to "read down" its provisions pursuant to s 3(1) so that it may be given effect in a way which is compatible with their Convention rights. This is why they seek the declaration of incompatibility that was refused by the Divisional Court.
  93. The HR Appellants' case

  94. The case of the HR Appellants was very conveniently set out in a chart prepared for the purposes of this appeal. Their evidence embraced not only the situation of the ten individual Appellants (for which see Appendix I), but also the perceived effect of the Act on 11 other witnesses whose identity and interests were summarised helpfully on the chart. These were an Exmoor farmer who runs holiday cottages; a foot follower of a hunt in Gloucestershire; a coursing trainer in Dorset; a North Yorkshire farmer and landowner; a sheep farmer in Gloucestershire; a hare courser in Lancashire; a hare hunter and courser in North Yorkshire; the owner, huntsman and master of a fell pack in Cumbria; a kennel man in Oxfordshire; a feed merchant in Somerset; and a huntsman, terrierman and kennel man in Aberdare.
  95. The evidence describes the way in which each of these witnesses, and also the ten individual Appellants, consider that the Act has impacted on their lives. In the case of each article relied on, the court must be ready to ask itself three questions:
  96. i) Is the article engaged?

    ii) If "yes", have the shown that there is a risk that the way in which they will be directly or indirectly affected by the Act will interfere with their rights under the article?

    iii) If "yes", can the Respondents justify the interference?

  97. So far as the second question is concerned, there is a threshold to be crossed before an act of a public authority can be recognised as interfering with a right. For instance, although the notion of "private life" in article 8 is said to be a broad one and is designed to protect a person's physical or moral integrity, the Strasbourg court has said that not every act or measure which may be said to affect the physical or moral integrity of a person necessarily gives rise to an interference of which the court will take note (Costello-Roberts v UK (1995) 19 EHRR 112, § 36).
  98. We will turn now to consider the three articles that are relied on in this appeal.
  99. Article 8

    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.
  100. It is convenient to start our consideration of this article by reference to the recent speech of Lord Walker in M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 WLR 637 in which he drew attention at § 83 to the article's unique feature, which is that it is concerned with the failure to accord respect. He went on to give three examples of the way in which the article has operated in well-known cases:
  101. i) To criminalise any manifestation of an individual's sexual orientation plainly fails to respect his or her private life (even if in practice the criminal law is not enforced);

    ii) So does intrusive interrogation and humiliating discharge from the armed forces (because the individual is a homosexual);

    iii) Banning a former KGB officer from all public sector posts, and from a wide range of responsible private sector posts, is so draconian as to threaten his leading a normal personal life.

  102. Lord Walker drew his examples from Dudgeon v UK (1981) 4 EHRR 149; Norris v Ireland (1989) 13 EHRR 186; Smith and Grady v UK (1999) 29 EHRR 493; Lustig-Prean and Beckett v UK (1999) 29 EHRR 548; and Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104. He went on to say, however:
  103. Less serious interference would not merely [not] have been a breach of article 8; it would not have fallen within the ambit of the article at all.
  104. The Appellants' article 8 challenge was advanced on four discrete fronts. These are described on the chart as "autonomy", "culture/community", "loss of livelihood/home", and "use of home". We will consider each of these elements in turn.
  105. Autonomy

