DATES: 2006 March 13, 14, 15, 20, 21; June 23

COUNSEL: Richard Gordon QC for the claimants in the first case.
David Anderson QC and Marie Demetriou for the claimants in the second case.
Rabinder Singh QC and Kate Cook for the RSPCA intervening.

SOLICITORS: Allen & Overy LLP; Clifford Chance; Treasury Solicitor and Solicitor, Department of the Environment, Food and Rural Affairs; Legal Department, RSPCA.

JUDGES: Sir Anthony Clarke MR, Brooke and Buxton LJJ

European Community — Freedom of movement — Goods and services — Statute prohibiting hunting of wild mammals with dogs — Restriction imposed to prevent or reduce suffering to wild mammals — Whether having effect of quantitative restrictions on imports and on interstate trade in services — Whether restriction lawful and proportionate — Hunting Act 2004 (c 37) —EC Treaty, arts 28 EC, 49 EC

Human rights — Statutory provision — Compatibility — Right to respect for private and family life and home — Right to freedom of assembly — Right to enjoyment of possessions — Statute prohibiting hunting of wild mammals with dogs — Restriction imposed to prevent or reduce suffering to wild mammals — Whether restriction infringing Convention rights of hunters — Whether restriction justified and proportionate — Human Rights Act 1998 (c 42), Sch. 1, Pt I, arts 8, 11, Pt II, art 1 — Hunting Act 2004 (c 37)

The Hunting Act 20041 prohibited the hunting of wild mammals with dogs in England and Wales. In the first of three cases heard together, the claimants, an organisation campaigning on rural issues and a number of individuals adversely affected by the passing of the 2004 Act, sought judicial review by way of a declaration that the 2004 Act infringed and was incompatible with their rights under articles 8 and 11 of, and article 1 of the First Protocol to, the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 19982. In the second case the claimants further alleged that the effect of the 2004 Act was to inhibit the free movement of goods and services across national borders within the European Community, contrary to articles 28 EC and 49 EC of the EC Treaty³.

1 Hunting Act 2004: see post, para 5.

2 Human Rights Act 1998, Sch. 1, Pt I, art 8: see post, para 70.

Art 9: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Art 11: see post, para 105.

Art 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Art 17: “Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

Pt II, art 1: see post, para 107.

3 EC Treaty, art 28 EC: see post, para130.

Art 49 EC: see post, para 147. [*306]

1 QB R (Countryside Alliance) v Attorney General

In the third case two individual claimants alleged additional infringements of the Human Rights Convention, discrimination contrary to the Race Relations Act 1976 and the contravention of a number of international agreements. All three claims were dismissed by the Divisional Court on the grounds that the state had established that the 2004 Act had a legitimate aim, that it was rationally related to that aim and went no further than was necessary to achieve it, that it was necessary in a democratic society and proportionate, and that Parliament had sufficient evidential material to reach those conclusions on a rational basis. Permission to appeal was granted to the claimants in the first two cases but refused to those in the third case.

On the appeals of the claimants in the first and second cases, and on an application for permission to appeal by the claimants in the third case—

Held, (1) dismissing the appeal in the first case, that the objective of the Hunting Act 2004 was the prevention or reduction of unnecessary suffering to wild mammals on the basis that causing suffering for sport was unethical; that the restrictions allegedly imposed by the hunting ban on the claimants’ personal autonomy, culture, lifestyle and homes, either directly in that they would be prevented from hunting or allowing others to hunt on their land or indirectly in that the ban would cause a decline in hunting activities which might jeopardise their homes and livelihoods, did not engage the claimants’ rights under article 8 of the Convention; that although the ban imposed by the 2004 Act prohibited a particular activity that could be undertaken by an assembled group of hunters, it did not prohibit the assembly itself and therefore did not interfere with the freedom of association of persons involved in hunting such as to engage article 11 of the Convention; that the ban deprived the claimants of their property rights and interfered with their peaceful enjoyment of them by prohibiting the use of their land for hunting and by restricting the use of their dogs, horses, vehicles and other miscellaneous equipment, but those infringements of article 1 of the First Protocol were justified because the aim pursued by the 2004 Act was legitimate, the ban was proportionate to the aim pursued and the passing of the ban was a permissible course of action for the state to take considering the significant margin of discretion accorded to it in such a circumstance; that the loss of the claimants’ livelihood did not constitute “property” within the meaning of article 1 of the First Protocol; and that, accordingly, the 2004 Act was not incompatible with the Convention (post, paras 14,56-60, 62,100-108,182-188).

(2) Dismissing the appeal in the second case, that since the hunting ban was a restriction which was not aimed at products from other member states or at products at all, and did not have a discriminatory effect on imported products, it was not equivalent to a quantitative restriction upon imports of goods related to hunting into the United Kingdom from other member states within the meaning of article 28 EC; that to engage article 49 EC a measure was required to have a direct inhibiting effect on the free movement of services between member states and it was insufficient that the measure merely decreased demand for a particular service within a member state; that, although the provision of livery and hireling services and offers of participation in the hunts constituted the provision of services by those established within the United Kingdom to recipients in other member states, the effect of the 2004 Act on the demand for those services was insufficient to engage article 49 EC; and that, accordingly, the 2004 Act did not infringe either article 28 EC or article 49 EC of the EC Treaty (post, paras144-146,148-157,190-192).

Per curiam. When considering whether an infringement is justified and proportionate under the EC Treaty the court is required to take into account different principles from when it is considering the same question under the Convention. Nevertheless, even proceeding on that basis, the alleged infringements of articles 28 EC and 49 EC would be justified on the grounds that the aim pursued was a legitimate exercise of public policy, that the ban was proportionate to that aim and that the state was acting within its discretion in prohibiting an activity that was seen as posing a threat to an interest of high importance (post, paras158-159,161-172, 193). [*307]

Criminal proceedings against Keck and Mithouard (Joined Cases C-267 and 268/91) [1993] ECR I-6097, ECJ applied.

R v Secretary of State for Health, Ex p Eastside Cheese Co [1999] 3 CMLR 123, CA considered.

(3) Refusing the application in the third case, that since none of the international instruments relied upon had been incorporated by statute into domestic law, the rights asserted by the claimants under those instruments were not directly enforceable by private individuals in domestic courts; that the hunting community was not an ethnic group within the meaning of the Race Relations Act 1976 and was not entitled to protection on racial grounds arising out of any of the matters about which the claimants complained; that since articles 17 and 53 of the Convention gave rise to no freestanding claim, since the conviction of a right to hunt with hounds did not constitute a belief protected by article 9(1) and since the hunting community did not form a group entitled to claim protection from discrimination under article 14, none of the claimants’ claims under those articles had any prospect of success; and that, accordingly, there were no grounds on which it was appropriate to grant the claimants permission to appeal (post, paras 174-179).

Decision of the Divisional Court of the Queen’s Bench Division [2005] EWHC 1677 (Admin); [2006] EuLR 178 affirmed. [*312]

APPEALS and APPLICATION for permission to appeal from the Divisional Court of the Queen’s Bench Division

Regina (Countryside Alliance and others) v Attorney General and another

By a claim form dated 9 February 2005 the claimants, the Countryside Alliance, Donald Summersgill, Lesley Joan Drage, Roger George Richard Bigland, Colin Richard Dayment, Kim Yvette Gooding, Joseph Cowen, William Rhys Kenneth Jones, Richard Frederick May, Giles Rufus Joseph Bradshaw and Jason Edward Vickery, brought a claim against the defendants, the Attorney General and the Secretary of State for the Environment, Food and Rural Affairs, seeking judicial review in the form of a declaration pursuant to section 4(2) of the Human Rights Act 1998 that the Hunting Act 2004 was incompatible with articles 8, 11 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms set out in Part I of Schedule 1 to the 1998 Act and article 1 of the First Protocol set out in Part II of Schedule 1 to the 1998 Act. On 29 July 2005 the Divisional Court of the Queen’s Bench Division (May LJ and Moses J) dismissed the claim on the ground, inter alia, that it was within the rational, proportionate and democratic competence of Parliament to enact the Hunting Act 2004.

By an appellant’s notice dated 16 September 2005 the claimants appealed on the following grounds. (1) The Divisional Court had erred in concluding that the facts were not sufficient to engage article 8(1) of the Convention, which protected the right to respect for family and private life. The court should have found that the facts displayed the requisite degree of intrusion into the claimants’ private lives and that the hunting community as a whole was equivalent to an ethnic minority. (2) The court should have found that the ban on hunting with dogs constituted a lack of respect for the home, that “home” included the land surrounding the place where a person lived and that the loss of a person’s home as a result of the ban constituted an interference with the right to respect for the home in article 8(1). (3) The court had erred in law in finding that only a measure with a direct effect could fall within the scope of freedom of assembly and association protected by article 11. The court should have found that the ban constituted a direct effect. (4) The court had erred in not following Adams v Scottish Ministers 2004 SC 665 in which it was held that a person’s livelihood was capable of constituting a possession for the purposes of article 1 of the First Protocol. (5) The court should have found that the claimants were entitled to compensation even though the ban controlled rather than deprived them of possessions. (6) The court should have found that the claimants had been discriminated against on the ground of “other status” within article 14, that the Kjeldsen test (Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711) was satisfied and should have dealt with the substance of the discrimination arguments. (7) Alternatively, if the claimants could not establish a “personal characteristic” for the purposes of article 14, the Court of Appeal should follow Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, para 31 and not apply the Kjeldsen [*313]

test, as opposed to Lord Steyn in R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196, para 48. (v) In so far as the Court of Appeal was bound by the ratio of the House of Lords’ judgments in R (S) v Chief Constable of South Yorkshire, the claimants reserved their position by way of further appeal or cross-appeal. (8) The Divisional Court had erred in identifying the aim of the Hunting Act 2004, and ought to have scrutinised the aim put forward by the defendants. (9) Alternatively, the Divisional Court had erred in law in its findings that the aim was legitimate, and the “ethical overlay” identified was an aim recognised under articles 8(2) and 11(2) of the Convention or article 1 of the First Protocol thereto. (10) If the Act pursued a legitimate aim, the Divisional Court had erred in concluding that the ban on hunting with dogs was necessary in a democratic society. (11) The court should have found that the registration scheme in the original Michael Bill would have adequately addressed the defendants’ stated aim with the minimum impact on the claimants’ Convention rights. (12) The judges had failed in their analysis to adjust the approach to justification appropriate if articles 8(1) and 11(1) were infringed, as opposed solely to article 1 of the First Protocol. (13) The court had erred in law in failing to examine with sufficient rigour the claimants’ evidence on justification and proportionality. The court’s approach was overly deferential, more akin to a Wednesbury review (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) rather than the searching analysis of the evidence required in a Convention case by the proportionality test. (14) In the premises the court had erred in dismissing the claim for judicial review because the overall ban achieved by the Hunting Act 2004 neither was justified nor did it satisfy the requirements of the proportionality test.

By a respondent’s notice dated 3 October 2005 the defendants requested that the court uphold the order on the following additional grounds. (1) The Divisional Court should have held that the claimants had not established that the Hunting Act 2004 would have a substantial effect on hunting-related activities. (2) The Divisional Court had rightly rejected the claimants’ claim that the Act interfered with their right to respect for the home contrary to article 8(1) of the Convention, but need not have relied for that conclusion solely on the majority decision of the House of Lords in Harrow London Borough Council v Qazi [2004] 1 AC 983 since, regardless of Qazi’s case, the effect of the Act in potentially causing certain claimants to lose their homes was highly indirect, such that the Act did not show any lack of respect for their homes. (3) The Divisional Court had erred in concluding, by reference to Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, that statements from MPs in the course of the parliamentary debates which preceded the passage of the Act were inadmissible on the issue of justification of the Act. (4) The Divisional Court had erred in considering that the legitimate aim which it identified for the Act, i e preventing or reducing unnecessary suffering, overlaid by a moral viewpoint that causing suffering to animals for sport was unethical, went beyond the aim which the defendants had identified. The aim, identified by the defendants, of ending practices considered to be cruel because they caused unnecessary suffering to animals, encompassed a significant moral or ethical element, including views as to whether it was ethical, and necessary, to cause suffering to animals for sport.

The facts are stated in the judgment of the court. [*314]

Regina (Derwin and others) v Attorney General and another

By a claim form dated 18 April 2005 the claimants, Francis Derwin, Shane Flavin, Diana Johnson, Susan Lanigan-O'Keeffe, Viscount Hughes Le Hardy de Beaulieu, Gil Jose de Queiroz de Mendia, Barbara Rich, Marion Knoche, Kevin Lamacraft and Brian Divilly, brought a claim against the defendants, the Attorney General and the Secretary of State for the Environment, Food and Rural Affairs, seeking judicial review in the form of an order quashing the Hunting Act 2004, alternatively a declaration that the Act was inconsistent with article 28 EC (free movement of goods), article 39 EC (free movement of workers) and article 49 EC (freedom to provide and to receive services) of the EC Treaty. On 29 July 2005 the Divisional Court dismissed the claim.

By an appellant’s notice dated 16 September 2005 the claimants appealed on the grounds, inter alia, that (1) the Divisional Court erred in law when it held that the claimants’ rights under article 28 (and their rights as providers of services under article 49 EC) were not engaged. (2) The Divisional Court erred in law when it identified the “composite aim” of the Act in para 339 of the judgment. (3) The Divisional Court erred both in its approach to the proportionality test under EC law and as to the conclusions that it reached on the application of that test. The claimants also relied on the grounds of appeal relating to the Human Rights Convention relied on by the claimants in the first case.

By a respondent’s notice dated 3 October 2005 the defendants requested that the court uphold the order on the additional grounds, inter alia, that the Divisional Court had erred (1) in concluding, on the facts, that article 49 EC had been engaged or interfered with by the Hunting Act 2004, and (2) in concluding that statements from MPs in the course of the Parliamentary debates which preceded the passage of the Act were inadmissible on the basis of justification of the Act.

The facts are stated in the judgment of the court.

Regina (Friend and another) v Attorney General

By a claim form dated 16 February 2005 the claimants, Brian Leonard Friend and Hugh Edward Thomas, brought a claim against the defendants, the Attorney General and the Secretary of State for the Environment, Food and Rural Affairs, seeking judicial review by way of a declaration of incompatibility of the Hunting Act 2004 with the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998. The claim was dismissed by the Divisional Court on 29 July 2005 and permission to appeal refused.

By an appellant’s notice dated 15 September 2005 the claimants sought permission to appeal on the following grounds. (1) The Divisional Court had erred in law in ruling that hunting, a belief and activity founded in the dawn of time and being a fundamental characteristic of man for thousands of years, did not qualify as an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs protected by article 9 of the Convention. (2) The Divisional Court had erred in law in dismissing their claim under article 17 of the Convention, with which by section 1(1) of the Human Rights Act 1998 Convention rights were to be read, on the ground that by enacting the Hunting Act 2004 and making [*315]

it a criminal offence to conduct an activity at the core of the claimants’ traditional ethnic and cultural lifestyle without a lawful, just and reasonable objective, the legislature performed an act which breached the claimants’ assured rights under the Convention. (3) The Divisional Court had erred in denying the claimants the ethnic identity protection available under the Convention and the Race Relations Act 1976 when a separate ethnic identity was available to the Sami (Laplanders), Maoris, gipsies and tribal groups of a common biological group all over the world, many of which were fully assimilated into a larger indigenous population and biologically indistinguishable from the majority population within their geographical areas. No reasons had been given by the Divisional Court as to why a cultural identity that originated in the Iron Age, a custom in this country for thousands of years, was not available to a cultural group of the indigenous English and Welsh tribe. If the claimants were not part of an ethnic group, the protection of an ethnic identity could only ever be available to alien cultures within a host nation or culture, which was not sustainable in law. (4) The Divisional Court had erred in law in excluding from consideration the international treaties and conventions cited by the claimants as required by the principle that an international treaty which conformed to the common law was applicable in English domestic courts.

The facts are stated in the judgment of the court.

Richard Gordon QC for the claimants in the first case. The introduction by the Hunting Act 2004 of a complete ban on hunting constitutes an unjustified interference with articles 8 and 11 of, and article 1 of the First Protocol to, the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998. It is important to identify the aim of the Act as it is for the defendants to justify an interference with Convention rights as proportionate. There is no coherent structure to the Act and no legitimate aim in law is discernible in it.

Private life in article 8 of the Convention embraces personal autonomy and development and the right to establish and develop relationships with others: see Pretty v United Kingdom (2002) 35 EHRR 1. The state ban on hunting for those for whom that activity is a core part of their lives or their only or main source of livelihood engages article 8. Harrow London Borough Council v Qazi [2004] 1 AC 983 is distinguishable because it concerned the right to respect for a person’s home in article 8. It was a narrow decision and should be confined to its own facts. It is not relevant to the issue of private life. The more rigorous and specific standards in article 8(2) are to be applied if the court is to fulfil and vindicate Convention rights: see Sheffield City Council v Smart [2002] LGR 467. Private life is a broad term which a court should not attempt to define: see R (Razgar) v Secretary of State of the Home Department [2004] 2 AC 368. Article 8 is primarily intended to ensure the development, without interference, of the personality of each individual in his relations with other human beings: see Botta v Italy (1998) 26 EHRR 241 and Brüggemann and Scheuten v Federal Republic of Germany (1977) 3 EHRR 244. The protection of a right to identity and to develop relationships may include interaction with others in a public context: see Peck v United Kingdom (2003) 36 EHRR 719. Article 8 is sufficiently broad to cover the effect on a person’s private life [*316] occasioned by an employment ban: see Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104.

Article 8 extends to community lifestyle and cultural diversity: see G and E v Norway (1983) 35 DR 30 and Chapman v United Kingdom (2001) 33 EHRR 399. Ethnicity is not a condition precedent to protection. Interference with hunting for those for whom it is a way of life and for those dependent on the hunt for many aspects of their lives, engages article 8. The cutting off a person’s financial life-blood is an interference with his article 8 rights: see Institut de Prêtres Français v Turkey (1998) 92-A DR 15.

The protection of article 8 extends to a home where the existence of sufficient and continuous links are established: see Buckley v United Kingdom (1996) 23 EHRR 101. The geographical limits of the land around the home will always be a question of degree. Landowners restricted by the ban from hunting on their own land around their homes have sufficient and continuous links with the land so as to bring them within the protection of article 8(1). Harrow London Borough Council v Qazi [2004] 1 AC 983 is not authority for the proposition that the loss of a home and/or livelihood falls outside article 8 but is authority for the proposition that in the absence of legal or procedural defects the exercise of an absolute right to proprietary possession does not infringe article 8: see Kay v Lambeth London Borough Council [2006] 2 AC 465. That proposition has no bearing on the present issues, which concern repossession of tied cottages where employment has been terminated by the hunting ban and therefore the core element of a person’s life has been affected. Professional and business activities are an important means of establishing relationships with the world and as such can come within the scope of article 8: see Niemietz v Germany (1992) 16 EHRR 97.

The article 11 right to freedom of assembly and to associate is to be exercised for a specific and common purpose. If the underlying purpose of the assembly is banned there is an interference with article 11 rights which falls to be justified, because the banning of the activity has emptied the right of any content. There is no authority for the proposition that only a measure which directly affects the freedom to assemble and associate will engage article 11. To require such direct effect would water down Convention rights. The Act will have a substantial general adverse effect on the lives of many in the rural community which will constitute a direct effect on article 11 rights.

The loss of economic livelihood falls within the right to peaceful enjoyment of a person’s possessions within article 1 of the First Protocol to the Convention: see Adams v Scottish Ministers 2004 SC 665; Tre Trakt�rer AB v Sweden (1989) 13 EHRR 309 and Van Marle v The Netherlands (1986) 8 EHRR 483. The building up of a business which is an asset within article 1 of the First Protocol and its loss in consequence of the ban engages article 1 of the First Protocol, as does the loss of a livelihood for those engaged in hunt-related employment. This is not a lesser form of Convention right: see the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252. There is no compensation under the Act which is relevant to the issue of justification and the fair balance required to be undertaken.

The state’s legitimate aim in passing the Act is of crucial importance to the proportionality exercise. Proportionality requires (i) a legitimate [*317] legislative objective sufficiently important to justify limiting a fundamental right; (ii) a rational connection between the measure and the legitimate aim and (iii) the measure must not go beyond what is reasonably required to fulfil the objective: see de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69. It is for the state to establish its legislative aim, so by definition the state must assert what that aim is. The court should not supply a legitimate aim where one is missing. The court must scrutinise the statement of the aim advanced by the state, the primary emphasis being to discern the aim from the statute: see Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. Only if the court is satisfied that an identifiable aim is established on the evidence should the court go on to determine, by reference to Convention principles, whether the aim is legitimate or not. Where the court is not satisfied that the state has made out a sufficient case on legislative aim its duty is to declare the legislation incompatible with the Convention: there is no proportionality exercise to conduct.

The prevention of unnecessary suffering to animals could be a legitimate aim but it is not sufficiently important to limit the fundamental Convention rights engaged: see de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69. The aim of protecting animals from unnecessary suffering is not rational if the measure might cause animals to suffer to a greater extent than if hunting were not banned completely. The question for the court is not whether the statute could be justified, but whether on the evidence justification is made out: see R v Shayler [2003] 1 AC 247 and A v Secretary of State for the Home Department [2005] 2 AC 68. R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 is inapposite because in that case the legislative objective would plainly not have been furthered by obtaining particular evidence. By contrast, in the present case scientific evidence on animal suffering is relevant and does not justify a total ban. The state must show as a separate requirement that the interference with fundamental rights is necessary in a democratic society: see Norris v Ireland (1989) 13 EHRR 186. To be necessary a measure must trump the Convention requirements of pluralism and tolerance: see Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548.

The claimants are entitled to bring proceedings under the Human Rights Act 1998. They run the risk of being directly affected by the Hunting Act 2004 and as such come within the meaning of “victim” in section 7 of the 1998 Act: see Marckx v Belgium (1979) 2 EHRR 330. The section 7 restriction may not apply to proceedings for a declaration of incompatibility.

David Anderson QC and Marie Demetriou for the claimants in the second case. The hunting of wild mammals with dogs is a commercially significant activity involving a large number of participants in other European Union member states as well as England and Wales. The banning of a previously lawful economic activity engages European Community law rights because the freedom to engage in such cross-border economic activity is a fundamental right enjoyed by all citizens of the member states. It is protected by EC Treaty provisions guaranteeing, inter alia, free movement of goods between member states by article 28EC and the right to receive services in other member states by article 49EC. [*318]

A measure which is prima facie prohibited by article 28 EC or 49 EC can only be lawful if it can be demonstrated by the body defending it to be a proportionate response either to one of the permitted objectives set out in those articles or to an overriding requirement in the public interest. The protection of the health and life of animals is capable of providing a justification though only if the defendants can show that the Act pursues that justification in a proportionate manner. A measure will only be proportionate if it can be shown that it is appropriate and necessary to achieve the objectives legitimately pursued by the legislation. Where there is a choice between several appropriate measures recourse must be had to the least onerous and the disadvantages caused must not be disproportionate to the aims pursued: see R v Minister of Agriculture, Fisheries and Food, Ex p Fedesa (Case C-331/88) [1990] ECR I-4023. Derogations from free movement rights will only be tolerated by EC law if they are compatible with fundamental rights including Convention rights.

In relation to fox hunting, the claimants’ EC law rights are engaged both in relation to services and goods. It is therefore incumbent upon the defendants to justify the hunting ban as a proportionate response to a legitimate objective. The objective of preventing unnecessary suffering to animals is a necessary foundation for any attempt to justify the Act, but the Act did not achieve that objective. The ban could only be shown to be proportionate if the legislature proceeded on the basis of relevant scientific evidence, and is able to demonstrate that the measure is suitable and necessary to achieve its objective. The defendants can demonstrate neither of those.

The 2004 Act can only, under EC law, be justified on the basis of considerations which comply with the principle of respect for fundamental rights. Any infringement by the Act of Convention rights will be disproportionate for the purposes of EC law, although a breach of EC law will not necessarily constitute a breach of Convention rights. Whereas the courts are required to follow decisions of the European Court of Justice by sections 2 and 3(1) of the European Communities Act 1972, they are only required to take account of decisions of the European Court of Human Rights. EC law places specific restrictions on recourse to public policy and public morality objectives for the purpose of justifying national measures capable of affecting trade. The proportionality test in EC law imposes a clear obligation, as the Convention jurisprudence does not, that where there is a choice between several appropriate measures, recourse must be had to the least onerous: see the Fedesa case [1990] ECR I-4023. The proportionality test in EC law has a strong and specific procedural component. Where a decision-maker seeks to justify a measure on the basis of a factor whose existence or extent is testable by scientific evidence, it must show that the factor is sufficiently established on the basis of the latest scientific data. The remedy available to the court is more powerful than a declaration of incompatibility: it is an order disapplying or quashing the Act in question.

Animals are “goods” for the purposes of the free movement provisions in article 28, which affords rights both to exporters and importers whether the import is for resale or for own use. The article 28 prohibition has consistently been held to apply to all measures capable of hindering intra-Community trade, whether directly or indirectly, actually or potentially: see Procureur du Roi v Dassonville (Case 8/74) [1974] ECR 837. The [*319] article 28 EC prohibition is capable of applying to measures which are not protectionist or discriminatory, measures which have pro-trade as well as anti-trade effects, regardless of their respective extents, measures which exist also in other member states and measures whose effect on trade is de minimis or potential rather than actual in nature. There are two broad exceptions: where the effect the ban may have on the free movement of goods is too uncertain and indirect to be caught by the article 28 EC and where the ban is removed from the scope of the Dassonville formula by Criminal proceedings against Keck and Mithouard (Joined Cases C-267 and 268/91) [1993] ECR I-6097.

Keck’s case creates a dichotomy between product rules and national provisions restricting or prohibiting certain selling arrangements. It does not introduce a requirement of discrimination across the board; it is aimed not only at the imposition of discriminatory conditions of access but also at the prevention of access to domestic markets. It is only in cases of selling arrangements that the issue of discrimination has to be addressed: see Konsumentombudsmannen v Gourmet International Products AB (GIP) (Case C-405/98) [2001] ECR I-1795; and compare Criminal proceedings against Bluhme (Case C-67/97) [1998] ECR I-8033. The 2004 Act is not a selling arrangement or a marketing method: compare Criminal proceedings against Burmanjer (Case C-20/03) [2005] ECR I-4133. The prohibition on hunting must be a restriction on the importation of goods for hunting which is a fortiori a product rule so the Act is caught by article 28 EC. Measures regulating the use to which a product may be put come within article 28 EC: see Omega Spielhallen-und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (Case C-36/02) [2004] ECR I-9609.

The provision of livery and hireling services constitute the provision of services by those established within the United Kingdom to recipients in other member states. The Act by preventing the provision of services falls within article 49 EC, which operates in favour of recipients of hunting services travelling from other member states: see Ciola v Land Vorarlberg (Case C-224/97) [1999] ECR I-2517 and Luisi v Ministero del Tesoro (Joined Cases 286/82 and 26/83) [1984] ECR 377. Keck’s case [1993] ECR I-6097 does not apply to the provision of services: see Konsumentombudsmannen v De Agostini (Svenska) Förlag AB (Joined Cases C-34 to 36/95) [1997] ECR I-3843; Omega’s case [2004] ECR I-9609; Gourmet’s case [2001] ECR I-1795 and Carpenter v Secretary of State for the Home Department (Case C-60/00) [2003] QB 416.

In assessing the proportionality of an Act of Parliament it is the underlying objective, not the immediate objective, that is relevant: see Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, para 61. The court will look primarily at the words of the statute to ascertain its objective. The background to the legislation will be considered: see Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paras 56, 64 and Torfaen Borough Council v B & Q plc (Case C-145/88) [1990] 2 QB 19.

