Whaley & Anor v Lord Advocate (Scotland)

The appellants sought judicial review of the Protection of Wild Mammals (Scotland) Act 2002 on the ground that it was outside the legislative competence of the Scottish Parliament under section 29 of the Scotland Act 1998 because it was incompatible with rights under the European Convention on Human Rights and with various international obligations. The House of Lords held that international obligations not incorporated into domestic law do not fall within the Convention rights for the purposes of section 29 and that the Convention rights relied on by the appellant (articles 8, 9, 10, 11, 14, 17, 53 and 6) were either not engaged or, if engaged, the legislative interference would be justified. In particular, the court concluded that hunting with hounds is an inherently public activity and does not fall within the scope of "private life" under article 8 or the core protections of article 11; articles 9 and 10 were not engaged; article 14 did not apply; and no breach of article 6 arose from dismissal of the petition on relevancy grounds.

The petitioners, Brian Leonard Friend and Jeremy Hagan Whaley, sought judicial review in the Court of Session of the Protection of Wild Mammals (Scotland) Act 2002. They alleged that the Act was incompatible with Convention rights (and with various international obligations and the Race Relations Act 1976) and so was outside the legislative competence of the Scottish Parliament under section 29 of the Scotland Act 1998.

The procedural history was that the Lord Ordinary dismissed the petition (Whaley v Lord Advocate, 2004 SC 78); the Extra Division refused a reclaiming motion (Friend v Lord Advocate [2005] CSIH 69; 2006 SC 121) and the appeal to the House of Lords was brought without leave under section 40(1)(a) of the Court of Session Act 1988. The appellants also participated in parallel proceedings in the English courts.

The issues framed and decided were:

• whether the international obligations relied on are justiciable or otherwise relevant to the competence question under the Scotland Act;
• whether the Convention rights relied on (articles 8, 9, 10, 11, 14, 17, 53 and article 6 procedural guarantees) were "engaged" by the legislative prohibition;
• if engaged, whether any interference was justified and proportionate in a democratic society.

The Lords reasoned that the Scotland Act itself defines "international obligations" to exclude Community law and Convention rights (section 126(10)) and that unincorporated international obligations are not enforceable in domestic courts in the way Convention rights are. The court held that articles 9 and 10 did not apply to the claimed activities; articles 8 and 11 were not engaged because hunting with hounds is a public, social and recreational activity rather than protected private life or core assembly/association of fundamental democratic importance; article 14 did not apply because the Act targets an activity rather than a protected status; and article 6 was not breached because dismissal on relevancy grounds does not deny a fair hearing. Finally, the Lords observed that, even if engagement had been established, the legislative aim of preventing cruelty to animals was a legitimate objective and the measures were within the margin of appreciation and proportionate.

Appeal dismissed. The House of Lords held that unincorporated international obligations relied on by the appellants do not render the Act outside the Scottish Parliament's competence; the Convention rights invoked were either not engaged (articles 9, 10, 8, 11, 14 in the ways pleaded) or, if engaged, the interference was justified and proportionate; dismissal of the petition on relevancy grounds did not breach article 6.

Lord Ordinary dismissed the petition (Whaley v Lord Advocate, 2004 SC 78). The Extra Division refused the reclaiming motion (Friend v Lord Advocate [2005] CSIH 69; 2006 SC 121). The appeal to the House of Lords was brought without leave under section 40(1)(a) of the Court of Session Act 1988 and heard in conjunction with related appeals.