  106. This challenge was expanded in argument to embrace private and family life, autonomy and lifestyle. The interests of the Appellants and their witnesses that were said to qualify for protection under this head were variously described as: social life; social and family life; destruction of animals; friends involved in hunting; 40 years as a terrierman, with life centred around the job and mink hunting in spare time; work dependent on hunting; business; hunted since childhood; voluntary work; family established the hunt in 1909 and have been involved ever since; family has owned the beagle pack since 1905; work dependent on hare coursing, and family involvement in hunting and coursing; field master of hunt; attends hunt social events; relations with neighbours; courses with father; relations with neighbours; and friendships with other hare-hunting people.
  107. The relevant language of the article is: "Everyone has a right to respect for his private and family life". In Niemietz v Germany (1993) 16 EHRR 97 the Strasbourg court said at § 29:
  108. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of 'private life'.
    However, it would be too restrictive to limit the notion to an 'inner circle' in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.
    There appears, furthermore, to be no reason of principle why this understanding of the notion of 'private life' should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.
  109. What the Appellants have seized on is the reference to the right to establish and develop relationships with other human beings, together with the explanation that the understanding of the notion of "private life" should not be taken as excluding activities of a professional or business nature. The qualification "to a certain degree" must, however, be noted.
  110. More recently, in Pretty v UK (2002) 35 EHRR 1, the court gave a more comprehensive explanation of the concept of private life at § 61:
  111. As the Court has had previous occasion to remark, the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.
  112. Again, the Appellants rely on the reference to the right to establish and develop relationships with other human beings and the outside world. They also place heavy reliance on the reference to personal autonomy that entered the Strasbourg jurisprudence in the Pretty case.
  113. In R (Razgar) v Home Secretary [2004] UKHL 27; [2004] 2 AC 368 Lord Bingham cited part of this extract from the Pretty judgment, and also § 47 of the Strasbourg court's judgment in Bensaid v UK (2001) 33 EHRR 10, before saying of the phrase "private life":
  114. Elusive though the concept is, I think one must understand 'private life' in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed ('The Developing Scope of Article 8 of the European Convention on Human Rights', [1997] EHRLR 265, 270):
    "Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people's moral worth by taking account of their need for security."
  115. Although "private life" is described as a "broad term", however, this court must not interpret it more widely than would the Strasbourg court: see R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323:
  116. [T]he duty of national courts is to keep pace with Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.
  117. For this reason it would be wrong for us to give an extravagant meaning to the phrases "self-determination" and "personal autonomy" which surfaced for the first time in the judgment in Pretty. These words draw their meaning from the context in which they appear in that judgment. The whole of the passage from §§ 61-67 shows that the court was concerned with the right of an individual to make personal choices about her own body, even extending to the choice of preferring assisted suicide rather than an undignified and distressing end to her life. That this restricted meaning of the phrase "personal autonomy" was intended is clear from the court's discussion of the Canadian case of Rodriguez v Attorney-General of Canada [1994] 2 LRC 136 in § 66 of its judgment, where it said that "comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body."
  118. In Peck v UK (2003) 36 EHRR 41 the Strasbourg court reverted to the way in which a person's article 8 rights might be violated in relation to his activities in a public, as opposed to a private, context. The court acknowledged at § 57 that there was a zone of interaction of a person with others, even in a public context, which might fall within the scope of "private life". It cited in this context its earlier judgment in PG & JH v UK Appl. No. 44787/98 in which it said:
  119. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive factor.

    And in Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 Lord Nicholls said, succinctly, at § 21:

    Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.
  120. None of this assists the Appellants at all, since they had no expectation of privacy in relation to their hunting activities. They placed considerable weight, however, on the recent judgment of the Strasbourg court in Sidabras v Lithuania. This decision, which was mentioned by Lord Walker in M, needs to be examined quite carefully. As is apparent from Niemietz, the jurisprudence of the court had already recognised that respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. In Sidabras the court observed (at § 46) how it had previously decided that lack of access to the civil service as such, or lack of access to a particular profession did not qualify for protection under the ECHR. It considered, however, that the far-reaching ban on taking up private sector employment which was imposed on former KGB officers for a ten-year period by a Lithuanian statute fell into a quite different category. At § 48 the court said:
  121. Admittedly, the ban has not affected the possibility for the applicants to pursue certain types of professional activities. The ban has, however, affected the applicants' ability to develop relationships with the outside world to a very significant degree, and has created serious difficulties for them as regards the possibility to earn their living, with obvious repercussions on the enjoyment of their private life.
  122. An aggravating factor in that case was that as a result of the publicity caused by the statute in question and its application to the applicants they had been subjected to daily embarrassment as a result of their past activities, and this affected their ability to lead a normal personal life.
  123. Another decision of the Strasbourg court featured prominently in the Appellants' argument. This was its decision in Botta v Italy (1998) 26 EHRR 241. The court stated (at §32) that the guarantee afforded by article 8 of the Convention was primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. And it went on to say (at § 33) that the State's positive obligations might involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves. However, for this obligation to exist there had to be a direct and immediate link between the measures sought by the applicant and his private and/or family life (see § 34).
  124. On the facts of that case, where a disabled applicant was complaining about the failure of the municipal authorities to provide him with access to the beach and sea at the Italian resort to which he went for a holiday, the court found (at §35) that there could be no conceivable direct link between his private life and the measures the State was being urged to take in order to make good the omissions of the private bathing establishments which he wished to frequent when he was on holiday.
  125. Culture/ community

