The Electronic Collar Manufacturers Association & Anor, R (On the Application Of) v The Secretary of State for the Environment, Food And Rural Affairs

A public authority exercising a broad policy-making power may rationally change its view when both its former and current positions fall within the range of reasonable responses. It need not provide cogent reasons merely because the underlying evidence has remained unchanged.

Under the Animal Welfare Act 2006, the Secretary of State could distinguish between manually operated electronic collars and automatic containment systems by reference to their different welfare effects, opportunities for abuse and protective benefits. In proportionality analysis, an alternative is a less intrusive means only if it can achieve the legitimate aim. A proposed but unenacted measure may interfere with possessions through its practical effects, but a potential loss of future income is not itself a possession protected by article 1 of Protocol 1.

The Secretary of State decided to implement, through regulations under section 12 of the Animal Welfare Act 2006, a ban on remote-controlled electronic collars for cats and dogs. Containment systems were excluded. The appellants, representing manufacturers and suppliers, challenged the decision by judicial review.

The Administrative Court dismissed challenges based on consultation, predetermination, inadequate inquiry, irrationality and proportionality. Only irrationality and proportionality under article 1 of Protocol 1 to the European Convention on Human Rights remained in issue on appeal.

The central questions were whether the Secretary of State had irrationally distinguished hand-held collars from containment systems or changed policy without adequate reason, whether regulation was a less intrusive means, and whether the proposed ban struck a fair balance. By a Respondent’s Notice, the Secretary of State also disputed that the evidence established any interference with protected possessions.

1. Appeal dismissed. The ministerial submission prepared by officials formed part of the material on which the decision was made. The judge was entitled to consider it together with the published consultation response when identifying the Secretary of State’s reasons.

2. The Secretary of State exercised a broad power under section 12 of the Animal Welfare Act 2006 for the promotion of animal welfare. Its exercise required evaluative policy judgments, some of which were intuitive and not susceptible to scientific proof. Research indicated that hand-held collars harmed some dogs, while containment systems did not harm cats. There was also evidence that containment systems were generally installed by professionals, could protect animals from other dangers and offered less opportunity for deliberate misuse. The Secretary of State could therefore rationally treat the systems differently.

3. Where banning and not banning a device are both within the range of reasonable responses, a policy-maker may change the balance struck between relevant considerations. The mere absence of new research does not make the change irrational or create a duty to provide cogent reasons. The earlier departmental letter restated an existing policy rather than recording a fresh evaluation, while the final decision followed consultation and ministerial advice.

4. Regulation was not shown to be a less intrusive means capable of achieving the legitimate aim. Evidence that another jurisdiction regulates a product does not establish that its system achieves the same welfare protection. No regulatory regime could eliminate the risk that a cruel owner would use a hand-held collar to inflict unnecessary suffering. Choosing between regulation and prohibition was essentially a policy judgment.

5. The proportionality balance compared limited and thinly evidenced economic effects with animal-welfare considerations and the advantages and disadvantages of four policy options. The Secretary of State and the judge had sufficient information to make that assessment. The proposed ban did not impose a disproportionate burden.

6. Applying Breyer, proposed but unenacted legislation may interfere with possessions through practical rather than legal effects. The evidence here, however, showed at most a potential effect on future income, which was insufficient to establish an interference with possessions for article 1 of Protocol 1 purposes.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the rejection of the irrationality and proportionality challenges.
• High Court, Queen’s Bench Division, Administrative Court: Morris J dismissed the application for judicial review on all five grounds. No neutral citation for that judgment is stated.