Petsafe Ltd & Anor, R (on the application of) v The Welsh Ministers

A devolved authority may prohibit a harmful activity to promote animal welfare where the enabling legislation supports that purpose and the measure is proportionate. Under Article 34 TFEU, the court asks whether the measure pursues a legitimate aim, is suitable to achieve it, is necessary, and has no excessive effect on affected interests. The authority need not prove that no conceivable alternative could achieve the aim. A targeted measure is not invalid merely because a wider measure might also have been justified. Delegated legislation must be construed consistently with its enabling Act. Where the intention to impose a criminal penalty is doubtful, the court should adopt the construction which avoids penalisation. Courts should approach regulations made by democratically accountable bodies with particular caution before finding them irrational or Wednesbury unreasonable.

The claimants manufactured and distributed electronic collars for animals. They challenged the Animal Welfare (Electronic Collars (Wales)) Regulations 2010, which prohibited attaching an electronic collar to a cat or dog, causing one to be attached, or being responsible for an animal wearing one.

The challenge relied on Article 34 of the Treaty on the Functioning of the European Union, Article 1 of the First Protocol to the European Convention on Human Rights, domestic irrationality and Wednesbury unreasonableness, and alleged ultra vires under section 12 of the Animal Welfare Act 2006. The central issues were whether the ban was justified and proportionate, and whether the prohibitions exceeded the statutory power.

1. Outcome. Permission was granted, but the substantive application was dismissed. The Regulations were lawful.
2. EU and Convention grounds. The prohibition engaged Article 34 because a prohibition on using a product could materially restrict its access to the market. Animal welfare was a legitimate aim. The court applied a proportionality inquiry comprising suitability, necessity, less restrictive means, and whether the measure imposed an excessive effect. The Welsh Ministers had identified evidence that electronic collars could cause discomfort, fear, anxiety, misuse and mis-association, and that reward-based training better promoted welfare.
3. The Welsh Ministers were not required to prove that no conceivable alternative could achieve the objective. Licensing, training requirements and limited defences did not address the asserted disadvantages that the collars inherently administered electric shocks and suppressed behaviour without addressing its underlying causes. The fact that other aversive devices were not prohibited, or that a wider ban might have been possible, did not make this targeted prohibition unsuitable or disproportionate. The restriction on trade was minor and unintended compared with the social-policy objective.
4. The same reasoning justified interference with any economic interest protected by Article 1 of the First Protocol. The decision was not irrational, perverse or Wednesbury unreasonable. The Welsh Ministers had considered the evidence, consultation responses, commercial impact and alternative approaches. They were entitled to act without awaiting research being undertaken elsewhere.
5. Statutory construction. Section 12 of the Animal Welfare Act 2006 authorised regulations promoting the welfare of animals for which a person is responsible. Regulations 2(1)(a) and (b) were therefore construed as applying only where the cat or dog was an animal for which a person was responsible, or the progeny of such an animal. Regulation 2(1)(c) was not ultra vires; its reference to responsibility reflected the different nature of that offence.
6. The court applied the rule that delegated legislation must be construed consistently with its enabling Act and the principle against penalisation under a doubtful law. The argument that regulation 2(1)(c) criminalised taking charge of an animal to remove a collar involved an unreasonable and excessively literal construction.
7. The court also rejected the general objection that validity should await criminal proceedings. Judicial review may be appropriate, and sometimes important, where the validity of subordinate legislation is challenged at the outset.