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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1677.html
Cite as: [2005] EWHC 1677 (Admin), [2006] EuLR 178

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Neutral Citation Number: [2005] EWHC 1677 (Admin)
Case No: CO/835/2005; CO/2446/2005;CO/967/2005;

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
29 July 2005

B e f o r e :

THE RT HON LORD JUSTICE MAY
and
THE HON MR JUSTICE MOSES

____________________

Between:
(1)THE COUNTRYSIDE ALLIANCE & OTHERS
(2) FRANCES DERWIN & OTHERS
(3) BRIAN FRIEND & HUGH THOMAS
Claimant
- and -

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

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Richard Gordon QC; Richard Lissack QC; Nicholas Bowen and Robert-jAN Temmink (instructed by Allen & Overy LLP) for the 1st Claimants
David Anderson QC and Marie Demetriou (instructed by Clifford Chance) for the 2nd Claimants
Brian Friend and Hugh Thomas (3rd Claimants)
Philip Sales; Jason Coppel and Tom de la Mare (instructed by The Treasury Solicitor and DEFRA) for the Defendants
Rabinder Singh QC and Kate Cook (instructed by Herbert Smith LLP) for the Intervener

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice May:

  1. This is the judgment of the court to which we have each contributed. It has been prepared under some considerable time pressure and will have rough edges. We have supposed, however, that the parties would prefer the giving of the judgment not to be delayed beyond the end of July.
  2. Introduction

  3. Various claimants in these three applications for judicial review challenge the lawfulness and integrity of the Hunting Act 2004. Broadly speaking, they do so on the ground that the Act is a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market freedoms protected by European law; and an unjust interference with economic rights. They say that the Act is oppressive legislation, enacted irrationally by a majority of the members of the House of Commons, who rejected a rational compromise promoted by the Government; legislation which, so far from achieving its avowed aim of preventing cruelty to animals, will in fact promote such cruelty. The other side of the controversy, espoused by the House of Commons majority, and supported in this court by the RSPCA, is that hunting wild animals with dogs for sport is not only cruel, but unethical, and should be stopped. The Act is proportionate legislation to achieve that legitimate aim which withstands human rights and European law objections.
  4. We have concluded that it was within the rational, proportionate and democratic competence of Parliament to make this enactment and that the court should not intervene. Our route to that conclusion has to pick its way through a mass of dense undergrowth cultivated by human rights and European legislation and jurisprudence. It is often hard to see the overgrown wood for the trees. We acknowledge that some of our intermediate judgments are more finely balanced than others, but that does not, in our view, apply to the main conclusion.
  5. The Hunting Act 2004 ("The Hunting Act")

  6. We here set out a summary descriptive account of the main relevant provisions of the Hunting Act. It should not be taken as definitive, if there were, for instance, a prosecution for alleged offences under the Act.
  7. 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).
  8. Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1.
  9. Section 5 bans hare coursing.
  10. 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.
  11. 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.
  12. Schedule 1 provides for exempt hunting. Exempt hunting includes:
  13. 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.

  14. 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.
  15. Parliamentary history of the Hunting Act

  16. 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.
  17. 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.
  18. In 2002, the Protection of Wild Animals (Scotland) Act 2002 was passed by the Scottish Parliament, receiving the Royal Assent on 15th March 2002. The validity of this legislation was unsuccessfully challenged on human rights grounds in Scottish courts in Adams v Scottish Ministers [2002] UKHRR 1189 (Outer House) and [2004] SC 665; Scot CS 127 (Inner House). The Scottish statute is broadly similar to, but not identical with, the Hunting Act. The challenge in the Scottish courts was on broadly the same human rights grounds as are relied on by the Human Rights claimants in the present proceedings, although there are differences in the evidence relied on and the circumstances of the individual claimants.
  19. The Burns Report (see later in this judgment) was published in June 2000.
  20. 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.
  21. 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.
  22. In December 2002, the Government introduced the Hunting Bill 2002 ("The Michael Bill"). This would have banned deer hunting and hare coursing (clauses 6 and 7), but permitted fox, hare and mink hunting subject to registration of individuals or groups by a registrar (clauses 1 and 2). There were to be two tests for registration, of which the registrar had to be satisfied. These tests were labelled the utility test and the least suffering test (clause 8). The utility test was that the proposed hunting was likely to make a significant contribution to the prevention or reduction of serious specified damage which the quarry would otherwise cause. The least suffering test was that an equivalent contribution could not reasonably be expected to be made in a manner likely to cause significantly less pain, suffering or distress to the quarry.
  23. 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.
  24. 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. There is a challenge, so far unsuccessful, in separate proceedings to the validity of the Hunting Act on the ground that the Parliament Act 1949 was itself not validly enacted.
  25. 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 cases 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.
  26. Hunting in England and Wales

  27. 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.
  28. 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, steeple chasing, 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.
  29. 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%).
  30. 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.
  31. 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 claimants in the present proceedings do not attribute bad faith to the elected Parliamentary majority.
  32. The claimants

  33. There are three proceedings for judicial review before the court. In each claim, the defendants are H.M. Attorney General and the Secretary of State for Environment, Food and Rural Affairs. The claims are:
  34. (1) Claim no. CO/835/2005 in which the claimants are the Countryside Alliance and 10 individual claimants (the Human Rights claimants). This claim challenges the Hunting Act on human rights grounds.

    (2) Claim no. CO/2446/2005 in which the claimants are 9 individual claimants (the European Law claimants). This claim challenges the Hunting Act on European Law grounds.

    (3) Claim no. CO/967/2005 in which the claimants are Brian Friend and Hugh Thomas. They challenge the Hunting Act on grounds additional to those relied on in the other two proceedings.