  126. Under this heading the Appellants grouped such interests as social/economic impact on local community; part of coursing community; integration with local community; cultural heritage. They placed heavy reliance on the decision of the European Commission on Human Rights in G & E v Norway 35 DR 30 ([1983] Appl. Nos. 9278/81 & 9415/81) and the judgment of the Strasbourg court in Chapman v UK (2001) 33 EHRR 18.
  127. In G & E v Norway the applicants were two Norwegian Lapps. One was a reindeer shepherd and the other was a fisherman and hunter. They belonged to a minority group, with their own culture and language. There are about 50,000 Lapps, 60% of whom live in Norway, although many of them can neither read nor write Norwegian. For hundreds of years the Lapps have worked with reindeer, fishing and hunting. Every year they move their herd of deer around, so that there is a great demand for space. Although the history of the Lapps goes back several thousand years, over the centuries more and more people have invaded what they call "the land of the Lapps" and more recently, and especially after the Second World War the Lapps have seen their land taken away from them and their culture slowly being destroyed.
  128. The European Commission of Human Rights was of the opinion that under article 8 a minority group was in principle entitled to claim the right to respect for the particular lifestyle it might lead (as being "private life", "family life" or "home") and it was prepared to accept that the consequences of constructing a hydroelectric plant (which would involve covering an area of 2.8 square kilometres with water) would constitute an interference with the Lapps' private lives, as members of a minority who moved their herds of deer around over a considerable distance. The fact that the environment of the plant would also be affected could also interfere with their "possibilities of enjoying the right to respect for their private life". Their complaint failed only at the third hurdle, because the Commission considered that the likely interference was justified under article 8(2).
  129. That case was all about the lifestyle of a nomadic national minority. So was Chapman v UK. The judgment of the European Court of Human Rights in this case helpfully brings together a number of international texts which articulate concern with the welfare of members of national minorities. Thus the 1995 Framework Convention for the Protection of National Minorities, which 37 of the 41 Member States of the Council of Europe had signed by February 2000, and which 28 (including the UK) had ratified, included by article 5(1) an undertaking to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. Other Council of Europe texts included Recommendation 1203 (1993) of the Parliamentary Assembly on Gypsies in Europe and its recognition that gypsies, as one of the very few non-territorial minorities in Europe, "need special protection".
  130. The court also showed (at §§ 60-61) how the institutions of the European Union had showed themselves astute to protect minorities, and particularly gypsy people, and how the situation of roma and sinti (as minorities) had become a standard item on the Human Dimension section of the agenda of Review Conferences held by the Organisation for Security and Co-operation in Europe. A report in 2000 by the newly appointed High Commissioner for National Minorities had noted that nomadism had been central to romani history and culture and said in terms that whether an individual was nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. A little later the report referred to the importance of individuals of being able to pursue the lifestyle that expressed their group identity.
  131. Against this background the Strasbourg court held (at §73) 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. Measures which affected her stationing of her caravan therefore had a wider impact than on the right to respect for her home alone: they also affected her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition. A little later (at §96) the court recognised that the vulnerable position of gypsies as a minority meant that some special consideration should be given to their needs and their different lifestyle both in the regulatory planning framework and on arriving at decisions in particular cases:
  132. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.

    Loss of livelihood/home

  133. Under this heading the Appellants grouped such interests as loss of job and loss of business (sometimes, in each case, linked with loss of home).
  134. Use of home

  135. Under this heading the grouped such interests as: hunting on land (self and others): business based at home; manages land for bio-diversity: hare hunting integral part; chases deer off land; permits others to hunt on his land; and hosts coursing events on own land.
  136. In Harrow LBC v Qazi [2003] UKHL 43; [2004] 1 AC 983 Lord Hope of Craighead said at §50:
  137. It seems to me that the following conclusions can be drawn from the language of article 8(1) in the light of the observations in Marckx v Belgium. The right to respect referred to in this paragraph extends to the person's home. But the essence of this right lies in the concept of respect for the home as one among various things that affect a person's right to privacy. The context in which the reference to the person's 'home' must be understood is indicated by the references in the same paragraph to his private and family life and to his correspondence. The emphasis is on the person's home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person's right to the peaceful enjoyment of his home as a possession or as a property right. Rights of that kind are protected by article 1 of the First Protocol.
  138. It is clear that he was influenced in this respect by the following extract from the dissenting opinion of Sir Gerald Fitzmaurice in Marckx v Belgium (1979) 2 EHRR 330 at §7:
  139. It is abundantly clear (at least it is to me) – and the nature of the whole background against which the idea of the [ECHR] was conceived bears out this view – that the main, if not indeed the sole, object and intended sphere of application of Article 8 was that of what I will call 'the domiciliary protection' of the individual. He and his family were no longer to be subjected to the four o'clock in the morning rat-a-tat on the door; to domestic intrusions, searches and questionings....
  140. This thinking coloured the approach of the Strasbourg court in Niemetz v Germany (see §73 above), in which the applicant complained that the police had conducted a search of his law office without lawful authority. The court said at §§ 30-31:
  141. 30. As regards the word 'home', appearing in the English text of Article 8, the Court observes that in certain Contracting States, notably Germany (see para 18 above), it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word 'domicile' has a broader connotation than the word 'home' and may extend, for example, to a professional person's office.
    In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person's private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words 'home' and 'domicile' could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of 'private life' (see para 29 above).
    31. More generally, to interpret the words 'private life' and 'home' as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by the public authorities.