The objective of the 2004 Act is to prevent unnecessary suffering to wild animals. It neither achieves that purpose, nor is it rational in the manner it seeks to implement it. The terms of the Act demonstrate that the legislator was attempting to apply a test of utility and least suffering: hunting which was deemed useful was permitted though on conditions intended to cause [*320] the minimum of suffering, and sporting activities formed part of the perceived utility of hunting hence the exceptions made for field trials, falconry and the hunting of rats and rabbits. The moral element of the hunting ban of preventing unnecessary cruelty to wild animals is predicated on an issue of fact, namely, whether hunting is detrimental to the fox, which is logically prior to the moral issue. If hunting does not cause unnecessary suffering, but is the method of pest control which causes less suffering than the alternatives, the moral issue does not arise. If established rights are to be removed (whether human rights or economic rights) it is the responsibility of those removing the rights to demonstrate that there are adequate grounds for doing so: see R (Asif Javed) v Secretary of State for the Home Department [2002] QB 129. The distinction between the factual and moral issues should not be blurred in order to prevent effective review of the objective of the Act. The terms of the 2004 Act are sufficient to dismiss the objective of preventing suffering for sport: see R v Rice (1989) 49 CCC (3d) 1. The categories of public morality advanced by member states are subject to the control of EC law and will not lightly be accepted as a justification for the underlying animal welfare concerns: see R v Minister of Agriculture, Fisheries and Food, Ex p Compassion in World Farming (Case C-1/96) [1998] ECR I-1251.

A court may be justified in approaching judicial review of a decision involving political judgment and domestic social policy as a value judgment (see French Republic v European Parliament and Council of the European Union (Case C-244/03) [2005] ECR I-4021), but not when the justification for legislative measures is capable of scientific assessment. The state seeking to justify the ban must provide adequate scientific evidence as a matter of EC law: see Commission of the European Communities v Austria (Case C-320/03) [2005] ECR I-9871. The test to be applied for judicial review of the 2004 Act is not whether the majority of members of Parliament acted reasonably and rationally when taking the view that it was necessary to ban hunting with dogs, but whether they struck the right balance between competing rights and interests: see R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532. The burden of proof on the state is an essential safeguard against the placing of arbitrary or unjustified curbs on personal liberty. Where EC law is concerned primary legislation should be treated no differently from secondary legislation: see R v Minister of Agriculture, Fisheries and Food, Ex p Astonquest Ltd [2000] Eu LR 371. An excessive deference to Parliament is not justified by EC law: see R v Secretary of State for Health, Ex p Eastside Cheese Co [1999] 3 CMLR 123. Where the justification for a restriction on trade is susceptible of factual demonstration EC law requires to be shown that the reason is sufficiently established on the basis of the latest scientific data, even when the measure is non-discriminatory and the discretion of the member states to act in the field in question is wide: see Commission of the European Communities v Kingdom of Denmar (Case C-192/01) [2003] ECR I-9693. Where facts relevant to the risk do not exist they must be commissioned before a court can find that a restriction on trade is proportionate: see Vereinigte Familiapress Zeitungsverlags-und Vertriebs GmbH v Verlag (Case 368/95) [1997] ECR I-3689. The registration scheme introduced in the Michaels Bill is a less restrictive alternative to a hunting ban and would achieve the aim of [*321] preventing unnecessary suffering to animals. A general ban is therefore not acceptable under EC law.

Philip Sales and Jason Coppel for the defendants in all three cases. None of the matters relied upon by the human rights (“HR”) claimants fall in principle within the scope of article 8 rights. Even if they did the Act does not amount to an interference with those rights, alternatively, and any interference is justified under article 8(2). Article 8 cannot be given a broad interpretation extending far beyond the Strasbourg jurisprudence. The courts must keep pace with Strasbourg jurisprudence in the interpretation of human rights but not go further: see R (Ullah) v Special Adjudicator [2004] 2 AC 323.

The right to respect for private life covers certain core interests, including the physical and psychological integrity of a person and aspects of an individual’s physical and social identity (see Pretty v United Kingdom 35 EHRR 1 and R (Razgar) v Secretary of State of the Home Department [2004] 2 AC 368), but does not extend to the protection of interpersonal relations of broad and indeterminate scope: see Adams v Scottish Ministers [2004] ScotCS 127, para 67. Hunting with dogs is essentially a leisure activity outside the scope of “private life” in article 8: see Chassagnou v France (1999) 29 EHRR 615 and Botta v Italy 26 EHRR 241. It is not analogous to the way of life of a minority ethnic group: contrast G and E v Norway 35 DR 30 and Chapman v United Kingdom 33 EHRR 399. Article 14 protects minorities. If article 14 does not apply to the claimants it is not appropriate to expand article 8 to include the hunting community. Hunting is an activity conducted in public without the reasonable expectation of privacy usually required to engage article 8(1): see Adams v Scottish Ministers [2004] ScotCS 127, para 66; Halford v United Kingdom (1997) 24 EHRR 523; X v Y [2004] ICR 1634 and Peck v United Kingdom 36 EHRR 719. Private life reaches its limits when it comes into close connection with other protected interests, such as the causing of suffering to animals: see Brüggemann and Scheuten v Federal Republic of Germany 3 EHRR 244. Loss of employment or a livelihood is not in itself an interference with the right to respect for private life, but requires a much greater degree of interference with individual autonomy: see Smith and Grady v United Kingdom (1999) 29 EHRR 493 and Sidabras v Lithuania 42 EHRR 104.

The court is required to subject all the circumstances of the case to rigorous scrutiny to determine whether article 8 is engaged: see Bensaid v United Kingdom (2001) 33 EHRR 205. The threshold is high. The wide approach to article 8 of Laws LJ in Sheffield City Council v Smart [2002] LGR 467 is inconsistent with R (Ullah) v Special Adjudicator [2004] 2 AC 323. Laws LJ did not follow his approach in Smart’s case in R (Carson) v Secretary of State for Work and Pensions [2003] 3 All ER 577. Niemietz v Germany 16 EHRR 97 turns on the narrow issue of whether an office can constitute a home within article 8. The passage in Marckx v Belgium 2 EHRR 330 and Institut de Prêtres Fran�ais v Turkey 92-A DR 15 relied on are not relevant to interference with a Convention right but concern only the issue of standing. Further, article 8(1) does not confer a right to private life but only a right to respect for private life. There is a threshold of intrusion that must be crossed before there is an interference with an article 8 right [*322] which requires to be justified: see Costello-Roberts v United Kingdom (1993) 19 EHRR 112. The Hunting Act does not cross that threshold, given the range of activities which remain lawful.

The concept of a home in article 8 covers a habitation or residential premises (see Harrow London Borough Council v Qazi [2004] 1 AC 983), but there is no authority for its extension to an estate surrounding a dwelling house: see Adams v Scottish Ministers [2004] ScotCS 127; 2004 SC 665. The effect of the 2004 Act is indirect in relation to any repossession of homes and therefore is insufficient to engage article 8(1). If a landlord enforces the general law to recover possession of property, no violation of article 8(1) occurs: see Kay v Lambeth London Borough Council [2006] 2 AC 465.

There is no direct interference with the right to freedom of assembly and association under article 11(1) of the Convention because the Act does not ban hunts as organisations or in any way prevent the claimants from associating under the auspices of hunts. Article 11(1) is not infringed by a restriction which merely prohibits a particular activity with the indirect result that persons cannot associate for the purpose of carrying it out: see Adams v Scottish Ministers [2004] ScotCS 127 paras 81-82.

The Act interferes with the peaceful enjoyment of possessions and/or controls the use of those possessions inasmuch as it prevents individuals from using land, animals and goods they own for the purposes of article 1 of the First Protocol. The marketable goodwill of a business is a possession within article 1 of the First Protocol, but future income is not: see Wendenburg v Germany Reports of Judgments and Decisions 2003-II, p 347; Denimark Ltd v United Kingdom (2000) 30 EHRR CD 144; Ian Edgar (Liverpool) Ltd v United Kingdom Reports of Judgments and Decisions 2000-I, p 479 and Pinnacle Meat Processors Co v United Kingdom (1998) 27 EHRR CD 217. A person’s livelihood, whether as an employee or self-employed, does not constitute a possession within article 1 of the First Protocol: see Van Marle v The Netherlands 8 EHRR 483 and Tre Trakt�rer AB v Sweden 13 EHRR 309. Also, the effect of the 2004 Act is too indirect to interfere with any businesses which do constitute the claimants’ possessions within article 1 of the First Protocol. Such interference as there is with the claimants’ possessions is by way of a control of use within the second limb of article 1 of the First Protocol, not deprivation of property within the third limb: see Denimark Ltd v United Kingdom 30 EHRR CD 144 and Pinnacle Meat Processors Co v United Kingdom 27 EHRR CD 217. The presence or absence of compensation schemes has little or no significance in control of use cases: see R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] 1 WLR 1267.

Even if any article of the Convention is engaged, the defence of justification applies. In determining the legitimate aim of a statute the court is entitled to take into account information given by ministers or other members of Parliament in the course of parliamentary debate: see Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. It is for the courts to determine the legitimate aim of the statute. Justification must be decided by the court at the time it falls to be applied. The objective of the majority in Parliament in preventing unnecessary suffering to wild mammals included a substantial moral or ethical component. The European Court of Justice recognises a wide approach to the acceptability of moral issues being taken [*323] into account in identifying the objective of an Act and the state’s margin of discretion to be afforded to member states: see Torfaen Borough Council v B & Q plc (Case C-145/88) [1990] 2 QB 19 and Omega’s case [2004] ECR I-9609. Consistency between EU nationals is demanded in the application of morality arguments, but the European Court of Justice recognises the appropriateness of such contentious issues being decided through the national democratic process: see Omega’s case [2004] ECR I-9609. The Compassion in World Farming case [1998] ECR I-1251 rejected morality arguments because all public interest considerations had been exhaustively and finally taken into account in the harmonisation process embodied in the relevant Directive. It has no application to the present case. Similarly R v Rice 49 CCC (3d) 1 is distinguishable because it concerned an arbitrary ban with no rational foundation.

The decision as to whether hunting should be banned was not to be taken and judged solely on scientific grounds. It was a political judgment, a matter of domestic social policy raising ethical issues even though informed by scientific research. Animal welfare issues classically involve moral or value judgments: see Adams v Scottish Ministers 2004 SC 665, para 47. Whether hunting is cruel involves both a factual question and a value judgment. It is impossible to prove propositions about suffering or the absence of suffering in animals purely scientifically. Science can play only a limited role in establishing whether or not it is legitimate to ban hunting, as in the case of the prohibition on corporal punishment in schools: see R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246. The 2004 Act has a legitimate aim of preventing cruelty to animals which cannot and should not be divorced from the element of ethical or moral judgment exercised by the legislators.

When assessing compliance with the principle of proportionality the court should allow a broad margin of discretion because the Act represents the view of the democratically elected legislature on an issue of general social policy involving elements of value judgment on which reasonably held opinions differ widely: see Draon v France (2005) 42 EHRR 807. That approach applies to both the Convention and EC law claims, the only difference being in the remedy available for breach: see R v Secretary of State for Health, Ex p Eastside Cheese Co [1999] 3 CMLR 123. That decision is not inconsistent with R v Minister of Agriculture, Fisheries and Food, Ex p Astonquest [2000] Eu LR 371, which concerned an area of trade policy regulated by EC law where the residual role left to Parliament and its scope of permissible action was small. By contrast, the same wide margin of appreciation is applicable to article 8 claims as well as to claims under article 1 of the First Protocol: see Blecic v Croatia (2005) 41 EHRR 185.

The 2004 Act meets the three requirements for the defence of justification. It has a legitimate aim, the Act has a rational connection with that aim and the response is appropriate: see de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69. The intensity of review of the Act by the courts will vary according to the nature of the subject matter in issue: see R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 27-28. A higher standard of review is appropriate in cases of discrimination falling within identified suspect categories: see R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173. Economic rights are not afforded greater protection than [*324] fundamental rights. The European Court of Justice has regard to the Convention rights as fundamental principles of EU law and applies the same approach where issues of justification arise under both the Convention and the EC Treaty (see Vereinigte Familiapress Zeitungsverlags-und Vertriebs GmbH v Verlag (Case 368/95) [1997] ECR I-3689). The European Court of Justice applies the case law of the European Court of Human Rights: see Herbert Karner Industrie-Auktionen GmbH v Troostwijk (Case C-71/02) [2004] ECR I-3025 and Carpenter v Secretary of State for the Home Department (Case C-60/00) [2003] QB 416. Judicial review of Community legislation and of the actions of national authorities implementing EC legislation may be limited by a margin of discretion for national authorities similar to that under the Convention: see Upjohn Ltd v Licensing Authority Established under Medicines Act 1968 (Case C-120/97) [1999] 1 WLR 927. In principle national authorities when acting in areas unaffected by direct EC harmonisation enjoy a similar entitlement to a discretionary area of judgment.

The registration system proposed by the Government in the Michaels Bill rejected by Parliament in favour of the hunting ban in the 2004 Act does not demonstrate that the Act was not the least restrictive alternative available to achieve the aim. Parliament having made the judgment that fox hunting is cruel, a registration system which might have allowed an indeterminate amount of hunting to continue was not an alternative method of giving effect to the objectives Parliament sought to achieve. The legislature is entitled to enact a bright line rule in the shape of a ban to ensure that a particular goal is met even if the lack of exceptions may have some harsh results: see James v United Kingdom (1986) 8 EHRR 123, para 76 and Pretty v United Kingdom 35 EHRR 1 para 72.

The wide scope of article 28 EC in relation to free movement of goods adopted in Procureur du Roi v Dassonville (Case 8/74) [1974] ECR 837 led to challenges to measures that merely had an effect on the volume of goods which might in fact be imported into a member state and which then had to be justified by the state. In Keck’s case [1993] ECR I-6097 the European Court of Justice revisited Dassonville’s case to narrow the range of application of article 28 EC by excluding from its scope selling arrangements and other cases still further removed from direct interference with a person’s right to participate in a national market. The main focus of article 28 EC is import restrictions in relation to particular goods and certain measures closely analogous to such restrictions. It is not sufficient to engage article 28 EC that a national measure of general application merely has an impact on the volume of sales in the member state: see Keck’s case [1993] ECR I-6097; Gourmet’s case [2001] ECR I-1795 and Karner’s case [2004] ECR I-3025. Product rules come within article 28 EC where they operate as an inter-state barrier to trade or an impediment to access to the market of the state, whereas selling arrangements operate as modifications of the available market and do not have either effect. Keck’s case [1993] ECR I-6097 draws the dividing line between product rules which come within article 28 (see Bluhme’s case [1998] ECR I-8033) and selling arrangements which do not. The 2004 Act is a general national measure of criminal law which is even further removed from an import restriction and the application of article 28 EC than is a measure which constitutes a selling arrangement since the Act is not even concerned with trade in goods. Therefore, a fortiori, the [*325] ban in the Act does not engage article 28 EC. The Act simply embodies a rule of social policy that bans a form of activity in which specialised goods may be used. The wide category of social policy legislation that deals in similarly indirect fashion with how certain goods may be used does not engage article 28.

General national measures which restrict the size of a market for nationals and foreigners alike do not fall within the scope of the free movement of services provisions in article 49 EC. Foreign producers seeking to exercise their EC rights to sell goods in the United Kingdom and foreign workers seeking to exercise their rights of free movement to the United Kingdom under articles 28 EC and 39 EC have to take the national market as they find it. Their rights are not infringed by general national measures of criminal law which have the indirect effect of reducing the market opportunities available for them in the same manner and to the same extent as they reduce the market opportunities available for United Kingdom nationals. So also an EU national who wishes to exercise his ancillary right to come to the United Kingdom to receive services should have to take the national market for services as he finds it. Likewise, his rights under article 49 EC are not infringed by general national measures of criminal law which have the indirect effect of reducing the market opportunities which are available for him to receive services in the same manner and to the same extent as they reduce the market opportunities available for United Kingdom nationals to receive services. Since the effect of the ban is simply to restrict the size of the market for provision of hunt services for British nationals and foreigners alike, article 49 EC is no more engaged than articles 28 EC or 39 EC.

Freedom of establishment in article 43 EC guarantees that a business in a member state wishing to establish itself in a different member state must accept the rules and regulations of that state governing the conduct of that business save where those regulations operate with a directly or indirectly discriminatory effect. The business must take the general market as it finds it. It is access to the market which is scrutinised, in an approach analogous to that in Keck’s case [1993] ECR I-6097: see Graf v Filzmoser Maschinenbau GmbH (Case C-190/98) [2000] ECR I-493. The same approach is adopted under article 39 in respect of the free movement of workers: see R (Professional Contractors Group Ltd) v Inland Revenue Comrs [2002] STC 165. EU service seekers or established service providers, whose rights under article 49 EC arise only by implication, must also, like cross-border service providers, demonstrate an inhibition impeding inter-state trade, not simply an inhibition on a particular trade in the state where services are sought: see Luisi v Ministero del Tesoro (Joined Cases 286/82 and 26/83) [1984] ECR 377; Alpine Investments BV v Minister van Financiën (Case C-384/93) [1995] ECR I-1141 and Kohll v Union des Caisses de Maladie (Case C-158/96) [1998] ECR I-1931. It is the absence of any greater inhibition imposed by the hunting ban on inter-state trade, rather than the small proportion of customers coming from abroad, which is determinative.

In the alternative, if EC rights are engaged, Parliament was justified in passing the 2004 Act. If the court were to disagree on the question whether the ban is justified, it should be left to the House of Lords to decide whether a reference should be made to the European Court of Justice on the question of the engagement of the right of free movement of services. [*326]

Rabinder Singh QC and Kate Cook for the RSPCA intervening. The 2004 Act is compatible with both human rights and EC law. The human rights defined in the Convention are not a substitute for the processes of democratic government but a complement to them. A national court gives weight to the decisions of a representative legislature and a democratic government within the discretionary area accorded to them. The Convention is a living instrument capable of growth and expansion within its natural limits: but those limits will often call for very careful consideration: see Brown v Stott [2003] 1 AC 681, 703c-f. National courts must keep pace with the interpretation of the Convention by the Strasbourg jurisprudence but not go beyond it: see R (Ullah) v Special Adjudicator [2004] 2 AC 323. The right to personal autonomy and self-determination must be placed in a proper context. Article 8 of the Convention does not confer an unlimited right: see Pretty v United Kingdom 35 EHRR 1 and Rodriguez v Attorney General of Canada [1994] 2 LRC 136.

The question of whether a measure has a legitimate aim for the purposes of the Convention is not a subjective but an objective question. The court is entitled and required to take its own view of the aim of the measure rather than accepting or rejecting the Government’s characterisation of the aim. The issue of the legitimacy of the aim of the Act by reference to its suitability for protecting mammals from unnecessary suffering is separate from the means employed by the Act to meet that aim and the two require separate analysis: see Hirst v United Kingdom (No 2) (2004) 38 EHRR 825. The test of justification is not necessarily the same under article 8, where the restriction must be necessary in a democratic society, and under article 1 to the First Protocol, where the state is entitled to enforce such laws as it deems necessary in the general interest. In either case the Strasbourg jurisprudence affords a wide margin of appreciation to national legislation in relation to property rights: see James v United Kingdom 8 EHRR 123. Property rights are less important in relative terms than other more fundamental Convention rights: see R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] 1 WLR 1267.

Animal welfare legislation is necessary because animals cannot give or withhold consent, represent their own interests and are vulnerable to those with power over them. Unnecessary suffering is not exclusively a question of scientific fact. Judgment and evaluation are required. Evaluation requires consideration of the need for suffering or the asserted need, a moral or ethical judgment and the striking of a balance between competing factors such as the degree of and necessity for suffering. One factor Parliament can legitimately take into account is the reason why the activity is engaged in, for example, sport. For that reason there is no moral equivalence between the lengthy pursuit of a mammal before it is killed and the possible accidental failure to kill a mammal cleanly by shooting it for pest control purposes. It is not how many animals are killed but how and why they are killed that informs the ethical judgment Parliament was entitled to make in passing the Act.

Anderson QC, Gordon QC and Sales replied.

Mr Brian Friend, on behalf of himself and Mr Hugh Thomas, in person. Hunting with hounds is a civil and immemorial right affirmed by the [*327] European Convention on Human Rights. The Act has deprived the hunting community of that right, when it should be protected under article 8 as an ethnic group, namely, a group of people with a common national and cultural tradition, with social customs evolved over centuries and a sufficient combination of shared customs and beliefs, traditions and characteristics from a common past to be distinguishable from others in the population: see Chassagnou v France 29 EHRR 615 and Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548. Contracting states have a positive obligation to facilitate a way of life centred upon the hunt to preserve cultural diversity of value to the whole community: see Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 and Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. Hunting is at the core of mankind’s psyche and those who exercise their conscience to follow a way of life embracing that psyche subscribe to a belief that is at least of comparable importance to a religious belief. The hunting community should be protected by article 9 since hunting relates to an aspect of human life or behaviour of at least comparable importance to that normally found with religious beliefs, and to some of greater importance: see R (Williamson) v Secretary of State for Education and Employment) [2005] 2 AC 246. Hunting with hounds is a matter of conscience for the individual. The hunting community as a national minority should be protected: see Chapman v United Kingdom 33 EHRR 399.

The Act denies the right peacefully to assemble to pursue the huntsmen’s way of life, contrary to article 11 of the Convention. The ban also comes within article 14 because it discriminates against the hunting community in that it favours other groups who kill game and pest species by methods that cannot guarantee not to inflict more pain and unnecessary suffering than the use of hounds: see Norris v Ireland 13 EHRR 186. Consequently the Act is not proportionate to any legitimate aim the Government may have. The creation of the Act breaches article 17 of the Convention in that the rights in article 3 of the First Protocol cannot be used by one group to deny assured rights to another group.

Article 53 guarantees that the Convention does not derogate from human rights and fundamental freedoms in English law and under agreements to which the United Kingdom is a signatory. By interfering with fundamental freedoms the Act is in breach of the United Kingdom’s international obligations under principle 22 of the Rio Declaration on Environment and Development, article 8(j) of the Convention on Biological Diversity, article VII of the final Declaration of the Conference on Security and Co-operation in Europe, article 15.1(1) of the International Covenant on Economic, Social and Cultural Rights adopted by the United Nations, articles 27 and 50 of the International Covenant on Civil and Political Rights with Optional Protocol adopted by the United Nations and article 27 of the Universal Declaration of Human Rights 1948, all of which pre-date the 2004 Act. All international instruments are part of international law. The common law applies to international treaties the United Kingdom has signed and Parliament has ratified: see R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696 and Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening) [2005] QB 699. The Hunting Act 2004 is therefore incompatible with the Convention, has no legal competence and is unlawful. It does not comply [*328] with the United Kingdom’s international obligations, does not pursue a legitimate purpose, is not necessary in a democratic society and is discriminatory.

Cur. adv. vult.

23 June. SIR ANTHONY CLARKE MR handed down the following judgment of the court, dismissing both appeals and refusing permission to appeal to Messrs Friend and Thomas.

Index

Preliminary . . . . . . . . . . . . . . . . . .    1-21
These appeals . . . . . . . . . . . . . . . . .     1-4
The Hunting Act 2004  . . . . . . . . . . . . .       5
The parliamentary history   . . . . . . . . . .       6
The nature of hunting: background . . . . . . .       7
A summary of the parties' cases   . . . . . . .    8-21
Hunting in some more detail . . . . . . . . . .   22-40
The various quarries  . . . . . . . . . . . . .   22-29
The reasons for and effect of hunting . . . . .   30-40
Pest control  . . . . . . . . . . . . . . . . .   31-34
Sport and recreation  . . . . . . . . . . . . .   35-37
Hunting as a way of life  . . . . . . . . . . .      38
Hunting as an industry  . . . . . . . . . . . .   39-40
The facts on which these appeals proceed  . . .   41-51
The policy objectives of the Hunting Act 2004 .   52-63
Introduction  . . . . . . . . . . . . . . . . .   52-54
The correct approach to legislative policy  . .      55
Our findings as to the policy objectives  . . .   56-63
The HR appeal . . . . . . . . . . . . . . . . .  64-125
Preliminary: the Human Rights Act . . . . . . .   64-66
The HR claimants' case  . . . . . . . . . . . .   67-70
Article 8 . . . . . . . . . . . . . . . . . . .  71-105
Autonomy  . . . . . . . . . . . . . . . . . . .   74-86
Culture/community . . . . . . . . . . . . . . .   87-92
Loss of livelihood/home . . . . . . . . . . . .      93
Use of home . . . . . . . . . . . . . . . . . .   94-97
The Divisional Court's approach . . . . . . . .   98-99
Our conclusions on article 8  . . . . . . . . . 100-105
Article 11  . . . . . . . . . . . . . . . . . . 106-107
Article 1 of the First Protocol . . . . . . . . 108-115
Justification and proportionality . . . . . . . 116-125
The EC appeal . . . . . . . . . . . . . . . . . 126-172
Introduction  . . . . . . . . . . . . . . . . . 126-129
Article 28  . . . . . . . . . . . . . . . . . . 130-146
Article 49  . . . . . . . . . . . . . . . . . . 147-157
Justification and proportionality in
.  Community terms  . . . . . . . . . . . . . . 158-172
The application for permission to appeal
.  of Messrs Friend and Thomas  . . . . . . . . 173-179
Summary . . . . . . . . . . . . . . . . . . . . 180-193

[*329] Preliminary

These appeals

1 This case concerns an issue that has been prominent, and highly controversial, in English public life for many years, and which reached its climax in the much-debated Hunting Act 2004 that (put shortly) prohibited the hunting with dogs of certain wild mammals. There are before the court two appeals from a single judgment of the Divisional Court [2006] EuLR 178 and an application for permission to appeal. We deal with the latter at the end of this judgment. In the first, “human rights” appeal the claimants are the Countryside Alliance and a number of individuals. In the second, “European Community” appeal the claimants are all individuals. They are identified in appendix I to this judgment, where we reproduce the description of those claimants and of some of the witnesses that was given in paras 31-55 of the judgment of the Divisional Court. The defendants took issue with some of the claims made by those persons about their situation and the effect on them of the Hunting Act 2004. The appendix none the less serves conveniently to identify the parties and what they say about their own particular cases.

2 There is a very substantial overlap between the two appeals. The facts asserted by the one group of claimants are accepted and relied on by the other group of claimants. The benefit of a successful appeal in the one case would redound to the claimants in the other case. However, it became clear before us, rather more so than it had before the Divisional Court, that the contentions in the two appeals differ from each other in some respects, not all of which are matters of detail. In what follows we will address the appeals as a single case, whilst taking care where appropriate to identify the differences between them. We adopt the practice of the Divisional Court of speaking summarily of the “HR appeal” and the “EC appeal”.

3 A striking feature of the appeals is the burdensome nature of their presentation. The Divisional Court commented in strong terms on the weight of material that had been placed before it in an attempt to explicate the arguments: see para 57 of its judgment. Despite the Divisional Court’s very full account of that material, which the parties on specific inquiry by this court only criticised in marginal respects, the 32 files of evidence that were before the court below have only been reduced in number to 15, to which must be added the three volumes of material and six files of authorities filed by Mr Friend in support of his application for permission to appeal. It is right to say that most of the material emanates from the claimants. Moreover, the comparative modesty that has been exercised by the parties to the appeal in respect of evidential material has not been matched in the citation of authorities. No effective attempt had been made to provide a consolidated index to these authorities, whether alphabetical or chronological, to ease our way through the maze of cases that were cited. Leaving Mr Friend aside, there are now before the court 18 files of authorities, containing the truly extraordinary number of 189 items. In addition, counsel between them filed 164 pages of skeleton argument, and addressed the court for the better part of five days.