  35. The Royal Society for the Prevention of Cruelty to Animals has been given permission to intervene in all three proceedings on terms that no order for costs is made either in their favour or against them.
  36. The Countryside Alliance is a non-political membership organisation with around 100,000 full ordinary members and some 250,000 associate members through affiliated clubs and societies. Its purpose is to campaign for the countryside, country sports and the rural way of life, so as to ensure the sustainability of rural community life for everyone's benefit.
  37. There is an unresolved technical issue as to the standing of the Countryside Alliance to bring these proceedings on their own account. The issue concerns whether they are "a victim" for the purpose of section 7(3) of the Human Rights Act 1998 and, if they are not, whether this disentitles them from bringing the proceedings. The parties have made written submissions on this question, but it is agreed that there is little or no practical need for the court to resolve the issue since, whatever the conclusion, the evidence, submissions and real issues would be the same. It is agreed that the court should determine the challenges to the Hunting Act in the round and not by blinkered reference to individual claimants.
  38. The individual Human Rights claimants are Donald Summersgill, Lesley Drage, Roger Bigland, Colin Dayment, Kim Gooding, Joseph Cowen, Kenneth Jones, Richard May, Giles Bradshaw and Jason Vickery. We give summary details of who they each are and of their connection with and commitment to hunting as follows. The details are derived from their witness statements, which are largely unchallenged.
  39. Donald Summersgill is the professional huntsman for the Devon and Somerset Stag Hounds which hunts on Exmoor. He is 39 years old and has been the huntsman since 1990. He has never worked outside the hunting industry and is not qualified for anything else. He has been hunting all his life. Virtually all the members of his family hunt and are dependent on hunting for their livelihoods. If hunting remains banned, he will lose his home. He has a position in the rural community by reason of his employment. In short, his life and property rights revolve around the hunt and his professional activities. He considers hunting, but particularly stag hunting in Exmoor, to be part of the traditional way that people in that area have lived their lives. He sees himself as part of a minority group who have a separately recognised culture that brings very substantial benefits to the local farming and rural community. The effect of the ban on his life and his career is set out in full in his witness statement.
  40. Lesley Drage runs a small livery yard business in Stow-on-the-Wold in Gloucestershire. The business is entirely reliant upon local foxhunts for its survival. She looks after 18 horses, all of which are used exclusively for hunting. The contractual arrangements with the owners are vested and, in the absence of the hunting ban, could be expected to endure for the long term. These contracts provide her business with a steady income. She employs 4 people who have the benefit of contracts of employment with her. Likewise, Ms Drage has the reciprocal benefit of those employment contracts. She also has the benefit of a long-term contractual arrangement with a local landowner who has granted her an informal lease over her business premises. Her business has goodwill and, in the absence of the hunting ban, could have been sold as a going concern. Diversification is not possible for her into any other type of equestrian activity, as she cannot afford and has no access to borrow the necessary capital. She is part of hunting society. Her job is her life. Like the 2nd Claimant (and like all those for whom hunting is a way of life) she is part of a minority group who have a separately recognised cultural identity, which is not found elsewhere in suburban and urban England and Wales. The ban will devastate her life and her business and she will lose her home.
  41. Roger Bigland is a professional terrier man. He has been employed by one of three foxhunts in the Cotswold area for the last 40 years. His current employer is the North Cotswold Foxhunt, for whom he has worked since 1990. If he loses his job he will probably, given his age and his lack of transferable skills, be unable to get another job. If he is lucky, he may find some low paid unskilled or manual labour. He has been with his present employers for the last 14 years and has the benefit of employment protection and vested rights under his contract of employment. His job is his passion and provides him and his wife with their only social life.
  42. Colin Dayment is a self-employed farrier. His business is largely dependent upon hunting. His family have been in this business since 1904, and it was run by his father, his grandfather and his great grandfather before him. Mr Dayment is 52 and has been a farrier since he was 15 years old. He works alone and has no employees. 81% of his business is the shoeing of horses for local hunts. His business has been incorporated as Dayment & Son Ltd and he stands to lose the value of his 100% shareholding should the ban proceed. There are 7 packs of fox/staghounds within 20 minutes drive of his home. He believes that his business will not survive if hunting is criminalised and will thereby be deprived of the goodwill of the business built up by the family over the past 100 years. He also hunts and is, like the 2nd Claimant, part of the same defined and self-defining Exmoor hunting community. His only social life revolves around the hunt.
  43. Kim Gooding works with her husband, they are full time, self-employed trainers of hare coursing greyhounds. Their property has been adapted solely for the requirements of the business. If the ban is implemented, they will lose their livelihood and the value of the business. Their property will be significantly devalued, and it is more likely than not that they will lose their home through a forced sale. Mrs Gooding will be deprived of her current and cherished lifestyle. Her social life and that of her family depends upon hare coursing and the activities that surround it. The family will have to start again in a different walk of life.
  44. Joseph Cowen is a landowner and is a trustee and the Senior Master of the Fernie Foxhounds, a foxhunt in Leicestershire. As a trustee and Master, the Fernie's properties, equipment, hounds, horses and contracts of employment with its staff are all vested in Mr Cowen. The Fernie hunts on his family land (of which he is a trustee) about 1 in every 3 days that it is out hunting. The family land has been managed specifically for the purposes of fox hunting and has thereby acquired a special amenity value that is threatened by the Act. The Fernie provides two important services to local landowners and farmers: control of the fox population and a fallen stock service. Mr Cowen and his family have a social life that revolves around the Fernie. The hunting ban will have a fundamental effect upon his family, their lifestyle, social life and that of the wider rural community.
  45. Kenneth Jones is the Master of the Irfon and Towy Hunt and is a tenant sheep and cattle farmer in Mid Wales. The hunt goes over his land 3 or 4 times a season. The hunt hunts both on horseback and on foot as a gun pack. Generally when hunting, the hunt crosses the land of various different landowners during a day. However, at least twice a year as a gun pack and twice a year when mounted they hunt exclusively on the Llwyn Maddoc estate to protect pheasants from foxes. The ban will have a disastrous effect on his lifestyle, livelihood, social life and property rights. His grandfather founded the hunt in 1909 to protect his own and other local farmers' stock, as they were losing too many lambs to foxes. His grandfather remained Master of the hunt for the next 37 years. Since then, his family has been an integral part of the hunt. Mr Jones has been hunting since he was 5 years old. He has a wife and 3 children and they have always hunted together as a family. It is the central unifying force in their life. The hunt provides an invaluable pest control service and the hunt committee, of which Mr Jones is a member, employs a professional huntsman who would lose his job if the ban proceeds. The hunt provides the only social life for the whole community in what is a very rural and quiet area with limited social and recreational activities. Mr Jones feels passionately that the ban will unnecessarily degrade his own family and community life. He fears that without hunting there is even less reason for one of his own children to take over the family farm and that the ban will lead to further drift from the area of local young people.
  46. Richard May is the Master and owner of a beagle pack. His family has bought its own land (which he now owns) for the purpose of hunting and shooting. Every three weeks he hunts exclusively over this land with friends he invites to join him. The pack has been in the ownership of his family for three generations. It was founded by his grandfather in 1905. The dogs are used for hunting hares. When the ban is implemented, he may be able to keep at most 3 or 4 dogs and will have no option but to destroy the rest of the pack. They are pack animals and are not suitable as domestic pets. A ban will mean that he will have to dismantle his kennels, remove wire fencing, concrete and drains at substantial cost to restore his land.
  47. Giles Bradshaw owns a small farm in Devon. He currently allows the Tiverton Staghounds, Tiverton Foxhounds and the Taw Vale Beagles to cross his land about 3 or 4 times a year. He also uses his 4 dogs as a method of pest control on his farm, particularly to chase deer out from an area of woodland in order to deter them from destroying his willow coppices. Mr Bradshaw is concerned that under the terms of the Hunting Act, he will be forced against his conscience, to shoot deer unnecessarily. Both as a farmer and a landowner he needs to be able to plan his conduct so that it is within the law. He does not consider that the Hunting Act is clear and easily understood and DEFRA have been unable to clarify it for him.
  48. Jason Vickery is a tenant farmer in Dorset. He hunts with the South and West Wilts Foxhounds and is a member of its committee. Mr Vickery's social and family life revolves around hunting. He grew up in a hunting family and met his wife through hunting. He also takes his young daughters out hunting with him and he has made most of his friends locally through the hunt. As a farmer, Mr Vickery relies on the hunt's fallen stock service, which is described more fully in the first statement of Ann Mallalieu. He considers that the hunting ban will have a devastating effect on his life.
  49. The individual European Law claimants are Francis Derwin, Shane Flavin, The Hon. Diana Johnson, Susan Lanigan-O'Keeffe, Viscount Hughes Le Hardy de Beaulieu, Gil Jose de Queiroz de Mendia, Barbara Rich, Marion Knoche, Kevin Lamacraft and Brian Divilly. Summary details of who they are and of their connection with and dependence on hunting in England and Wales are as follows. This again is taken from their witness statements and is largely unchallenged.
  50. Francis Derwin owns one of the largest horse dealerships in Ireland. He buys horses from all over Ireland and deals in about 800 horses per year, of which 300 or so are hunters. Before the Hunting Act came into force, he sold about 90% of those hunters to customers in the UK. The Hunting Act has had a serious impact on Francis Derwin's business. He has been unable to sell any hunters at all this year.
  51. Shane Flavin is also a horse dealer based in Ireland. An important part of his business has been the sale of hunters to customers in the UK. He has failed to sell any hunters at all since November 2004, when the Hunting Act was passed.
  52. Diana Johnson has, since 1984, operated a business providing hunting holidays to foreign visitors. Many of these visitors come from other EU Member States. Diana Johnson built the business around her hireling business. Aside from hiring out hunters to her customers, she took them out on a wide variety of hunts and provided them with accommodation, transport, a valeting service and entertainment, such as hunt balls. To help her run her business, Diana Johnson employed a workforce all of whom came from other Member States of the EU. The ban on hunting has had an extremely damaging effect on her business.
  53. Susan Lanigan-O'Keeffe is a horse breeder based in Ireland who specialises in half-breed horses most of which are sold as hunters to English buyers. The Hunting Act has resulted in a steep decline in her business. She will have to put down a number of her horses because she simply cannot sell them.
  54. 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. Viscount Hughes Le Hardy de Beaulieu uses his own horses when hunting near his house in Dorset, but uses hirelings when hunting in other parts of the country. When he returns to Belgium he keeps his horses in a livery yard in Dorset. As a result of the Hunting Act, he will no longer come to England to hunt. He would not consider drag hunting instead.
  55. Gil Jose de Queiroz de Mendia lives in Portugal and has visited England on three occasions since 1999 to take part in hunting. On two of those trips he used the services of Diana Johnson, the 4th Claimant, paying around €2000 for 3 or 4 days' hunting, including accommodation, meals and the provision of horses. He has also bought several hounds in England and taken them back to Portugal to use when hunting there. Following the hunting ban, he has no plans to come back to England to hunt.
  56. Barbara Rich has two businesses: a horse livery business and a horse dealership, buying hunters in Ireland and selling them to customers in England and in other EU Member States. Prior to the hunting ban, both businesses were thriving; since the ban they have suffered dramatically. From having 40 liveries at any one time, Barbara Rich now has only one. She has sold only one hunter since December 2004. She used to sell 50 a year.
  57. Marion Knoche lives in Germany. She and her partner have been coming to England to hunt for some 10 to 12 years. They normally come once or twice a year and take part in 5 separate hunts on each trip. They use hirelings and stay in bed and breakfast accommodation. They also buy hunting clothes and riding equipment when in England. As a result of the ban, Marion Knoche and her partner will no longer come to England to go hunting.
  58. Kevin Lamacraft and his wife Ruth have run a hireling business since 1995. Amongst their customers are regular clients from Germany, France, Portugal, Austria and Scandinavia. The hunting ban has had a devastating effect on their business. Last year, he received £45,500 for the March to April period. This year he has generated only £14,500 during the same period. The sharp decline in business has meant that he has been unable to employ any workers.
  59. Brian Divilly is one of the biggest breeders of greyhounds in Ireland. About 75% of his greyhounds are bred for coursing; prior to the hunting ban he sold a significant number of these to customers in England. The effect of the ban is that he no longer has a market for greyhounds in England. As a consequence he has had to cut back his breeding of coursing dogs by 50% this year.
  60. In addition to the claimants themselves, other people have given witness statements in their proceedings. These include, but are not limited to, the following. Simon Hart is the Chief Executive of the Countryside Alliance. He has conducted a survey of the hunts in England and Wales in order to ascertain (a) whether they receive European visitors, (b) whether they employ workers from other Member States of the European Union, and (c) whether the hunts have links with hunts in other Member States. The results of his survey are set out in his witness statement and demonstrate that a significant number of European visitors hunt in England and Wales. For example, the Cotswold Hunt state that Portuguese, Dutch, French and Irish visitors have subscribed to their hunt and they also receive regular visitors from France, Germany, Portugal and Sweden. The results also show that several hunts employ workers from other EU Member States. For example, the Pembrokeshire and Carmarthenshire Mink Hounds employed two French workers between 2002 and 2005. Finally, there are links between hunts in England and Wales and hunts in other EU Member States. For example, the Trinity Foot and South Hertfordshire Beagles visit the Tory Foot Beagles in Ireland annually and hunt regularly in France.
  61. Jerry Desmond is Chief Executive and Secretary of the Irish Coursing Club. His witness statement explains that a significant proportion of coursing greyhounds bred in Ireland are sold to customers in England. He considers that the ban on coursing in England and Wales will mean that part of the market for Irish greyhound breeders will disappear.
  62. Brian Friend and Hugh Thomas, claimants in the third of the proceedings before the court, ride or follow on foot with the Cotley Hunt, the South Somerset Fox Hounds, the Quantock Stag Hounds and other hunts.
  63. Evidence

