Countryside Alliance & Ors v HM Attorney General & Ors

Primary legislation is not disproportionate merely because it restricts important economic, social or cultural interests. Where legislation pursues animal welfare and moral objectives, Parliament may act on substantial evidential material and ethical judgment even though science does not provide a conclusive answer. The court must evaluate proportionality, but must allow a wide margin of discretion where the issue concerns domestic social policy and competing views are reasonably held.

A measure may engage Convention or European-law rights without being unlawful. The relevant questions are whether the right is engaged, whether the objective is legitimate, whether the measure is rationally connected to it, and whether it goes further than necessary. A court cannot use section 3 of the Human Rights Act 1998 to rewrite an absolute statutory prohibition or revive a rejected regulatory scheme.

Three conjoined judicial review claims challenged the validity of the Hunting Act 2004. The claimants included hunting organisations, individuals dependent on hunting, landowners and persons providing hunting-related services to residents of other European Union member states.

The challenges relied on the European Convention on Human Rights, the Treaty freedoms concerning goods, services and workers, domestic equality legislation, and international instruments. The claimants argued that the Act was irrational, insufficiently certain and disproportionate because it imposed a general ban rather than the registration scheme previously proposed by the Government.

The central issue was whether Parliament had acted within its rational and proportionate democratic competence in prohibiting hunting with dogs subject to statutory exemptions.

1. Outcome. Each application for judicial review was dismissed. The claimants in the human-rights and European-law proceedings were ordered to pay the defendants’ costs in full. No costs order was made against Brian Friend and Hugh Thomas. Permission to appeal was granted on specified Article 8, Article 11, livelihood, Article 28 and proportionality issues because of the case’s high public importance.
2. The court held that the ban did not infringe Article 8(1) or Article 11(1). Hunting was not, for the community generally, private life, and an indirect restriction on an activity did not directly restrict assembly or association. The surrounding land was not a person’s “home”. The court nevertheless considered justification and proportionality in case higher courts took a different view.
3. The Hunting Act 2004 interfered to some extent with possessions protected by Article 1 of the First Protocol, principally by controlling their use rather than depriving claimants of them. A self-employed person’s unmarketable future earning capacity was not, without more, a possession; marketable goodwill could be.
4. The court applied a composite proportionality inquiry: legality, legitimate aim, rational connection, necessity, and whether the measure went no further than necessary. The legislative aim was composite: preventing or reducing unnecessary suffering to wild mammals, overlaid by the ethical view that causing suffering to animals for sport was wrong.
5. Parliament was entitled to rely on the Burns Report, other contextual material and moral judgment. Conclusive scientific proof was unnecessary. It was rationally open to Parliament to conclude that hunting caused serious welfare concerns, that the registration scheme was unworkable, and that individual exceptions or a defence based on utility and least suffering would not achieve the legislative objective.
6. The court held that the Hunting Act was rationally related to a legitimate aim, necessary in a democratic society, proportionate, and supported by sufficient material. Under European law, Article 49 was engaged by cross-border hunting-related services, but the restriction was justified. Article 28 did not apply because the Act affected trade in imported animals no more than domestic trade.
7. The proposed reading of section 1 of the Act to insert an unnecessary-suffering requirement would amount to judicial legislation and was impermissible under section 3 of the Human Rights Act 1998.

First-instance judicial review decision. Permission to appeal was granted in part on public-importance grounds.