4 All this means that, like the Divisional Court, our first duty is to distinguish the wood from the trees. In dealing with the background issues [*330] (which we suspect will be well known to most or all of those who persevere with this judgment) we will largely rely on the work of the Divisional Court. Anyone who thinks that he needs to know more can find it in the full and impressive judgment of that court.

The Hunting Act 2004

5 It will be convenient first to set out the summary of the Hunting Act 2004 given by the Divisional Court, at paras 5-10. No criticism was made of the accuracy of this summary, though some reference was made to further parts of the Act.

“5. Section 1 of the Hunting Act 2004 provides that a person commits an offence if he hunts a wild mammal with a dog unless his hunting is exempt. Classes of hunting which are exempt are specified in Schedule 1. It is a defence for a person charged with an offence under section 1 to show that he reasonably believed that the hunting was exempt (section 4).

“6. Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1.

“7. Section 5 bans hare-coursing.

“8. Part 2 of the Act has provisions for enforcement. A person guilty of an offence under the Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale-currently £5,000.

“9. Section 11(2) provides that hunting a wild mammal with a dog includes any case where a person engages or participates in the pursuit of a wild mammal and one or more dogs are employed in that pursuit, whoever employs, controls or directs the dogs.

“10. Schedule 1 provides for exempt hunting. Exempt hunting includes: (i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include: (a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause; (b) that it does not involve the use of more than two dogs; nor (c) the use of one dog below ground otherwise than in accordance with paragraph 2. The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground. (ii) Hunting rats (paragraph 3) or rabbits (paragraph 4). (iii) Retrieving hares which have been shot (paragraph 5). (iv) Flushing a wild mammal from cover for falconry (paragraph 6), and (v) rescuing an injured wild mammal using not more than two dogs above ground on condition that reasonable steps are taken as soon as possible to relieve its suffering. It is the defendants’ case that hunting is by definition intentional. Subject to that, the offences created by the Hunting Act 2004 are absolute in the sense that there is no provision equivalent to those in section 1 of the Protection of Animals Act 1911, where an element of some of the offences of cruelty to animals is that the offender causes the animal unnecessary suffering. Hunting wild mammals with a dog is banned, unless it is exempt hunting, whether or not it causes unnecessary suffering.”

The parliamentary history

6 The Act had a remarkable parliamentary history, which plays a significant role in these appeals. That can again be accurately taken from the judgment of the Divisional Court. That summary makes reference to the Burns Report, the report of a committee headed by Lord Burns appointed by the then Home Secretary in December 1999 to inquire into:

“the practical aspects of different types of hunting with dogs and its impact on the rural economy, agriculture and pest control, the social and cultural life of the countryside, the management and conservation of wildlife, and animal welfare in particular areas of England and Wales; the consequences for these issues of any ban on hunting with dogs; and how any ban might be implemented.”

The Burns Report plays a large part later in the argument. The Divisional Court valuably appended a summary of that report to its judgment, and we reproduce that summary in appendix II below. As to the parliamentary history the Divisional Court said, at paras 12-21:

“12. The Hunting Act 2004 was passed after a series of previous attempts, since a Labour government was elected in 1997, to ban hunting with dogs. The Labour Party’s 1997 manifesto said that the party would ensure greater protection for wildlife. It had advocated new measures to promote animal welfare, including a free vote in Parliament on whether hunting with hounds should be banned. The party’s 2001 manifesto also said that hunting was rightly a matter for a free vote.

“13. A private member’s bill was introduced in 1997 by Michael Foster MP. It ran out of time in the House of Commons and went no further. The same happened to a bill presented by Ken Livingstone MP in 1999.

“14. In 2002, the Protection of Wild Animals (Scotland) Act 2002 was passed by the Scottish Parliament, receiving the Royal Assent on 15 March 2002. The validity of this legislation was unsuccessfully challenged on human rights grounds in Scottish courts in Adams v Scottish Ministers [2002] UKHRR 1189 (Outer House); 2004 SC 665 (Inner House). The Scottish statute is broadly similar to, but not identical with, the Hunting Act 2004. The challenge in the Scottish courts was on broadly the same human rights grounds as are relied on by the human rights claimants in the present proceedings, although there are differences in the evidence relied on and the circumstances of the individual claimants.

“15. The Burns Report (see later in this judgment) was published in June 2000.

“16. In December 2000 the Government introduced the Hunting Bill 2000. This offered members of Parliament three choices: regulation, supervision or prohibition. The House of Commons voted by a large majority to ban hunting, rejecting the other two choices. In February 2001, the House of Lords rejected a total ban and regulation, and voted for supervision. The Bill was lost as a result of the 2001 general election.

“17. The same choices were presented to both Houses of Parliament in 2002 in the form of a parliamentary motion. The House of Commons again voted for prohibition: the House of Lords for regulation. Alun Michael MP, the Minister for Rural Affairs, then conducted public hearings on the subject at Portcullis House. [*332]

“18. In December 2002, the Government introduced the Hunting Bill 2002 ('the Michael Bill'). This would have banned deer hunting and hare coursing (clauses 6 and 7), but permitted fox, hare and mink hunting subject to registration of individuals or groups by a registrar (clauses 1 and 2). There were to be two tests for registration, of which the registrar had to be satisfied. These tests were labelled the utility test and the least suffering test (clause 8). The utility test was that the proposed hunting was likely to make a significant contribution to the prevention or reduction of serious specified damage which the quarry would otherwise cause. The least suffering test was that an equivalent contribution could not reasonably be expected to be made in a manner likely to cause significantly less pain, suffering or distress to the quarry.

“19. The Michael Bill was amended at the report stage in the House of Commons to reject registration and replace it with a ban on hunting with dogs, subject to exceptions, in terms which eventually became the Hunting Act 2004. In this form, it was passed in the House of Commons. The House of Lords amended the Bill to remove a ban and replace registration. The Bill did not complete all its stages in the House of Lords in that session of Parliament and so fell without returning to the House of Commons.

“20. On 15 September 2004, the Michael Bill, in the form in which it had previously been amended by the House of Commons banning hunting subject to exceptions, was introduced and passed in the House of Commons. It did not pass in the House of Lords, who were in favour of a system of regulation. This Bill eventually, on 18 November 2004, became the Hunting Act 2004 under the provisions of the Parliament Act 1911 as amended by the Parliament Act 1949.

“21. Thus in short, the Hunting Act 2004 was enacted by being passed in the House of Commons alone by a substantial majority on a free vote. The ban on hunting with dogs which it imposed did not represent legislation promoted by the Government following the Burns Inquiry and the Portcullis hearings. The legislation promoted by the Government was that in the original Michael Bill, which, in the case of fox, hare and mink hunting, provided for registration, not an outright ban. As Mr Bradley, the civil servant in the Department of Environment, Food and Rural Affairs responsible to the Minister for Rural Affairs says in para 6 of his witness statement, ‘the Hunting Act 2004 does not represent the policy of the Government, but rather the will of the House of Commons as expressed on a free vote'. Mr Bradley also points out that the length of parliamentary time spent on the issue of hunting since 1997 is virtually unprecedented in modern times. The Hunting Act 2004 was passed by a large majority of Members of Parliament from all major parties.”

The nature of hunting: background

7 The Divisional Court also gave, at paras 22-26, a graphic account of the nature of hunting in England and Wales, to which it added some comment of its own that we would respectfully adopt. That factual account is largely uncontentious, but to explain some of the issues in the case we will later have to identify some particular further features of the background. The Divisional Court said: [*333]

“22. The validity of the Hunting Act 2004 is challenged by and on behalf of those who have hunted, and wish to be able to choose to continue to hunt, foxes, deer, hares and mink. Some different considerations apply to each of these quarries. Many more people are concerned with hunting foxes than the other three quarries. The proceedings have therefore tended to concentrate on fox hunting. But we must not overlook those who hunt deer, hare or mink.

“23. An account of the history of hunting with hounds is given in paras 8-30 of the first witness statement, largely unchallenged factually, of Baroness Mallalieu, the President of the Countryside Alliance. It has been part of British rural life ‘since before recorded history'. Mr Friend and Mr Thomas say that its origin ‘lies in the dawn of time’ in the Iron Age and before and during the Roman occupation. There are important links between property ownership and hunting, but it is and always has been socially inclusive in rural Britain. Foxes were hunted as vermin to safeguard farm stock. The ‘master’ of a hunt denoted a leader of the local society as well as being in charge of the local pack. The bond between a community and its pack is immensely strong. Historically deer hunting reduced with the clearance of forests. Foxes became the most popular quarry from the mid-18th century. The excitement of jumping fences in pursuit of hounds led to present day sports, including cross-country riding, steeplechasing, national hunt racing, eventing and hunter trials. Hunting survived the advent of the railways in the 19th century and of roads, urban development and arable farming in the 20th century. Hunting is supported by the vast majority of farmers and land owners who allow it to take place on privately owned land. They benefit from hunting because it helps to control the fox population without extinguishing it; and because hunts voluntarily provide valuable services including retrieving and disposing of fallen stock and repairing fences and hedges.

“24. Baroness Mallalieu assembled estimated statistics (paras 79ff of her first witness statement) showing that there is an estimated fox population in England and Wales of 217,000 foxes before each breeding season. We understand that the population more than doubles during the breeding season, but that a number of foxes, broadly equivalent to the annual number of cubs born, dies from one cause or another by the start of the next breeding season. Of these, an estimated 21,000 to 25,000 were killed by hunts-that is, less than 10% of those who died from all causes. An estimated 100,000 foxes are killed on the roads each year. Many of the rest are shot-one estimate refers to 80,000. Mr Bradley (at para 58) highlights other statistics derived from the Burns Report. These include that, of the 21,000 to 25,000 foxes killed by hunting, up to 11,000 may be dug out by terriers. The defendants further point to evidence indicating that, even in upland Wales, rather more foxes were culled by shooting (46%) than by hunting (35%).

“25. In England and Wales, there are 174 registered fox-hunting packs, one fox-hunting club, 65 beagle packs, 12 harrier packs, eight basset packs, three deerhound packs, 23 minkhound packs and six fell packs (with two affiliated fell packs). There are 27 registered Welsh gun packs and 56 registered Welsh hunting packs, although those registered with the Federation of Welsh Packs are only a proportion of the total number of [*334] packs in Wales. Hunting by registered packs takes place from early autumn until the spring, not in the close summer breeding season. Most hunts go out twice a week.

“26. Thus hunting is embedded in the rural community. Yet it is, and has been for a long time, highly controversial. Many of those concerned with animal welfare and protection regard hunting with dogs as an ethically unacceptable ‘blood sport’ which expression we understand to connote chasing an animal with hounds and exhausting it, and then, for foxes at least, having the hounds kill it often in an unacceptable manner; and this for sport. Those who support and defend hunting maintain that hunting foxes does not cause them unnecessary suffering; in particular that a hunted fox is normally rendered insensible and killed instantly or within a few seconds; and, importantly to these proceedings, that there is no other method of culling foxes, an admitted necessity, which has been shown to cause less suffering. We must examine some of the evidence here, but it is no part of our function to form or express any judgment as to the balance of the highly emotional ethical issue. We do not do so. We simply acknowledge that a strongly-held division of view exists. We note that there is an articulated feeling among some in the rural community that the Hunting Act 2004 represents oppression of a rural minority by an elected parliamentary majority. We also note that the claimants in the present proceedings do not attribute bad faith to the elected parliamentary majority.”

A summary of the parties’ cases

8 This section gives a summary account, intended only to put what follows in the substantive part of the judgment into context. It is not a substitute for scrutiny of the parties’ cases as reviewed in detail later in the judgment. It will be convenient first to mention the various bases on which it is alleged that articles of the Convention for the Protection of Human Rights and Fundamental Freedoms and the EC Treaty are engaged, before then mentioning issues of justification and proportionality.

9 The HR case. In some limited respects the Hunting Act 2004 will directly infringe rights under the Convention. However, more widely, the Act will indirectly infringe rights under the Convention, in that it is alleged that the effect of the Act will be significantly to reduce the extent of hunting in England and Wales, so that many hunts will close down or reduce the extent of their activities. The engagement of various articles of the Convention is said to be as follows.

10 Article 8. The Act will have a direct effect in two respects. First, landowners who at present use their land for hunting by themselves or others will be prevented from doing so. That is an interference with the right to respect for their home created by article 8. Second, people who currently want to hunt and enjoy doing so will be prevented from engaging in what is for them an important part of their lives. That is an interference with the respect for their private lives and their right to personal autonomy that article 8 protects.

11 The Act will have anindirect effect in a variety of ways. The most important of them are based on the position of hunt servants who will lose their employment if their hunts close down. First, interference with their employment is interference with their personal autonomy. Second, those [*335] who live in accommodation tied to their employment will be evicted from their homes, thus infringing their rights to respect for their homes under article 8.

12 Article 11. The Act directly infringes rights under article 11, because it prohibits the assemblies that hunt meetings constitute, and prohibits or significantly interferes with the freedom of association of persons in and around hunting.

13 Article 14. The Hunting Act 2004 in its various effects falls within the ambit of articles 8 and 11 and article 1 of the First Protocol. It discriminates by imposing unequal handicaps either on the hunting community at large; or on specific groups, such as countryside dwellers or dwellers in particular rural areas such as parts of Somerset. This contention was rejected by the Divisional Court, which did not grant permission to appeal in this respect. We granted that permission on the basis that no argument was addressed to us on it, the point being reserved for potential use elsewhere.

14 Article 1 of the First Protocol. The claimants asserted a very wide range of respects in which the Act deprived persons of property rights, or interfered with the peaceful enjoyment of those rights. These are best set out as listed by the Divisional Court, at para 162. Items (i)-(ii) and (ix)-(xi) allege direct control of the use of property by the actual terms of the Act; the remainder, indirect interference, following upon the expected effects of the Act on the hunting industry:

“In respect of land (i) use of land to hunt by the owner; (ii) permitting others to hunt over one’s own land; (iii) the value of land; (iv) expense associated with the removal of buildings and equipment which is of use only in the hunting industry; (v) the reinstatement of land which has been modified specifically for hunting with dogs; in respect of livelihoods (vi) an individual’s job and/or his livelihood; (vii) the benefit of an existing contract of employment or contract for services; (viii) goodwill in and/or the value of existing businesses which are reliant on the hunting industry for a large proportion of their income and even the viability of their business; in respect of other property (ix) dogs; (x) horses; vehicles; (xi) miscellaneous equipment.”

15 The EC case asserts that the hunting ban imposed by the Hunting Act 2004 directly infringes various articles of the EC Treaty. It is not in dispute that, for instance, horses are bred in at least one other member state for use in hunting in England and Wales, an example being the business conducted by the first claimant, Mr Derwin. It is also established that persons come from other member states in order to hunt in England; thus, as set out in appendix I, the claimant Diana Johnson operates a business to provide hunting holidays for foreign visitors, some of whom come from the EU; and the claimant Viscount Hughes Le Hardy de Beaulieu lives in Belgium but owns a house in Dorset and has been coming to England to hunt for nearly 25 years. He takes part in 35-40 hunts in various parts of England during each hunting season. As a result of the Hunting Act 2004, he will no longer come to England to hunt. Evidence was accepted by the Divisional Court that these activities are substantial in nature, but the EC claimants made clear that any interference at all with interstate trade (for instance, if Mr Derwin were the only importer, and imported only a small number of [*336] horses annually) would be sufficient to place the United Kingdom under an obligation to justify the whole of the hunting ban.

16 The EC claimants’ claim is that the Hunting Act 2004, by rendering hunting illegal, has an effect equivalent to a quantitative restriction on such imports (article 28 EC); and restricts the freedom of persons such as Mrs Johnson to provide services to persons from other member states and the freedom of persons such as Viscount Hughes Le Hardy de Beaulieu to come from other member states to receive services connected with the pursuit of hunting (article 49 EC).

17 The defendants concede none of the foregoing, save that they accept that the Hunting Act 2004 will directly affect the freedom of use of property in some respects, so as potentially to engage article 1 of the First Protocol to the Convention. The defendants contest the claimants’ assertions as to the likely effect of the Hunting Act 2004, on which the claims to indirect interference are based. However, even taking those claims as accepted, as did the Divisional Court, the defendants say that the arguments advanced under article 8 extend the ambit of that article far beyond anything justified by the Strasbourg jurisprudence; that the claim under article 11 is plainly misconceived, because those who presently hunt can still lawfully assemble for purposes permitted by the Act; and that save as admitted none of the alleged possessions count as such for the purposes of the First Protocol. Further, in relation to all of the Convention claims the defendants say that, even taking the claimants’ case at its highest, the interference that is feared will not be of a sufficient weight or level to engage the protection of the Convention.

18 As to the EC claimants’ claims, the defendants deny that the Community jurisprudence can be read to enable the provisions of the Hunting Act 2004 to be characterised as either equivalent to a quantitative restriction on imports in the terms of article 28 EC or as imposing a restriction on freedom to provide services as understood by the terms of article 49 EC.

19 Justification and proportionality. If the defendants are wrong in any of their contentions in paras 17 and 18 above they have to establish a justification for the various ways in which the two treaties are engaged; and have to do so in any event in Convention terms because of the concession made in respect of article 1 of the First Protocol. The defendants say, drawing on a range of material that is legitimately available in the unusual circumstance of legislation that was promoted by the legislature itself rather than by the Government, that the reason for the legislation was the prevention of cruelty to animals, overlaid with a specific ethical objection to the infliction of such cruelty for the purposes of sport. Those were legitimate objectives of the state, and in assessing their reasonableness and admissibility the authorities of the state should be accorded a considerable degree of discretion. These arguments applied in broadly the same terms to the HR appeal and to the EC appeal.

20 There are some significant differences between the claimants in the cases that they put on justification and proportionality. The HR claimants contend that it is impossible, within the bounds of what it is permissible to refer to, to ascertain any objective or principle in the Hunting Act 2004. The burden on that issue rests on the defendants, and it has not been discharged. Even if that is not so, and addressing the claims made by the defendants, first, the cruelty of hunting has not been established, accordingly it was [*337] irrational of Parliament to rely on that as a basis for legislation; second, to the extent that hunting interferes with the welfare of the quarry it is not demonstrated, at least in the case of foxes, to be more cruel than the only viable alternative in meeting the accepted need to control the fox population, namely shooting; third, it is not established that Members of Parliament acted for ethical reasons, and if they did that would have been an impermissible imposition of their own private moral views on those of the hunting community; and fourth, that while the claimants regarded the Michael Bill itself as an infraction of their rights, for Parliament to reject the Bill’s registration scheme dependent on utility and least suffering and substitute a complete ban was, in the context of alleged concern about cruelty, irrational.

21 The EC claimants concentrated their case on fox hunting. They told us that they would not have brought proceedings in respect of the Michael Bill had it passed into law, and therefore would, however reluctantly, have accepted the Bill’s complete ban on stag hunting. As to the purpose of the Hunting Act 2004, they asserted that Parliament had sought to apply the tests of utility and least suffering that had been adopted by the Michael Bill, but scrutiny of the facts demonstrated that those objectives did not justify the total ban imposed by the Act. Accordingly, the necessary factual basis had not been laid for any justification of the breaches of articles 28 and 49 that the ban entailed. If, which the EC claimants denied, the legislature had been moved by the “ethical overlay”, that was not a permissible source of justification in Community law. And as to the degree of judgment accorded to the member state, it is more difficult in their case than in that of the HR claimants to establish justification for an interference.

Hunting in some more detail

The various quarries

22 The Hunting Act 2004 prevents the hunting with dogs of foxes, deer, hare and mink. We should say something shortly about each of these categories.

23 Fox hunting is the most prominent and discussed form of hunting prohibited by the Hunting Act 2004, and the cases before the Divisional Court and before us largely turned on that activity. As we have seen, the EC claimants before us limited their submissions to the effect of the Act upon fox hunting. Statistics produced by the Countryside Alliance are set out in para 7 above. It is generally recognised that there is a need to control the fox population in the interests of crops, livestock and game birds. The Burns Report, at paras 5.42-5.43 (see appendix II, paras 34-35), found that hunting with dogs of the type addressed by the Act made only a minor contribution to the management of the fox population in lowland areas; in upland areas, alternative methods were less easily available. With the demise of hunting with dogs, farmers are likely to adopt other methods of control to take its place, the most obvious being shooting and snaring.

24 Lord Burns and his colleagues were not asked to determine whether any particular form of hunting was “cruel”, and they did not do so. They concluded, however, in terms to which we revert later in this judgment, that:

“There is a lack of firm scientific evidence about the effect on the welfare of a fox of being closely pursued, caught and killed above ground [*338] by hounds. We are satisfied, nevertheless, that this experience seriously compromises the welfare of the fox …None of the legal methods of fox control is without difficulty from an animal welfare perspective. Both snaring and shooting can have serious adverse welfare implications.” (Burns Report, paras 6.49 and 6.59; see appendix II, paras 56 and 59.)

25 Deer hunting is much less widely practised than is fox hunting. Although deer are to be found in many areas of the country, the only three registered hunting packs are in Devon and Somerset. In those areas about 1,000 deer need to be culled each year in the interests of agriculture, forestry and conservation. The hunts kill about 160 deer a year, but the Burns Report found that:

“because of the widespread support which it enjoys, and consequent tolerance by farmers of deer, hunting at present makes a significant contribution to management of the deer population in the area. In the event of a ban, some overall reduction in total deer numbers might occur unless an effective deer management strategy was implemented, which was capable of promoting the present collective interest in the management of deer and harnessing such interest into sound conservation management.” (Burns Report, para 5.75: see appendix II, para 38.)

26 As to the effect of hunting on the quarry, there is available what the EC claimants described as a highly sophisticated study by Professor Bateson, which was the basis both of the conclusion of the Burns Report, at para 6.33 (see appendix II, para 51), that most scientists agree that deer are likely to suffer in the final stages of hunting, and of the proposal in the Michael Bill to ban deer hunting entirely, on the basis that the activity could never satisfy the overall principle of the Bill of utility and least suffering. The EC claimants, but not the HR claimants, would not contend that such a ban on deer hunting was unlawful. They, however, pointed out that a study such as that of Professor Bateson had never been carried out on foxes when, they submitted, it easily could have been: the absence of any such evidence in the case of fox hunting in their contention seriously undermined the case for a ban on that activity.

27 Hares are regarded as, at most, a minor agricultural pest. They are subject to two forms of hunting, hunting with dogs and hare coursing (the latter being a form of organised competition based on the hunting skill of the dogs). Because these are recreational activities, hare-friendly habitats tend to be encouraged in order to maintain numbers. For that reason, the effect of the ban might well be to cause numbers to decline: Burns Report, paras 5.94-5.95 (see appendix II, paras 39-41).

28 The Burns Committee concluded that both forms of hunting seriously compromised the welfare of the hare in the chase, and that although in normal hunting death of the hare usually followed immediately on capture, in coursing there could be a serious delay: Burns Report, paras 6.67-6.68 (see appendix II, paras 63-64). The Michael Bill would have banned hare coursing outright, presumably for the same reason as in the case of deer hunting.

29 Mink are regarded as a pest, preying on a wide variety of other creatures. Trapping is the main method of attempted control; mink hunts having no significant effect on the mink population save, possibly, in some [*339] localised cases. Without the benefit of any studies, the Burns Committee assumed on a common sense basis that the experience of the chase, or of being dug out, seriously compromised the welfare of the mink: Burns Report, paras 5.121-5.122, 6.71 (see appendix II, paras 42-44 and 67).

The reasons for and effect of hunting

30 In this section we review the various reasons that are to be found in the evidence as to why hunting takes place, and the effects in society of the activity that the Hunting Act 2004 forbids. The evidence on these matters was largely based on the experience of fox hunting and, to a lesser extent, deer hunting. We also treat it mainly in that context, while attempting to continue to have in mind the interests of the other quarries and of those who hunt them.

Pest control

31 This issue has featured very largely in the debate on hunting, and in the submissions in this case, but we have had difficulty in determining the weight to give to it. Fox hunting accounts for a modest proportion of the total of foxes killed: see the figures given by Baroness Mallalieu, quoted in para 7 above; the Burns Committee concluded that the effect of a ban on hunting of deer and hares with dogs might be to cause a decrease in the numbers of the pest, rather than the increase to be expected if hunting were an effective method of control (see paras 25 and 27 above); and mink hunting makes only a very modest contribution to the control of the species: see para 29 above. Those figures are consistent with the evidence (Baroness Mallalieu’s first statement, at para 189) that hunts take active steps to preserve the natural habitat of quarry species.

32 It is also difficult to reconcile some of the evidence most relied on in this case with any view of hunting as primarily an exercise in pest control. It is hard to think that persons who come from Belgium and Portugal to hunt in England have as their principal motive participation in a pest control exercise.

33 The correct assessment of this point is, in our view, that the central importance of hunting for its participants is as an exercise in sport and recreation: see paras 35-37 below. In the course of that sport, and as a direct incident of it, some services in pest control, differing significantly in their importance as between the various quarries, are provided to the farming community. The hunting ban means that alternatives have to be found to take the place of such pest control as is provided by the hunts. It is the comparison between the effect on the quarry of those alternatives, particularly shooting and snaring, on the one hand; and the effect on the quarry of the hunting that those alternatives will replace on the other; that is the basis of the argument about whether the ban will in overall terms reduce cruelty, alternatively reduce the compromise of animal welfare identified by the Burns Committee.

34 This issue is of some importance, not least because it is plain that the point of departure of the Michael Bill was pest control. It will be recalled that the Bill’s tests for “registration” that is, for permission to continue to hunt, were utility and least suffering. “Utility” was described thus in clause 8(1) of the Bill: [*340]

“The first test for registration in respect of proposed hunting of wild mammals is that it is likely to make a significant contribution to the prevention or reduction of serious damage which the wild mammals to be hunted would otherwise cause to-(a) livestock, (b) game birds � (c) food for livestock, (d) crops � (e) growing timber, (f) fisheries, (g) other property, (h) the biological diversity of an area.”

This test therefore assumes pest control as the main possible justification for hunting. We will need to bear in mind that, and the evidence as to the actual contribution of hunting to pest control, when reviewing the criticism made by all the claimants of Parliament’s decision to depart from the principles and structure of the Michael Bill.

Sport and recreation

35 There is no doubt, and it is not disputed, that all of the types of hunting that are banned by the Hunting Act 2004 are seen by those who participate in them as a valuable form of sport and recreation. And all of the types of hunting share the common characteristic, important to the participants, of involving the chasing by hounds of a live quarry. That is why the still-permitted alternative of drag hunting (where hounds and riders follow a pre-laid trail) is not acceptable to the claimants, and in their view would not enable the present hunt structure to survive. As Baroness Mallalieu put it, in para 93 of her second witness statement: “Drag hunting centres around the relationship between horse and rider whereas the appeal of fox hunting comes from the relationship between hound and huntsman.”

36 The same point was made by Mr Joseph Cowen, Senior Master of the Fernie Foxhounds, in para 39 of his first witness statement, in relation to the interests not only of those who ride to hounds but also of those who follow the hunt on foot:

“The opponents of fox hunting have suggested that hunts should convert to drag hunting. This is not a realistic alternative. The essence of fox hunting is following the hounds at work. Drag hunting is an entirely different activity. Most members of the Fernie would not be interested in drag hunting, which lacks the unpredictability of tracking a live quarry, and is more about hard cross-country riding. I personally would not be interested in drag hunting, for precisely these reasons. Even if some of the mounted followers took up drag hunting, it would be no substitute at all for many of our foot followers.”