  64. A comprehensive statement of evidence and submission is made on behalf of the Human Rights claimants in 3 witness statements of Baroness Mallalieu. The main evidence on behalf of the defendants is in the witness statement of James Bradley. The main evidence on behalf of the RSPCA is given in the witness statements of John Rolls and David Thomas. Mr Rolls is the Society's Director of Animal Welfare Promotion.
  65. It may seem captious to complain that there are 32 lever arch files of evidential material, most of them well filled, at the same time as acknowledging with thanks that they have been immaculately prepared. We are also grateful for the 4 grey mini bundles of "essential reading". There are 6 files of necessary and appropriate witness statements, one file of experts' reports and 25 files of exhibits to witness statements. Although these are no doubt the source documents of material in the witness statements, theoretically necessary to substantiate what is asserted, such a volume of almost entirely unread material, no doubt many times copied, cannot be regarded as necessary.
  66. These are judicial review proceedings, not witness actions. The court's approach to evidence, and in particular contested questions of fact or opinion, is constrained by a number of matters. First, we cannot resolve such contested questions. It is not suggested that we should. Second, it remains a statutory imperative that proceedings in Parliament ought not to be impeached or questioned in any court – see the 9th Article of the Bill of Rights 1688 (1) Wil & Mar sess 2(c 2). Clear ministerial statements reported in Hansard may sometimes be used to construe ambiguous legislation – see Pepper v Hart [1993] AC 593; but see also R. (Jackson) v. Attorney General [2005] EWCA Civ 126, paragraph 72ff and especially paragraph 75. It is not permissible to suggest in court that Parliamentary legislation was inspired by improper motive. The present claimants do not do so. But there is no objection to using Hansard to prove what was done or said in Parliament as a matter of history – see Prebble v Television New Zealand Limited [1995] 1 AC 321.
  67. The court is, of course, obliged under the Human Rights Act 1998 to examine the Hunting Act to see if it is, as the Human Rights claimants assert it is not, compatible with the rights and fundamental freedoms referred to in section 1(1) of the 1998 Act. If the court is satisfied that the Hunting Act is incompatible, it may make a declaration of that incompatibility. The court may also conclude and declare by virtue of the European Communities Act 1972 that the Hunting Act offends European Community law and may disapply it – see Case 106/77 Simmenthal [1978] ECR 629 at 645.
  68. However, the entirely obvious and practical point is that the court cannot delve into the minds of each of the 339 members of the House of Commons whose votes enacted the Hunting Act. The claimants accept this. The House of Commons, as we have said, passed the Hunting Act on a free vote and the Act was not in the form which the Government proposed. So ministerial statements in Parliament in relation to a Bill which did not pass have to be approached with caution.
  69. The claimants do not accept that preventing unnecessary suffering to wild mammals was the reason, or the full reason, why the House of Commons voted for a complete ban. They say, however, that a purpose of preventing unnecessary suffering cannot be justified because (a) it is, on (as they contend) unchallenged evidence, necessary to control foxes, deer and mink, and many farmers and landowners see hare as a pest; and (b) there is no scientific support for the proposition that the alternative means of control cause less suffering than hunting with dogs. The case here is vividly put by Mr Friend, who says that, when quarry is hunted by hounds, it is either alive and free or it is dead. It is never wounded. His assertion that the inevitable consequences of the Hunting Act will be that wild mammals will be killed by methods that invariably inflict more pain and suffering than hunting with hounds may overstate the case. The more moderate version of this, advanced on behalf of the Human Rights claimants, is that a significant proportion of mammals, culled by inexpert shooting, especially with shotguns, will be wounded but not killed outright. They will accordingly suffer for perhaps a substantial period. The same may apply to those who are trapped or snared. In many areas, the terrain and public access make shooting ineffective or unsafe. In some areas, the legal means of culling under the Hunting Act are not viable. This particularly applies to the upland areas of mid Wales and the Lake District, where hunting takes place with foot packs or fell packs and gun packs. By contrast, hounds kill a fox, once it is caught, instantaneously or very quickly.
  70. Mr Anderson QC, for the European Law claimants, came close to accepting (without formally conceding) that there was scientific evidence, including the report of Professor Bateson, capable of establishing that a deer hunt can cause the deer physical suffering. We recall that deer hunting and hare coursing were to be banned under the original Michael Bill. But the case is that there is no equivalent scientific evidence for fox hunting, and Mr Bradley accepts (at paragraph 48 of his witness statement) that in some instances fox hunting might satisfy the tests of utility and least suffering. The Human Rights claimants' case is that the evidence shows that hunting is often the method of least suffering, and that in a significant number of cases the Hunting Act would achieve the opposite of its stated purpose.
  71. Hunting also has an important role for biodiversity and wildlife management. It is selective and promotes a healthy population. It has a dispersal effect. Hunts can and do retrieve injured animals to relieve their suffering.
  72. The Hunting Act has numerous anomalies which the claimants say are irrational and for which no coherent justification is advanced. They are indications that the provisions of the Hunting Act are arbitrary. Three examples which the claimants give are:
  73. a) The Act prohibits the hunting with dogs of foxes, mink and hares but permits the hunting of rabbits and rats with dogs.
    b) The Act permits the use of dogs to flush out wild mammals for the purpose of shooting them, but DEFRA claims that it does not permit the pursuit of wild mammals by dogs to disperse them, even when the landowner has no desire to harm or kill them.
    c) The Act permits the use of a dog below ground to hunt a fox to prevent damage to game birds or wild birds kept or preserved for the purpose of shooting; but prohibits using the same dog below the same ground hunting the same fox to prevent or reduce damage to livestock or chickens.

    Further anomalies are listed in the Appendix to the Human Rights claimants' Detailed Grounds of Challenge. They also say that the Act is arbitrary, irrational and discriminatory because it leaves fishing and shooting game birds and mammals untouched. This, they say, casts doubt on the legitimacy of the objective of the Act. Mr Bradley gives explanations for each of these anomalies in paragraphs 74-84 of his witness statement, which we find reasonably persuasive.

