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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Adams & Ors v. Scottish Ministers [2004] ScotCS 127 (28 May 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/127.html Cite as: 2004 GWD 18-384 2004 SC 665, [2004] ScotCS 127, 2004 SC 665 |
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Adams & Ors v. Scottish Ministers [2004] ScotCS 127 (28 May 2004)
SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Justice Clerk Lord Macfadyen Lord Abernethy
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P557/02 OPINION OF THE COURT delivered by the LORD JUSTICE CLERK in RECLAIMING MOTION by (First) TREVOR ADAMS, (Second) NIGEL MURRAY, (Third) RICHARD HOLMAN-BAIRD, (Fourth) JOE SCOTT PLUMMER, (Fifth) THE FIFE HUNT and COLIN CAMPBELL and JOHN GILMOUR the Chairman and Master thereof, (Sixth) THE BUCCLEUCH HUNT SUPPORTERS CLUB and ANTHONY AGLEN and JACQUELINE AGLEN, the Chairman and Secretary thereof, (Seventh) THE JEDFOREST HUNT and TIMOTHY FINCH and Lieutenant-Colonel JEREMY MOON, the Chairman and Treasurer thereof, (Eighth) THE COUNTRYSIDE ALLIANCE and JOHN JACKSON and CHARLES WILSON the Chairman and Chairman of the Scottish Steering Committee thereof and (Ninth) THE MASTERS OF FOXHOUNDS ASSOCIATION and THE LORD DARESBURY and ALASTAIR JACKSON the Chairman and Secretary thereof Petitioners and Reclaimers; against THE SCOTTISH MINISTERS Respondents; for Judicial Review of The Protection of Wild Mammals (Scotland) Act 2002 and The Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 _______ |
Act: Cullen QC, D L Johnston; Balfour & Manson (for Levy & MacRae, Glasgow)
Alt: Moynihan QC, W J Wolffe; Solicitor to the Scottish Executive
28 May 2004
I INTRODUCTION
The Petition
[1] This petition challenges the validity of an enactment of the Scottish Parliament. The enactment in question is The Protection of Wild Mammals (Scotland) Act 2002 (the 2002 Act). It received Royal Assent on 15 March 2002 and came into force on 1 August 2002. The petitioners seek reduction of this Act and of The Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 (SSI No 181).[2] The petition was presented before the Act came into force. It craved reduction of the Act and of the Commencement Order; and various ancillary orders for interdict, specific performance, suspension and postponement of the coming into force of the Act. The petitioners now seek only reduction of the Act itself on the ground that it is ultra vires. The respondents do not dispute the competency of that crave; nor do they dispute that, if the petitioners succeed on the issue of vires, the remedy of reduction is appropriate, subject only to the special provisions of section 102 of the Scotland Act 1998.
[3] The petitioners are persons and bodies opposed to the prohibition of foxhunting. The first petitioner and two others tried and failed to have Lord Watson interdicted from introducing the Bill before the Scottish Parliament (cf Whaley v Lord Watson, 2000 SC 340). This petition is the latest step in the campaign against the legislation. The petition was originally presented on wider grounds; but it is now confined to the contention that the Act infringes the petitioners' rights under the European Convention on Human Rights (the Convention).
The petitioners
[4] The averments of the petitioners as to their respective titles and interests to sue are as follows. The first petitioner is a self-employed manager of foxhounds for the Duke of Buccleuch's Hunt. He is a member of the ninth petitioners. The second petitioner is a farmer in Melrose. He is a past Master of the Lauderdale Hunt, which he permits to hunt over his land. The third petitioner is a landowner in Kincardineshire. He runs a pack of foxhounds. The fourth petitioner is a landowner in Kelso. He is Joint Master of the Buccleuch Hunt. The fifth, sixth and seventh petitioners are unincorporated associations. The eighth petitioner, formerly the British Field Sports Society, is an unincorporated association. It operates throughout the United Kingdom. It is represented in these proceedings by its national Chairman and by the Chairman of its Scottish Steering Committee. Its objects are the representation, promotion and preservation of the rights and interests of persons involved in country life, including those who live and work in the country, sportsmen and sportswomen, farmers, landowners and suppliers of countryside goods and services. It has a substantial number of members in Scotland. Among these are the first to sixth petitioners. The ninth petitioner is based in Gloucestershire. It is the governing body for foxhunting in the United Kingdom.