    The Divisional Court's approach

  142. The Divisional Court approached the article 8 issues by considering "right of respect for private and family life" and "right of respect for the home" in two, not four, discrete compartments. Of the former it said:
  143. 135. A person, or family perhaps, who from time to time enjoys watching the spectacle of a hunt from a public road or who follow a hunt by car or on foot, but whose main occupation and interests lie elsewhere, may be sorry if they can no longer do this. But the ban scarcely impinges on their personality or its development, nor intrudes upon essential social relationships. On the other hand, those for whom hunting is a core part of their lives, and perhaps has been a core part of the community in which they have lived all their lives; those for whose families hunting has been a central, personal and community activity for generations, may stand differently. So also those for whom hunting provides their only, or main, source of employment and income. Although hunting is a community open-air activity, and although its associated social activities do not, in the main, take place in the privacy of a single home, people thus affected can at least make a case, we think, that the ban intrudes into their private existences. We are quite satisfied that there are such people. In a sense, it is unnecessary to count them. Some of those who live and have hunted in and around Exford in Devon appear to be examples. But the number of people affected to the extent that they are able at least to make a case for interference under Article 8(1) must be quite small. This would affect the question of justification and proportionality, if there were interference under Article 8(1).
    136. We take the 2nd and 3rd Appellants as perhaps having the strongest cases here, although it may seem invidious to single them out from the other 8 Appellants. Their circumstances are summarised in paragraphs 32 and 33 above. We think that the question for them is whether hunting is so much a part of their personal integrity and social and inter-personal development that the ban may properly be said to interfere with their private lives. This is on the authorities a matter of degree for which an evaluative judgment is required. In the end, the Strasbourg cases contain largely anchorless generalisations, moderated only by the facts of the individual cases. The facts of most of these cases are far removed from those in the present case. But we agree with Mr Sales that the ambit of personal integrity and social and inter-personal development which they address tends towards intensely personal matters of physical or psychological integrity in a domiciliary context. But not all of them. Sidabras perhaps represents something of a watershed...
    137. We regard the cases of the 2nd and 3rd Appellants and some others as reasonably close to the borderline for Article 8(1) purposes. But on balance we do not consider that they cross the border. We reach this conclusion in short because (1) the nature of the intrusion into personal integrity and inter-personal development caused by the hunting ban is qualitatively different from that in most of the core Strasbourg authorities; (2) other authorities, for example Sidabras, represent a degree of intrusion which is not present in the cases before the court; (3) much of the intrusion is economic, more appropriate for consideration under Article 1 of the First Protocol; and (4) the hunting community as a whole is not remotely equivalent to an ethnic minority."
  144. So far as the right to respect for the home was concerned, the Divisional Court said this:
  145. 144. In the present case, there are two questions with reference to the concept of "home" in Article 8(1). The first is whether land, over which hunting takes place, which surrounds the place where a person lives is part of his or her home within Article 8(1). We agree summarily with the Scottish courts in Adams that it is not. It is not the place where a person lives as their habitation, nor the place where they live their private lives.
    145. The second question is whether there is interference with a person's right to respect for their admitted home, if the Hunting Act were to result in loss of their home because it is tied to their employment or business and the Hunting Act interferes with their employment or business….
    146. In our judgment, the case here is not made out upon the majority decision in Qazi. As Lord Hope said, the object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy. It is not concerned with protection of his right to own or occupy property. This is the province, if at all, of Article 1 of Protocol 1 – see Lord Millett at paragraph 89.