  74. The claimants say that a complete ban on hunting was not necessary to eliminate unnecessary suffering. This could have been achieved by the registration scheme which the original Michael Bill proposed, applying the utility and least suffering tests to individual cases.
  75. The claimants say that the adverse consequences of the Hunting Act will be far reaching. The economic effects may be small nationally, but considerable in rural communities. The effects in some areas, for example West Somerset, Exmoor and some areas of Wales, will be significant. In the Exmoor village of Exford, 20% of all employment is attributable to hunting and the effect of a long term ban will be devastating. More generally, many stand to lose their businesses which they have worked hard to build up. Contrary to Mr Bradley's contention, many people will not be able to absorb the impact of the ban, find other jobs or modify their businesses for want of alternative skills or the necessary capital.
  76. There will also be losses relating to land, property or contracts. Landowners will no longer be free to use their own land for hunting and may have to spend money adapting their land or property for other uses. Contracts with employees or customers will be interfered with. Many will lose the benefit of pest control, recovery of fallen stock and repair or improvement to the land provided by hunts. Many will lose the value of hounds and horses, vehicles and buildings or other property built or adapted for hunting purposes. All this without compensation, a system for which would not, it is suggested, be difficult to devise.
  77. Hunting is important, if not absolutely central, to the social and cultural lives of many people in rural communities. For many it is a way of life, and has been so for many years and generations. The social network of many individuals consists entirely or mainly of those who hunt. Others are dependent on hunting for most aspects of their lives. Hunting is also important in a wider community through social activities and events organised by or deriving from the hunt.
  78. There is for many a deep sense of loss and dismay. The loss, said Mr Lissack QC for the Human Rights claimants, is tangible, real, profound and irreversible. Some communities will be devastated. The more remote they are, the worse it may be. City people, it is suggested, cannot properly assess the importance of hunting in rural areas.
  79. The defendants' case, as articulated in Mr Bradley's witness statement, includes the assertion (paragraph 17) that the purpose of the Hunting Act is to end practices which a clear majority of members of the House of Commons, supported by a majority across the country, consider to be cruel, because they cause unnecessary suffering to wild mammals. For reasons which we have indicated, we are cautious about accepting this simply because Mr Bradley says so, but it is part of the defendants' case.
  80. Mr Bradley states that the objective of the Hunting Act was to prevent cruelty to wild mammals caused by hunting with dogs. He refers to statements in Parliament by Alun Michael MP at various stages between December 2002 to November 2004 to that effect. Proponents of a ban spoke of cruelty in moral or ethical terms. Opponents maintained among other things that hunting is not cruel.
  81. Mr Bradley says that virtually all the material now placed before the court was considered by the Burns Inquiry or the subsequent Portcullis House hearings and was before Parliament when the Act was passed. The defendants adopt the conclusions of the Inquiry, as supplemented by evidence given at the hearings and other evidence which has come to light subsequently. The defendants seek only to establish that there was a substantial body of evidence which could be relied upon in support of the view that hunting is cruel and which provided a sufficient basis on which the House of Commons could reach the conclusion, informed by moral judgments, that it should be banned. Although the extent of suffering caused by fox hunting cannot be established precisely, there is a body of evidence in favour of the view that it is cruel and should be banned. Mr Bradley refers to evidence before the Burns Inquiry questioning as implausible the contention that foxes caught by hounds are killed quickly and surgically rather than suffering more seriously before they are killed. He points to the statement in the Burns Report that hunting with dogs "seriously compromises the welfare of the fox". The claimants emphasise later statements by Lord Burns and Lord Soulsby, another member of Lord Burns' inquiry panel, that the panel were not asked to make, and did not make a judgment about cruelty. Mr Bradley points to evidence at the Portcullis House hearings by Professors Morton and Linzey to the effect that hunted animals experience, not only physical pain, but a whole gamut of suffering. Professor Morton expounded an anthropomorphic approach, and a principle that, if you are unsure about something scientifically, you should make the choice which eliminates or reduces the risk. The claimants say that this contention is misplaced. The "precautionary principle" should only be applied when there is a choice between stopping something which may be harmful, but cannot be proved to be harmful, and doing nothing, so as to risk the harm. They say that, with hunting, the choice is between two potential harms, which have to be evaluated and balanced.
  82. The defendants accept the view of the Burns Inquiry that it is necessary to manage fox populations because of the damage which foxes cause to farming and game interests (paragraph 5.40). But Mr Bradley says that that is not an uncontested view. Animal welfare organisations, including the RSPCA, have maintained that the fox is not a significant pest. Fox hunting makes a minimal contribution to controlling fox numbers. The Burns Report also concluded that the overall contribution of traditional fox hunting, within the overall total of control techniques using dogs, was almost certainly insignificant in terms of managing the fox population as a whole (paragraph 5.36).
  83. Mr Bradley points to a strong body of opinion, including that of the Burns Report, that shooting by lamping is preferable to hunting as a method of killing foxes. It is acknowledged that shooting may cause suffering, if an animal is wounded and escapes. But the Hunting Act itself has provisions to reduce that risk and other steps have been taken to promote effective marksmanship (paragraph 63). The defendants say that the number of shot foxes who escape wounded and are not retrieved is uncertain. A study which sought to measure wounding rates (Fox et al. 2003, 2005) was based on a single shot, although in real life many wounded foxes are promptly killed by a second or third shot. Further, the defendants allude to a point of view that, if shooting results in suffering, it is qualitatively different, being unintentional, from suffering caused by hunting.
  84. In his paragraph 64, Mr Bradley states:
  85. "I do, however, recognise that despite the work done by the Inquiry and at the Hearings, there remains a very significant difference of opinion, not just amongst legislators and members of the public, but also amongst scientists (as was made clear on day 2 of the Hearings), about what would, in general, be the most humane method of killing foxes, particularly given that shooting may not always be an available option or be carried out by skilled marksmen."
  86. Thus many more foxes were already culled by shooting than by hunting – of the order of four times as many. Mr Sales, for the defendants, submits that the legislature was faced, in simplified terms, with a choice between hunting foxes and shooting those which would otherwise be hunted. Hunting could reasonably be considered to cause suffering in all instances. Shooting would be a more humane method of culling in most cases, and in the vast majority of cases, if appropriate steps were taken. Different people could reasonably take different views about which was preferable. Ethical views about hunting inevitably played a part in a balancing judgment for which there is no purely scientific solution.
  87. The claimants submit that (1) there is scientific uncertainty about whether fox hunting causes suffering to the fox; (2) science is capable of providing an answer to this, or at least a much better answer than is presently available; (3) it is not justified or proportionate to interfere to the extent that the Hunting Act does with substantial rights and freedoms in the absence of proper evidence; and (4) there was an acceptable and less intrusive alternative in the form of the registration system which the Michael Bill promoted.
  88. As to deer hunting, Mr Bradley states (paragraphs 65 to 68) that there is a strong body of opinion, including that of the Burns Report, that this causes unnecessary suffering and that stalking and shooting are preferable. The Burns Report stated (paragraph 6.39):
  89. "Stalking, if carried out to a high standard and with the availability of a dog or dogs to help find any wounded deer that escape, is in principle the better method of culling deer from an animal welfare perspective."

    This was supported, it is said, by clear evidence (for example, Professor Bateson). The Hunting Act enables dogs to be used to retrieve wounded deer. There is unanimous agreement that deer populations need to be managed, but hunting accounts for only a small fraction of the number of deer killed each year. Hunting deer does not occur in most parts of England and Wales where there are deer. Hunting deer only takes place in three areas in West Somerset and Devon. Even in those areas, it accounts for only about 15% of the total cull required. Deer hunting was to be banned in the original Michael Bill. As we have said, Mr Anderson, but not Mr Gordon, more or less conceded (without formally doing so) that a ban on deer hunting might be justified, although paradoxically the most acute examples of the adverse effect of the hunting ban are those concerned with deer hunting on Exmoor.