The respondents
[5] The respondents are the Advocate General for Scotland and the Scottish Ministers. The petition was intimated to the Lord Advocate for his interest. The Advocate General lodged answers on certain preliminary points that are no longer in issue. The Lord Advocate lodged answers on behalf of the Scottish Ministers and for the public interest. All three interests were represented before the Lord Ordinary; but the Advocate General has now withdrawn from the proceedings.
The interlocutor reclaimed against
[6] The Lord Ordinary held inter alia that the petition, so far as it sought judicial review of the Act and of the Commencement Order at common law, was incompetent; that the averments as to title and interest made on behalf of the fifth and seventh petitioners were at best of doubtful relevancy and that those of the sixth, eighth and ninth petitioners were irrelevant; that there were no relevant averments on behalf of any of those petitioners who had title and interest to sue that their rights under article 8 of the Convention had been infringed; that there were no relevant averments on behalf of any of those petitioners who had title and interest to sue that their rights under article 1 of the First Protocol to the Convention had been infringed; and that there were no relevant averments of discrimination to support a case under article 14.[7] The Lord Ordinary repelled the pleas-in-law for the Advocate General; sustained the first plea-in-law for the Lord Advocate, being a plea to title and interest, so far as it related to the sixth, eighth and ninth petitioners; sustained the second plea-in-law for the Lord Advocate, being a plea to the competency, so far as it related to the petitioners' case at common law; sustained the seventh plea-in-law for the Lord Advocate, being a plea to relevancy, and dismissed the petition.
8] After this reclaiming motion was enrolled, the petitioners amended the petition by adding a case based on article 11 of the Convention. Counsel for the petitioners invited us to recall the Lord Ordinary's interlocutor except in relation to the pleas for the Advocate General and to the plea for the Lord Advocate based on common law, and to grant the reclaiming motion on each of the four grounds in the now amended petition.
[9] The respondents have taken the opportunity to cross appeal against the interlocutor of the Lord Ordinary to the extent that he decided that the rights conferred by article 1 of the First Protocol and article 14 of the Convention were engaged at all in this case.
The limits of the competence of the Scottish Parliament
[10] The Scotland Act 1998 created the Scottish Parliament (s. 1) and conferred upon it a defined and limited legislative competence (ss. 28-29). The Parliament may legislate only on devolved matters as defined in the Act. If it legislates outwith its devolved competence, its enactment does not have the force of law (s. 29(1)). Moreover, to the extent that an enactment would otherwise be within the scope of its devolved competence, that enactment lacks the force of law if it is incompatible with any of the Convention rights (s. 29(2)(d)), these being the rights defined by section 1 of the Human Rights Act 1998 (Scotland Act 1998, s. 126(1)). The same principles govern subordinate legislation made under an Act of the Scottish Parliament (s. 54(2); s. 126(1)).[11] There are similar provisions in the Human Rights Act 1998. Section 3(1) provides that, so far as it is possible to do so, primary and subordinate legislation must be read or given effect to in a way that is compatible with Convention rights. An Act of the Scottish Parliament is subordinate legislation for this purpose (s. 21(1)). Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. The Scottish Parliament is a public authority for this purpose (s. 6(3)).
