Countryside Alliance & Ors, R (on the application of) v Attorney General & Anor Rev 2

A statutory prohibition on hunting wild mammals with dogs was compatible with Convention property rights and did not engage the rights to private life or freedom of assembly. Article 8 protects matters integral to personal identity, social functioning and privacy. It does not confer a general right to pursue a chosen recreational, cultural or economic activity. Article 11 does not prevent legislation prohibiting an activity which people might assemble to perform.

Non-discriminatory social legislation which is not aimed at products and has no protectionist effect falls outside article 28 EC. A measure engages article 49 EC only where it has a direct and demonstrable inhibiting effect on cross-border services. The removal of the underlying market opportunity is insufficient. In any event, protecting animal welfare and preventing suffering for sport were legitimate public-policy objectives, and a complete prohibition was proportionate.

The Countryside Alliance and individuals involved in hunting appealed from the Divisional Court’s dismissal of challenges to the Hunting Act 2004: [2005] EWHC 1677; [2006] EuLR 178. One appeal alleged incompatibility with articles 8 and 11 of the Convention and article 1 of the First Protocol. The other alleged restrictions on goods and hunting-related services contrary to articles 28 and 49 EC.

The court also considered an application by Brian Friend and Hugh Thomas for permission to appeal on Convention, discrimination and international-law grounds. The central questions were whether the hunting prohibition engaged the asserted rights and freedoms and, if so, whether its animal-welfare and ethical objectives justified a complete prohibition.

1. Disposition. Both appeals were dismissed. Permission to appeal was refused to Messrs Friend and Thomas.
2. The legislative purpose of the Hunting Act 2004 could be discerned primarily from the statute and cautiously from admissible contextual material. Its composite objective was to prevent or reduce unnecessary suffering to wild mammals and to give effect to the ethical judgment that causing such suffering for sport was unacceptable.
3. Article 8 was not engaged. Private life includes matters integral to identity and social functioning, but it does not confer a general right to pursue a chosen sport, lifestyle, occupation or community activity. The anticipated loss of employment, business or tied accommodation did not result from a failure to respect private or family life or the home. Nor was there evidence of the direct and immediate link required for the asserted indirect effects.
4. Article 11 was not engaged. The Act prohibited a particular activity after people had assembled; it did not prohibit their assembly or association. Hunts remained free to meet for lawful activities such as trail hunting, drag hunting or communal riding.
5. Article 1 of the First Protocol was engaged only in relation to controls on the use of property and any established diminution in property value or business goodwill. Future income was not a possession without an existing enforceable claim. The legislation struck a fair balance and imposed no individual excessive burden. Parliament had sufficient material to conclude that hunting compromised animal welfare, and a complete prohibition was proportionate to its ethical objective.
6. Article 28 EC was not engaged. The Act was not a product rule, was not aimed at imported goods or products generally, and had no discriminatory or protectionist effect. Community law did not require a state to preserve a domestic market where domestic and imported interests were affected alike.
7. Article 49 EC was also not engaged. A neutral national measure must have a direct and demonstrable inhibiting effect on the asserted freedom. The Act removed the underlying activity on which hunting-related services depended, but did not directly restrict cross-border provision or receipt of those services.
8. Even if articles 28 or 49 EC had been engaged, the restriction was justified. Animal welfare and the ethical objection to causing suffering for sport constituted legitimate public policy. The alternative registration scheme would not have achieved that objective, so the complete prohibition was proportionate.

1. Court of Appeal (Civil Division): By [2006] EWCA Civ 817, dismissed the human-rights and European Community appeals and refused Messrs Friend and Thomas permission to appeal.
2. High Court, Divisional Court: By [2005] EWHC 1677; [2006] EuLR 178, dismissed the challenges to the Hunting Act 2004 and refused Messrs Friend and Thomas permission to appeal.