  90. As to mink hunting, Mr Bradley states (paragraphs 69 to 70) that despite a lack of firm scientific evidence, the Burns Report accepted that "being closely pursued, caught and killed by hounds, or being dug out or bolted, seriously compromises the welfare of the mink" (paragraph 6.71). There is an undoubted need to control mink, but the defendants do not believe that the Hunting Act will have any significant effect on that objective. The Burns Report estimated that there were about 18,000 mink in England and Wales, and that mink hunts accounted for only between 400 and 1400 mink a year. Trapping is the recognised main means of controlling mink. Some are also shot. Packs of dogs catch on average less than one mink per hunting day and most of those that are found escape. The contribution to control by mink hunts is insignificant and has to be set against the disturbance and damage caused to wild life, river banks and vegetation.
  91. As to hare hunting and hare coursing, Mr Bradley states (paragraph 71 to 72) that the Burns Report noted a lack of firm scientific evidence, but concluded nevertheless that the experience of being closely pursued, caught and killed by hounds during hunting "seriously compromises the welfare of the hare" (paragraph 6.67). Mr Bradley says that hares are seldom a significant pest. Where control is necessary, shooting is generally used. The report found that an estimated 200,000 to 300,000 hares are shot in Britain each year (paragraph 5.85), while hunts killed in the region of 1,650 hares in a season (paragraph 2.47). Mr Bradley asserts that hare coursing and hare hunting have no justification as pest control at all. Both are described by the Burns Report as being "essentially carried out for recreational purposes" (paragraph 5.94). Hare coursing has serious welfare implications for reasons which Mr Bradley explains in paragraph 72. The Government has adopted the consistent position that hare coursing should be banned outright.
  92. Mr Bradley states that the Government and the House of Commons considered that the consequences predicted for the ban on hunting with dogs by its opponents were and are exaggerated. There may be some cases of individual hardship, but the economic effects are not likely to be as serious as the claimants contend. The welfare of horses and hounds is not affected. There was a persuasive case for not having a compensation scheme.
  93. The defendants, through Mr Bradley, say that drag hunting and trail hunting which are not banned are viable alternatives to hunting a live fox which is banned. They also say that what has actually happened since 18th February 2005, when the ban came into force, shows that lawful riding with hounds and the enjoyable social activities associated with it have in fact continued. The Countryside Alliance has itself issued a Handbook encouraging all this and explaining how hunts can continue to meet and operate within the law.
  94. Baroness Mallalieu vigorously contests this. She says, first, that drag hunting and trail hunting are substantially different activities from hunting live foxes, and the vast majority of those who have, from their various standpoints, enjoyed hunting in the past will not want, and many will simply not be able, to take to simulated hunting as an alternative. Second, she says that the emphasis on what has happened in the short time since the ban took effect is no indication of what will happen if the ban is seen to be permanent. The hunting community is currently maintaining the integrity of its various organisations in the hope or expectation that the Hunting Act will be declared to be unlawful.
  95. Although we do not regard ourselves as required or able to determine in these proceedings disputed questions of fact, we do find both these replies to Mr Bradley's contentions intrinsically persuasive. In particular, we are persuaded that what has happened since 18th February 2005 cannot be taken as any reliable guide to what would happen if the ban on hunting is seen to be permanent.
  96. 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 claimants 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 claimants 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.
  97. We think that the integrity of the purely factual evidence of this kind to underpin a human rights or European law challenge survives Mr Bradley's attempts to reduce its impact. We do not understand Mr Sales to suggest otherwise. The Hunting Act will have a substantial general adverse effect on the lives of many in the rural community in England and Wales. It will have a direct effect on a significant number of individuals, of whom the individual claimants are representative. Some of these effects may not be immediate, but much of it is likely to happen in the short to medium term.
  98. Evidence filed on behalf of the RSPCA includes witness statements of John Rolls and David Thomas. Mr Rolls is the Director of Animal Welfare Promotion at the RSPCA. He has been responsible for the conduct of the Society's campaign to end hunting of foxes, deers, hares and mink with dogs since 1995. He was in charge of the Society's submission of evidence to the Burns Inquiry. He gave oral evidence to the Burns Inquiry and represented the Society at the Portcullis House hearings in September 2002. Mr Thomas is Chairman of the Council of the Society, elected to that position in July 2003, having previously been Vice-Chairman. A summary of the main points in these statements is as follows.
  99. As a charity long established to prevent cruelty to animals, the RSPCA is, perhaps, in a unique position to contribute to these proceedings to represent that point of view. The Society's strategic principle is that it is morally wrong to cause suffering to any animal, unless there is strong evidence of a justifiable need and the method used causes the minimum suffering. The Society has published policies on animal welfare, which is not just a science, but also necessarily involves questions of public morality. Scientific evidence can be important, but is not always determinative. The legislature is entitled and obliged to consider prevailing social, ethical and moral attitudes.
  100. Mr Rolls gives a short account (paragraphs 21 to 23 and Annex 2 of his witness statement) of animal welfare legislation starting with Martin's Act of 1822. This included a prohibition against animal baiting and fighting, including cock fighting within the City of London, later extended to the rest of the country.
  101. The RSPCA does not believe that hunting is ever an effective control or culling method. It does not believe that there is a need to control the fox or hare population on a national basis, nor that the fox is a general pest.
  102. Opposing all hunting with dogs has been the settled policy of the Society since 1976. The Society's current policy is supported by a large majority of its members and donors. Mr Thomas states that the Society is opposed to hunting with dogs for sport or any other purpose including pest control because, on the evidence, neither the limited (at best) need for pest control of the various quarry species, nor the need for wider population control of deer in some cases, justifies the considerable suffering which the practice causes. In any event, the Society believes that hunting with dogs is an inefficient method of control and that alternative methods are more appropriate.
  103. Mr Rolls says that a very substantial body of evidence was available to all members of both Houses of Parliament before the introduction of the Michael Bill. Support for a ban was based on an informed opinion of the issues.
  104. Mr Rolls contends that hunting does not have any significant value as a pest control method. Nor do the claims of incidental benefits, such as habitat conservation, dispersal and promotion of the welfare of the quarry species obscure its fundamental purpose as a sport. It is plain that most participants regard hunting as a sport, not pest control. Mr Rolls has a colourful quotation, in paragraph 49 of his witness statement, from a former President of the Master of Foxhounds Association that hunts are not glorified pest destruction societies. It is the RSPCA's view that those elements of hunting which exist solely for sport cannot be morally justified. The suffering caused to the quarry is wholly unnecessary. Such elements include, they say, prolonging the chase of the quarry to enhance the sport of the huntsmen and followers.
  105. The RSPCA believes that it is plain from the evidence and an examination of the hunting process that the quarry is caused to suffer and that this is not balanced by the degree of human benefit obtained. The Society believes that the precautionary principle can be relevant when assessing suffering in animals. In this context, this would mean that if (which the Society does not accept) there were any doubts as to whether the quarry suffers as a result of being hunted, the benefit of the doubt must be given to the animal.
  106. Mr Rolls discusses the chase in paragraphs 64 to 78 of his witness statement. He maintains that this was a key element leading to the conclusion of the Burns Inquiry that hunting seriously compromises the welfare of deer, fox, hare and mink. He further contends that Baroness Mallalieu's claim that "[in] the vast majority of cases the killing technique of foxhounds is to grab the fox by the neck or across the shoulders and, either through a bite or severe shake quickly kill the fox" is not well supported by evidence.
  107. Although the Burns Inquiry did not make an assessment on the question of cruelty, the Burns Report did conclude that hunting with dogs seriously compromises the welfare of each of the four quarry species. Mr Rolls says that ensuring that an animal's welfare is not seriously compromised is a legitimate aim of legislation. The activities banned by the Hunting Act, chasing and killing using dogs, are rationally related to ensuring that a serious compromise of welfare is avoided.
  108. In paragraph 86 of his witness statement, Mr Rolls puts what we understand to be the RSPCA's central position. Setting aside the scientific evidence for suffering, it is contended that to chase an animal with a pack of hounds until it is exhausted or run to ground and to allow it (in many cases) to be killed by the hounds is self evidently an unpleasant experience whose different stages cause suffering to that animal.
  109. Mr Rolls states that it is clear from data from a wide variety of sources, including two Research Contracts commissioned by the Burns Inquiry (paragraph 5.2 of the Burns Report), that hunting with dogs makes a very small contribution to the control of any hunted species. Mr Rolls considers this in paragraphs 116 to 127 of his witness statement. He suggests that there is no evidence in the scientific literature to show that hunting selectively culls unhealthy animals (paragraph 142).
  110. He contends that there is no real evidence that shooting wounds large numbers of foxes, and that what evidence there is suggests the opposite. The humaneness of properly conducted shooting of deer in the United Kingdom has been scientifically established. Wounding rates in such cases, assessed over thousands of culls, are very low. The Burns Report (paragraph 6.60) tentatively concluded that lamping using rifles, if carried out properly and in appropriate circumstances, has fewer adverse welfare consequences for shot foxes than hunting and digging out.
  111. Mr Thomas explains that, at an operational level, the Society's governing council decided that the goal of the Society should be a legislative ban on hunting with dogs. The Society did not and does not believe that it is possible to regulate cruelty out of hunting. The Society, however, recognises that it is necessary to appreciate what is achievable in practice taking into account political realities. It was with this in mind that the Society gave conditional and qualified support to the original Michael Bill. The Society took the view that the Bill would, with amendments that had been made to it in committee and further amendments which it advocated, "effectively finish off hunting". This was on the basis that hare coursing and hunting, deer hunting and terrier work would be banned, and that fox and mink hunting would not in practice be allowed to continue because they would not meet the least suffering and utility tests.
  112. The Burns Inquiry and Report

  113. Lord Burns and four colleagues were appointed in December 1999 by the then Home Secretary, the Rt Hon Jack Straw MP, to carry out an inquiry into, and to report on, hunting with dogs. Their terms of reference were to inquire into:
  114. " 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 wild life, 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."

    They delivered their Report on 9th June 2000 with an accompanying letter which included the following:

    "Without doubt, conducting the inquiry has been a challenging experience. This is a complex issue that is full of paradoxes. We were helped by the terms of reference, which asked us to concentrate on the factual and analytical background to hunting. We have addressed those issues and we have not attempted to answer the questions of whether or not hunting should be banned. In particular, we have not sought to find a compromise solution, which we regarded as outside our terms of reference.
    The result is a report that might appear long on analysis and short on solutions. But we believe that it will help to inform the debate that will follow the publication of our report.
    We have travelled widely throughout England and Wales and listened to many people. We were left in no doubt about the sensitivity of the issue or the passion that it arouses. We have sought to conduct the inquiry in a very open manner. We have made as much as possible of our evidence available on the inquiry website. Our oral evidence sessions have been in public and transcripts have also been posted on the website as quickly as possible. We commissioned research papers, which were made available in draft and discussed at seminars, also open to the public.
    In the process we believe that we have gone some way to reach a wider agreement about the analysis of the issues, although some important differences remain. Some of these differences could be narrowed further with more research conducted over a longer time period. Others are likely to remain because they are not capable of being resolved in this way."
  115. The Burns Report is the product of a very substantial process of evidence gathering and evaluation. It formed a principal source of information and opinion available to Members of Parliament during subsequent debates and the eventual passage of the legislation. There was also the evidence given and views expressed at the Portcullis House hearings.
  116. It is well beyond our competence in these proceedings to attempt to absorb and reassess the mass of material which Lord Burns and his colleagues considered, together with the material which subsequently became available. It is agreed that it is no part of our function in judicial review proceedings to do so, and we do not do so. It is, of course, theoretically open to parties to litigation such as this to express disagreement with parts of the conclusions of the Burns Report, but, in the main, they do not do so. Rather, there is a tendency to pick the bits which support the parties' respective cases; but also to highlight parts of the opinions of experts which the Burns Inquiry considered and evaluated with other such evidence expressing different or contrary views or opinions. In so far as the Burns Report did not adopt these opinions, it is scarcely open to us to do more than note that the opinions have been expressed.
  117. Both pragmatically and in principle, we are concerned to hang on to such evidential anchors as are properly discernable and properly available to us. The conclusions of the Burns Report are, we think, in that category, both because they are the considered and balanced product of the process which the Inquiry undertook, and because they were central background and contextual material available to, and no doubt studied by, Members of Parliament.
  118. We accordingly (and with due acknowledgement) reproduce most of the first 67 summary conclusions of the Burns Report in the Appendix to this judgment.
  119. The Human Rights Challenge