The same sentiments were expressed by others. For instance, Mr Jason Vickery, a member of the South and West Wilts Hunt, said in para 9 of his witness statement:

“I really enjoy the sport of hunting and find it exhilarating. When 30 hounds get excited, there is nothing like the thrill of the chase. The sport is very unpredictable as you never know where the fox is going to go.”

37 It is also clear, importantly for the issues in this appeal, that it is these features of English hunting that make the sport attractive to visitors from abroad. As it was put in para 4 of her witness statement by Mrs Diana Johnson (see para 15 above): [*341]

“I launched the [hunting holiday] business with the intention of providing hunting holidays to foreigners because I felt that the unique English style of hunting would become popular with foreign visitors who would enjoy the specific experience that English hunting brings.”

Hunting as a way of life

38 There is a good deal of evidence that for some of those who work in the hunting industry, and for some of those who participate in hunting, hunting is, as they put it in their evidence, a way of life. The Divisional Court considered this aspect of hunting in connection with its analysis of the claims under article 8 of the Convention, a matter to which we will have to return. It was, however, satisfied that there were people, though it thought probably a small number, for whom hunting was more than just a sport or a source of employment. The Divisional Court put it thus, at para 135:

“A person, or family perhaps, who from time to time enjoys watching the spectacle of a hunt from a public road or who follow a hunt by car or on foot, but whose main occupation and interests lie elsewhere, may be sorry if they can no longer do this. But the ban scarcely impinges on their personality or its development, nor intrudes upon essential social relationships. On the other hand, those for whom hunting is a core part of their lives, and perhaps has been a core part of the community in which they have lived all their lives; those for whose families hunting has been a central, personal and community activity for generations, may stand differently. So also those for whom hunting provides their only, or main, source of employment and income.”

The Divisional Court thought that Mr Summersgill and Ms Drage (see paras 33 and 34 of appendix I ) were the best examples of such people.

Hunting as an industry

39 The EC claimants, supported by the HR claimants, said that hunting was a significant economic activity, with marked economic links with other member states of the European Union. The Divisional Court had before it plenty of evidence to demonstrate that hunts themselves are large businesses, charging substantial fees to members and to casual visitors, including those from abroad, and employing a significant number of people. In addition, businesses like that of Mr Derwin, in horse trading, and Ms Johnson, in providing hunting holidays, depend on the existence of hunting and, on the case advanced by the claimants, on the continuation of hunting in the form that it took before the Hunting Act 2004. Various figures, which in our view were largely speculative, were included in the evidence as to the overall value of the hunting industry; but we were told of one specific, if extreme, example: that in the village of Exford in Somerset, 20% of local employment depended directly or indirectly on stag hunting.

40 In what follows we do not lose sight of the fact that, whilst for hunt followers hunting is a pleasant, albeit to many of them very important, form of pleasure and recreation, for those who are employed by hunts, and for those who have built businesses to supply the needs of hunts and hunt followers, hunting with dogs in its traditional sense is a source of employment and profit. [*342]

The facts on which these appeals proceed

41 There is a particular difficulty attaching to the facts of this case. As we have seen, much of the case does not turn on the direct effect of the Hunting Act 2004, in the sense that it in its terms infringes the rights of the claimants. Rather, the concern is that the Act, by prohibiting what is the essence and essential feature of hunting with dogs, the chase of a live quarry, will cause many hunts to fail for want of support; with consequent impact on the employment and possibly the accommodation of hunt employees, and economic damage to businesses that are dependent on hunting. We have already quoted, in paras 35-37 above, some of the evidence as to that central feature of hunting with dogs. The claimants were adamant that, with that feature permanently removed, as the Act removes it, hunts would rapidly decline, with the consequences already indicated.

42 That case was accepted by the Divisional Court as the basis on which it should proceed. It said, at para 85:

“We are distinctly cautious in assessing, so far as we have to, the short, medium or long term effects of a ban on hunting which is regarded as permanent. The evidence of individual claimants of the actual or anticipated effect on them is unchallenged, other than by general contentions whose force we find unpersuasive. There is bound, we think, to be a decline in riding to hounds. We hesitate to say how sharp that decline might be. The Burns Report was similarly cautious. Fox hunts will not, we suppose, all disband overnight. Still less will related social activities collapse immediately. On the other hand, we cannot but suppose that there would be a substantial contraction of hunting related activities in the medium term. More importantly, for present purposes, we proceed on the scarcely contested basis that a significant number of individuals, of whom the individual claimants are representative, will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood. The extent to which they may be able to find alternatives is scarcely predictable. Some, no doubt, may not.”

43 The defendants pointed out that, 12 months after the state of affairs on which the original evidence had been based, there was so far little sign that the feared effects had actually come to pass, and before us filed further evidence that was said to demonstrate that the current hunting season had been even more popular, judged by turn-out of participants, than hunting had been before the Act had come into effect; the Countryside Alliance had defiantly claimed that hunting would survive, ban or no ban; and therefore the case in support of the Act causing the threatened decline was at best not proven.

44 As in her evidence before the Divisional Court, so in supplementary evidence before us, Baroness Mallalieu, on behalf of the Countryside Alliance, said (further witness statement, at para 3) that the present situation was essentially temporary or transitional, and indeed dependent on the outcome of these proceedings:

“The hunting community is currently maintaining the integrity of its various organisations in the hope or expectation that the Hunting Act 2004 will either be repealed by a future Government or declared to be [*343]

unlawful. [Many of the persons quoted in the defendants’ evidence] state that they view the ban as temporary and will seek to maintain their hunt infrastructure until the law is changed.”

45 In addition, Baroness Mallalieu pointed to examples of hunts already cutting back on staff; and the EC claimants said that some of the hunting-related business activities, for instance that of Mr Derwin in selling hunters into the United Kingdom, had already been significantly affected by the ban.

46 The EC claimants, while supporting the submissions of the HR claimants that we address below, took a robust approach to the way in which this problem affected their case. That case, as we have seen, is that any interference at all with interstate trade was sufficient to engage one or other of the articles of the EC Treaty, and thus to oblige the defendants to justify that interference in Community terms. Such interference was established by, for instance, the difficulties of Mr Derwin in trading in the United Kingdom, which were continuing at the date of the appeal. Mr Sales submitted that, judged by the views of the Burns Committee, economic effects of that type were likely to be temporary; but that would not appear to be a sufficient answer whilst the interference continues to occur. And as to justification in EC terms, the claimants said that that did not turn on the extent, nature or length of the interference. Once it was established that the ban engaged one of the articles of the Treaty, it was the ban itself that had to be justified, in EC terms, and without direct reference to the feature of its effects that engaged the court in the first place.

47 The HR claimants had no such simple answer, because the indirect effect of the ban upon the viability of hunting and thus of hunts is central to most of the claims under articles 8 and 11 and article 1 of the First Protocol: see paras 11-14 above. And the issue of justification in its various emanations under the Convention raises issues of proportionality that can only be assessed in the context of the extent of the injury to other rights caused by the legislation complained of.

48 We have not found this an easy matter to resolve. It is, we think, unusual for a court to be asked to declare legislation to be unlawful on the basis not primarily of what the legislation says but rather of how individuals (e g hunt followers) may react to that legislation, and how that reaction may impact, at one or more removes, on other individuals (e g hunt employees). We however think that the correct approach in the circumstances of this appeal is as follows.

49 First, Mr Gordon, for the HR claimants, was justified in drawing our attention to the forecast of the Burns Committee that a ban such as that imposed by the Hunting Act 2004 would have a significant effect on the economy of hunting and of connected activities over something like a ten-year period. The committee said:

“In view of all the uncertainties, it is not possible to give a precise figure for the number of jobs which would be lost if hunting were banned. In terms of national employment statistics, the short-term loss would be limited, and extend not much further than those employed by the hunt, and some employed by those hunt followers who immediately reduced their use of horses. In the medium term, say three to five years, more losses would occur as hunt followers brought their horse numbers into [*344]

line with current use. Losses would also arise in the wider rural economy, in particular the horse economy, although in part they would be offset by other changes, including expenditure being diverted into other activities. In the long term, say seven to ten years, most (if not all) of the effects would be offset as resources were diverted to new activities and the rural economy adjusted to other economic forces.” (Burns Report, para 3.72: see appendix II, para 19.)

50 Second, and following on from that, although some of the more optimistic public statements of the Countryside Alliance are not easy to reconcile with all of the evidence filed on its behalf in this case, it would seem to be established that possible substitutes for chasing a live quarry with dogs would not be of sufficient interest to current hunt followers for it to be likely that support for hunting would remain at its present level in the medium- and long-term future. The difficulty is to know when and to what extent that will happen; what hunts will be affected; and how the members and followers of those hunts will adjust their relationship with the hunt. This issue essentially relates to the interests of particular individuals. As the Divisional Court put it, in the context of the widest of the article 8 claims, at para 134:

“In our judgment, the article 8(1) ‘private life’ debate has become clouded with imprecision. There are ten human rights claimants and the Countryside Alliance naturally wishes to represent the hunting community generally. Submissions have tended to generalise the claimants. But an article 8(1) challenge has to be made for one or more individuals. Even for individuals, it is a struggle to make a case on the authorities for interference with their privatelives. For the hunting community generally the case is, we think, untenable. Mr Gordon’s submissions in reply implicitly accept this.”

51 That consideration presents an immediate difficulty for the HR claimants in these proceedings. What they seek is a declaration under section 4 of the Human Rights Act 1998 that the Hunting Act 2004 is incompatible with the Convention. Mr Gordon submitted that it made no difference to the case whether the Act was alleged to infringe the Convention directly or indirectly, as we have distinguished in the summary of the HR case set out in paras 9-14 above. We do not agree. Where the complaint is that the terms of the Act directly prohibit or impede activities or interests that are protected by the Convention (as is the case with those article 8 rights that are identified in para 10 above, the article 11 rights and some of the rights under article 1 of the First Protocol), then the issue is simply one of law, of whether the terms of the Act themselves are incompatible with the exercise of those rights. However, where the effect of the Act upon Convention-protected rights is said to be indirect, as is conspicuously the case in relation to the article 8 claim (see the respects identified in para 11 above), then it is necessary for the claimants or at least some of them to establish, as a prior condition to consideration of the legal issues, that the factual consequences of the Act that are alleged to infringe the Convention have resulted or will result from the passing of the Act. As we have pointed out in the previous paragraph, the extent and intensity of any such outcome, and its impact on any particular claimant, have not been established. We [*345] however consider that in the particular circumstances of this appeal it is simplest, in respect of the claims of indirect infringement of the Convention, to proceed, as in effect did the Divisional Court, on the assumption (we emphasise, an assumption by no means fully supported by the evidence) that the future will be as the claimants allege.

The policy objectives of the Hunting Act 2004

Introduction

52 We have to deal with this issue separately because the issues of justification and proportionality, that potentially arise in both the HR appeal and the EC appeal, are governed by the court’s assessment of what the legislature was seeking to achieve by passing the Hunting Act 2004. First, however, we need to clarify further how this issue relates to the remainder of this judgment.

53 First, as a contribution to the actual outcome of these appeals, analysis of the policy of the Act is largely, though not entirely, academic. That is because, for the reasons that we set out at length later in this judgment, the Act only engages the law of the Convention in a limited respect; and (an issue on which we differ from the Divisional Court) does not engage the law of the EC Treaty at all. Second, the Divisional Court dealt with the issues of the policy of the Act, and the justification for and proportionality of the terms of the Act, together in a single and, if we may respectfully say so, very valuable exposition, in paras 259-351 of its judgment. The court adopted that approach because it considered that the issues of justification and proportionality, although formally different as between the HR and the EC issues, were in practical terms the same in their outcome in each case. We have been persuaded by Mr Anderson that, for the reasons that we explain in paras 158-159 below, different and more formidable questions arise in the arena of Community law. It is therefore necessary to treat justification and proportionality separately for the HR and for the EC appeals.

54 Accordingly, the present section of this judgment addresses only the issue preliminary to those questions, of what can legitimately be discerned as the policy objective of the Hunting Act 2004: it being against that objective that the justification for and proportionality of the Act’s prohibitions have to be judged. None the less, although our treatment is structurally different from that of the Divisional Court, we have found its analysis of the policy issue of the greatest value. That has enabled us to deal with that issue comparatively shortly; any reader who seeks a fuller treatment can turn with confidence to the judgment of the Divisional Court.

The correct approach to legislative policy

55 The Divisional Court set out at length, at para 268, the guidance given in the leading authority, Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. We respectfully agree with the Divisional Court’s analysis, which we did not understand to be challenged before us. From that analysis, the Divisional Court drew important conclusions for the present appeal, at para 269:

“Accordingly, our first task, in the search for the comparative policy objectives upon which we have to make a value judgment, is to look [*346]

primarily at the Hunting Act 2004 itself. We may also look cautiously outside the statute for its background context and underlying rationale; and also on the other side of the comparison for information tending to show its likely practical impact. Where this takes us at the margins may be debatable, but the parties were in broad agreement in their oral submissions as to the relatively confined nature of the evidential material properly available for our consideration. We are clear that we may consider the conclusions of the Burns Inquiry, and we note that opinions have been expressed over the years, at the Portcullis House hearings and elsewhere, in support of or in opposition to the continuation of hunting with dogs, and as to various aspects of the overall debate. We are not, however, called upon to decide the many facets of disagreement; rather to evaluate whether the legislation which the House of Commons enacted was justifiable in human rights and European law terms. Statements by individual Members of Parliament in and out of Parliament are not helpful, nor, we think, admissible. We have not in this respect looked at Hansard. We are extremely cautious about looking to statements by the minister in promoting his Bill, mainly because his Bill was not enacted. We also disregard what the minister may have said in criticism of the legislation which the House of Commons eventually enacted, both because to that extent he was not promoting the legislation which was enacted, and because we are ‘called upon to evaluate the proportionality of the legislation, not the adequacy of the minister’s exploration of the policy options or of his explanations to Parliament': per Lord Nicholls of Birkenhead, in Wilson’s case, at para 67. Finally, since the House of Commons rejected the registration scheme in the original Michael Bill, we may suppose that the House of Commons considered that scheme to be inadequate to achieve its policy objective. We have therefore to evaluate that rejection, which may also cast light on the policy objective of the legislation which was enacted.”

Our findings as to the policy objectives

56 Here again, we fully agree with the conclusions of the Divisional Court. We set out those conclusions, and then add some observations on the further arguments addressed to us. The Divisional Court said, at para 339:

“We discern from evidence admissible on the principles in Wilson’s case that the legislative aim of the Hunting Act 2004 is a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical and should, so far as is practical and proportionate, be stopped. The evidential derivation for this legitimate aim comprises the terms of the legislation and the admissible contextual background. This background includes the Burns Report, the Portcullis House hearings, the ministerial basis for and the terms of the original Michael Bill, the obvious inference that the majority of the House of Commons considered the original Michael Bill inadequate, and the well-known opposing points of view in the prolonged and much-publicised hunting controversy.”

57 First, we reject the opening contention of Mr Gordon for the HR claimants that no legislative aim could be found in the Hunting Act 2004, and therefore that it was impossible for any restriction contained in or [*347] flowing from it to be justified in Convention terms. That narrow approach would make vulnerable a very large proportion of all English legislation. In truth, and confining ourselves to the sources carefully delineated by the Divisional Court, as quoted in para 55 above, we know a great deal more about the reasons why Parliament legislated as it did in this case than is usually available to a court. Crucial in these respects is the public debate over many years, that was given formal expression in the Portcullis House hearings; and the specific decision taken by Parliament to reject the proposals in the Michael Bill.

58 Those sources leave no doubt that a principal objection to hunting is the perception that the practice involves cruelty to the quarries. That perception may be right or may be wrong, a matter to which we will have to revert when we address the justification for the legislation; but it is plainly a substantial concern of those who oppose hunting, including the Members of Parliament who voted for the ban. And the overwhelming implication of Parliament’s rejection of the Michael Bill is that that Bill did not meet members’ concerns because it did not sufficiently address the issue of cruelty. As we have seen, in paras 33-34 above, the focus of the Michael Bill was pest control, with hunting that made a contribution to pest control only to be banned if there was an alternative means of control that would cause significantly less suffering to the quarry. In the context of the hunting debate, that limited and pragmatic solution could only have been rejected because Members of Parliament saw the cruelty of hunting as the touchstone of their objection to the practice, and not merely an adjunct to regulation of a pest control activity.

59 The second element in the policy of the Hunting Act 2004 is what has been, not entirely happily, described as the “ethical overlay”. It goes without saying that animal suffering is an ethical issue, with disagreement turning on the justifications, pragmatic rather than moral, for causing suffering in any particular case. On that issue, as we have seen, the Divisional Court concluded that, in addition to its concerns about suffering as such, Parliament considered that the causing of suffering for purposes of sport and recreation (sport and recreation being, as we have pointed out in paras 33-37 above, the main interest of those who hunt) is unethical and, so far as is practical and proportionate, should be stopped. That insight, far from being a subsidiary aspect of the objections to hunting, transforms the terms of the debate. We would respectfully adopt what was said about it by the Lord Justice-Clerk, Lord Gill, when addressing the Protection of Wild Mammals (Scotland) Act 2002 in Adams v Scottish Ministers 2004 SC 665, para 41:

“The factual question is whether fox hunting inflicts pain upon the fox. The judgment is whether in the circumstances the infliction of such pain constitutes cruelty. Certain medical treatments, for example, are painful to the patient; but they are done for a beneficial purpose and would not, in the ordinary use of language, be described as cruel. On the other hand, certain conduct which, on one view, could be thought to inflict pain only momentarily, for example the killing of a fox by hounds, may nevertheless legitimately be considered in all the circumstances to be cruel; for example, if it is inflicted for the predominant motive of sporting enjoyment, or if there are other more effective and no more painful forms of pest control.” [*348]

60 That is an easily recognisable ethical sentiment, that has played a prominent part in the hunting debate. It was not respected by the Michael Bill; it is respected by the Hunting Act 2004. We agree with the Divisional Court that that sentiment was immanent in Parliament’s reasons for rejecting the Michael Bill and in its place legislating as it did.

61 The HR claimants, however, argued before the Divisional Court, and before us, that that understanding of the policy of the Hunting Act 2004 was not open to the court, apparently whether or not it could in fact be drawn from the materials before the court, because it was not the legislative policy espoused in the defendants’ evidence. That was clearly seen by the claimants as a matter of some importance, since they devoted some 30 paragraphs of their skeleton argument to it. We briefly comment as follows.

62 First, in the passage complained of in the Divisional Court’s judgment, at para 340, that court said that it rejected “the contention that the court should not discern a legislative aim which goes beyond that espoused by the Government, both originally and in this litigation”. But that passage principally referred to the fact that the policy of the Hunting Act 2004 is not that of the Government, but of the House of Commons. As the Divisional Court went on immediately to explain, at para 340: “It was rationally open to the House of Commons to espouse a different or modified legislative aim and in particular to supplement the Government’s aim with a sustainable ethical overlay.” Second, it is not correct to say, as did the claimants, that the evidence of the defendants’ deponent, Mr Bradley, contained no justification for any finding of “ethical overlay”. Mr Bradley said in terms, in para 48 of his witness statement:

“any decision about the appropriate measures to be taken for the protection of animals must include an element, and-depending on one’s views-potentially a very significant element, of moral or value judgment. Whilst it is important to establish that there was an evidential basis for the decision of the House of Commons to ban hunting, that decision clearly, and necessarily, contained an element of value judgment. It is, accordingly, not susceptible to criticism on purely scientific grounds.”

Third, and more fundamentally, the premise of the claimants’ argument is misconceived. In a matter such as the present, while the parties submit “evidence”, much of what they produce is essentially argumentative or expository in nature: as indeed is the passage from Mr Bradley just quoted. The court cannot be bound by what is said in the same way as it is bound by evidence of primary fact. Provided that the court limits itself to consideration of the legitimate materials, as the Divisional Court did in this case, it can and indeed must make up its own mind about what those materials tell it.

63 That objection out of the way, the dispute before us was not so much about what Parliament’s reasons were for its legislative decision, but rather about whether the rules of Convention and EC law permitted Parliament to act on those reasons. That quite distinct issue is considered below, under the heading of justification and proportionality, and separately in respect of the HR and of the EC appeal. [*349]

The HR appeal

Preliminary: the Human Rights Act 1998

64 In these proceedings the claimants originally sought a declaration pursuant to section 4(2) of the Human Rights Act 1998 that the Hunting Act 2004 was incompatible with articles 6, 7, 8, 11 and 14 of the Convention, and with article 1 of the First Protocol to the Convention. In this court they are relying only on rights contained in article 8(1), article 11(1) and article 1 of the First Protocol. As we have already observed, they are reserving the right to rely on article 14 if this case goes to a court at a higher level. The Attorney General and the Secretary of State for the Environment, Food and Rural Affairs were nominated as being the proper defendants to the claim for the declaratory relief sought, and not because of any decision either of them have made. The 1998 Act does not purport to prescribe rules for standing if a declaration like this is sought, in contrast to the rule in section 7(1)(a), which entitles a person who claims that a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) to bring proceedings against that authority in the appropriate court, but only if he is (or would be) a victim of the unlawful act.

65 In that context section 7(7) provides that, for the purposes of section 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights. By that article that court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the high contracting parties of the rights set forth in the Convention or the Protocols thereto. Strasbourg case law treats a person as a victim within the meaning of article 34 if they run the risk of being directly affected by a law or other act of state interference which violates their Convention rights: see Marckx v Belgium (1979) 2 EHRR 330 and Institut de Pr�tres Fran�ais v Turkey (1998) 92-A DR 15. In the present proceedings there has been no suggestion that the claimants do not have standing to seek the proposed declaration, and at the centre of their concern is the fear that the Hunting Act 2004 creates the risk of violating their Convention rights.

66 They assert that the language of the Hunting Act 2004 is so uncompromising that it is not possible to “read down” its provisions pursuant to section 3(1) of the Human Rights Act 1998 so that it may be given effect in a way which is compatible with their Convention rights. This is why they seek the declaration of incompatibility that was refused by the Divisional Court.

The HR claimants’ case

67 The case of the HR claimants was very conveniently set out in a chart prepared for the purposes of this appeal. Their evidence embraced not only the situation of the ten individual claimants (for which see appendix I), but also the perceived effect of the Hunting Act 2004 on 11 other witnesses whose identity and interests were summarised helpfully on the chart. These were: an Exmoor farmer who runs holiday cottages; a foot follower of a hunt in Gloucestershire; a coursing trainer in Dorset; a North Yorkshire farmer and landowner; a sheep farmer in Gloucestershire; a hare courser in Lancashire; a hare hunter and courser in North Yorkshire; the owner, [*350] huntsman and master of a fell pack in Cumbria; a kennel man in Oxfordshire; a feed merchant in Somerset; and a huntsman, terrierman and kennel man in Aberdare.

68 The evidence describes the way in which each of these witnesses, and also the ten individual claimants, consider that the Act has impacted on their lives. In the case of each article relied on, the court must be ready to ask itself three questions. (i) Is the article engaged? (ii) If “yes”, have the claimants shown that there is a risk that the way in which they will be directly or indirectly affected by the Act will interfere with their rights under the article? (iii) If “yes”, can the defendants justify the interference?

69 So far as the second question is concerned, there is a threshold to be crossed before an act of a public authority can be recognised as interfering with a right. For instance, although the notion of “private life” in article 8 is said to be a broad one and is designed to protect a person’s physical or moral integrity, the Strasbourg court has said that not every act or measure which may be said to affect the physical or moral integrity of a person necessarily gives rise to an interference of which the court will take note: Costello-Roberts v United Kingdom (1993) 19 EHRR 112, para 36.

70 We will turn now to consider the three articles that are relied on in this appeal.

Article 8

“Right to respect for private and family life

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

71 It is convenient to start our consideration of this article by reference to the recent speech of Lord Walker of Gestingthorpe in M v Secretary of State for Work and Pensions [2006] 2 AC 91, at para 83, in which he drew attention to the article’s unique feature, which is that it is concerned with the failure to accord respect. He went on to give three examples of the way in which the article has operated in well-known cases:

1.

(i) “To criminalise any manifestation of an individual’s sexual orientation plainly fails to respect his or her private life, even if in practice the criminal law is not enforced”; (ii) “so does intrusive interrogation and humiliating discharge from the armed forces” (because the individual is a homosexual). (iii) “Banning a former KGB officer from all public sector posts, and from a wide range of responsible private sector posts, is so draconian as to threaten his leading a normal personal life …”

72 Lord Walker drew his examples from Dudgeon v United Kingdom (1981) 4 EHRR 149, Norris v Ireland (1988) 13 EHRR 186, Smith and Grady v United Kingdom (1999) 29 EHRR 493, Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548 and Sidabras v Lithuania (2004) 42 EHRR 104. He went on to say, however: “Less serious interference would not merely [not] have been a breach of article 8; it would not have fallen within the ambit of the article at all.”

73 The claimants’ article 8 challenge was advanced on four discrete fronts. These are described on the chart as “autonomy”, “culture/ [*351] community”, “loss of livelihood/home”, and “use of home”. We will consider each of these elements in turn.

Autonomy

74 This challenge was expanded in argument to embrace private and family life, autonomy and lifestyle. The interests of the claimants and their witnesses that were said to qualify for protection under this head were variously described as: social life; social and family life; destruction of animals; friends involved in hunting; 40 years as a terrierman, with life centred around the job and mink hunting in spare time; work dependent on hunting; business; hunted since childhood; voluntary work; family established the hunt in 1909 and have been involved ever since; family has owned the beagle pack since 1905; work dependent on hare coursing, and family involvement in hunting and coursing; field master of hunt; attends hunt social events; relations with neighbours; courses with father; relations with neighbours; and friendships with other hare-hunting people.

75 The relevant language of the article is “Everyone has the right to respect for his private and family life”. In Niemietz v Germany (1992) 16 EHRR 97 the Strasbourg court said, at para 29:

“The court does not consider it possible or necessary to attempt an exhaustive definition of the notion of ‘private life'. However, it would be too restrictive to limit the notion to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of ‘private life’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.”

76 What the claimants have seized on is the reference to the right to establish and develop relationships with other human beings, together with the explanation that the understanding of the notion of “private life” should not be taken as excluding activities of a professional or business nature. The qualification “to a certain degree” must, however, be noted.

77 More recently, in Pretty v United Kingdom (2002) 35 EHRR 1, para 61 the court gave a more comprehensive explanation of the concept of private life:

“As the court has had previous occasion to remark, the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in article 8 of the [*352]

Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”

78 Again, the claimants rely on the reference to the right to establish and develop relationships with other human beings and the outside world. They also place heavy reliance on the reference to personal autonomy that entered the Strasbourg jurisprudence in Pretty’s case.

79 In R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, para 9, Lord Bingham of Cornhill cited part of this extract from the Pretty judgment, and also para 47 of the Strasbourg court’s judgment in Bensaid v United Kingdom (2001) 33 EHRR 205, before saying of the phrase “private life”:

“Elusive though the concept is, I think one must understand ‘private life’ in article 8 as extending to those features which are integral to a person’s identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed (‘The Developing Scope of Article 8 of the European Convention on Human Rights’ [1997] EHRLR 265, 270): ‘Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people’s moral worth by taking account of their need for security.’ ”

80 Although “private life” is described as a “broad term”, however, this court must not interpret it more widely than would the Strasbourg court: see R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 20: “the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

81 For this reason it would be wrong for us to give an extravagant meaning to the phrases “self-determination” and “personal autonomy” which surfaced for the first time in the judgment in Pretty’s case 35 EHRR 1. These words draw their meaning from the context in which they appear in that judgment. The whole of the passage from paras 61-67 shows that the court was concerned with the right of an individual to make personal choices about her own body, even extending to the choice of preferring assisted suicide rather than an undignified and distressing end to her life. That this restricted meaning of the phrase “personal autonomy” was intended is clear from the court’s discussion, at para 66, of the Canadian case of Rodriguez v Attorney General of Canada [1994] 2 LRC 136, where it said that “comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one’s own body”.