Title and interest to sue
[12] A party who seeks to challenge the validity of an Act of the Scottish Parliament, or subordinate legislation made under such an Act, may not bring proceedings in a court on the ground that the legislation is incompatible with the Convention rights, or rely on any of the Convention rights in any such proceedings, unless he would be a "victim" for the purposes of article 34 of the Convention if proceedings were brought in respect of that legislation in the European Court of Human Rights (Scotland Act 1998, s. 100(1), (4)). There is a similar provision in the Human Rights Act 1998 (s. 7(1), (4), (7)). In this case therefore questions of title and interest to sue are virtually indistinguishable from the question of the applicability of the Convention rights on which the petitioners found (cf Klass v Germany, (1978) 2 EHRR 214, at para 33).[13] The only discrete issue of title and interest that could be thought to arise relates to the fifth to ninth petitioners. A representative organisation cannot claim the status of victim for the purposes of article 34 unless its own interests, rather than those of its members, are directly affected (Norris v Ireland, (1988) 44 DR 132; Scientology Kirche Deutschland v Germany, 1997 App No 34614/97). We agree with the Lord Ordinary, for the reasons that he gives, that the averments of the fifth and seventh petitioners on that question are at best of doubtful relevancy and that those of the sixth, eighth and ninth petitioners are irrelevant. However, in view of our conclusions on the merits of the petition, these questions are academic and we think it unnecessary to discuss them further.
II THE PROTECTION OF WILD MAMMALS (SCOTLAND) ACT 2002
The aim of the legislation
[14] The 2002 Act, according to its long title, is "An Act of the Scottish Parliament to protect wild mammals from being hunted with dogs; and for connected purposes." The petitioners accept that it is within the competence of the Scottish Parliament to legislate on that subject and that the prevention of cruelty to animals is a fit subject for legislation.
Essential provisions
[15] Section 1 of the 2002 Act provides as follows.
"(1) A person who deliberately hunts a wild mammal with a dog commits an offence.
(2) It is an offence for an owner or occupier of land knowingly to permit another person to enter or use it to commit an offence under subsection (1).
(3) It is an offence for an owner of, or person having responsibility for, a dog knowingly to permit another person to use it commit an offence under subsection (1)."
We shall refer to this as "the statutory prohibition." Certain uses of dogs are excepted from the scope of these provisions (cf ss. 2-6). The Lord Ordinary has described them in outline (at para [34]). They are not material to this appeal.
[16] Section 10 provides inter alia as follows.
"(1) In this Act -
'to hunt' includes to search for or course; ...
'wild mammal' -
(a) includes a wild mammal which has escaped, or been released,
from captivity, and any mammal which is living wild;
(b) does not include a rabbit;
(c) does not include a rodent;
and references to hunting with, or the use of, 'a dog' are to be interpreted as also applying to hunting with, or (as the case may be) the use of, two or more dogs."
The legislative history
[18] The standing orders of the Scottish Parliament (Scotland Act 1998, s. 22; Sch 3) provide for three stages in the legislative process (s. 36; Standing Orders, Rule 9.5). Stage 1 is the general debate on the Bill at which members have the opportunity to vote on its general principles (Rule 9.6). Stage 2 involves consideration of, and voting on, the details of the Bill in Committee (Rule 9.7). At stage 3 the Bill is either passed or rejected by the Parliament (Rule 9.8). At stages 2 and 3 the Bill can be amended (Rules 9.7(5); 9.8(3)). Amendments at either stage are admissible only if they are consistent with the general principles of the Bill as agreed by the Parliament at stage 1 (Rule 9.10(5)(c)).[19] On 1 March 2000 Lord Watson introduced the Bill in the Parliament as a Member's Bill. The Rural Affairs Committee of the Parliament, later renamed the Rural Development Committee, was nominated as the lead Committee on the Bill. The Committee received many submissions on the subject. It received more than 4000 letters from members of the public. It received oral evidence from numerous interested organisations, including the eighth and ninth petitioners. The evidence taken by it and the written submissions received by it were available to all members of the Parliament (MSPs).