  120. The first question is whether one or more Articles of the Human Rights Convention are applicable to the Hunting Act so that they are infringed by it. If they are there is the issue whether nevertheless the Act is justified and proportionate. The Human Rights claimants say that Articles 8, 11, 14 and Article 1 of the First Protocol are applicable and infringed. The defendants accept that Article 1 of the First Protocol is to an extent infringed, but that the other Articles are not.
  121. Article 8 – right to respect for private and family life

  122. Article 8 provides:
  123. "1. Everyone has the right to respect for his private and family life, his home and his correspondence.
    2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
  124. At first blush, a ban on hunting with dogs has no obvious effect on the private lives or the homes of those who have enjoyed taking part in what is now banned. Hunting takes place out of doors in public and away from the home. A more sophistic application of these points led the Scottish courts in Adams to conclude, after considering the authorities relied on by the claimants in that case, that Article 8(1) was not interfered with by the Scottish legislation.
  125. The Lord Ordinary considered that fox hunting had no characteristics that would bring it within the concept of private life as that concept has evolved in the Strasbourg jurisprudence. It was an activity carried on in the open air with a large number of participants. It was inclusively open to all comers. It was principally carried on on private land, but on land to which all who wished to participate were admitted. It was a spectacle for them and for those followers who used public roads.
  126. On appeal to the Inner House, the court did not agree (paragraph 65) with the Law Ordinary's view that fox hunting has no characteristics that would bring it within the concept of private life. Taking the petitioner's averments as true, the court considered that certain aspects of fox hunting support the view that it forms part of private life. It is, for example, the principal leisure pursuit for many people and is therefore an aspect of the development and fulfilment of their personalities. It is a core part of their lives, affording them the opportunity of forming social relationships. But the question could not be determined by those considerations alone. The court continued at paragraph 66:
  127. "In our opinion, other aspects of fox hunting prevent its being part of the private lives of the participants. It is conducted in the open over large tracts of private and public land. … Only a landowner possessed of an extensive estate could undertake fox hunting within the confines of his own property. None of the petitioners claim to be able to do that. A typical hunt crosses the land of several owners. It is not a solitary activity. Even if only the mounted participants are taken into account, it is undertaken by a substantial number of people. For the majority of participants it is a sport, however central it may be to their lives. When followers are taken into account, the hunt takes on the character of a spectator sport. It is also a public spectacle. The fact that the hunt is inclusive rather than exclusive points against its being part of the private lives of the participants. If any competent horseman is welcome to join the hunt for a modest subscription, as the petitioners aver, the individual participant has no control over the identities or numbers of those with whom he shares the activity. Moreover, the social aspects of hunting extend far beyond the hunt itself. They involve the wider community, a point that is emphasised in Dr Marvin's Report."

    The Lord Ordinary was right in concluding that fox hunting was not part of the private lives of the participants.

  128. The court reached these conclusions with appropriate reference to Strasbourg authority, to some of which we shall also refer later in this judgment. The claimants in the present case say that the Scottish courts were wrong in this decision.
  129. Mr Gordon on behalf of the Human Rights claimants submits that the jurisprudence has developed so that Article 8 is engaged in an increasingly wide range of situations. It is a dynamic provision, not set in stone. It is, he submits, an over-simplification to characterise private life as confined to a private place. The cases have developed a concept of personal autonomy – a right to choose how people conduct their lives. The Hunting Act is a colossal interference with some people's personal and social lives. The seriousness of the interference is critical because of the extent to which it affects the choices people make of how they live their lives. This does not mean that there is no limit to the ambit of Article 8, as the defendants suggest. The ban smashes some people's lives in a number of respects. For some people, for example Mr Dayment, hunting is an entire way of life upon which they depend. For some, there will be a loss of livelihood or their home as a result of the legislation.
  130. As to the concept of private life, Mr Gordon submits that the court should look at cases to find principles, not to compare and contrast disparate factual circumstances. He submits that Article 8 extends to protecting a person's physical or psychological integrity, their right to personal development, and their right to establish and develop relationships with others and the outside world.
  131. The 10 individual claimants are representative of "many thousands of other people" mainly in rural communities whose way of life has to a varying degree and in varying ways been interfered with by the hunting ban.
  132. For the concept of personal autonomy, Mr Gordon refers to Pretty v United Kingdom (2002) 35 EHRR 1. Mrs Pretty suffered from motor neurone disease, an untreatable progressive illness, leading to respiratory failure and pneumonia. She wanted her husband to help her commit suicide. It would be a criminal offence for him to do so. She complained that the refusal of the Director of Public Prosecutions to grant her husband immunity from prosecution infringed a variety of her rights under the Human Rights Convention, including Article 8. The European Court of Human Rights accepted that she was prevented by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life. The court was not prepared to exclude that this constituted an interference with her right to respect for private life as guaranteed under Article 8(1) of the Convention (paragraph 67). The court concluded however that the interference might be justified as "necessary in a democratic society" for the protection of the rights of others and that, accordingly, there was no violation of Article 8 (paragraph 67). In short, there was an interference with Mrs Pretty's Article 8(1) right to respect for her private life, although the tone of this decision suggests that it was a marginal one. But the interference was justified.
  133. In considering the applicability of Article 8(1), the court observed at paragraph 61:
  134. "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 physiological 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."

    The judgment proceeds to consider the "ability to conduct one's life in the manner of one's own choosing" (paragraph 62); and observes that "the very essence of the Convention is respect for human dignity and freedom" (paragraph 65).

