Whaley and another (Appellant) v Lord Advocate (Respondent) (Scotland)

An enactment of the Scottish Parliament is reviewable for incompatibility with Convention rights under section 29 of the Scotland Act 1998. Unincorporated international obligations impose no judicially enforceable limit on legislative competence.

Public, recreational hunting with hounds falls outside the private life and assembly protected by articles 8 and 11. A recreational preference does not become an article 9 belief merely because it is held passionately. Article 14 requires both a connection with a substantive Convention right and discrimination based on a personal characteristic. Regulation directed at hunting as an activity satisfies neither requirement.

Even if Convention rights were engaged, restricting hunting to prevent animal cruelty was within the legislature’s judgment and was proportionate. Article 6 does not require evidence to be heard where a claim can properly be dismissed as legally irrelevant on assumed facts.

The appellant participated in hunting with hounds and challenged the enactment of the Protection of Wild Mammals (Scotland) Act 2002. He contended that the Act was outside the Scottish Parliament’s legislative competence under section 29 of the Scotland Act 1998. He relied on unincorporated international obligations and articles 6, 8, 9, 10, 11, 14, 17 and 53 of the European Convention on Human Rights.

The Lord Ordinary dismissed the judicial review petition as irrelevant: 2004 SC 78. The Extra Division refused the appellant’s reclaiming motion: [2005] CSIH 69; 2006 SC 121. The appeal concerned whether the Scottish legislation was beyond competence and whether dismissal without an evidential hearing denied the appellant a fair trial.

1. Appeal dismissed unanimously. Lord Hope delivered the leading speech. Lord Rodger, Baroness Hale and Lord Brown agreed substantially with his reasoning. Lord Bingham agreed, save that he hesitated to hold article 11 inapplicable and instead concluded that any interference was justified.
2. Per Lord Hope, section 29 of the Scotland Act 1998 permits judicial scrutiny of Scottish legislation for incompatibility with Convention rights. It does not make unincorporated international obligations judicially enforceable limits on legislative competence. Sections 35 and 58 instead confer powers of intervention on the Secretary of State. The international-obligations averments were therefore irrelevant.
3. Articles 17 and 53 supplied no additional basis for invalidity. Article 17 was fully accommodated by section 29, while article 53 did not enlarge the Convention rights defining the Scottish Parliament’s competence.
4. Per Lord Hope, the appellant’s views about hunting did not reach the article 9 threshold for a protected non-religious belief. Hunting was principally recreational. The Act neither prevented him from holding or expressing his views nor prohibited traditional hunting dress, so article 10 was not engaged.
5. Per Lord Hope, Lord Rodger and Baroness Hale, article 8 did not protect participation in the public spectacle and social activity of hunting. It protected a private physical and psychological sphere, rather than everything an individual wished to do. The hunting community was not a recognised national or ethnic minority whose traditional lifestyle attracted article 8 protection.
6. Per Lord Hope and Baroness Hale, article 11 protects assembly associated with purposes fundamental to democratic society, including sharing information, expressing ideas and collective persuasion. It does not protect everything people wish to do after assembling. Recreational hunting fell below that threshold. Lord Bingham considered that article 11 might apply because prohibiting the common activity restricted assembly, but held any interference justified.
7. Per Lord Hope, article 14 required the facts to fall within the ambit of another Convention right and the differential treatment to rest on a listed ground or other personal status. The state had not provided a benefit within a Convention sphere and then restricted access to it. The Act regulated hunting because of the nature of the activity, not because of any participant’s political opinion, social background or other personal characteristic.
8. Alternatively, the legislation was justified and proportionate. Parliament had adequate material for concluding that hunting caused pain and constituted cruelty. Animal welfare and the social consequences of legislation were pre-eminently matters for legislative judgment. The statutory exceptions made the measure a proportionate restriction rather than an absolute prohibition.
9. Article 6 did not require an evidential hearing. A court may determine legal relevancy on the pleadings while assuming the averments to be true. Evidence cannot cure an irrelevant case, and the appellant had received ample opportunity to present his arguments.

1. House of Lords: The appeal was dismissed unanimously: [2007] UKHL 53.
2. Extra Division of the Court of Session: The appellant’s reclaiming motion was refused: [2005] CSIH 69; 2006 SC 121.
3. Lord Ordinary: The petition for judicial review was dismissed as irrelevant: 2004 SC 78.