[20] On 12 July 2001 the Committee published its stage 1 report. It found that mounted hunts are primarily a form of sport and that they may involve unnecessary suffering (Report, para 66). The Committee also considered the efficiency of mounted hunts as a method of fox control by comparison with other methods. It found that ten mounted hunts operated in Scotland and that two hunts based in Northumberland regularly visited the Borders. A report from the Macaulay Land Use Research Institute (2000) commissioned by the Scottish Executive estimated that mounted hunts accounted for 543 of the 20,000 foxes killed each year and therefore played a relatively small part in the overall picture of fox control in Scotland. Hill packs killed about 850. Of the 18,000 or so foxes killed by landowners each year about 12,600 (70%) were shot, about 3,240 (18%) were snared and about 2,160 (12%) were killed by terrier work (Stage 1 Report, para 16). The Committee's conclusions relating to hill packs were significant.
"86 What is different in the hills packs is the use of guns, backed up where necessary by lurchers and terriers to improve the efficiency of the operation in which 90% of foxes found are killed, as opposed to only 10% in mounted hunts.
87 The Committee found that what distinguishes the hill packs from the mounted hunts is their increased efficiency (90% of foxes found are killed compared to 10% by mounted hunts). Furthermore, an additional use of dogs as a back up to guns (lurchers to find and kill a wounded fox, terriers to flush from underground) would appear to be a method that consciously avoids unnecessary suffering in the event that the fox is not shot cleanly."
"The principle of this Bill is focused on the use of dogs which, while well intentioned, misses the point that dogs can be used in both a cruel and a humane way, and are not the common factor in determining cruelty. The Committee, on division, believe that it is difficult or impossible to amend the Bill into a form which will adequately meet the aim of ending cruelty and for this reason recommends that the general principles of this Bill should not be agreed to" (at para. 102).
III THE CONVENTION
The approach to Convention rights
[23] The provisions in issue in this case are articles 8, 11 and 14 and article 1 of the First Protocol.[24] In its consideration of articles 8 and 11 and article 1 of the First Protocol, the court deals with two questions: first, whether the right referred to arises at all, or, in human rights language, whether the article is "engaged"; and second, if so, whether the restriction of the right is justified. It is agreed that in the latter question the onus rests with the State.
[25] In the second stage of the process the court applies three general guidelines, namely (1) whether the legislative aim is sufficiently important to justify the limitation of the right in question; (2) whether the measures taken are rationally connected with it, and (3) whether the means used are no more than is necessary to achieve it (De Freitas v Ministry of Agriculture, [1999] 1 AC 69, Lord Clyde at p. 80). The application of these tests involves the court in a broader consideration than would be necessary under the familiar Wednesbury test of irrationality.
[26] The Convention sets out a series of general principles and expresses in only a general way the rights and freedoms that it recognises. In respecting and safeguarding those rights and freedoms, individual legislatures have a wide margin of appreciation, or of discretion, that the Strasbourg court will respect, except where the exercise of that discretion is manifestly unreasonable. It recognises that the judgments made by individual legislatures on ethical issues will vary from time to time and from country to country (Handyside v. United Kingdom (1976) 1 EHRR 737, at para 48; Wingrove v. United Kingdom (1996) 24 EHRR 1, at para 58; Lithgow v. United Kingdom (1986) 8 EHRR 329, at para 122).
[27] Although the concept of margin of appreciation does not apply in the domestic context, the supervisory role of the domestic court in its appraisal of legislation involves its conceding to the legislature a discretionary area of judgment. It will be easier for such an area of judgment to be recognised where, to a greater or lesser extent, the issues involve social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection (R v DPP, ex p Kebilene, [2002] 2 AC 326, Lord Hope of Craighead at pp. 380E-381E; Brown v Stott, 2001 SC (PC) 43, Lord Bingham of Cornhill at pp 58-59). In the assessment of the respective provinces of court and Parliament, the vocabulary of "deference" is no longer seen as appropriate. It is a question of the court's deciding if the Parliament has complied with the Convention (cf R v Lambert, [2001] 3 WLR 206; R v BBC, ex p ProLife Alliance, [2003] 2 WLR 1403, Lord Hoffman at paras [74]-[77]). In a case like this, that question involves the court in an examination of the factual justification for the legislative restriction complained of (R v Shayler, {2003] 1 AC 247, Lord Hope of Craighead at para 61).