  135. These passages articulate broad generalities. They need to be moderated, no doubt, by the factual circumstances from which they have evolved and to which they have been applied. But the nature of human rights jurisprudence does not, we think exclusively confine the general by reference to the particular. The observations in Pretty taken alone are, we think, conceptually capable of embracing as interference with their private lives legislation which prevents some people for whom hunting is a central part of their lives from choosing to do as they wish. The same would not apply to many hunt supporters for whom hunting is nevertheless peripheral.
  136. Mr Gordon referred to Peck v United Kingdom (2003) 36 EHRR 41. In that case, the applicant was captured on closed circuit television walking around in public with a knife trying to commit suicide. The local council owners of the CCTV footage released it to the local press. The European Court of Human Rights held that this constituted a serious interference with the applicant's right to respect for his private life. In paragraph 57, the court stated:
  137. "Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Art. 8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life"."
  138. Brüggemann and Scheuten v Germany (1977) 3 EHRR 244 is a decision of the European Commission of Human Rights in a case concerning restriction on the termination of unwanted pregnancy. Paragraphs 54ff of the majority opinion consider the scope of the right to respect for private life under Article 8(1). It secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. He must have the possibility of developing relationships of various kinds, including sexual, with other persons. However, there are limits to the personal sphere. The concept of private life comprises to a certain degree the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one's own personality. The protection afforded by Article 8 does not extend to relationships of the individual with his entire immediate surroundings – see also Niemietz v Germany [1992] 16 EHRR 97. But the "zone of interaction" with others, even in a public context, may fall within the scope of private life – see PG and JH v United Kingdom (Application No. 44787/25, 25th September 2001). These are scarcely hard-edged concepts. The concept of private life may extend to personality developing relationships in a public context, but not to all such relationships.
  139. Mr Sales submits that the claimants contend for a meaning of the concept of private life which is wholly unprecedented in its breadth. If they were correct, Article 8(1) would confer a broad right to do anything a person chooses to do, privately or publicly, alone or in conjunction with others. Although the concept of "private life" in Article 8 is "elusive" and can extend "to those features which are integral to a person's identity or ability to function socially as a person" (Lord Bingham CJ in R. Razgar v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at paragraph 9), and is "not susceptible to exhaustive definition" (Pretty at paragraph 61), it is nevertheless subject to important limitations, which exclude the current claim from its scope. The main object and intended sphere of application of Article 8 was that of "domiciliary protection" of the individual (see Sir Gerald Fitzmaurice in Marckx v Belgium (1979) 2 EHRR 330 cited by Lord Hope in Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983 at paragraph 48). Mr Sales submits that any extension beyond that limited sphere has to be carefully measured.
  140. Mr Sales submits that Pretty and Peck cannot bear the extended application for which Mr Gordon contends. Examples of "features which are integral to a person's identity or ability to function socially as a person" given in Pretty included gender identification, name, sexual orientation and sexual life. General principles enunciated by the European Court of Human Rights have to be moderated by the individual circumstances in relation to which they are expressed. This court cannot, it is submitted, leap from the harrowing case of Mrs Pretty to the wide submission that is made. Mr Sales submits that hunting may be of considerable importance to the claimants, but it is only one activity out of many which they may seek to pursue as work or leisure. It can hardly be integral to their identity or their ability to function socially as persons. The European Court is dealing with matters of core significance to the identity of the individual.
  141. Mr Sales refers to Botta v Italy (1998) 26 EHRR 241, and submits that the Inner House in Adams were correct to consider that the facts in Botta were analogous to those relating to the ban on hunting.
  142. In Botta, the applicant, who was disabled, complained that the Italian authorities had failed to enforce legislation requiring bathing establishments to provide disabled facilities enabling access to the beach and sea. The Commission declared the complaints admissible under Article 8 and 14. The European Court held unanimously that neither Article was applicable. The court stated (paragraph 32) that private life includes a person's physical and psychological integrity, and that Article 8 is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. But the court held in paragraph 35 that:
  143. "… the right asserted by Botta namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays concerns inter-personal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."
  144. There is, perhaps, a broad analogy between the personal enjoyment of many who support and follow hunting and the personal enjoyment of bathing in the sea. But for some, for whom hunting is a core way of life or central to their main business or employment, hunting may well come closer to the core of their existence. Nevertheless, as Mr Sales submitted, the European Court has regarded hunting, including hunting with dogs, in the context or the claim under Article 1 of the First Protocol, as essentially a leisure activity, notwithstanding the history and culture associated with it and other benefits it may bring. Mr Sales refers to Chassagnou v France (2000) 29 EHRR 615. In that case, applicants complained that, despite their opposition to hunting on ethical grounds, they had been obliged to transfer hunting rights over their land and to become automatic members of municipal hunting associations, so that they could not prevent hunting on their property. The court stated at paragraph 108, in its consideration of legitimate aim for the purpose of Article 11, that "[hunting's] main purpose in the present day was to provide pleasure and relaxation to those who took part in it while respecting its traditions." Mr Sales submits that the desire to hunt is, on the basis of Botta, outside the scope of "private life". We see the force of this submission from many who support, follow or participate in hunting, but again consider that those who are concerned with hunting cannot all be tied in the same bundle. For some, hunting is obviously more than a mere leisure activity.
  145. Mr Sales accepts that a person's private life may extend to some activities conducted in public, as for example Peck. But it is, he submits, material to ask whether the claimant has "a reasonable expectation of privacy". He refers to Halford v United Kingdom (1997) 24 EHRR 523 at paragraphs 45 to 46, and to Campbell v MGN [2004] 2 AC 457. In Campbell, Lord Nicholls of Birkenhead said at paragraph 21:
  146. "Accordingly, in deciding what was the ambit of an individual's "private life" in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later state of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonably expectation of privacy."
  147. In Sidabras v Lithuania (Application Nos. 55480/00 and 59330/00, 27th July 2004), applicants who were former KGB officers were banned from employment in a range of public and private sector jobs, including as lawyers, notaries, bank employees and in the teaching profession. They complained of infringement of Article 8 taken alone and in conjunction with Article 14. The Government submitted that Article 8 was not applicable as it did not guarantee a right to retain employment or to choose a profession. The court referred to Peck and to Niemietz v Germany, where it was said at paragraph 29 that there appeared to be no reason of principle why the understanding of the notion of "private life" should be taken to exclude activities of a professional or business nature. 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. The court considered (paragraph 47) that a far-reaching ban on taking up private-sector employment does affect private life. The court concluded at paragraph 50 that:
  148. "… the impugned ban affected, to a significant degree, the possibility for the applicants to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their "private life" within the meaning of Article 8."
  149. Mr Sales submits that Sidabras is in notable contrast with the present case. Here, the claimants have not been banned from any employment, nor have any so far lost their existing employment as a result of the Hunting Act. If they were to lose employment, there is no bar on them finding similar employment elsewhere. He says that Sidabras does not support a wide application of Article 8(1). In that case, the applicants were put in a position where they could not form relationships with others. He submits that Sidabras confirms what was already apparent from Smith and Grady v United Kingdom (2000) 29 EHRR 493, that loss of employment or livelihood is not by itself an interference with the right to respect for private life. In Smith and Grady, there were in addition elements of investigation by the military authorities into the applicants' homosexuality, reports prepared about them and the intimate and intrusive grounds for their dismissal which triggered the application of Article 8.
  150. In so far as the claimants contend that the right to respect for their private lives is infringed because they will have to destroy much loved animals, dogs and horses, this fails with reference to Bullock v United Kingdom (1996) 21 EHRR CD 85. It was there said that the keeping of a pet does not fall within the sphere of the owner's private or family life for the purposes of Article 8. Authorities referred to in paragraphs 50 to 53 of the Human Rights claimants' skeleton argument (including those in the footnotes) show the weakness of their Article 8 (private life) case. None of these is remotely analogous to the facts in the present case.
  151. Mr Sales submits that the claimants' case has no support from either G and E v Norway [35 D & R 30] Application Nos. 9278/81, and 9415/81, 3rd October 1983, nor Chapman v United Kingdom (2001) 33 EHHR 18. In essence, the court was concerned in each of these cases with ethnic minorities whose life style was intrinsically bound up with their ethnic existence. Contrary to the submissions of Mr Friend, the hunting community in England and Wales is not an identifiable ethnic minority.
  152. In summary, he submits that the right to respect for "private life" extends to certain core interests, including the physical and psychological integrity of a person and aspects of an individual's physical and social identity, but does not extend to cover simply anything a person might wish to do, even if it is of considerable importance to them.
  153. Even if Article 8(1) was in theory applicable to protect such broadly interpreted interests as the claimants seek to rely on, the Hunting Act does not show any lack of respect for those interests, and does not therefore constitute an infringement of the right to respect for private life under Article 8(1). Article 8 does not confer a right to private life, but only a right to respect for private life. A mere impact upon private life is not sufficient to make Article 8(1) applicable. A threshold of intrusion must be crossed before there is an interference with the right in Article 8(1) which is required to be justified under Article 8(2) -see Costello-Roberts v United Kingdom (1993) 19 EHRR 112 at paragraph 36. Mr Sales submits that the degree of intrusion is insufficient. The act only prohibits certain hunting activities. Other comparable activities may continue. If hunts or individual hunt followers stop hunting activities, that is the result of their decision. It was not required by the Hunting Act.
  154. Mr Gordon in reply says that the defendants mischaracterise the claimants' case. Not every interference with autonomy or personal choice comes within Article 8(1). As was said in Niemietz v Germany at paragraph 29, respect for private life must also comprise to a certain degree the right to establish and develop relationships with the outside world. It is the "certain degree" which is in issue. Of course, Pretty concerns a very different set of facts. But, as again was said in Niemietz, the notion of private life should not be taken to exclude professional and business activities where people have at least a significant opportunity of developing relationships with the outside world. Mr Gordon points to elements of the authorities to which Mr Sales referred as favouring the claimants' case rather than the defendants. For instance, there is a direct and immediate link between a hunting ban and its effect on the claimants, such as there was held not to be in the case of Botta. Botta does not exclude leisure activities from the scope of Article 8(1) as a matter of principle.
  155. Mr Gordon submits that hunting is far more than a pastime for the claimants and many others in rural England and Wales. For them, it is a community life style and an entire way of life. The evidence here is unchallenged. The argument that they can simply do something else is not an adequate response. Mr Gordon submits that the decisions in G and E v Norway and Chapman v United Kingdom do not depend on race or origin, but on the identification of a way of life and livelihood.
  156. In our judgment, the Article 8(1) "private life" debate has become clouded with imprecision. There are 10 Human Rights claimants and the Countryside Alliance naturally wishes to represent the hunting community generally. Submissions have tended to generalise the claimants. 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.
  157. 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).
  158. We take the 2nd and 3rd claimants as perhaps having the strongest cases here, although it may seem invidious to single them out from the other 8 claimants. 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. We should prefer to adopt the judicial choice favoured by Laws LJ in Sheffield City Council v Smart [2002] LGR 467 at 480-481 but feel constrained by the majority decision in Qazi not to do so – see below for a more extended discussion.
  159. We regard the cases of the 2nd and 3rd claimants 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.
  160. Article 8: interference with right to respect for the home