82 In Peck v United Kingdom (2003) 36 EHRR 719 the Strasbourg court reverted to the way in which a person’s article 8 rights might be violated in relation to his activities in a public, as opposed to a private, context. The court acknowledged, at para 57, that there was a zone of interaction of a person with others, even in a public context, which might fall within the scope of “private life”. It cited in this context its earlier judgment in PG and JH v United Kingdom Reports on Judgments and Decisions 2001-IX, p 195, in which it said:

“Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported [*353]

in a public manner, a person’s reasonable expectations as to privacy may be a significant, though not necessarily conclusive factor.”

And in Campbell v MGN Ltd [2004] 2 AC 457, para 21, Lord Nicholls said, succinctly: “Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”

83 None of this assists the claimants at all, since they had no expectation of privacy in relation to their hunting activities. They placed considerable weight, however, on the recent judgment of the Strasbourg court in Sidabras v Lithuania 42 EHRR 104. This decision, which was mentioned by Lord Walker in M v Secretary of State for Work and Pensions [2006] 2 AC 91, needs to be examined quite carefully. As is apparent from Niemietz’s case 16 EHRR 97, the jurisprudence of the court had already recognised that respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. In the Sidabras case 42 EHRR 104, para 46, the court observed how it had previously decided that lack of access to the civil service as such, or lack of access to a particular profession did not qualify for protection under the Convention. It considered, however, that the far-reaching ban on taking up private sector employment which was imposed on former KGB officers for a ten-year period by a Lithuanian statute fell into a quite different category. The court said, at para 48:

“Admittedly, the ban has not affected the possibility for the applicants to pursue certain types of professional activities. The ban has, however, affected the applicants’ ability to develop relationships with the outside world to a very significant degree, and has created serious difficulties for them as regards the possibility to earn their living, with obvious repercussions on their enjoyment of their private life.”

84 An aggravating factor in that case was that as a result of the publicity caused by the statute in question and its application to the applicants they had been subjected to daily embarrassment as a result of their past activities, and this affected their ability to lead a normal personal life.

85 Another decision of the Strasbourg court featured prominently in the claimants’ argument. This was its decision in Botta v Italy (1998) 26 EHRR 241. The court stated, at para 32, that the guarantee afforded by article 8 of the Convention was primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. And it went on to say, at para 33, that the state’s positive obligations might involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves. However, for this obligation to exist there had to be a direct and immediate link between the measures sought by the applicant and his private and/or family life: see para 34.

86 On the facts of that case, where a disabled applicant was complaining about the failure of the municipal authorities to provide him with access to the beach and sea at the Italian resort to which he went for a holiday, the court found, at para 35, that there could be no conceivable direct link between his private life and the measures the state was being [*354] urged to take in order to make good the omissions of the private bathing establishments which he wished to frequent when he was on holiday.

Culture/community

87 Under this heading the claimants grouped such interests as social/economic impact on local community; part of coursing community; integration with local community; cultural heritage. They placed heavy reliance on the decision of the European Commission on Human Rights in G and E v Norway (1983) 35 DR 30 and the judgment of the Strasbourg court in Chapman v United Kingdom (2001) 33 EHRR 399.

88 In G and E v Norway the applicants were two Norwegian Lapps. One was a reindeer shepherd and the other was a fisherman and hunter. They belonged to a minority group, with their own culture and language. There are about 50,000 Lapps, 60% of whom live in Norway, although many of them can neither read nor write Norwegian. For hundreds of years the Lapps have worked with reindeer, fishing and hunting. Every year they move their herd of deer around, so that there is a great demand for space. Although the history of the Lapps goes back several thousand years, over the centuries more and more people have invaded what they call “the land of the Lapps” and more recently, and especially after the Second World War, the Lapps have seen their land taken away from them and their culture slowly being destroyed.

89 The European Commission of Human Rights was of the opinion that under article 8 a minority group was in principle entitled to claim the right to respect for the particular lifestyle it might lead (as being “private life”, “family life” or “home”) and it was prepared to accept that the consequences of constructing a hydroelectric plant (which would involve covering an area of 2.8 square kilometres with water) would constitute an interference with the Lapps’ private lives, as members of a minority who moved their herds of deer around over a considerable distance. The fact that the environment of the plant would also be affected could also interfere with their “possibilities of enjoying the right to respect for their private life”. Their complaint failed only at the third hurdle, because the Commission considered that the likely interference was justified under article 8(2).

90 That case was all about the lifestyle of a nomadic national minority. So was Chapman v United Kingdom 33 EHRR 399. The judgment of the European Court of Human Rights in this case helpfully brings together a number of international texts which articulate concern with the welfare of members of national minorities. Thus the 1995 Framework Convention for the Protection of National Minorities, which 37 of the 41 member states of the Council of Europe had signed by February 2000, and which 28 (including the UK) had ratified, included by article 5(1) an undertaking to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. Other Council of Europe texts included Recommendation 1203 (1993) of the Parliamentary Assembly on Gipsies in Europe and its recognition that gipsies, as one of the very few non-territorial minorities in Europe, “need special protection”. [*355]

91 The court also showed, at paras 60-61, how the institutions of the European Union had showed themselves astute to protect minorities, and particularly gipsy people, and how the situation of Roma and Sinti (as minorities) had become a standard item on the human dimension section of the agenda of review conferences held by the Organisation for Security and Co-operation in Europe. A report in 2000 by the newly-appointed High Commissioner for National Minorities had noted that nomadism had been central to Romani history and culture and said in terms that whether an individual was nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. A little later the report referred to the importance of individuals of being able to pursue the lifestyle that expressed their group identity.

92 Against this background the Strasbourg court held, at para 73, that the applicant’s occupation of her caravan was an integral part of her ethnic identity as a gipsy, reflecting the long tradition of that minority of following a travelling lifestyle. Measures which affected her stationing of her caravan therefore had a wider impact than on the right to respect for her home alone: they also affected her ability to maintain her identity as a gipsy and to lead her private and family life in accordance with that tradition. A little later, at para 96, the court recognised that the vulnerable position of gipsies as a minority meant that some special consideration should be given to their needs and their different lifestyle both in the regulatory planning framework and on arriving at decisions in particular cases: “To this extent there is thus a positive obligation imposed on the contracting states by virtue of article 8 to facilitate the gipsy way of life.”

Loss of livelihood/home

93 Under this heading the claimants grouped such interests as loss of job and loss of business (sometimes, in each case, linked with loss of home).

Use of home

94 Under this heading the claimants grouped such interests as: hunting on land (self and others): business based at home; manages land for bio-diversity: hare hunting integral part; chases deer off land; permits others to hunt on his land; and hosts coursing events on own land.

95 In Harrow London Borough Council v Qazi [2004] 1 AC 983, para 50, Lord Hope of Craighead said:

“It seems to me that the following conclusions can be drawn from the language of article 8(1) in the light of the observations in Marckx v Belgium . The right to respect referred to in this paragraph extends to the person’s home. But the essence of this right lies in the concept of respect for the home as one among various things that affect a person’s right to privacy. The context in which the reference to the person’s ‘home’ must be understood is indicated by the references in the same paragraph to his private and family life and to his correspondence. The emphasis is on the person’s home as a place where he is entitled to be free from arbitrary interference by the public authorities. Article 8(1) does not concern itself with the person’s right to the peaceful enjoyment of his home as a possession or as a property right. Rights of that kind are protected by article 1 of the First Protocol.” [*356]

96 It is clear that he was influenced in this respect by the following extract from the dissenting opinion of Sir Gerald Fitzmaurice in Marckx v Belgium 2 EHRR 330, para 7:

“It is abundantly clear (at least it is to me)-and the nature of the whole background against which the idea of the [Convention] was conceived bears out this view-that the main, if not indeed the sole, object and intended sphere of application of article 8 was that of what I will call ‘the domiciliary protection’ of the individual. He and his family were no longer to be subjected to the four o'clock in the morning rat-a-tat on the door; to domestic intrusions, searches and questionings …”

97 This thinking coloured the approach of the Strasbourg court in Niemietz v Germany 16 EHRR 97 (see para 75 above), in which the applicant complained that the police had conducted a search of his law office without lawful authority. The court said, at paras 30-31:

“30. As regards the word ‘home', appearing in the English text of article 8, the court observes that in certain contracting states, notably Germany, it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word ‘domicile’ has a broader connotation than the word ‘home’ and may extend, for example, to a professional person’s office. In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person’s private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words ‘home’ and ‘domicile’ could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of ‘private life’ (see para 29 above).

“31. More generally, to interpret the words ‘private life’ and ‘home’ as including certain professional or business activities or premises would be consonant with the essential object and purpose of article 8, namely to protect the individual against arbitrary interference by the public authorities.”

The Divisional Court’s approach

98 The Divisional Court approached the article 8 issues by considering “right to respect for private and family life” and “right to respect for the home” in two, not four, discrete compartments. Of the former it said, at paras 135-137:

“135. A person, or family perhaps, who from time to time enjoys watching the spectacle of a hunt from a public road or who follow a hunt by car or on foot, but whose main occupation and interests lie elsewhere, may be sorry if they can no longer do this. But the ban scarcely impinges on their personality or its development, nor intrudes upon essential social relationships. On the other hand, those for whom hunting is a core part of their lives, and perhaps has been a core part of the community in which they have lived all their lives; those for whose families hunting has been a central, personal and community activity for generations, may stand differently. So also those for whom hunting provides their only, or main, source of employment and income. Although hunting is a community [*357]

open-air activity, and although its associated social activities do not, in the main, take place in the privacy of a single home, people thus affected can at least make a case, we think, that the ban intrudes into their private existences. We are quite satisfied that there are such people. In a sense, it is unnecessary to count them. Some of those who live and have hunted in and around Exford in Devon appear to be examples. But the number of people affected to the extent that they are able at least to make a case for interference under article 8(1) must be quite small. This would affect the question of justification and proportionality, if there were interference under article 8(1).

“136. We take the second and third claimants as perhaps having the strongest cases here, although it may seem invidious to single them out from the other eight claimants. Their circumstances are summarised in paras 32 and 33 above. We think that the question for them is whether hunting is so much a part of their personal integrity and social and inter-personal development that the ban may properly be said to interfere with their private lives. This is on the authorities a matter of degree for which an evaluative judgment is required. In the end, the Strasbourg cases contain largely anchorless generalisations, moderated only by the facts of the individual cases. The facts of most of these cases are far removed from those in the present case. But we agree with Mr Sales that the ambit of personal integrity and social and inter-personal development which they address tends towards intensely personal matters of physical or psychological integrity in a domiciliary context. But not all of them. Sidabras v Lithuania 42 EHRR 104 perhaps represents something of a watershed …

“137. We regard the cases of the second and third [claimants] and some others as reasonably close to the borderline for article 8(1) purposes. But on balance we do not consider that they cross the border. We reach this conclusion in short because (1) the nature of the intrusion into personal integrity and inter-personal development caused by the hunting ban is qualitatively different from that in most of the core Strasbourg authorities; (2) other authorities, for exampleSidabras, represent a degree of intrusion which is not present in the cases before the court; (3) much of the intrusion is economic, more appropriate for consideration under article 1 of the First Protocol; and (4) the hunting community as a whole is not remotely equivalent to an ethnic minority.”

99 So far as the right to respect for the home was concerned, the Divisional Court said, at paras 144-146:

“144. In the present case, there are two questions with reference to the concept of ‘home’ in article 8(1). The first is whether land, over which hunting takes place, which surrounds the place where a person lives is part of his or her home within article 8(1). We agree summarily with the Scottish courts in Adams v Scottish Ministers 2004 SC 665 that it is not. It is not the place where a person lives as their habitation, nor the place where they live their private lives.

“145. The second question is whether there is interference with a person’s right to respect for their admitted home, if the Hunting Act 2004 were to result in loss of their home because it is tied to their employment [*358]

or business and the Hunting Act 2004 interferes with their employment or business …

“146. In our judgment, the case here is not made out upon the majority decision in Qazi’s case [2004] 1 AC 983. As Lord Hope said, the object of article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy. It is not concerned with protection of his right to own or occupy property. This is the province, if at all, of article 1 of Protocol 1: see Lord Millett at para 89.”

Our conclusions on article 8

100 We agree with the Divisional Court. For the most part the claimants’ submissions stretch the ambit of article 8 far wider than has ever been recognised in Strasbourg jurisprudence. For instance, they seek to deploy what was said in Pretty’s case 35 EHRR 1 about an adult person’s right to choose whether to live or die by asserting a far-ranging right to self-determination. They seek to interpret the right to respect for the home in a manner far removed from the interpretation of that phrase in Lord Hope’s speech in Qazi’s case. And they seek to convert what was said about protecting the rights of nomadic national minorities in G and E’s case 35 DR 30 and Chapman’s case 33 EHRR 399 into a generalised right of respect for different types of community activities. This is not what article 8 is all about.

101 As the Divisional Court said, Mr Summersgill and Ms Drage came closest to qualifying for consideration on article 8 grounds. Mr Summersgill has been passionate about hunting since he first followed a hunt on foot at the age of ten. He left school with no qualifications at the age of 15 and has been employed in the “hunting industry” ever since. He was appointed huntsman for the Devon and Somerset Staghounds at the age of 24, and his witness statement describes how over the last 14 years both his working life and his social life have revolved around the hunt, which provides him with a tied cottage as part of his employment package. If he lost his job, he believes that he has no transferable skills, and he would lose his home as well.

102 Ms Drage has run a small livery business in the Cotswolds since 1993. She looks after 18 horses for 14 paying customers, all of whom keep their horses for the sole purpose of hunting. She believes that the hunting ban will destroy her business and her livelihood and she will lose her home (which is provided rent free in the circumstances she describes in para 3 of her witness statement).

103 However much one may sympathise with the plight of these and other witnesses, we do not consider that article 8 is engaged even in these cases. The last 50 years have seen the destruction, for various reasons, of many people’s way of life in this country, often by deliberate decisions by the Government. The collapse of the heavy manufacturing and the coal-mining industries are just two cases in point. What tipped the scales in the Sidabras case 42 EHRR 104 was that the applicants were prohibited by a blanket ban on employment from a wide swathe of alternative employments. In Niemietz’s case 16 EHRR 97, once the applicants’ law office was treated as their home, the state’s intrusion undoubtedly showed want of respect for their privacy. In the sexual orientation cases the state shows disrespect for an applicant’s right to conduct personal relationships in private in the way he/she chooses. No such special factors apply to the present case. Even if the [*359] feared consequences do arise (an outcome that is still far from certain) they will not be caused by any lack of respect in article 8 terms for the claimants’ private or family life or for their homes. We do not consider that any question of respect for their private or family life or their homes comes into play.

104 We have reached the foregoing, clear, conclusions on the assumption that some at least of the consequences of the Hunting Act 2004 feared by the claimants will in fact eventuate: see paras 48-51 above. But at the same time it is valuable to remind ourselves of circumstances in the real world. The new evidence adduced by the defendants shows that things appear to have gone on very much as before, even if trail hunting is regarded as a very inferior form of sport to the real thing. We do not know what the future may hold, and in those circumstances no court in any event could properly declare the Act to be incompatible with the claimants’ Convention rights, whether under article 8 or otherwise, because there is no evidence of a direct and immediate link between the passing of the Act and the interests the claimants seek to protect in these proceedings.

105 We accordingly conclude that article 8 is not engaged in any of the respects asserted by the claimants, and that therefore the question of justification of the Hunting Act 2004 under article 8(2) does not arise.

Article 11

“Freedom of assembly and association

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others …”

106 The claim under this head was very generally expressed: we were not treated to any very sustained argument about the impact of this article. Mr Gordon said that if we were not willing to give a broad interpretation to article 8, his clients would be unlikely to succeed on article 11 grounds. However that may be, we have no hesitation in adopting the approach of the Inner House in Adams v Scottish Ministers 2004 SC 665, paras 81-83, which the Divisional Court also accepted (see para 159 of its judgment):

“81. In our opinion, the submissions for the respondents are well-founded. Article 11 is engaged if a person is prohibited from doing something so long as he is a member of a particular association; for example, if he is disqualified from holding an office, or is otherwise adversely treated, by reason of his membership of a masonic lodge or of a political party … Such a restriction may infringe the rights of the association itself if its effect is to cause direct injury to it.

“82. But there is a material distinction, in our opinion, between a restriction which compels an individual to join an association or prohibits him from joining it, or penalises him in either event � and a restriction that, without reference to any association, merely prohibits a particular activity with the indirect result that persons cannot associate for the purpose of carrying it out. A restriction of the former kind is capable of engaging article 11; but a restriction of the latter kind is not. If it were otherwise, the prohibition of any activity would infringe article 11. We agree entirely with the conclusion of Lord Brodie on this question in Whaley v Lord Advocate 2004 SC 78. As his Lordship said in that case, [*360]

the 2002 Act does not prohibit the assembling of a hunt, on horseback or otherwise, but rather an activity upon which the hunt might engage. The members remain free to assemble together for a mock chase, or a drag hunt or simply a communal ride. What is subject to regulation is the nature of the quarry and the method of the kill, not the fact or manner of association (at para 80).

“83. We are therefore satisfied that the petitioners have not made a relevant case under article 11.”

107 We entirely agree with both of our predecessor courts that it cannot be said that the Hunting Act 2004 interferes with the right of the claimants to assemble. All that it does is to prohibit a particular activity once the claimants have assembled. Moreover, the Act has now been in force for over a year, and the hunts have been assembling in greater numbers than ever. If they choose at some time in the future to lose interest in trail hunting or in other activities that are not directly prohibited by the Act, that will be a matter for them.

Article 1 of the First Protocol

“Protection of Property

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

“The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest …”

108 The Divisional Court provided a useful summary of the claimants’ claims, which we have already set out in para 14 above. The defendants accepted before the Divisional Court (see para 166 of that court’s judgment), as they accepted before us, that article 1 is engaged in this case, since the Hunting Act 2004 in terms directly interferes with those items of property that we have identified in items (i)-(ii) and (ix)-(xi) of the list reproduced in para 14. The defendants also accepted that article 1 would be engaged to the extent that the Act had the indirect consequence of diminishing the value of land or other property or of damaging the established goodwill of a business.

109 As to the first of those categories, where it is conceded that article 1 is engaged, case law at Strasbourg has drawn a clear distinction between those cases in which the effect of state action is to deprive an individual of his possessions, either de jure or de facto, and those cases which are concerned with “control of use”. The claimants accepted that the present case fell into the second category, like the cases concerned with the UK Government’s ban on handguns which came to the Strasbourg court in 2000: Ian Edgar (Liverpool) Ltd v United Kingdom Reports of Judgments and Decisions 2000-I, p 479 and Denimark Ltd v United Kingdom (2000) 30 EHRR CD 144.

110 It follows that in those cases where it is conceded that the Act imposes controls on the use of property the court must inquire whether a fair balance has been struck between the demands of the general interest of the community and the requirements relating to the protection of their [*361] fundamental rights, so that the holders of that property do not suffer an individual excessive burden. It is well settled in English case law that any question as to what the public interest requires should be determined by democratic principles, and that the assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament.

111 The governing principles have recently been set out by Neuberger LJ, giving the judgment of this court in R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] 1 WLR 1267, paras 41-58, where the court was primarily concerned to inquire whether the absence of any provision for compensation in respect of a control of use necessarily infringed article 1 of the First Protocol. The Divisional Court expressly cited para 58 of that judgment, in which Neuberger LJ said that the right analysis seemed to be that, provided the state could properly take the view that the benefit to the community outweighed the detriment to the individual, a fair balance would be struck, without any requirement to compensate the individual. Should this not be the case, compensation in some appropriate form might serve to redress the balance, so that no breach of article 1 of the First Protocol would occur.

112 Earlier, at para 46, he had observed that any contrary conclusion would have very far-reaching results, severely crippling the legislature’s freedom to introduce socially beneficial legislation in the fields of town and country planning, health and safety at work, and so on.

113 The answer to this part of the claim therefore lies in an analysis of whether the claimants who possess property rights that qualify for protection have been required to suffer an individual excessive burden when the appropriate balance is struck. That inquiry is part and parcel of the analysis of the justification for and proportionality of the legislation, which we address in the next section. Because for the reasons there set out we are satisfied that a fair and legitimate balance has indeed been struck, it is unnecessary to say very much about the arguments we heard which related to the assets which might properly be treated as the claimants’ “property” for these purposes, which is the issue that arises in connection with the second, and conditional, part of the defendants’ concession that is set out in para 108 above.

114 It is sufficient to say that we reject the breadth of the claimants’ claims as to the loss of their “livelihood”. Strasbourg case law, while stating that a professional man’s clientele may form part of his possessions, as may the goodwill of a business, has very clearly ruled that any element of a claim that relates to loss of future income does not qualify in this respect, unless an enforceable claim to future income already exists. The Divisional Court set out the relevant Strasbourg case law in paras 170-172 of its judgment. We agree with their approach, including their unwillingness to follow the judgment of the Inner House of the Court of Session in Adams’s case 2004 SC 665, para 97, in so far as it may have suggested that the livelihood of a self-employed person occupies some middle position between marketable goodwill and future income.

115 We conclude, therefore, that article 1 of the First Protocol is engaged only to the limited extent conceded by the defendants. That finding, however limited it is in the overall context of the appeal, none the less requires us to address the issues of justification and proportionality. [*362]

Justification and proportionality

116 It was suggested in Mr Gordon’s original skeleton that these issues might differ in their terms and impact according to which article of the Convention was engaged. That point was not further developed, and we are very doubtful whether it is correct. Certainly, we have identified no respect in which discussion of these issues in respect of article 1 of the First Protocol would not be valid in respect of other articles of Convention were they, contrary to our conclusions already set out, also engaged in this case.

117 The point of departure of this inquiry is the policy objective of the Hunting Act 2004 identified by the Divisional Court, at para 339, and with which, for the reasons set out in paras 52-60 above, we respectfully agree. For ease of reference we set out again the Divisional Court’s summary, at para 339:

“the legislative aim of the Hunting Act 2004 is a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical.”

The HR claimants, largely supported in this respect by the EC claimants, raised a complex series of objections to the legitimacy of that aim as a reason or justification for interference with rights protected by the Convention. Those objections did not persuade the Divisional Court and they do not persuade us. Basing ourselves largely on the analysis of the Divisional Court, we can explain the position quite shortly.

118 Fundamental to this inquiry is the basic principle of Convention law that in respect of policy decisions that directly or indirectly touch on Convention rights the democratic decisions of domestic policy makers should be accorded a significant margin of discretion. We note in anticipation that no such general rule is available in EC law: see para 158(i) below. For the Convention it is only necessary to cite, as did the Divisional Court, the observation of the Grand Chamber in Hatton v United Kingdom (2003) 37 EHRR 611, para 97: “in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight.”

119 Nevertheless, the claimants bluntly submitted, in paras 201-202 of their skeleton argument, that “the ethical overlay identified by the Divisional Court could not be a legitimate aim whether as part of the composite aim identified by the court or otherwise”. That was because the scientific evidence as to the suffering caused to quarries, as opposed to the suffering that would be caused by other methods of pest control, for instance by shooting, was uncertain, and the uncertainty could not be resolved by moral indignation about the supposed immorality of hunting. That argument, however, ignores what the Divisional Court found, and we agree, was the essence of the “ethical overlay”, that the causing of suffering to animals for sport is unacceptable. That, we would have thought, was plainly a view open to members of the House of Commons, and one that is well beyond the competence of a court to inquire into.

120 The claimants, however, said that it still had to be established that hunting did indeed cause suffering to the quarry, or at least caused no more suffering than other methods of pest control. In that inquiry the court had to [*363] be guided by the well-known observation of Lord Hope in R v Shayler [2003] 1 AC 247, para 61:

“it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them.”

That contention was, however, advanced on the assumption that the aim of the Act was not that found by the Divisional Court, but the Michael Bill approach, rejected by Parliament, of “least suffering”. Had that been the issue, then no doubt the court would have to look carefully at whatever reasons the legislature might have had for thinking that in a particular case hunting did not meet the test of least suffering, and therefore should be banned for that reason, taken on its own. But that is not this case. Because of the view taken of the implications of hunting as a sport, what is required is that there should have been sufficient material available to the legislators to enable them to conclude that hunting does impose suffering on the quarry, and for that reason is not acceptable as a sport.

121 As we have seen, the claimants objected that the suffering of the quarry was not yet scientifically proved, and therefore the legislators could not assume it. But the legislators had a significant amount of material before them from which suffering could be inferred, not least the view of the Burns committee that hunting seriously compromises the welfare of all of the species of quarry: see paras 24, 26, 28 and 29 above. We would therefore respectfully adopt the conclusion of the Divisional Court, at para 341:

“We consider that there was sufficient material available to the House of Commons for them to conclude that hunting with dogs is cruel. In analytical terms, this ‘material’ is evidence, but we espouse the view of the Inner House in Adams’s case 2004 SC 665 that the nature of the subject matter is such that evidence is not to be strictly regarded as if it were evidence in court-rather material from which a view as to cruelty could rationally be reached.” (See also para 343.)

122 Over and above these general considerations, articles 8 and 11 require that the measures should be necessary in a democratic society, and article 1 of the First Protocol that the measure should be necessary in the general interest. The remedy must also be proportionate to the removal of the problem that it seeks to address.

123 As to proportionality, it was submitted that a total ban on hunting was not required, and that in particular the machinery of the Michael Bill would have been a limited and proportionate response to the objections found in hunting. We share the serious scepticism of the Divisional Court, expressed in para 345 of its judgment, as to the practical workability of the Michael formula. But, more fundamentally, Parliament’s objection to the Michael proposals, as we have already explained, was that they did not meet the objection to the use of wild animals for sport. Once that objection is identified, and is recognised as a legitimate basis for legislation, then a total ban was clearly a proportionate response.

124 As to the other necessary criteria, we are content to adopt what the Divisional Court said, at para 348: [*364]

“A measure is not necessary in a democratic society only because the democratically elected majority of the legislature enacts it. But it was, we think, reasonably open to the majority of the democratically elected House of Commons to conclude that this measure was necessary in the democratic society which had elected them. In the end, there were two irreconcilable opposing views, each capable of being reasonably and rationally held, about hunting with dogs. The House of Commons duly decided to legislate to achieve the one which the majority of its members regarded as necessary.”

125 We are therefore satisfied that the Hunting Act 2004 meets the requirements for state action that are set out in the second paragraph of article 1 of the First Protocol, and also is proportionate and justifiable in terms of article 8 and 11. As a summary of this part of the case we can do no better than to revert once more to the Inner House in Adams’s case 2004 SC 665. Having set out the view of the policy of the Scottish legislation that we have ventured to cite in para 59 above, the Lord Justice-Clerk, Lord Gill continued, at paras 43 and 49:

“43. In judging whether that constituted cruelty, the legislators had to bring to bear their own subjective appreciations of the question. They could consider the motives and the reactions of the huntsmen, the followers and the supporters. They could consider the descriptions of the chase that were contained in the evidence before them, including the detailed and undisputed description of the chase, the kill and the dismemberment of the fox by the pack.”

“49. We consider that it was entirely within the discretion of the Parliament to make the judgment that the pursuit and killing of a fox by a mounted hunt and a pack of hounds for the purposes of recreation and sport and for the pleasure of both participants and spectators was ethically wrong; that the likely impacts of the legislation did not justify its continuing to be legal; that it was a fit and proper exercise of legislative power to proscribe such an activity; and that the criminal offences, and related sanctions, that the [Act] imposes were the appropriate means of doing so. Moreover, in deciding on the utility and appropriateness of the legislative response to the problem of animal cruelty, the Parliament was entitled to consider, inter alia, whether, apart from its sporting and recreational aspects, foxhunting was an efficient method of pest control.”

