R (Countryside Alliance) v Attorney General

The House of Lords dismissed challenges to the Hunting Act 2004 brought under the European Convention on Human Rights and the EC Treaty. The court held that the principal Convention rights relied upon (articles 8 and 11) either did not apply to the activity of hunting as carried on in public or, if they did, the interference was justified as pursuing legitimate aims (protection of morals and prevention of unnecessary suffering) and was proportionate. Article 1 of the First Protocol was engaged in respect of some claimants' property interests but the control of use was held to be justified in the public interest. On Community law, the court treated articles 28 and 49 as potentially engageable but concluded that the Hunting Act was justifiable on public policy/moral grounds and proportionate; a reference to the European Court of Justice was unnecessary. The court applied proportionality review, emphasised the legislature's margin of appreciation on moral questions and accepted the legislative aim identified by the courts below (prevention or reduction of unnecessary suffering overlaid by a moral objection to hunting for sport).

The appeals arose from challenges to the Hunting Act 2004. Two groups of claimants sued: the human rights claimants (headed by the Countryside Alliance) contended the ban breached articles 8, 11 and 14 of the European Convention on Human Rights and article 1 of the First Protocol; the EC claimants (headed by Mr Derwin) contended the Act infringed the free movement provisions of the EC Treaty (articles 28 and 49). The claims were heard first in the Divisional Court ([2005] EWHC 1677 (Admin)), then in the Court of Appeal ([2006] EWCA Civ 817), and finally on appeal to the House of Lords.

The issues before the House were:

• whether the Convention rights asserted (in particular articles 8 and 11, and article 1 of the First Protocol) were engaged by the Hunting Act 2004, and if so whether any interference was "in accordance with the law", pursued a legitimate aim and was "necessary in a democratic society" (proportionate);
• whether the Hunting Act engaged EC Treaty freedoms under articles 28 and/or 49 and, if so, whether the measures could be justified under treaty derogations (public morality/public policy and related provisions) and were proportionate; and
• whether it was necessary to refer questions of Community law to the European Court of Justice.

The House analysed the character of hunting as a public, spectator and socially embedded activity, reviewed Strasbourg jurisprudence on "private life" and assembly, and considered the statutory and parliamentary background (including the Burns Report and parliamentary proceedings). The court concluded that, on current Strasbourg authority, hunting did not fall within the core of article 8 protection and that article 11 did not protect a right to carry out the proscribed activity as such; some claimants did have property-related interests falling within article 1 of Protocol 1. Even where Convention rights were within the ambit of the Articles, the House held the ban was directed to legitimate aims (animal welfare/protection of morals) and was within Parliament's margin of appreciation and proportionate. On Community law the court accepted arguments that articles 28 and 49 might be engaged in principle but held that the Hunting Act could be justified on public policy/morality grounds and proportionate; a preliminary reference to the ECJ was unnecessary. The appeals were dismissed.

Appeals dismissed. The House held that the Hunting Act 2004 was not incompatible with the Convention or inconsistent with the EC Treaty: articles 8 and 11 did not afford the claimants a right to hunt (or, if in the ambit, any interference was justified and proportionate); article 1 of the First Protocol was engaged in part but the control of use was justified in the public interest; and any restriction under articles 28 or 49 EC was justified on public policy/morals grounds and proportionate. The court gave weight to Parliament's margin of appreciation on moral and social-policy questions and found no need to refer to the ECJ.

Divisional Court: R (on the application of Countryside Alliance and others) v Attorney General and another [2005] EWHC 1677 (Admin); Court of Appeal: [2006] EWCA Civ 817; House of Lords appeal: [2007] UKHL 52.