    Our Conclusions on Article 8

  146. We agree with the Divisional Court. For the most part the Appellants' submissions stretch the ambit of article 8 far wider than has ever been recognised in Strasbourg jurisprudence. For instance, they seek to deploy what was said in Pretty about an adult person's right to choose whether to live or die by asserting a far-ranging right to self-determination. They seek to interpret the right to respect for the home in a manner far removed from the interpretation of that phrase in Lord Hope's speech in Qazi. And they seek to convert what was said about protecting the rights of nomadic national minorities in G & E and Chapman into a generalised right of respect for different types of community activities. This is not what article 8 is all about.
  147. As the Divisional Court said, Mr Summersgill and Ms Drage came closest to qualifying for consideration on article 8 grounds. Mr Summersgill has been passionate about hunting since he first followed a hunt on foot at the age of 10. He left school with no qualifications at the age of 15 and has been employed in the "hunting industry" ever since. He was appointed huntsman for the Devon and Somerset Staghounds at the age of 24, and his witness statement describes how over the last 14 years both his working life and his social life have revolved around the hunt, which provides him with a tied cottage as part of his employment package. If he lost his job, he believes that he has no transferable skills, and he would lose his home as well.
  148. Ms Drage has run a small livery business in the Cotswolds since 1993. She looks after 18 horses for 14 paying customers, all of whom keep their horses for the sole purpose of hunting. She believes that the hunting ban will destroy her business and her livelihood and she will lose her home (which is provided rent free in the circumstances she describes in § 3 of her witness statement).
  149. However much one may sympathise with the plight of these and other witnesses, we do not consider that article 8 is engaged even in these cases. The last 50 years have seen the destruction, for various reasons, of many people's way of life in this country, often by deliberate decisions by Government. The collapse of the heavy manufacturing and the coal-mining industries are just two cases in point. What tipped the scales in the Sidabras case was that the applicants were prohibited by a blanket ban on employment from a wide swathe of alternative employments. In Niemetz, once the applicants' law office was treated as their home, the state's intrusion undoubtedly showed want of respect for their privacy. In the sexual orientation cases the state shows disrespect for an applicant's right to conduct personal relationships in private in the way he/she chooses. No such special factors apply to the present case. Even if the feared consequences do arise (an outcome that is still far from certain) they will not be caused by any lack of respect in article 8 terms for the Appellants' private or family life or for their homes. We do not consider that any question of respect for their private or family life or their homes comes into play.
  150. We have reached the foregoing, clear, conclusions on the assumption that some at least of the consequences of the Hunting Act feared by the Appellants will in fact eventuate: see §§ 48-51 above. But at the same time it is valuable to remind ourselves of circumstances in the real world. The new evidence adduced by the Respondents shows that things appear to have gone on very much as before, even if trail-hunting is regarded as a very inferior form of sport to the real thing. We do not know what the future may hold, and in those circumstances no court in any event could properly declare the Act to be incompatible with the Appellants' Convention rights, whether under article 8 or otherwise, because there is no evidence of a direct and immediate link between the passing of the Act and the interests the Appellants seek to protect in these proceedings.
  151. We accordingly conclude that article 8 is not engaged in any of the respects asserted by the Appellants, and that therefore the question of justification of the Hunting Act under article 8(2) does not arise.
  152. Article 11

    Article 11 – Freedom of assembly and association
    1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others...
  153. The claim under this head was very generally expressed: we were not treated to any very sustained argument about the impact of this article. Mr Gordon said that if we were not willing to give a broad interpretation to article 8, his clients would be unlikely to succeed on article 11 grounds. However that may be, we have no hesitation in adopting the approach of the Inner House in Adams, which the Divisional Court also accepted (see § 159 of its judgment):
  154. [81]     In our opinion, the submissions for the respondents are well-founded. Article 11 is engaged if a person is prohibited from doing something so long as he is a member of a particular association; for example, if he is disqualified from holding an office, or is otherwise adversely treated, by reason of his membership of a masonic lodge or of a political party). Such a restriction may infringe the rights of the association itself if its effect is to cause direct injury to it.
    [82]     But there is a material distinction, in our opinion, between a restriction which compels an individual to join an association or prohibits him from joining it, or penalises him in either event, and a restriction that, without reference to any association, merely prohibits a particular activity with the indirect result that persons cannot associate for the purpose of carrying it out. A restriction of the former kind is capable of engaging article 11; but a restriction of the latter kind is not. If it were otherwise, the prohibition of any activity would infringe article 11. We agree entirely with the conclusion of Lord Brodie on this question in Whaley v Lord Advoca