Electronic Collar Manufacturers Association & Anor v The Secretary of State for Environment, Food and Rural Affairs

A statutory consultation is lawful where, viewed as a whole, it occurs while the decision-maker remains open to persuasion, gives consultees enough information and time to respond intelligently, and conscientiously considers their responses. A decision-maker may consult upon, and express a predisposition towards, a preferred policy.

The content of consultation depends upon its statutory context and purpose. There is no general rule requiring discussion of discarded alternatives. A policy decision under Animal Welfare Act 2006 section 12 must promote animal welfare and therefore requires evidence of welfare detriment. Where such evidence exists, the weight it bears and the choice between prohibition and regulation may fall within the decision-maker’s policy judgment.

Manufacturers and suppliers of electronic animal-training devices sought judicial review of the Secretary of State’s final policy decision to make regulations under section 12 of the Animal Welfare Act 2006. The proposed regulations would prohibit handheld remote-controlled electronic collars for cats and dogs, while excluding electronic containment systems.

The claimants alleged that the consultation was unfair and affected by actual or apparent predetermination. They also alleged breach of the duty of inquiry, irrationality, and disproportionate interference with their property and trading interests under article 1 of Protocol No 1 to the Convention and articles 34 and 36 TFEU.

The central issues were whether the consultation satisfied the four Coughlan requirements, whether the welfare evidence rationally supported the proposed ban, and whether prohibition was proportionate when regulation was advanced as an alternative.

1. The claim for judicial review was dismissed. Although the consultation document was brief, used some unfortunate language and could have explained the alternatives and the Government’s recent change of position more fully, the consultation process as a whole was not so clearly and radically unfair as to be unlawful.

2. Section 12(6) of the Animal Welfare Act 2006 required consultation upon the proposed regulations. Its purpose was procedural fairness for persons representing affected interests, rather than unrestricted public participation in a wide-ranging policy exercise. The Secretary of State had to consult upon whether the proposed ban should be adopted, but could lawfully identify and advocate a preferred option. The material did not establish actual or apparent predetermination. The exclusion of containment systems from the final proposal supported the conclusion that the Secretary of State remained open to persuasion.

3. The consultation supplied sufficient reasons for an intelligent response. There is no universal rule requiring consultation documents to identify discarded alternatives. The question depends upon statutory context, the consultation’s purpose, consultees’ knowledge, and any resulting prejudice. Regulation and licensing were in fact advanced by consultees and were substantively considered. The six-and-a-half-week period was adequate because numerous responses were received, the claimants submitted detailed representations and later met officials, and no actual prejudice was demonstrated.

4. The responses were conscientiously considered. Officials analysed the responses, identified the majority opposition to a ban, placed arguments for regulation and the principal unintended consequences before the Secretary of State, and compared four policy options. The decision-maker was not obliged to accept the majority view or address every point separately.

5. The Tameside duty did not require the Secretary of State to commission new scientific evidence. The existing material and consultation responses addressed the principal matters raised. It could not be said that no reasonable decision-maker would regard the inquiry as sufficient.

6. The proposed ban was not irrational. Regulations under section 12 had to be directed to promoting animal welfare and could not rest solely upon a moral objection to electric shocks. The Lincoln research supplied evidence that electronic collars adversely affected the welfare of some dogs. The Secretary of State could rationally distinguish handheld devices from containment systems because handheld devices were more susceptible to misuse, while containment systems could avert other welfare risks. A fresh policy assessment of unchanged scientific evidence, informed by evolving attitudes to animal welfare, was not irrational.

7. The decision interfered with possessions protected by article 1 of Protocol No 1 because the announced ban was capable of reducing present sales and marketable goodwill. The interference was nevertheless proportionate. Animal welfare was a legitimate aim; the ban was rationally connected to it; regulation was not shown to address harm inherent in the shock itself or to be less intrusive or costly; and the burden on business was not excessive when balanced against the welfare benefit. The measure likewise complied with articles 34 and 36 TFEU.

This was a first-instance claim for judicial review. Permission to apply for judicial review was granted by Lang J on 24 January 2019. The Administrative Court dismissed every ground of challenge in [2019] EWHC 2813 (Admin).