We respectfully agree.

The EC appeal

Introduction

126 The point of departure of Mr David Anderson’s admirable submissions on behalf of the EC claimants was some fundamental, and we believe uncontested, principles of Community law. Those were: (i) it is of the essence of the Community that there should be no unjustified barriers to interstate trade; (ii) a member state can only lawfully create such a barrier, whether to trade in goods or in services, for strictly limited reasons; (iii) it therefore follows that any provision in a member state’s domestic legal order that creates such a barrier can only be lawfully enforced if the member state can justify it in Community terms; (iv) the importance of the fundamental [*365] values that these rules protect, and the importance of the subordination of national to Community values, is underlined by the absence of a de minimis rule: any interference with interstate trade, however minor, engages this area of the Community’s jurisprudence; (v) once the jurisprudence is engaged by domestic legislation, the member state is required to justify that legislation in all of its aspects, and not merely in respect of any aspect of it that directly interferes with interstate trade.

127 These are necessary if severe provisions in order to ensure that trade between member states is indeed subject to Community norms, and not impeded by national legislation that subordinates free trade to national preferences and interests. Those principles operate in a rational and coherent way when applied to national legislation that may in its terms be directed at the supply of goods or services within the member state, but which, by laying down national rules that impede or deter supplies from other member states, interferes with cross-border trade. The principles are a good deal less easy to rationalise when they are sought to be applied to social legislation peculiar to a particular member state, that is not in terms directed at all at, and only incidentally impinges on, the supply or acquisition of goods or services. That is the case with the Hunting Act 2004. We fully accept, however, that such legislation also must be tested against Community jurisprudence. And Mr Anderson did not shrink, and was right not to shrink, from the necessary implications of that jurisprudence: that once the Act is shown to engage the free trade provisions of the EC Treaty, to however modest an extent, then none of the provisions of the Act can be enforced unless they can be justified in Community terms. Thus, for instance, to take the example that we mentioned in para 15 above, if the only provable effect of the hunting ban on interstate trade was that someone currently exporting 25 horses per annum from the Republic of Ireland to England could no longer find a market for some of them, then on a rigorous view of the requirements of the Treaty article 28 EC would be engaged. The justification that would have to be advanced would not simply be a justification of the interference with trade, but would have to be in terms of justification of the whole hunting ban. That is why in this case much time has been spent in debating the comparative cruelty to foxes of hunting with dogs and shooting; and the permissibility of legislators bringing ethical principles to bear on the regulation of conduct within the state: neither of them considerations with any obvious relevance to trade. More extreme cases can easily be hypothesised. Take the recent legislation in Scotland, and proposed in England and Wales, to ban smoking in public bars. It would seem that it would only require one current regular tourist from France to this country to prove that his pleasure in coming here was contributed to so greatly by the current freedom to drink and smoke at the same time that in future he will go elsewhere or stay at home (just as, with the Hunting Act 2004, Viscount Hughes Le Hardy de Beaulieu (see para 15 above) will no longer come to England to hunt) for it to be necessary to justify in Community terms the whole of national policy as to smoking in public.

128 The Community organs are well aware of these difficulties: difficulties that in their more extreme forms might be thought at least potentially to undermine the effective application of core Community values to the cases for which those values are necessary and appropriate. As we will see as we address the current jurisprudence, much of it is concerned with [*366] exploring the limits to which the important principles as to free movement of goods and services can sensibly be taken. Those considerations are particularly pressing in relation to the Hunting Act 2004.

129 We therefore proceed as follows. First we consider whether the Act “engages”, that is to say has to have applied to it, the two articles of the Treaty on which the claimants rely, article 28 EC (forbidding restrictions on imports of goods) and article 49 EC (forbidding restrictions on freedom to provide services). We then consider, on the hypothesis that those articles are engaged, whether the restrictions found in relation to the Hunting Act 2004 can be justified in Community terms.

Article 28 EC: free movement of goods

130 Article 28 EC (ex article 30) provides: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between member states.” The issue is therefore whether the ban on hunting with dogs in England and Wales that is introduced by the Hunting Act 2004 is a measure that in the relevant sense in Community jurisprudence has an equivalent effect to a quantitative restriction on imports from other states of the Community into the United Kingdom.

131 In order to understand the development of the Community jurisprudence that applies to this article it is necessary to revert to two fundamental authorities, Procureur du Roi v Dassonville (Case 8/74) [1974] ECR 837 and Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (“Cassis de Dijon”) (Case 120/78) [1979] ECR 649.

132 Dassonville’s case [1974] ECR 837 arose from a reference from criminal proceedings brought in Belgium against an importer of Scotch whisky from France, in breach of a requirement of Belgian law that such goods should bear an official certificate of origin. The Court of Justice of the European Communities (“ECJ”) found that it was much more difficult for French than for Scottish providers to obtain such a certificate. In those circumstances, the criminal provision offended against the fundamental principle stated by the ECJ, at paras 5-6:

“All trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions. In the absence of a Community system guaranteeing for consumers the authenticity of a product’s designation of origin, if a member state takes measures to prevent unfair practices in this connection, it is however subject to the condition that these measures should be reasonable and that the means of proof required should not act as a hindrance to trade between member states and should, in consequence, be accessible to all Community nationals.”

The Cassis de Dijon case [1979] ECR 649 concerned a requirement of the law of the Federal Republic of Germany that fruit liqueurs marketed in that country should have an alcohol content of not less than 25%. The famous cassis de Dijon, produced and marketed in France with an alcohol content of between 15 and 20%, could not therefore be lawfully sold in Germany. The ECJ was, understandably, unable to find any justification for the German rule. It held, at para 14: [*367]

“In practice, the principle [sic] effect of requirements of this nature is to promote alcoholic beverages having a high alcohol content by excluding from the national market products of other member states which do not answer that description. It therefore appears that the unilateral requirement imposed by the rules of a member state of a minimum alcohol content for the purposes of the sale of alcoholic beverages constitutes an obstacle to trade which is incompatible with the provisions of article 30 of the Treaty.”

133 The concern in both cases was directed at national legislation that imposed requirements as to the labelling, certification or nature of goods as a condition of their being sold on the market of a particular member state. In neither case did the ECJ exclude as a matter of principle the right of a member state to impose such requirements; but if their effect was, for no good reason, to impede access to the national market of goods already lawfully marketed in another member state, that constituted a breach of article 28 EC (as it now is). There was no suggestion thus far that the jurisprudence extended beyond national rules relating directly to goods; but the very wide terms in which the principles were stated, in particular in Dassonville’s case [1974] ECR 837, left open the possibility of the extension of article 28 to restrictions that were not, or were not principally, directed at the actual goods sought to be traded.

134 The limits of the jurisprudence were tested in the litigation that arose in the 1980s over the Sunday trading laws in England and Wales, which prohibited, under pain of criminal sanctions, the sale of a wide range of goods on a Sunday. That was found to reduce total sales, and thus inter alia reduce the volume of sales of goods imported from other member states. In a series of English criminal prosecutions the defence was raised that that impediment or deterrent to imports was in breach of article 28 EC: just as a similar defence had succeeded in Dassonville’s case. That issue reached the ECJ in Torfaen Borough Council v B & Q plc (Case C-145/88) [1990] 2 QB 19. The ECJ concluded, at paras 11, 14 and 17:

“11. The first point which must be made is that national rules prohibiting retailers from opening their premises on Sunday apply to imported and domestic products alike. In principle, the marketing of products imported from other member states is not therefore made more difficult than the marketing of domestic products …”

“14. … rules governing the opening hours of retail premises … reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for the member states. Furthermore, such rules are not designed to govern the patterns of trade between member states …”

“17. The reply to the first question must therefore be that article 30 of the Treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind.”[*368]

135 The ECJ returned to Sunday trading in a number of other cases, of which we can refer as an example to Marchandise (Case C-332/89) [1991] ECR I-1027. The court held that in the case of legislation that affected the sale of both domestic and imported products article 28 EC would be engaged unless the objective of the legislation was one that was justified in Community law, and the terms of the legislation were not disproportionate to that objective. The court therefore departed from Torfaen’s case to the extent that it held that issues of the social justification of the legislation were a matter for Community law rather than for the national authorities.

136 The boundaries of article 28 EC accordingly required further consideration. That exercise was undertaken by the ECJ in Criminal proceedings against Keck and Mithouard (Joined Cases C-267/91 and 268/91) [1993] ECR I-6097, which arose from a prosecution under French domestic law for reselling goods at less than their original purchase price. It was submitted that the underlying prohibition, particularly when as in this case enforced in a border area, Strasbourg, potentially inhibited suppliers from other member states from using a means to attract new customers that was lawful in their own state; and therefore constituted a potential hindrance to intra-Community trade.

137 The ECJ set out its conclusions in paras 14-17, which must be cited in full:

“14. In view of the increasing tendency of traders to invoke article 30 of the Treaty as a means of challenging any rules whose effect is to limit their commercial freedom even where such rules are not aimed at products from other member states, the court considers it necessary to re-examine and clarify its case law on this matter.

“15. It is established by the case law beginning with [the Cassis de Dijon case [1979] ECR 649] that, in the absence of harmonisation of legislation, obstacles to free movement of goods which are the consequence of applying, to goods coming from other member states where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by article 30. This is so even if those rules apply without distinction to all products unless their application can be justified by a public interest objective taking precedence over free movement of goods.

“16. By contrast, contrary to what has previously been decided, the application to products from other member states of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between member states within the meaning of [ Dassonville’s case [1974] ECR 837], so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other member states.

“17. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another member state meeting the requirements laid down by that state is not by nature such as to prevent their access to the market or to impede access any more than it impedes [*369] the access of domestic products. Such rules therefore fall outside the scope of article 30 of the Treaty.”

138 We draw the following points from that exposition. (i) The court explicitly makes a fresh start in the analysis of article 28 EC, that being seen as necessary in view of the potential for misuse of that article when it is sought to be applied to rules that are not aimed at products from other member states. (ii) A distinction is made between the application of article 28 EC and the justification of restrictions that are identified by the application of the article. “Product rules” that are applied to goods lawfully marketed in another member state of their nature fall under article 28 EC and need to be justified by (Community-recognised) public interest objectives: para 15. The important consideration, here as in the Cassis de Dijon case [1979] ECR 649, is that goods that are established and marketed in one state cannot be marketed in another without modification to conform with the goods of the home state, thus inevitably creating a protectionist effect: see the passage from the Cassis de Dijon case cited in para 132 above. (iii) By contrast, the application to goods coming from other member states of “selling arrangements” that apply to all traders within the market do not fall under article 28 EC at all, and accordingly do not require justification: para 16. That is because all participants in the market are subject to the same limitations, which are not of their nature easier to fulfil on the part of domestic vendors than they are on the part of importers. Accordingly, in Keck’s case [1993] ECR I-6097 itself, article 28 EC (then article 30) was not to be interpreted as applying to legislation of a member state imposing a general prohibition on resale at a loss.

139 The EC claimants argued that the Hunting Act 2004 could not be characterised as a “selling arrangement”, and so Keck’s case was simply irrelevant to it. The deterrent to trade such as that of Mr Derwin, indeed the impossibility of that trade continuing, that was the result of the hunting ban continued to fall foul of the rule as stated in Dassonville’s case [1974] ECR 837. The defendants contended, and the Divisional Court held, that the logic of the ECJ’s approach in Keck’s case [1993] ECR I-6097 was that “selling arrangements” were merely an example of non-discriminatory rules of the host state, other than product rules, none of which fell under article 28. Before addressing those contentions as a matter of principle we need to consider some of the authorities decided after Keck’s case that were put before us.

140 There is no case directly in point. That may well be because no attempt has so far been made to apply article 28 EC to legislation that in its objective and subject matter is as far removed from control of marketing as is the Hunting Act 2004, a matter to which we will have to return. Mr Anderson argued first in general terms that the court continued to use the language of “selling arrangements” and took it seriously. That, however, is because the cases referred to in that connection do indeed relate to selling arrangements in the literal or narrow sense of that expression: see, for instance, Société d'Importation Édouard Leclerc-Siplec v TFI Publicité SA and M6 Publicité SA (Case C-412/93) [1995] ECR I-179 (restrictions on television advertising), Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH (Case C-71/02) [2004] ECR I-3025 (restriction on allegedly misleading advertising) and Criminal proceedings against [*370] Burmanjer (Case C-20/03) [2005] ECR I-4133 (restriction on itinerant selling). There were, however, three cases the decisions in which were said to be directly inconsistent with any view that the approach in Keck’s case [1993] ECR I-6097 could be extended beyond “selling arrangements” narrowly understood. Those were Criminal proceedings against Bluhme (Case C-67/97) [1998] ECR I-8033, Commission of the European Communities v Republik Österreich (Case C-320/03) [2005] ECR I-9871, and Omega Spielhallen-und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (Case C-36/02) [2004] ECR I-9609.

141 Bluhme’s case [1998] ECR I-8033 concerned Danish legislation protecting an ecological area by prohibiting the keeping on it, therefore the import for that purpose, of bees other than of a particular species. The ECJ held that article 28 EC was engaged; but it is clear from para 21 of its judgment that that was because it regarded the limitation on “the intrinsic characteristics of the bees” as, however unusually, a product rule: see para 138(ii) above. That is why the “selling arrangements” jurisprudence of Keck’s case, whatever its exact limits and content, could not in any event apply. The Österreich case [2005] ECR I-9871 concerned a ban on vehicles of a type characteristically employed in interstate trade from using an important route between north Italy and Germany. In enforcement proceedings the European Commission pointed out (judgment, para 38) that the ban mainly affected international transport of goods, and therefore was an obstruction to the free movement of goods protected by article 28 EC. The ECJ agreed. At para 65 of the judgment it recalled its earlier jurisprudence in (Case 266/81) [1983] ECR 731, para 16:

“The Customs Union … necessarily implies that the free movement of goods between member states should be ensured. That freedom could not itself be complete if it were possible for the member states to impede or interfere in any way with the movement of goods in transit.”

That led to a straightforward application of the Dassonville principle, but because of the impediment to transportation, rather than because of any of the issues ventilated in Keck’s case [1993] ECR I-6097, which case was not mentioned either by the Advocate General or by the court. The Österreich case [2005] ECR I-9871 does not assist in the issue now before us.

142 Omega’s case [2004] ECR I-9609 is a somewhat different case. Omega, the operator of a “laserdrome”, was forbidden by German law from offering a simulated killing game in which laser guns were aimed at tags on clothing worn by live players. There was no objection to the use of the guns on tags placed in a shooting range. The equipment for the game was provided under a franchising arrangement by a British company, Pulsar. The case was referred by the German court under, and was principally considered by the ECJ under, article 49 EC (freedom to provide services), and we revert to it in that context. On that issue the ECJ said, at paras 26-27:

“26. … where a national measure affects both the freedom to provide services and the free movement of goods, the court will, in principle, examine it in relation to just one of those two fundamental freedoms if it [*371] is clear that, in the circumstances of the case, one of those freedoms is entirely secondary in relation to the other and may be attached to it …

“27. In the circumstances of this case, the aspect of the freedom to provide services prevails over that of the free movement of goods.”

The ECJ entered into that explanation because it had held, at para 25:

“in so far as use of the form of the game developed by Pulsar involves the use of specific equipment, which is also lawfully marketed in the United Kingdom, the prohibition imposed on Omega is likely to deter it from acquiring the equipment in question, thereby infringing the free movement of goods ensured by article 28 EC.”

143 The claimants argued that the latter observation entailed a finding that control of use of goods fell under article 28 EC, just as the effect of the Hunting Act 2004 was to control the use to which, in particular, horses could be put if imported into the United Kingdom. The case therefore demonstrated that the Keck’s case [1993] ECR I-6097 limitations on Dassonville’s case [1974] ECR 837, whatever they were, did not exclude the hunting ban from the general principle stated in the latter case. In our view, that argument places on Omega’s case [2004] ECR I-9609 a weight that it cannot bear. The case was mainly about services, not goods. That was the basis on which it was referred; that was the basis on which submissions were made; that was the only basis on which the case was considered by the Advocate General; that was the whole focus of the court’s judgment. No reference was made by the court to any authority on article 28, and accordingly the court did not address any of the many issues of principle raised by the jurisprudence, by which, in the absence of direct authority, we must be guided. To those issues we now turn.

144 A review of the current state of the jurisprudence of the ECJ strongly persuades us that article 28 EC does not apply to the Hunting Act 2004. We bear in mind in particular the following considerations. What follows largely but not entirely mirrors the analysis of the Divisional Court, at paras 204-228, with which we respectfully agree.

(i) While the Dassonville [1974] ECR 837 principle remains intact, the ECJ in Keck’s case [1993] ECR I-6097 consciously made a new start in its application to cases outside the area of product rules.

(ii) The need for that new start was demonstrated by the effect of the previous jurisprudence on rules that were not “aimed at” products from other member states (Keck’s case, para 14): such is the case with the Hunting Act 2004.

(iii) That new start is not correctly analysed (as the claimants contended before the Divisional Court, though less clearly before us) simply as an exception carved out from the Dassonville principle, and therefore to be subjected to a limited construction. Correctly understood, it involves the introduction of new rules into an area formerly thought to be covered by Dassonville’s case.

(iv) That is achieved in Keck’s case, at para 16, by holding that non-discriminatory “selling arrangements” simply do not fall within the Dassonville formula that encapsulates the reach of article 28 EC. That is to be contrasted with the view taken in some of the Sunday trading cases, e g Marchandise [1991] ECR I-1027 (see para 135 above), where such rules [*372] were said to engage article 28 EC and to require justification in Community terms.

(v) It therefore must follow from the approach taken in Keck’s case that Sunday trading rules are seen as not engaging article 28 EC; and it is therefore difficult to understand why the law is not the same in relation to restrictive legislation more remote from trading, such as is the Hunting Act 2004.

(vi) The law is said to be different because Keck’s case is limited to “selling arrangements”, which the Sunday trading rules are but the hunting ban is not. But it is plain that the ECJ used that locution because it was appropriate to all of the cases in which article 28 EC had been thought to cause difficulties: not only Sunday trading, but also rules as to resale, as in Keck’s case itself. The concern was to mark those cases off from the Cassis de Dijon [1979] ECR 649 line of authority which, rightly or wrongly, was to be left intact: see para 138 above.

(vii) If that distinction is applied to the hunting ban, there is no doubt that the ban falls outside any category of product rules, and is a far stronger candidate for principled exclusion from the reach of Dassonville’s case than was the ban on resale in Keck’s case. That is not only so on commonsense grounds, but more particularly because of the concern about the application of article 28 EC to rules that are not directed at products from other member states: see sub-para (ii) above. The Hunting Act 2004 is not in any realistic sense “aimed at” products at all. And it certainly does not have the discriminatory effect on imported products that was seen in Keck’s case, at para 16, as the necessary touchstone of the application of article 28 EC.

145 Mr Anderson submitted that the crucial difference between the Hunting Act 2004, and provisions not only such as those in issue in Keck’s case [1993] ECR I-6097 but also those in issue in Cassis de Dijon case [1979] ECR 649, was that whilst the latter merely limited access to the market the Hunting Act 2004 closed the market entirely. If product rules were forbidden, so a fortiori must be rules that took the products off the market entirely. There are two answers to that. First, the Act does not have the inherently protectionist effect that is the perceived vice of product rules: see paras 132 and 138(ii) above. Second, the implication of the argument is that a member state can be under an obligation to keep intact, or even possibly to create, a market for the benefit of importers from other member states. That cannot be so, at least where the state is equally depriving its own citizens of that benefit.

146 We accordingly conclude without hesitation that the Hunting Act 2004 does not engage article 28 EC.

Article 49 EC: freedom to provide services

147 Article 49 EC (ex article 59) provides:

“Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of member states who are established in a state of the Community other than that of the person for whom the services are intended.”

148 The Divisional Court concluded, at para 234, and it is not contested, that the provision of livery and hireling services, and offers of [*373] participation in the hunts themselves, constitute the provision of services by those established within the United Kingdom to recipients in other member states. The court continued, at para 241:

“We can see strong reasons why a measure preventing the provision of services should fall outside article 49 if it has no greater impact on non-domestic services than on domestic services. Thus the Keck principle would apply to article 49.”

149 The Divisional Court however held that that rational conclusion was precluded by authority. It cited the opinion of Advocate General Stix-Hackl in Omega’s case [2004] ECR I-9609; and the decisions of the ECJ in Alpine Investments BV v Minister van Financiën( Case C-384/93) [1995] ECR I-1141 and Konsumentombudsmannen v Gourmet International Products AB (GIP) (Case C-405/98) [2001] ECR I-1795. In addition, Ciola v Land Vorarlberg (Case C-224/97) [1999] ECR I-2517, Konsumentombudsmannen v De Agostini (Svenska) Förlag AB (Joined Cases C-34-36/95) [1997] ECR I-3843 and Carpenter v Secretary of State for the Home Department (Case C-60/00) [2003] QB 416 are relied on by Mr Anderson in the same sense.

150 In Omega’s case [2004] ECR I-9609 submissions (addressed by the Advocate General but not by the court) were made to the effect that, since the prohibition on simulated homicide inhibited only one type of use of Pulsar’s services, by analogy with Keck’s case [1993] ECR I-6097 article 49 EC did not apply to it. The Advocate General, however, held, at para 36 of her opinion in Omega’s case [2004] ECR I-9609, in a passage cited by the Divisional Court, in para 242 of its judgment, that:

“transposition of the distinction made in the Keck and Mithouard case to freedom to provide services is unpersuasive because, where there are sufficient international implications, a rule on arrangements for the provision of any service-irrespective of location-must constitute a restriction of relevance to Community law simply because of the incorporeal nature of services, without any distinction at all being permissible in this respect between rules relating to arrangements for the provision of services and rules that relate directly to the services themselves.”

The Divisional Court continued, at para 242:

“We suspect the reason why Keck’s case cannot be applied to article 49 is that any restriction on the application of article 49 relating to a distinction between rules concerning the services themselves and rules concerning the circumstances under which they are provided would be difficult, if not impossible, to draw. In Keck’s case, it was possible to draw a distinction between the paradigm case and other measures. In relation to services, this is much more difficult. If the same or similar tests were adopted it would tend to cover so many measures relating to services as to deprive article 49 of any practical effect.”

151 The Alpine Investments case [1995] ECR I-1141 concerned a Netherlands prohibition on the “cold-calling” of clients not only within Holland but also in other member states. It was argued that the rule was non-discriminatory, did not favour Netherlands providers over those from [*374] other member states, and therefore was analogous with the selling arrangements recognised in Keck’s case [1993] ECR I-6097. The ECJ, however, pointed out [1995] ECR I-1141, paras 28 and 38:

“28. … such a prohibition deprives the operators concerned of a rapid and direct technique for marketing and for contacting potential clients in other member states …

“38. … [it] affects not only offers made by [the provider] to addressees who are established in that state or move there in order to receive services but also offers made to potential recipients in another member state. It therefore directly affects access to the market in services in the other member states and is thus capable of hindering intra-Community trade in services.”

Gourmet’s case [2001] ECR I-1795 concerned a Swedish ban on the advertising of alcoholic products, including products from other member states. The ECJ followed the Alpine Investments case in holding, at para 39:

“A measure such as the prohibition on advertising at issue � even if it is non-discriminatory, has a particular effect on the cross-border supply of advertising space, given the international nature of the advertising market in the category of products to which the prohibition relates, and thereby constitutes a restriction on the freedom to provide services within the meaning of article 59 of the Treaty …”

In both of these cases, therefore, the measure in question was seen as directly impinging on interstate trade. In the Alpine Investments case the providers in the home state were impeded in selling into other member states; in Gourmet’s case the providers in the home state were impeded in providing advertising services to persons in other member states. It was therefore nothing to the point that the measures were non-discriminatory in their operation within the home state.

152 That said, however, we would respectfully agree with the Advocate General in Omega’s case [2004] ECR I-9609, and with the Divisional Court, that it is inept to seek to apply the specific verbal formulae to be found in Keck’s case [1993] ECR I-6097 to the provision of services. The isolation of rules relating to the services themselves, by analogy with the product rules identified in Keck’s case, does indeed threaten to produce an outcome so indeterminate as to render article 49 EC otiose.

153 That however is not the end of the matter. Mr Sales invited us to address the problem of services by considering the nature of the inhibition, and the nature of its effect on cross-border trade, an argument that in these terms does not seem to have been explored in Omega’s case. We were shown a good deal of material in that connection, that related to freedom of establishment and the free movement of workers, as well to the provision of services. We found most helpful in that connection some observations of Robert Walker LJ speaking on behalf of this court in R (Professional Contractors Group Ltd) v Inland Revenue Comrs [2002] STC 165. Changes in the taxation of individuals who operated service companies were said to constitute an unlawful hindrance to the free movement of workers, freedom of establishment and freedom to provide services contrary to articles 39 EC, 43 EC and 49 EC of the EC Treaty. Having considered the Community authorities in detail, and in particular the observations of Advocate General [*375] Fennelly in Graf v Filzmoser Maschinenbau GmbH (Case C-190/98) [2000] ECR I-493), Robert Walker LJ said [2002] STC 165, para 74:

“What I derive from these authorities (and especially from Graf’s case, which is particularly instructive) is that a neutral, non-discriminatory national measure will not contravene the articles relating to freedom of movement unless it has a direct and demonstrable inhibiting effect on the particular right which is asserted.”

154 That statement represents the ratio, on that issue, of the Professional Contractors Group case. As to whether it binds us we refer to the discussion later in the judgment of the decision of this court in R v Secretary of State, Ex p Eastside Cheese Co [1999] 3 CMLR 123; though we should say now that we have not discerned any principle laid down by or any decision of the ECJ sufficiently clearly in a sense contrary to the observation of Robert Walker LJ to bring into operation section 3 of the European Communities Act 1972. The principle reflects what Advocate General Fennelly, in para 32 of his opinion in Graf’s case [2000] ECR I-493, saw as the base principle of Keck֦s case: to prevent the exploitation of the Treaty as a means of challenging national rules whose effect is simply to limit commercial freedom.

155 If the analysis of Robert Walker LJ is applied to the present case, two conclusions emerge. First, the hunting ban does not have a direct inhibiting effect on the rights asserted, of the English providers such as Mrs Johnson to supply services, and of persons in other member states to receive such services. What it does is to render the market for such services within a particular member state less attractive, both to English and to foreign providers and receivers. Second, we revert to the point made in para 145 above. The complaint of all of those who deplore the hunting ban, whether English or foreign, is that it destroys the base activity, hunting with dogs, on which the market for the provision of the particular services in issue is predicated. It is very difficult to see how it can be a breach of article 49 EC simply to remove the factual opportunity to engage in a particular trade.

156 None of the cases mentioned in para 149 above falsify that approach. The measure in Ciola’s case [1999] ECR I-2517 directly inhibited the provision of services to residents of other member states. De Agostini’s case [1997] ECR I-3843, like Gourmet’s case [2001] ECR I-1795, concerned a Swedish ban on advertising, in this case advertising to children. Carpenter’s case [2003] QB 416 was based on what was construed as a direct interference with Mr Carpenter’s business of providing cross-border services, by disrupting his private life. Although the case is something of a warning as to the artificialities that can arise unless issues under free movement provisions are carefully analysed, the case is structurally a long way away from the Hunting Act 2004.

