R (on the application of Countryside Alliance and others and others (Appellants)) v Her Majesty's Attorney General and another (Respondents)R (on the application of Countryside Alliance and others (Appellants) and others) v Her Majesty's Attorney General and another (Respondents) (Conjoined Appeals)

A statutory prohibition on hunting wild mammals with dogs did not engage article 8 because the activity was a public sporting spectacle outside protected private life. The majority held that article 11 protects assembly fundamental to democratic society, rather than gathering for purely social or recreational activity. Participation in hunting was not an article 14 status.

Restrictions on the use of land, animals and other property engaged article 1 of the First Protocol but were proportionate to the general interest in animal welfare. Even assuming that the ban restricted European Union free movement, it was justified as a non-discriminatory measure of social reform. A preliminary reference was unnecessary because those questions could not affect the result.

The conjoined judicial review claims challenged the prohibition of hunting wild mammals with dogs and hare coursing under the Hunting Act 2004. One group argued that the prohibition infringed articles 8, 11 and 14 of the European Convention on Human Rights and article 1 of the First Protocol. A second group contended that its effects on cross-border goods and hunting-related services contravened articles 28 and 49 of the EC Treaty.

The Divisional Court rejected the claims in [2005] EWHC 1677 (Admin), [2006] EuLR 178. The Court of Appeal also rejected them in [2006] EWCA Civ 817, [2007] QB 305. The central questions before the House were whether the Convention rights or EC Treaty freedoms were engaged and, if so, whether the prohibition was justified and proportionate.

1. Disposition. The House unanimously dismissed both appeals. The Hunting Act 2004 was neither incompatible with the Convention rights relied upon nor to be disapplied under Community law.

2. Private life. Lord Bingham, Lord Hope, Baroness Hale and Lord Brown held that article 8 did not protect the hunting activity in question. It was conducted publicly, as a communal sporting spectacle, and was remote from the private physical and psychological sphere protected by the article. Lord Rodger accepted that an activity central to personal identity might in principle fall within private life, even when conducted outside the home, but concluded that hunting's character as a public spectacle took it outside article 8.

3. Assembly and discrimination. Lord Hope, Baroness Hale and Lord Brown concluded that article 11 was not engaged. Its protection concerns assembly and association fundamental to democratic society, rather than gathering for purely social or recreational purposes. Lord Bingham considered that prohibiting the sole activity for which people assembled did restrict assembly in reality, but held that any restriction was justified. The House also held that hunting participation was an activity, not a personal characteristic or other status for article 14.

4. Property. Lord Bingham, with the agreement of the House, held that article 1 of the First Protocol applied to claimants who could no longer use land, horses, hounds, equipment or business goodwill for hunting. The measure controlled use rather than confiscating possessions. Parliament was entitled to regard preventing cruelty to animals and ending suffering inflicted for sport as serving the general interest, and the limited control was proportionate.

5. Alternative Convention justification. Lord Bingham, Lord Hope and Baroness Hale held that, even if articles 8 or 11 were engaged, the prohibition was prescribed by law, pursued the protection of morals and met a pressing social need. Respect was due to Parliament's recent and closely considered moral and social judgment. A less extensive measure could not achieve the chosen objective of ending the prohibited sporting activities. Lord Brown, whose reasoning Lord Rodger generally accepted, would not have regarded the ban as necessary under article 8 if that right had been engaged.

6. Community law. Lord Bingham and Lord Hope considered that the applicability of articles 28 and 49 was not acte clair. It was nevertheless unnecessary to refer those questions to the European Court of Justice. Assuming that the provisions applied, the prohibition was justified by public policy and animal welfare. It was non-discriminatory, directed at domestic social policy, and produced only minor and unintended effects on intra-Community trade and services. The restriction was proportionate, so the unresolved applicability questions could not affect the appeals.

1. House of Lords: In [2007] UKHL 52, unanimously dismissed both appeals and upheld the rejection of the Convention and Community law challenges.
2. Court of Appeal: In [2006] EWCA Civ 817, [2007] QB 305, rejected the challenges to the hunting prohibition.
3. Divisional Court: In [2005] EWHC 1677 (Admin), [2006] EuLR 178, rejected the human-rights and EC Treaty claims.