  161. In Adams, the Lord Ordinary considered that, while the concept of the "home" was flexible, its principle connotation was that of a person's dwelling house or habitation and its immediate surroundings. The concept of home could apply to a large estate only in an extended sense not used in the Strasbourg jurisprudence. The Inner House considered that, although the concept of "home" extends beyond an individual's dwelling house, an extensive country estate on which a person lives could not be regarded as his home. "Home" connotes a dwelling house or habitation and its immediate surroundings. It does not include whatever land is held with the house. The prohibition on fox hunting, although it undoubtedly interfered with the petitioners' freedom to use their estates as they chose, could not be regarded as an infringement of their right to respect for their home.
  162. The second claimant, Mr Summersgill, lives in accommodation which has been leased or licensed to him as a result of his employment as a huntsman. The third claimant, Leslie Drage, rents her house together with the stables which she uses for her livery business. They and others invoke Article 8 on the basis that they will in all probability lose their homes as a result of the Hunting Act.
  163. The defendants accept that those properties are their "homes" within Article 8, but deny that there has been any interference with their right to respect for their homes. They say that the Hunting Act does not fail to respect the home merely because a landlord may at some point in the future choose to terminate a license or a lease to use a tied property as a result of a decrease in activities relating to hunting, or because changed economic circumstances require an individual to move from one dwelling to another. The defendants point out that the terms on which the second and third claimants occupy their properties have not been disclosed, and that questions of detail might arise if they were.
  164. Other claimants make the case that for them Article 8 is infringed because land surrounding their dwelling houses over which hunting formerly took place constitutes part of their home. For the 7th, 8th, 9th, 10th and 11th claimants, hunting takes place over their own land and estates. Another example is Anthony Gillam. He hosts hare coursing events which take place entirely on his own farm. He has managed the land, not necessarily in the most profitable way, to preserve the hare population. Mr Gordon submits that it is artificial to say that "home" does not extend to land surrounding a dwelling. A home is a place with which you have a continuous residential connection.
  165. The principal authority relied on by the defendants is Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983. In that case, the local housing authority refused the defendant's application for a sole tenancy of a house in which he and his wife had lived and sought an order for possession against him. The wife had left the defendant and had given the housing authority notice to quit in accordance with the tenancy agreement. The defendant resisted the proceedings for possession on the ground that the authority were interfering with his right to respect for his home under Article 8 of the Human Rights Convention. There were two questions, both under Article 8(1). The first question was whether the house was his "home" within Article 8(1). The House of Lords decided unanimously that it was. The second question was whether the defendant's right to respect for his home was infringed by the enforcement of proprietary or contractual rights to possession, so that a question of justification under Article 8(2), as yet undecided, arose. The House of Lords decided by a majority, Lord Bingham of Cornhill and Lord Steyn dissenting, that the defendant's right to respect for his home was not so infringed.
  166. Qazi decides, adopting Strasbourg jurisprudence, that the concept of "home" is autonomous, independent of all classification in domestic law. It directs attention to where a person lives (Lord Bingham at paragraph 9). Lord Hope, in considering what Article 8 protects, directed attention to the decision of the European Court of Human Rights in Marckx v Belgium (1979) 2 EHRR 330 at page 342. This included the observation that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities. Lord Hope also drew attention to passages from the dissenting opinion of Sir Gerald Fitzmaurice. Sir Gerald drew a distinction between an article of the Human Rights Convention being applicable and being interfered with. He observed that the main, if not the sole, object and intended sphere of application of Article 8 was the "domiciliary protection" of the individual. Lord Hope said at paragraph 50:
  167. "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 2 EHRR 330. The rights 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 a 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."

    Lord Hope reiterated at paragraph 53 that the object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy and that it is not concerned, as such, with the protection of his right to own or occupy property. Likewise at paragraph 63, Lord Hope cited a passage from Buckley v United Kingdom (1996) 23 EHRR 101 at page 115, paragraph 63, which considered whether or not a particular "habitation" constitutes a home which attracts the protection of Article 8(1).

  168. 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.
  169. 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. We note that Lord Bingham and Lord Steyn, in the minority in Qazi, agreed with paragraphs 26 and 27 of Laws LJ's judgment in Sheffield City Council v Smart [2002] LGR 467 at 480-481 about the relationship between the two paragraphs of Article 8. Laws LJ considered that there is a judicial choice to be made between two possibilities. The first would entail a judgment that the Convention requirement was not met at the Article 8(1) stage, i.e. that there was no want of respect for the tenant's home. The second choice would accept that there was a prima facie violation of Article 8(1), and entail the subsequent application of the more rigorous and specific standards set out in Article 8(2). Laws LJ's first approach, which he preferred and which Lord Bingham and Lord Steyn agreed with, might possibly result in a decision in this case that there is an interference with the right to respect for the home of people who lose their homes because they are tied to their hunting jobs which are lost. But even on that view, the interference is indirect.
  170. 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.
  171. Mr Sales rightly drew our attention to the fact that the decision of the European Court of Human Rights in Connors v United Kingdom (Application no. 66746, 27th May 2004) had cast some doubt on the decision in Qazi and that the Court of Appeal in Price v Leeds City Council [2005] EWCA Civ 289, [2005] 1 WLR 1825 had held that Connors is incompatible with Qazi. However, the Court of Appeal in Price held themselves for the time being bound by Qazi, and we should do likewise. So far as it goes, we agree. Mr Gordon understandably did not submit that we should not follow Qazi in this case.
  172. The relevant issue in Connors concerned the eviction of the applicant and his family from a local authority caravan site (see paragraph 95 of Connors). The court was not persuaded that the necessity for a statutory scheme which permitted that summary eviction without giving reasons had been sufficiently demonstrated by the Government (paragraph 94). In the present case, we are not concerned with anything approaching a statutory scheme permitting summary eviction by a public authority. Rather are we concerned with whether the possible loss of their homes under tenancies with private landlords as an indirect consequence of the hunting ban constitutes interference within Article 8(1). We conclude that it does not.
  173. We accordingly hold that the claimants, including Mr Friend and Mr Thomas, do not get through the Article 8(1) gateway. We shall nevertheless address later in this judgment the Article 8(2) justification and proportionality issue, lest higher courts take a different view.
  174. Article 11 – Freedom of Assembly and Association

  175. Article 11 provides:
  176. "1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
    2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
  177. The 2nd, 4th to 9th and 11th claimants say that the ban on hunting with dogs is an interference with their Article 11 rights. The activity of hunting with dogs brings into play their right to associate and assemble for a common purpose. This is, they say, a fundamental liberty and democratic right, one foundation of a liberal democratic society. They say that Article 11 protects their freedom to take part in a communal activity by means of a collective entity or association for the furtherance of common interests of members of the group, a right which should be practical and effective, not theoretical or illusory. The citizen should be free to create a legal entity to act collectively in a field of mutual interest. The right would be neutralised if the purpose of the association or assembly was removed. The right to associate carries with it the right to do so for a particular purpose. The dominant purpose of hunting was and remains setting up an organised structure to control pests and protect livestock.
  178. These claimants say that Article 11 protects the right "for the inhabitants of a region in a country to form associations in order to promote the regions special characteristics for historical as well as economic reasons" see Sidiropoulos v Greece 27 EHRR 633 at paragraph 44. This applies to hunting. A democratic society must tolerate and even protect and support the existence of minorities and different cultures in a country. They say that there is a close link between privacy rights protected by Article 8 and the right to freedom of assembly and association protected by Article 11. They also say that Article 11 should be read consistently with Article 10, which protects all forms of freedom of expression.
  179. The claimants reject the defendants' submission that their Article 11 case would make the scope of Article 11 impossibly broad. It is a matter of degree. They rely on Ezelin v France (1992) 14 EHRR 362 to reject an argument which the present defendants do not make. They say that Chassagnou v France (1999) 29 EHRR 615 is the mirror image of the present case. There, owners of land were required to join Municipal Hunters' Associations so that the association could hunt on the owner's land. The European Court of Human Rights held that this fell within the scope of Article 11 because the measure forced association on the landowner. This was protected by Article 11 because, as the court said at paragraph 100:
  180. "Freedom of thought and opinion and freedom of expression guaranteed by Articles 9 and 10 of the Convention respectively, would thus be of very limited scope if they were not accompanied by a guarantee to be able to share one's beliefs and ideas in community with others, particular through association with individuals having the same beliefs, ideas or interests.
    The term "association" therefore possess an autonomous meaning; the classification in national law has only relative value and constitutes no more than the starting point."

    This last observation went to reject a submission that there was a difference between private and public associations.

  181. The claimants rely on Anderson v United Kingdom [1998] 25 EHRR, CD 172, [1998] EHRLR 218, a decision of the European Commission. The owner of commercial property had withdrawn from the applicants licence to have pedestrian access to a shopping centre on the grounds of alleged misconduct and disorderly behaviour. They brought proceedings for an injunction to restrain them from entering the centre. The applicants complained that the withdrawal of their licence constituted a violation of their right to peaceful assembly under Article 11 of the Convention. The Commission found that there was no interference with their Article 11 rights because they had no history of using the centre for any form of organised assembly or association. The Commission stated the law at paragraph 1 as follows (omitting case references):
  182. "The right to freedom of assembly is one of the foundations of a democratic society and should n