157 We therefore conclude, differing from the Divisional Court, that the Hunting Act 2004 does not engage article 49 EC. We are not sorry to reach that conclusion. The reasoning that leads to it enables there to be avoided some of the exorbitant implications of the claimants’ arguments that we have drawn attention to in para 127 above. At the same time, however, we recognise that the jurisprudence leading to this conclusion is less clear than that which attaches to article 28 EC. If we were not in any event clear that a breach of article 49 EC in this case can be justified in Community terms we [*376] might have to contemplate a reference to the ECJ of the issue of the engagement of article 49 EC. That step is, however, rendered otiose by our conclusions on justification, to which we now turn.

Justification and proportionality in Community terms

158 The Divisional Court concluded that although the issues as to justification in respect of the alleged infringements of articles of the Convention, and in respect of the alleged engagement of articles 28 EC and 49 EC of the EC Treaty, had to be taken separately, much the same conclusion applied in each case. Before us, Mr Sales broadly supported that approach. It was strongly criticised by Mr Anderson, who said that it undervalued some distinctive and constitutional characteristics of Community law. Put shortly, those were as follows.

(i) The notions of deference to the national legislator, and of the margin of appreciation of the member state, however they are expressed and implemented, that are found in European Convention law are absent from, or at least less central to, Community jurisprudence. In that jurisprudence all organs of the member state, including its legislature, are bound by Community law, and can only act as that law provides.

(ii) The grounds of justification for acts that would otherwise entail a breach of the Community provisions are less extensive, and much more constrained by law, than are the grounds that can be appealed to in Convention jurisprudence. In the present case, the member state can only defend itself on the basis of the ground provided by the EC Treaty, and not otherwise.

(iii) The notion of proportionality is narrower in Community jurisprudence than it is in Convention jurisprudence. In particular, where there are alternative means of achieving a legitimate end, recourse must be had to the least onerous of them.

159 We think that there is force in these submissions. In what follows we will take care to be guided by the specific rules of Community jurisprudence. At the same time, however, it was agreed that the method of elucidating the basis of and ground for a particular piece of legislation was properly the same whether HR or EC issues were under consideration, and in particular that the approach in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 was appropriate to the EC appeal. It will be recalled that in para 56 above we concluded, with the Divisional Court, and on the basis of the material open to us under the rules in Wilson’s case, that the legislative aim of the Hunting Act 2004 is a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical. It is therefore to that rubric that we apply the rules of Community law.

160 Specific grounds on which the member states can act are provided in the EC Treaty. In relation to article 28 EC, article 30 EC provides:

“The provisions of articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports … justified on grounds of public morality, public policy or public security; protection of health and life of humans, animals or plants … Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between member states.” [*377]

In relation to article 49 EC, by virtue of article 55 EC, article 46(1) EC provides:

“The provisions of this chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.”

The common factor, applying to both articles, is public policy, and we will concentrate on that.

161 Central to the EC claimants’ submissions was the contention that Community jurisprudence required very great caution before a member state could be permitted to rely on considerations of public policy or public morality to escape its obligations under fundamental requirements of the Community legal order, such as were the free movement of goods and services; and that there must be established something in the nature of a fundamental threat to the values of the member state before such a defence or excuse can be admitted. For that argument the claimants relied on two sources: the opinion of Advocate General Van Gerven in the Torfaen case [1990] 2 QB 19 and R v Minister of Agriculture, Fisheries and Food, Ex p Compassion in World Farming (Case C-1/96) [1998] ECR I-1251.

162 We agree with the approach of the Divisional Court, at paras 325-327, to the Compassion in World Farming case. The short point was that the animal health issues involved in the activity in question, export of calves in veal crates, had in Community law been exhausted by the terms of a Directive, so the member state had no further legitimate role in respect of animal health. As to the added claim that the state could legislate on the further grounds of public policy, the ECJ said, at para 66, that in that case

“in reality, public policy and public morality are not being invoked as a separate justification but are an aspect of the justification relating to the protection of animal health, which is the subject of the harmonising Directive.”

On the facts, therefore, the appeal to public policy did not take the case outside the terms of the Directive. It is impossible to read that passage, as the EC claimants wanted to do, as a general exclusion of public policy issues other than those directly relating to animal health from consideration of legislation that, as does the Hunting Act 2004, touches upon animal welfare.

163 It is quite correct that the Advocate General in the Torfaen case [1990] 2 QB 19 expressed himself in strong terms, that could be read, as the EC claimants were minded to do, as disqualifying from legitimacy in Community terms any reliance by a member state on its own view of “morality” as a justification for departure from Community norms. He said, at para 29 of his opinion:

“It is true that the court in its judgment in R v Henn (Case 34/79) [1981] AC 850 accepted that in principle it is for each member state to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory. However, the principle that it is not the purpose of article 36 to reserve certain matters to the exclusive jurisdiction of the member states … [*378] implies that the court must exercise some control over what is regarded by a member state as falling within the concept of public morality. The prevention of offence to religious convictions does not seem to me to fall within that concept. Nor does the protection of public policy seem to me to be applicable here. Reliance on that ground, the scope of which must be interpreted strictly, requires ‘the existence … of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society’.”

However, Mr Sales was able to demonstrate not only that the Advocate General was not followed by the ECJ in the Torfaen case, but also that there was a substantial body of Community jurisprudence that pointed in a significantly different direction.

164 Conspicuous amongst that jurisprudence was a case that we have already considered in some detail, Omega’s case [2004] ECR I-9609: see paras 142-143 above. The ECJ emphasised that public policy claims had to be scrutinised strictly from a Community point of view, and that their content could not be decided unilaterally by member states. Nevertheless, at para 31:

“The fact remains, however, that the specific circumstances which may justify recourse to the concept of public policy may vary from one country to another and from one era to another. The competent national authorities must therefore be allowed a margin of discretion within the limits imposed by the Treaty.”

A similar recognition of the role of the member state, in this case in relation to public morality, an area that might be thought to be more open to judicial scrutiny than is public policy, is to be found in the judgment of the ECJ in Conegate v HM Customs and Excise (Case 121/85) [1987] QB 254, para 14:

“As the court held in R v Henn (Case 34/79) [1981] AC 850, in principle it is for each member state to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory.”

And the defendants ventured to point out that the latter statement had been cited with approval by Advocate General Van Gerven in para 26 of his opinion in Society for the Protection of Unborn Children Ireland Ltd v Grogan (Case 159/90) [1991] ECR I-4685, thereby possibly indicating some reconsideration of the position that he had taken in the Torfaen case [1990] 2 QB 19.

165 It is true that most or all of these statements are made in the context of the prohibited activity posing a genuine and sufficiently serious threat to a fundamental interest of society. As to that, the ECJ said in Omega’s case [2004] ECR I-9609, para 32:

“In this case, the competent authorities took the view that the activity concerned by the prohibition order was a threat to public policy by reason of the fact that, in accordance with the conception prevailing in public opinion, the commercial exploitation of games involving the simulated killing of human beings infringed a fundamental value enshrined in the national constitution, namely human dignity. According to the [German court], the national courts which heard the case shared and confirmed the [*379] conception of the requirements for protecting human dignity on which the contested order is based, that conception therefore having to be regarded as in accordance with the stipulations of German Basic Law.”

In the English legal system basic values are more elusive, because we do not have the benefit of a written constitution. But in the particular case of the Hunting Act 2004 it is in our view easy to demonstrate from the extensive nature of the consideration given to the issue, and the unprecedented time allowed for the parliamentary debates, that the democratic legislators considered the issue, and the values inherent in the legislation, to be of high importance. That in our view is more than sufficient to establish the legitimacy of the Act within the requirements of Community law.

166 The EC claimants sought to meet that conclusion in two ways. First, they said that the necessary foundation for the legislation, demonstration of an overall adverse effect of a hunting ban on the welfare of foxes, had not been established. We have already dealt with an aspect of that argument when addressing the issues that arise in the HR appeal. As we there demonstrate, the issue is more complex than one of simple scientific proof. We are further fortified in that approach by a case relied on in this connection by the claimants, Commission of the European Communities v Kingdom of Denmark (Case C-192/01) [2003] ECR I-9693. That case concerned the recurrent difficulties caused by conflict between the rules on free movement of goods on the one hand and public health rules on the other. The ECJ held, at para 46, in the passage relied on by the claimants, that a national authority seeking to rely on danger to public health as a reason for inhibiting imports must show by scientific demonstration that the danger indeed exists. That is no doubt so when a claim that is capable of scientific demonstration is the only basis on which an interference with trade is sought to be justified.

167 That is not so in respect of the Hunting Act 2004. The public policy implemented by the Act is more complex than simply a limitation on injury to foxes, as the description set out in para 159 above demonstrates. In short, the policy encompassed the prevention and reduction of causing suffering to animals, together with the view that causing suffering to animals for sport is wrong. Accordingly, although the legislators had to have proper grounds in relation to the interference with the fox’s welfare for thinking that the activity of hunting, taken as a whole, was cruel, it was in policy terms a matter for them to decide whether the scientific information was a sufficient basis for their actions. Since it is agreed that no allegation of bad faith is now made against the legislators, their conclusion is not properly challengeable.

168 Second, even granted the legitimacy of the legislators’ objectives, the question still remains as to whether those objectives could have been obtained by less restrictive measures. That principle of proportionality is a familiar rule of Community law, repeated for instance in para 36 of the judgment in Omega’s case [2004] ECR I-9609. The candidate for the role of less restrictive measures, and easily to hand, was the Michael Bill. That argument is, however, based on a misunderstanding of the aim of the Michael Bill, such as we have already explained at length. The point of departure of the Michael Bill was pest control, and not the animal cruelty that informed the Hunting Act 2004. The Michael Bill would not, or at least [*380] would not except in a very indirect way, have achieved what we have found to be the objectives of the Act.

169 Finally, though only as a footnote, we need to say something about the decision of this court in R v Secretary of State for Health, Ex p Eastside Cheese Co [1999] 3 CMLR 123, since it was strongly relied on by Mr Sales. That case again concerned the relationship between restrictions imposed on public health grounds and the free movement of goods, and engaged the limits to which the national authority, in this case the Secretary of State, had discretion as to the range of measures taken by it and the scientific evidence on which those measures should be based. This court said, at p 146, para 50:

“This appeal must be approached on the basis that the Secretary of State, in making the emergency control orders � was not entitled to the broad margin of appreciation which might be accorded to primary legislation enacted by a national legislature. He is however entitled to the narrower margin of appreciation appropriate to a responsible decision-maker who is required, under the urgent pressure of events, to take decisions which call for the evaluation of scientific evidence …”

Mr Sales relied on the earlier part of that statement. The Hunting Act 2004 was plainly a decision of a national legislature; it therefore attracted that broad margin of appreciation.

170 The difficulty with this submission is that it is based on the court’s analysis set out earlier in the report, at pp 143-144. This court said there, at para 46:

“it is clear that the national legislature has a considerable margin of appreciation, especially in legislating on matters which raise complex economic issues connected with the Community’s fundamental policies. In [R v Minister of Agriculture, Fisheries and Food, Ex p Fedesa (Case C-331/88) [1990] ECR I-4023] the Court of Justice said, at para 14: ‘… in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.’”

But the Fedesa case (a challenge to the validity of a Directive) and all the other cases cited in the same sense by this court addressed the institutional balance between Community institutions, and the deference that, within the Community legal order, one of them is to pay to the other. It does not address the position of, or any deference to be paid to, anational legislature: which within the Community legal order is simply an organ of one of the member states that is a subject of the Community. Mr Sales said that Ex p Eastside Cheese Co [1999] 3 CMLR 123 was consistent with the high value that the Community places on democracy. That latter fact is true, and not to be depreciated. On a political level one of the proudest claims of the Community is that it has been instrumental in bringing about or in reinforcing democratic government in several European countries where in 1957, when the Treaty of Rome was signed, democracy did not exist. But the other side of that coin is that by joining the Community the member state [*381] decides, by a domestic democratic process, to surrender freedom to dispose in Community matters to the Community institutions and according to Community rules: just as this country did in the European Communities Act 1972.

171 We accept Mr Anderson’s submission that the passage in Ex p Eastside Cheese Co that is relied on is obiter; and that it cannot in any event bind us because we are obliged, by section 3 of the 1972 Act, to give precedence to decided principles of Community law. The significance of the Hunting Act 2004 having been debated and decided by Parliament is not that that renders the decision effectively unchallengeable, as the passage in Ex p Eastside Cheese Co might suggest; but rather that, as we say in para 165 above, the parliamentary process undergone in this particular case demonstrates that the hunting ban satisfies the requirement of fundamental importance in the affairs of the member state that is imposed by the rules of Community law.

172 We therefore conclude that even if, which we do not accept, the Hunting Act 2004 engages either article 28 EC or article 49 EC of the EC Treaty, judged by the norms of Community law its interference with the values protected by those articles was justified and proportionate.

The application for permission to appeal by Mr Friend and Mr Thomas

173 Mr Friend and Mr Thomas instituted their own separate proceedings for judicial review. They join with others of their community either to ride with hounds or to follow on foot with the Cotley Hunt, the South Somerset Foxhounds, the Quantock Stag Hounds and other hunts. The Divisional Court dismissed their application and refused permission to appeal, and we heard their application for permission to appeal after we had concluded the hearing of the main appeals. We would like to pay tribute to them, not only for the admirable way in which they prepared their documentary case, but also for the clarity and moderation with which Mr Friend presented their oral submissions in a matter on which they both have very strong feelings. References to their claim, and to the way in which they put forward aspects of their case, appear in paras 23, 27(3), 55, 61, 149, 186 and 246-258 of the Divisional Court’s judgment. As that court observed, Mr Friend and Mr Thomas originally relied on Convention articles 8, 9, 10, 11, 14, 17 and 53, on the Race Relations Act 1976 and on the provisions of a number of international agreements.

174 So far as this last head of claim is concerned, we agree with what the Divisional Court said, at para 257, about the fact that none of the international instruments relied upon have been incorporated by statute into domestic law, so that the rights the claimants assert are not directly enforceable by private individuals in our domestic court. If and in so far as any of these treaties contain material that reflects the English common law, it is the common law rights and not any supposed Treaty rights that might form the basis of a claim. We also agree (see the judgment of the Divisional Court at para 255) that the hunting community is not an ethnic group and that it has no entitlement to protection against discrimination on “racial grounds” arising out of any of the matters about which they make complaint. These claimants do not qualify as an ethnic group within the meaning of the Race Relations Act 1976 by reason of the long history of hunting which they describe eloquently in their detailed statement of [*382] grounds, at para 6, and in their skeleton argument in this court, at paras 37-39.

175 In this court Mr Friend and Mr Thomas were content to rely on the HR claimants’ arguments based on Convention articles 8 and 11, so that it is not necessary to give them any separate consideration in this part of this judgment. They have abandoned their claim under article 10. They seek permission to pursue their separate claims under articles 9, 14, 17 and 53. Articles 17 and 53, however, give rise to no freestanding claim, for the reasons set out by the Divisional Court in paras 253-254 and 256-257 of its judgment, with which we agree.

176 So far as articles 9 and 14 are concerned, we see no reason to add anything very much to the reasons given by the Divisional Court in paras 248-250 and 183-198 of its judgment. Lord Nicholls’s explanation of article 9 is now reported as R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246. He said, at para 24:

“Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract protection under article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, for its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs.”

177 Mr Friend and Mr Thomas say that hunting is at the very core of mankind’s psyche and those who exercise their conscience to follow a way of life embracing that psyche subscribe to a belief that is at least of comparable importance to that of a religious belief: to many it is of greater importance. We do not consider that this ingenious argument would find favour with the court at Strasbourg, which has referred to the main purpose of hunting in the present day as providing pleasure and relaxation for those who take part in it while respecting its traditions: Chassagnou v France (1999) 29 EHRR 615, paras 105 and 108.

178 We have already described how the HR claimants have not sought to advance any article 14 arguments in this court, although we have granted them formal permission to appeal so that the issues could remain alive at a higher level of court. Mr Friend and Mr Thomas maintain that the Act discriminates against them in that it favours other groups engaged in like activities because they belong to an ethnic group that follows the ancient culture of hunting with hounds which others find offensive. They also argue that their culture and way of life fall within the ambit of their private and family life (the same as a gipsy or an aborigine) and their freedom of conscience, and that the Act is “aimed at maliciously and viciously oppressing a particular social and political group”.

179 For the reasons we have already given, and for the reasons given by the Divisional Court, we do not consider that the arguments deployed by Messrs Friend and Thomas have any real prospect of success. We therefore refuse permission to appeal. [*383]

Summary

180 In this section we give a summary of the judgment for the convenience of readers. It should be read with the detailed reasons set out above, which it is intended to summarise.

181 This hearing has involved the determination of two full appeals, and one application for permission to appeal. This court has dismissed that latter application, for the reasons set out at paras 173-179 above. The “HR” appeal was based upon the submission that the ban contained in the Hunting Act 2004 infringed a number of the claimants’ rights under the Convention. The “EC” appeal relied upon the submission that the ban infringed the claimants’ rights under the free movement provisions of the EC Treaty. These two appeals have also been dismissed, for the reasons summarised in the following sections.

182 The policy objectives of the Hunting Act 2004. As a precondition to the determination of the two appeals in this case, the court was required to address the question of whether the Divisional Court had correctly interpreted the legislative aim and objectives of the Hunting Act 2004. The HR claimants had advanced a number of challenges to the Divisional Court’s approach, including: that no legislative aim can be derived from the Act; that the defendants had adduced insufficient evidence before the lower court to support the conclusion reached by that court; and that the Divisional Court had consciously defined an objective wider than that intended by the legislature: paras 57 and 62 above.

183 We agree with the conclusions of the Divisional Court on this question, that the objective of the Hunting Act 2004 is a composite one of preventing or reducing unnecessary suffering to wild mammals, together with the view that causing suffering for sport is unethical: para 56 above. This court also agrees with the Divisional Court that it is manifest from the available background material that the legislature did frame the Act with such an ethical sentiment in mind: paras 58-60 above. As to the claimants’ submissions, this court is of the view that they are either misconceived or based upon a misunderstanding of the nature of the inquiry which a court will undertake in determining the objectives of an Act of Parliament: paras 57 and 62 above.

184 The HR appeal. The essence of this appeal is that the ban engages and infringes, either directly or indirectly, the claimants’ rights under articles 8 and 11 of the Human Rights Convention and article 1 of the First Protocol. On that basis, the claimants seek a declaration under section 4 of the Human Rights Act 1998 that the Hunting Act 2004 is incompatible with the Convention. It should be noted that, in so far as the claimants rely upon alleged indirect infringements, this court has proceeded on the assumption, as did the Divisional Court, that some at least of the consequences that the claimants submit will flow from the ban will actually manifest themselves, even though the nature and extent of the consequences are by no means certain in the present state of the evidence.

185 Article 8. The HR claimants submitted that the ban infringes their article 8 right to respect for their personal autonomy, their culture/community/lifestyle, their home and their use of that home. These submissions encompassed both direct and indirect infringements; direct in the sense that certain claimants would be prevented from hunting or using or allowing others to use their land for such a purpose; and indirect in that the [*384] ban will, allegedly, cause a decline in hunting activities, which may then place in jeopardy the claimants’ homes and livelihood: paras 9-11 above. In this court’s view these submissions are based upon an over-wide definition of the ambit of article 8 and do not in fact raise any question of a failure to respect the claimants’ rights to their private or family lives or their homes. These claims do not engage article 8: paras 100-105 above.

186 Article 11. The HR claimants submitted an infringement of article 11 based upon the fact that the ban allegedly prohibits the assembling of hunting meetings and prohibits, or interferes with, the freedom of association of persons in and around hunting: para 12 above. In agreement with the decision of the Scottish courts and with the Divisional Court, we are of the opinion that this argument fails. At its highest the ban merely prohibits a particular activity that could be undertaken by an assembled group, but does not prohibit the assembly itself. Therefore it cannot be said that the ban infringes article 11, whether or not people continue to assemble now that they are prohibited from undertaking certain activities: paras 106-107 above.

187 Article 1 of Protocol 1.The HR claimants claimed that the ban has deprived them of their property rights, or has interfered with their peaceful enjoyment of those rights, in various ways: para 14 above. In respect of a number of the claimants’ submissions, the defendants conceded that the ban did infringe the claimants’ rights under article 1 of Protocol 1: para 108 above. However, this court takes the view that those claims in relation to which the defendants made no concessions fail for not engaging the article: on the basis that the claimants are relying upon interests which cannot be said to be “property” for the purposes of article 1 of Protocol 1: para 114 above.

188 In respect of the conceded infringements we conclude, as did the Divisional Court, that these infringements are justified within the requirements of article 1 of Protocol 1. This determination has been reached on the basis of the following conclusions: that the aim pursued by the Hunting Act 2004 is legitimate; that the ban is proportionate to the aim pursued; and that the passing of the ban was a permissible course of action for the state to take considering the significant margin of discretion accorded to it in such a circumstance: paras 109-113 and 116-125 above. Therefore, the claimants’ submissions on article 1 of Protocol 1 fail.

189 Article 14. No argument on this article was pursued before this court: para 13 above.

190 The EC appeal. The essence of the EC appeal is that the ban engages and infringes two of the free movement provisions contained in the EC Treaty: the free movement of goods, enshrined in article 28 EC, and the free movement of services, in article 49 EC. It was not in dispute before this court that there exists established interstate trade in goods and services related to hunting between the UK and other member states: para 15 above.

191 Article 28 EC. The EC claimants submitted that the ban falls within article 28 EC as being equivalent to a quantitative restriction upon imports of hunting-related goods into the UK from other member states: para 16 above. However, this court has not been persuaded that article 28 EC is wide enough to encompass the ban. Like the measures removed from the ambit of article 28 EC in Keck’s case [1993] ECR I-6097 [*385] the ban is a restriction which is not aimed at products from other member states, or at products at all, and does not have a discriminatory effect on imported products: paras 144-145 above. Therefore, on the basis of the jurisprudence of the ECJ (see paras 131-143 above), the ban does not engage article 28 EC: paras 144-146.

192 Article 49 EC. The EC claimants submitted that the ban falls within article 49 EC on the basis that it restricts the freedom of providers, based in the UK, to provide hunting-related services to nationals of other member states; as well as the freedom of those nationals of other member states to receive such services in the UK: para 16. A preliminary question which this court was required to address was whether the Divisional Court was correct to conclude that the post-Keck principles of article 28 EC cannot be applied to an application under article 49 EC: paras 148-151 above. On this limited point, we agree with the Divisional Court: para 152 above. However, on the more general question of whether the ban then engages article 49 EC we have reached a different conclusion from that of the Divisional Court. This court takes the view that, to engage article 49 EC, a measure must have a direct inhibiting effect on the free movement of services. It is not sufficient that the measure merely decreases the demand for a particular service within a member state. Such is the case with the Hunting Act 2004; and, therefore, article 49 EC is not engaged: para 155 above.

193 Notwithstanding that the claimants failed to establish the alleged infringements of articles 28 EC and 49 EC, this court for completeness addressed the question of whether such infringements could be justified in EC terms. This court was persuaded by the EC claimants’ submission that when considering whether an infringement is justified and proportionate under the EC Treaty the court is required to take into account different principles from when it is considering the same question under the Convention: paras 158-159 above. Nevertheless, even proceeding on that basis, we conclude that the alleged infringements of articles 28 EC and 49 EC would be justified on the following grounds: that the aim pursued was a legitimate exercise of public policy; that the ban was proportionate to that aim; and that the state was acting within its discretion in prohibiting an activity that was seen as posing a threat to an interest of high importance: paras 161-172 above. Appeals in first and second cases dismissed.

Permission to appeal refused.

Application in third case refused.

7 November. The Appeal Committee of the House of Lords (Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Lord Carswell) allowed petitions by the claimants in the first and second cases for leave to appeal. [*386]

APPENDIX I

Details of the individual claimants

Excerpt from the judgment of the Divisional Court, paras 31-55:

31. The individual human rights claimants are Donald Summersgill, Lesley Drage, Roger Bigland, Colin Dayment, Kim Gooding, Joseph Cowen, Kenneth Jones, Richard May, Giles Bradshaw and Jason Vickery. We give summary details of who they each are and of their connection with and commitment to hunting as follows. The details are derived from their witness statements, which are largely unchallenged.

32. Donald Summersgill is the professional huntsman for the Devon and Somerset Stag Hounds which hunts on Exmoor. He is 39 years old and has been the huntsman since 1990. He has never worked outside the hunting industry and is not qualified for anything else. He has been hunting all his life. Virtually all the members of his family hunt and are dependent on hunting for their livelihoods. If hunting remains banned, he will lose his home. He has a position in the rural community by reason of his employment. In short, his life and property rights revolve around the hunt and his professional activities. He considers hunting, but particularly stag hunting in Exmoor, to be part of the traditional way that people in that area have lived their lives. He sees himself as part of a minority group who have a separately recognised culture that brings very substantial benefits to the local farming and rural community. The effect of the ban on his life and his career is set out in full in his witness statement.

33. Lesley Drage runs a small livery yard business in Stow-on-the-Wold in Gloucestershire. The business is entirely reliant upon local foxhunts for its survival. She looks after 18 horses, all of which are used exclusively for hunting. The contractual arrangements with the owners are vested and, in the absence of the hunting ban, could be expected to endure for the long term. These contracts provide her business with a steady income. She employs four people who have the benefit of contracts of employment with her. Likewise, Ms Drage has the reciprocal benefit of those employment contracts. She also has the benefit of a long-term contractual arrangement with a local landowner who has granted her an informal lease over her business premises. Her business has goodwill and, in the absence of the hunting ban, could have been sold as a going concern. Diversification is not possible for her into any other type of equestrian activity, as she cannot afford and has no access to borrow the necessary capital. She is part of hunting society. Her job is her life. Like the second claimant (and like all those for whom hunting is a way of life) she is part of a minority group who have a separately recognised cultural identity, which is not found elsewhere in suburban and urban England and Wales. The ban will devastate her life and her business and she will lose her home.

34. Roger Bigland is a professional terrier man. He has been employed by one of three foxhunts in the Cotswold area for the last 40 years. His current employer is the North Cotswold Foxhunt, for whom he has worked since 1990. If he loses his job he will probably, given his age and his lack of transferable skills, be unable to get another job. If he is lucky, he may find some low paid unskilled or manual labour. He has been with his present employers for the last 14 years and has the benefit of employment protection [*387] and vested rights under his contract of employment. His job is his passion and provides him and his wife with their only social life.

35. Colin Dayment is a self-employed farrier. His business is largely dependent upon hunting. His family have been in this business since 1904, and it was run by his father, his grandfather and his great-grandfather before him. Mr Dayment is 52 and has been a farrier since he was 15 years old. He works alone and has no employees. 81% of his business is the shoeing of horses for local hunts. His business has been incorporated as Dayment & Son Ltd and he stands to lose the value of his 100% shareholding should the ban proceed. There are seven packs of fox/staghounds within 20 minutes drive of his home. He believes that his business will not survive if hunting is criminalised and will thereby be deprived of the goodwill of the business built up by the family over the past 100 years. He also hunts and is, like the second claimant, part of the same defined and self-defining Exmoor hunting community. His only social life revolves around the hunt.

36. Kim Gooding works with her husband, they are full-time, self-employed trainers of hare-coursing greyhounds. Their property has been adapted solely for the requirements of the business. If the ban is implemented, they will lose their livelihood and the value of the business. Their property will be significantly devalued, and it is more likely than not that they will lose their home through a forced sale. Mrs Gooding will be deprived of her current and cherished lifestyle. Her social life and that of her family depends upon hare coursing and the activities that surround it. The family will have to start again in a different walk of life.

37. Joseph Cowen is a landowner and is a trustee and the senior master of the Fernie Foxhounds, a foxhunt in Leicestershire. As a trustee and master, the Fernie’s properties, equipment, hounds, horses and contracts of employment with its staff are all vested in Mr Cowen. The Fernie hunts on his family land (of which he is a trustee) about one in every three days that it is out hunting. The family land has been managed specifically for the purposes of fox hunting and has thereby acquired a special amenity value that is threatened by the Act. The Fernie provides two important services to local landowners and farmers: control of the fox population and a fallen stock service. Mr Cowen and his family have a social life that revolves around the Fernie. The hunting ban will have a fundamental effect upon his family, their lifestyle, social life and that of the wider rural community.

38. Kenneth Jones is the master of the Irfon and Towy Hunt and is a tenant sheep and cattle farmer in Mid Wales. The hunt goes over his land three or four times a season. The hunt hunts both on horseback and on foot as a gun pack. Generally when hunting, the hunt crosses the land of various different landowners during a day. However, at least twice a year as a gun pack and twice a year when mounted they hunt exclusively on the Llwyn Madoc estate to protect pheasants from foxes. The ban will have a disastrous effect on his lifestyle, livelihood, social life and property rights. His grandfather founded the hunt in 1909 to protect his own and other local farmers’ stock, as they were losing too many lambs to foxes. His grandfather remained master of the hunt for the next 37 years. Since then, his family has been an integral part of the hunt. Mr Jones has been hunting since he was five years old. He has a wife and three children and they have always hunted together as a family. It is the central unifying force in their life. The hunt provides an invaluable pest control service and the hunt [*388] committee, of which Mr Jones is a member, employs a professional huntsman who would lose his job if the ban proceeds. The hunt provides the only social life for the whole community in what is a very rural and quiet area with limited social and recreational activities. Mr Jones feels passionately that the ban will unnecessarily degrade his own family and community life. He fears that without hunting there is even less reason for one of his own children to take over the family farm and that the ban will lead to further drift from the area of local young people.

39. Richard May is the master and owner of a beagle pack. His family has bought its own land (which he now owns) for the purpose of hunting and shooting. Every three weeks he hunts exclusively over this land with friends he invites to join him. The pack has been in the ownership of his family for three generations. It was founded by his grandfather in 1905. The dogs are used for hunting hares. When the ban is implemented, he may be able to keep at most three or four dogs and will have no option but to destroy the rest of the pack. They are pack animals and are not suitable as domestic pets. A ban will mean that he will have to dismantle his kennels, remove wire fencing, concrete and drains at substantial cost to restore his land.

40. Giles Bradshaw owns a small farm in Devon. He currently allows the Tiverton Staghounds, Tiverton Foxhounds and the Taw Vale Beagles to cross his land about three or four times a year. He also uses his four dogs as a method of pest control on his farm, particularly to chase deer out from an area of woodland in order to deter them from destroying his willow coppices. Mr Bradshaw is concerned that under the terms of the Hunting Act 2004, he will be forced against his conscience, to shoot deer unnecessarily. Both as a farmer and a landowner he needs to be able to plan his conduct so that it is within the law. He does not consider that the Hunting Act 2004 is clear and easily understood and DEFRA have been unable to clarify it for him.

41. Jason Vickery is a tenant farmer in Dorset. He hunts with the South and West Wilts Foxhounds and is a member of its committee. Mr Vickery’s social and family life revolves around hunting. He grew up in a hunting family and met his wife through hunting. He also takes his young daughters out hunting with him and he has made most of his friends locally through the hunt. As a farmer, Mr Vickery relies on the hunt’s fallen stock service, which is described more fully in the first statement of Ann Mallalieu. He considers that the hunting ban will have a devastating effect on his life.

42. The individual European law claimants are Francis Derwin, Shane Flavin, The Hon Diana Johnson, Susan Lanigan-O'Keeffe, Viscount Hughes Le Hardy de Beaulieu, Gil Jose de Queiroz de Mendia, Barbara Rich, Marion Knoche, Kevin Lamacraft and Brian Divilly. Summary details of who they are and of their connection with and dependence on hunting in England and Wales are as follows. This again is taken from their witness statements and is largely unchallenged.

43. Francis Derwin owns one of the largest horse dealerships in Ireland. He buys horses from all over Ireland and deals in about 800 horses per year, of which 300 or so are hunters. Before the Hunting Act 2004 came into force, he sold about 90% of those hunters to customers in the UK. The Act has had a serious impact on Francis Derwin’s business. He has been unable to sell any hunters at all this year. [*389] 44. Shane Flavin is also a horse dealer based in Ireland. An important part of his business has been the sale of hunters to customers in the UK. He has failed to sell any hunters at all since November 2004, when the Hunting Act 2004 was passed.

45. Diana Johnson has, since 1984, operated a business providing hunting holidays to foreign visitors. Many of these visitors come from other EU member states. Diana Johnson built the business around her hireling business. Aside from hiring out hunters to her customers, she took them out on a wide variety of hunts and provided them with accommodation, transport, a valeting service and entertainment, such as hunt balls. To help her run her business, Diana Johnson employed a workforce all of whom came from other member states of the EU. The ban on hunting has had an extremely damaging effect on her business.

46. Susan Lanigan-O'Keeffe is a horse breeder based in Ireland who specialises in half-breed horses most of which are sold as hunters to English buyers. The Hunting Act 2004 has resulted in a steep decline in her business. She will have to put down a number of her horses because she simply cannot sell them.

47. Viscount Hughes Le Hardy de Beaulieu lives in Belgium but owns a house in Dorset and has been coming to England to hunt for nearly 25 years. He takes part in 35 to 40 hunts in various parts of England during each hunting season. Viscount Hughes Le Hardy de Beaulieu uses his own horses when hunting near his house in Dorset, but uses hirelings when hunting in other parts of the country. When he returns to Belgium he keeps his horses in a livery yard in Dorset. As a result of the Hunting Act 2004, he will no longer come to England to hunt. He would not consider drag hunting instead.

48. Gil Jose de Queiroz de Mendia lives in Portugal and has visited England on three occasions since 1999 to take part in hunting. On two of those trips he used the services of Diana Johnson, the fourth claimant, paying around �2,000 for three or four days’ hunting, including accommodation, meals and the provision of horses. He has also bought several hounds in England and taken them back to Portugal to use when hunting there. Following the hunting ban, he has no plans to come back to England to hunt.

49. Barbara Rich has two businesses: a horse livery business and a horse dealership, buying hunters in Ireland and selling them to customers in England and in other EU member states. Prior to the hunting ban, both businesses were thriving; since the ban they have suffered dramatically. From having 40 liveries at any one time, Barbara Rich now has only one. She has sold only one hunter since December 2004. She used to sell 50 a year.

50. Marion Knoche lives in Germany. She and her partner have been coming to England to hunt for some 10 to 12 years. They normally come once or twice a year and take part in five separate hunts on each trip. They use hirelings and stay in bed and breakfast accommodation. They also buy hunting clothes and riding equipment when in England. As a result of the ban, Marion Knoche and her partner will no longer come to England to go hunting.

51. Kevin Lamacraft and his wife Ruth have run a hireling business since 1995. Amongst their customers are regular clients from Germany, France, [*390] Portugal, Austria and Scandinavia. The hunting ban has had a devastating effect on their business. Last year, he received £45,500 for the March to April period. This year he has generated only £14,500 during the same period. The sharp decline in business has meant that he has been unable to employ any workers.

52. Brian Divilly is one of the biggest breeders of greyhounds in Ireland. About 75% of his greyhounds are bred for coursing; prior to the hunting ban he sold a significant number of these to customers in England. The effect of the ban is that he no longer has a market for greyhounds in England. As a consequence he has had to cut back his breeding of coursing dogs by 50% this year.

53. In addition to the claimants themselves, other people have given witness statements in their proceedings. These include, but are not limited to, the following. Simon Hart is the chief executive of the Countryside Alliance. He has conducted a survey of the hunts in England and Wales in order to ascertain (a) whether they receive European visitors, (b) whether they employ workers from other member states of the European Union, and (c) whether the hunts have links with hunts in other member states. The results of his survey are set out in his witness statement and demonstrate that a significant number of European visitors hunt in England and Wales. For example, the Cotswold Hunt state that Portuguese, Dutch, French and Irish visitors have subscribed to their hunt and they also receive regular visitors from France, Germany, Portugal and Sweden. The results also show that several hunts employ workers from other EU member states. For example, the Pembrokeshire and Carmarthenshire Mink Hounds employed two French workers between 2002 and 2005. Finally, there are links between hunts in England and Wales and hunts in other EU member states. For example, the Trinity Foot and South Hertfordshire Beagles visit the Tory Foot Beagles in Ireland annually and hunt regularly in France.

54. Jerry Desmond is chief executive and secretary of the Irish Coursing Club. His witness statement explains that a significant proportion of coursing greyhounds bred in Ireland are sold to customers in England. He considers that the ban on coursing in England and Wales will mean that part of the market for Irish greyhound breeders will disappear.

55. Brian Friend and Hugh Thomas, claimants in the third of the proceedings before the court, ride or follow on foot with the Cotley Hunt, the South Somerset Fox Hounds, the Quantock Stag Hounds and other hunts.

APPENDIX II

Excerpts from the Burns Report

Summary and conclusions

Chapter 1: Introduction

2. We were asked to focus on the hunting with dogs of foxes, deer, hares and mink. The use of dogs solely to locate or retrieve quarry was excluded from our terms of reference. We were not asked to recommend whether hunting should be banned. Nor were we asked to consider moral or ethical issues.

3. The committee gathered information through an open process of written and oral evidence, research reports, seminars, meetings and visits. [*391]

Chapter 2: Hunting

4. Hunting with dogs is a diverse activity �

Chapter 3: Hunting and the rural economy

12. There is a complex set of relationships between hunting and a diverse range of other economic activities, mostly in rural areas, and largely horse-related, that either directly serve hunting or are in some way dependent on it.

13. There have been widely varying estimates given in recent years for the loss of jobs which would result from a ban on hunting.

14. The research which we commissioned attempted to estimate the jobs (full-time equivalents, FTEs) which currently depend on hunting, either directly or indirectly.

15. It is relatively straightforward to estimate the number of jobs which the hunts provide. It is much more difficult to estimate the other jobs which depend, directly or indirectly, on hunting. Identifying the number of participants and allocating their expenditure between hunting and other equestrian activities is particularly problematic.

16. Estimating the effects of a ban is also complex. It is necessary to take account of other factors such as the extent to which alternative activities would replace hunting, how the money currently used would be spent, other changes taking place in the rural economy and the differential impact in different areas.

17. It is difficult too to estimate the effects of a ban on hunting on individuals. These must take into account the extent to which the people concerned would be able to switch to other available employment, as well as the part-time and seasonal nature of many jobs.

18. We estimate that somewhere between 6,000 and 8,000 full-time equivalent jobs presently depend on hunting, although the number of people involved may be significantly higher. About 700 of these jobs (involving some 800 people) result from direct employment by the hunts. Another 1,500 to 3,000 full-time equivalent jobs (perhaps involving some 2,500 to 5,000 people) result from direct employment on hunting-related activities by those who are engaged in hunting. The remaining jobs, in a wide variety of businesses, are indirectly dependent on hunting. Of these, many will be in urban, rather than rural, areas. (Para 3.43.)

19. In view of all the uncertainties, it is not possible to give a precise figure for the number of jobs which would be lost if hunting were banned. In terms of national employment statistics, the short-term loss would be limited, and extend not much further than those employed by the hunt, and some employed by those hunt followers who immediately reduced their use of horses. In the medium term, say three to five years, more losses would occur as hunt followers brought their horse numbers into line with current use. Losses would also arise in the wider rural economy, in particular the horse economy, although in part they would be offset by other changes, including expenditure being diverted into other activities. In the long term, say seven to ten years, most (if not all) of the effects would be offset as resources were diverted to new activities and the rural economy adjusted to other economic forces. (Para 3.72.)

20. In terms of national resource use, the economic effects of a ban on hunting would be unlikely to be substantial, especially in the context of the [*392] drastic changes taking place in the agricultural sector. However, at least in the short and medium term, the individual and local effects would be more serious. Most jobs that are directly dependent on hunting are in the land-based sector. Some of those directly affected have specialised skills which would not transfer easily, and they would find it hard to find alternative employment. For these people especially, the adjustment process could be painful. Some thought would have to be given to the possibilities for re-training and acquiring new skills. (Para 3.73.)

21. For some businesses that are on the borderline of viability, the loss of revenue could lead to a bigger impact than the direct effect may suggest. For a small number of local communities which depend to a significant extent on hunting, and where there are limited alternative employment opportunities, the effects could also be more serious. (Para 3.74.)

22. Farmers would lose the benefit of a recreation they value. In addition, many of them would feel that they had suffered an economic loss since a free “pest control” service would have been removed; they would expect more predation of lambs, poultry, piglets and game birds; and they would lose the “fallen stock” service provided by many hunts. The negative impacts of a ban would be particularly resented because they would be viewed as unnecessary by many of those affected, and as an avoidable addition to other problems facing the farming community. (Para 3.75.)

Chapter 4: Social and cultural aspects

23. It is commonly argued that hunting plays a critical role in the social and cultural life of rural communities. Hunting is itself a social activity, and hunts organise a wide range of social and sporting events. But it is also important to see hunting, especially organised hunting, in its wider context. It is a highly co-operative social activity taking place in a rural setting. Different people value different aspects but farmers and landowners are at its heart. Rural communities are diverse and changing but farmers, as a group, feel that their interests and way of life are not understood by central government and the urban majority.

24. The research which we commissioned examined the relative importance of hunting to the social and cultural life of four rural communities where hunting is actively pursued. Among the findings were that there were higher levels of support for hunting than previous surveys have suggested; that support tends to be based not so much on importance to the individual-although this was true for hunt participants and some farmers-but a belief that hunting had greater significance for the community as a whole and for others living there; that hunt-based social activities play a significant part in the social life of these communities, but are not as significant as those of the local pub or church; that support for hunting, and a belief in its importance to individuals and to the local community, was particularly strong in the Devon and Somerset study area; and that a significant minority who were opposed to hunting would welcome its abolition.

25. It is not possible simply to extrapolate these findings since the areas studied deliberately focused on those in which organised hunting actively takes place, rather than rural communities in general.

26. Rural communities are diverse. Many, especially those near urban centres, have experienced substantial changes in recent years as agriculture [*393] has declined in importance, communications have improved and people have moved in from towns. The part played by hunting in the social and cultural life of rural communities varies greatly, depending on factors such as their proximity to urban centres and the type of hunting taking place. (Para 4.52.)

27. The social activities organised by the hunts form an important feature of the social life of those communities in which hunting is actively pursued. For a significant minority, notably hunt participants and farmers in more isolated rural communities, the hunts play a dominant role. The loss of these activities, if that were the outcome of a ban on hunting, would be keenly felt. For those who take part, hunting is itself partly a social event, particularly during the winter months when alternative activities are scarce. For others, the social activities organised by the hunts are significant, but less so than those organised by other groups, in particular the pub and the church. Even those who would not feel greatly, at a personal level, the loss of the hunts’ social activities consider that it would have a detrimental effect on the social life of others and on community life in general. A number would also feel that it would mark the end of an important, living cultural tradition. The precise balance between these different responses would vary from region to region and area to area. Generally, however, the impact would be felt most strongly in the more isolated rural areas. In areas of greater population density where these are more alternative activities available, and where the population is more socially diverse, a ban would make less of a social impact. (Para 4.53.)

28. It is clear that, especially for participants in more isolated rural communities, hunting acts as a significant cohesive force, encouraging a system of mutual support. Farmers and other landowners-many of whom feel increasingly isolated-are both the linchpins and the main beneficiaries of the system. Many of them also value hunting as an expression of a traditional, rural way of life and would strongly resent what they would see as an unnecessary and ill informed interference with it. As a result it would increase their sense of alienation. (Para 4.54.)

29. For another group, the hunt itself seems divisive, intrusive and disruptive. (Para 4.55.)

30. Because the organisation of point-to-points relies heavily on voluntary labour supplied by hunt followers and supporters, there could be difficulties in running these events. Pony clubs also often depend heavily on hunt followers and supports. To a lesser extent these too could be affected by a ban. These activities should be able to continue provided alternative forms of organisation develop. (Para 4.56.)

Chapter 5: Population management and control

Foxes

31. The pre-breeding population of foxes in England and Wales is thought to number some 217,000. They are perceived as pests mainly because of predation on lambs and game birds, although these are marked regional variations. Farmers and gamekeepers consider that they need a range of methods to control foxes. There is little information about the numbers of foxes which are killed and by what methods. Shooting is the most common [*394] method but the use of dogs is particularly prevalent in sheep-rearing upland areas.

32. In most areas of England and Wales farmers, landowners and gamekeepers consider that it is necessary to manage fox populations in view of the damage which foxes can cause to farming and game management interests. (Para 5.41.)

33. Methods involving guns probably account for the greater part of those foxes which are deliberatively killed, but there are marked regional variations. (Para 5.41.)

34. In lowland areas hunting by the registered packs makes only a minor contribution to the management of the fox population, and terrier work, especially by gamekeepers, may be more important. In these areas, in the event of a ban, other means of control have the potential to replace the hunts’ role in culling foxes. (Para 5.42.)

35. In upland areas, where the fox population causes more damage to sheep-rearing and game management interests, and where there is a greater perceived need for control, fewer alternatives are available to the use of dogs, either to flush out to guns or for digging-out. (Para 5.43.)

Deer

36. There are estimated to be about 4,000-6,000 red deer in the areas hunted by the three registered packs in Devon and Somerset. About 1,000 deer need to be culled each year to maintain a stable population. The hunts kill about 160 deer each year, excluding the “casualty” deer which they dispatch.

37. The population needs to be managed, mainly because of the damage which deer cause to agricultural, forestry and conservation interests and because the numbers would otherwise increase substantially. Apart from hunting, the only other method of culling deer is by stalking/shooting.

38. It is generally accepted that red deer numbers in Devon and Somerset need to be controlled. Hunting with dogs presently accounts for about 15% of the annual cull needed to maintain the population at its present level. However, because of the widespread support which it enjoys, and consequent tolerance by farmers of deer, hunting at present makes a significant contribution to management of the deer population in this area. In the event of a ban, some overall reduction in total deer numbers might occur unless an effective deer management strategy was implemented, which was capable of promoting the present collective interest in the management of deer and harnessing such interest into sound conservation management. (Para 5.75.)

Hares

39. There are about 630,000 brown hares in England and Wales. They are most abundant in eastern England, where high numbers are often encouraged for shooting purposes. Hares are regarded, at most, as a minor agricultural pest. About 1,650 hares are killed by hunting by the registered packs and about 250 by the registered coursing clubs. Much larger numbers are killed by shooting and illegal coursing.

40. There is little or no need to control overall hare numbers and, indeed, they are a Biodiversity Action Plan species. However, the distribution of [*395] hares is uneven: they are abundant in some areas, mainly in the east of England, and scarce in much of Wales and the West Country. Hare hunting and coursing are essentially carried out for recreational purposes and have a relatively small direct impact on hare numbers. A ban would therefore have little effect in practice on agriculture or other interests. (Para 5.94.)

41. Because hare numbers tend to be maintained at high levels in areas where hunting/coursing occurs, the impact of a ban might well be that, in the absence of other changes, the population would decline in those areas. This would partly result from a loss of suitable habitat but also, in a few areas, from the shooting of hares to deter poaching and illegal coursing. However, in comparison with the impact of organised shooting on hare numbers, a ban on hare hunting and coursing would have a negligible effect. (Para 5.95.)

Mink

42. Mink are not a native species. Following their introduction to Britain mink rapidly increased in their distribution and abundance. However, over the last ten years mink populations have declined substantially, and are now an estimated 18,000 in England and Wales. Mink prey on a wide variety of mammals, birds and fish. Trapping is the main method of killing mink, but mink hunts probably account for between 400-1,400 mink a year.

43. Mink can cause localised damage to poultry, game birds, fishing and wildlife interests. Because mink hunts kill relatively small numbers of mink, and because of their high fecundity and ability to disperse, hunting does not have any significant effect on the mink population at a national or regional level. It can, however, lead to temporary reductions in the mink population in specific localities. (Para 5.121)

44. Trapping is potentially an effective means of control but it needs to be carried out fairly intensively from January to April every year to have a lasting impact. It is therefore relatively costly. Hunting can be helpful in providing a free service to farmers and others that identifies where mink are located, enabling them to target trapping efforts more effectively. (Para 5.122.)

Chapter 6: Animal welfare

45. The issues of cruelty and animal welfare are central to the debate about hunting. Animal welfare is essentially concerned with assessing the ability of an animal to cope with its environment: if an animal is having difficulty in coping with its environment, or is failing to cope, then its welfare may be regarded as poor. This judgment is distinct from any ethical or moral judgments about the way in which the animal is being treated.

46. Except in relation to deer, little scientific work has been done to assess the impact of hunting on the welfare of the four quarry species. Because it is not possible to ask an animal about its welfare, or to know what is going on inside its head, it is necessary to draw up some indicators which enable one to make a judgment. The precise nature of these indicators will vary depending on the animal concerned but they will usually comprise a mixture of physiological indicators and behavioural indicators. But, because they are only indicators, there is often room for argument about the extent to which a particular finding indicates poor welfare as opposed to, for example, exertion that can be regarded as falling within natural limits. It is also [*396] necessary to consider whether the assessment of welfare should be on an absolute or comparative basis.

47. Animal welfare is concerned with the welfare of the individual animal, not the management of the wider population. In assessing the impact of hunting on animal welfare we are persuaded that it is necessary to look at it on a relative, rather than an absolute, basis. It should not be compared with only the best, or the worst, of the alternatives. Nor is it right to justify hunting by reference to the welfare implications of illegal methods of control. (Para 6.12.)

48. In the event of a ban on hunting, it seems probable that farmers and others would resort more frequently to other methods to kill foxes, deer, hares and perhaps mink. There would be a mixture of motives: pest control; the value of the carcass; and the recreational value to be derived from shooting. It follows that the welfare of animals which are hunted should be compared with the welfare which, on a realistic assessment, would be likely to result from the legal methods used by farmers and others to manage the population of these animals in the event of a ban on hunting. (Para 6.13.)

Deer

49. The hunting of a red deer typically comprises a series of intermittent flights in which the deer exerts itself maximally in order to escape from the hounds. An average hunt which ends in the killing of the deer lasts about three hours. Scientific studies show that, at the end of a chase, deer have very low levels of carbohydrate (glycogen) in their muscles and that this largely explains why they are forced to stop.

50. There is a lack of firm information about the wounding rates which rise from stalking/shooting deer. Comparing the welfare implications of hunting and stalking/sheeting deer is a complex matter, requiring the balancing of the welfare of all the deer that are hunted against the welfare of the numbers of shot deer which are wounded.

51. Although there are still substantial areas of disagreement, there is now a better understanding of the physiological changes which occur when a deer is hunted. Most scientists agree that deer are likely to suffer in the final stages of hunting. The available evidence does not enable us to resolve the disagreement about the point at which, during the hunt, the welfare of the deer becomes seriously compromised. There is also a lack of firm information about what happens to deer which escape, although the available research suggests that they are likely to recover. (Para 6.33.)

52. Stalking, if carried out to a high standard and with the availability of a dog or dogs to help find any wounded deer that escape, is in principle the better method of culling deer from an animal welfare perspective. In particular, it obviates the need to chase the deer in the way which occurs in hunting. (Para 6.39.)

53. A great deal depends, however, on the skill and care taken by the stalker. It is unfortunate that there is no reliable information on wounding rates, even in Scotland where stalking is carried out extensively. In the event of a ban on hunting, there is a risk that a greater number of deer than at present would be shot by less skilful shooters, in which case wounding rates would increase. Consideration should be given to requiring all stalkers to prove their competence by demonstrating that they had undertaken appropriate training. (Para 6.40.) [*397]

Foxes

54. The three main aspects of foxhunting which give rise to concern on welfare grounds are: the chase; the “kill” by the hounds above ground; and digging-out/terrier work.

55. There is a lack of scientific evidence about the welfare implications of hunting, although some post mortem reports have been received. The welfare implications of hunting need to be compared with those which arise from other methods such as shooting, and snaring.

56. The evidence which we have seen suggests that, in the case of the killing of a fox by hounds above ground, death is not always effected by a single bite to the neck or shoulders by the leading hound resulting in the dislocation of the cervical vertebrae. In a proportion of cases it results from massive injuries to the chest and vital organs, although insensibility and death will normally follow within a matter of seconds once the fox is caught. There is a lack of firm scientific evidence about the effect on the welfare of a fox of being closely pursued, caught and killed above ground by hounds. We are satisfied, nevertheless, that this experience seriously compromises the welfare of the fox. (Para 6.49.)

57. Although there is no firm scientific evidence, we are satisfied that the activity of digging out and shooting a fox involves a serious compromise of its welfare, bearing in mind the often protracted nature of the process and the fact that the fox is prevented from escaping. (Para 6.52.)

58. It is likely that, in the event of a ban on hunting, many farmers and landowners would resort to a greater degree than at present to other methods to control the numbers of foxes. We cannot say if this would lead to more, or fewer, foxes being killed than at present. (Para 6.58.)

59. None of the legal methods of fox control is without difficulty from an animal welfare perspective. Both snaring and shooting can have serious adverse welfare implications. (Para 6.59.)

60. Our tentative conclusion is that lamping using rifles, if carried out properly and in appropriate circumstances, has fewer adverse welfare implications than hunting, including digging-out. However, in areas where lamping is not feasible or safe, there would be a greater use of other methods. We are less confident that the use of shotguns, particularly in daylight, is preferable to hunting from a welfare perspective. We consider that the use of snaring is a particular cause for concern. (Para 6.60.)

61. In practice, it is likely that some mixture of all of these methods would be used. In the event of a ban on hunting, it is possible that the welfare of foxes in upland areas could be affected adversely, unless dogs could be used, at least to flush foxes from cover. (Para 6.61.)

Hares

62. There are two areas of welfare concern in respect of hare hunting and coursing: the chase and the “kill”. Although no scientific studies have been carried out, there is evidence that, in the case of coursing, there can be a significant delay before a hare which has been caught by the dogs is dispatched.

63. There is a lack of firm scientific evidence about the effect on the welfare of a hare of being closely pursued, caught and killed by hounds during hunting. We are satisfied, nevertheless, that although death and [*398] insensibility will normally follow within a matter of seconds, this experience seriously compromises the welfare of the hare. (Para 6.67.)

64. We are similarly satisfied that being pursued, caught and killed by dogs during coursing seriously compromises the welfare of the hare. It is clear, moreover, that if the dog or dogs catch the hare, they do not always kill it quickly. There can also sometimes be a significant delay, in “driven” coursing, before the “picker up” reaches the hare and dispatches it (if it is not already dead). In the case of “walked up” coursing, the delay is likely to be even longer. (Para 6.68.)

65. In the event of a ban on hunting and coursing hares, it seems likely that a few more would be shot than at present. There are concerns about the welfare implications of shooting hares because of wounding rates. (Para 6.69.)

Mink

66. There have been no scientific studies of the welfare implications of hunting in relation to mink.

67. There is a lack of firm scientific evidence about the welfare implications of hunting mink. There seems reason to suppose, however, that being closely pursued, caught and killed by hounds, or being dug out or bolted, seriously compromises the welfare of the mink. The kill, by the hounds or by shooting, is normally quick once the mink is caught. In the absence of hunting, more mink would probably be killed by shooting and, mainly, trapping. These methods involve welfare implications but we do not have sufficient evidence to conclude how they compare with those raised by hunting. (Para 6.71.)