[28] In the course of the debate counsel for the petitioners referred to several decisions on the provisions of other human rights charters. In our view, such decisions should be approached with care, not least because of the differences in the wording of the relevant provisions and the differences in the constitutional frameworks in which they are interpreted (cf A, X and Y v Secretary of State for the Home Department, [2002] EWCA Civ 1502, Brooke LJ at para 94; Brown v Stott, supra, Lord Hope of Craighead at p 78F-I). While such decisions are not necessarily to be disregarded, none of those to which we have been referred appears to be crucial to any of the questions in this case. We consider that this case can be satisfactorily decided by reference to the case law under the Convention.
The petition - the averments relied on
[29] The petitioners make extensive and detailed averments about their respective involvements in foxhunting, about its rules and procedures, about its value as a means of pest control, and about its place in the social and economic fabric of those areas in which it is practised. These are summarised by the Lord Ordinary (at paras [35]-[42]) and we need not repeat them. Two key issues are whether foxhunting is cruel and what social, economic and other impacts the statutory prohibition will have on individuals and rural communities.
Is foxhunting cruel?
[30] The petitioners contend that foxhunting is not cruel per se; that it is in any event less cruel, or no more cruel, than other permitted means of killing foxes; and that the statutory prohibition is disproportionate to the mischief that it seeks to proscribe.[31] The principal sources on which the petitioners rely are the Report into Hunting with Dogs in England and Wales, the report of a Committee appointed by the Home Secretary (the Burns Committee), published in June 2000, and a Veterinary Opinion on Hunting with Hounds by Thomas and Allen, dated 5 March 2001 and supported at that time by 294 members of the Royal College of Veterinary Surgeons, a number that has since risen to more than 500. The text of the Veterinary Opinion that is in the Appendix to the Reclaiming Print is an updated version of the original text that was submitted to the Burns Committee.
[32] One of the principal conclusions of the Burns Committee is the following:
"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" (at para 6.49).
On 12 March 2001 in a debate in the House of Lords Lord Burns said that in this passage the Committee was not implying that hunting was cruel, there being insufficient verifiable evidence or data to justify such a view (HL Deb, col 533). In the same debate, Lord Soulsby of Swaffham Prior, a member of the Committee, said that the report did not imply that the procedure of the chase was cruel. The Committee found that there was a compromise of animal welfare only in the terminal stages of the hunt (ibid, col 564).
[33] The general conclusion of the Veterinary Opinion is that hunting by hounds is the most natural and humane way of controlling the population of fox, deer, hare and mink in the countryside and that it is not only an acceptable method but is the preferred method of culling a wild animal. The updated text of the Veterinary Opinion includes the following comment
"It must be accepted however that with any hunted animal there may be a variable period of physiological stress in the final phase of the hunt when the animal may be deemed to be suffering. Webster (1994) defines that period as when the intensity or complexity of stresses exceeds or exhausts the capacity of the animals to cope, or when the animal is prevented from taking constructive action. This final phase will be, relative to the duration of the hunt, short in time (usually less than 5 minutes) or as long as it takes for the hounds to close with the tiring quarry and dispatch it."
The social impacts on the petitioners and on rural communities in general
[34] The primary source relied on by the petitioners is a Report dated 15 June 2002, A Study of the Social and Cultural Importance of Mounted Foxhunting in the Scottish Borders, by Dr Garry Marvin. Dr Marvin is a senior lecturer in the School of Sociology and Social Policy at the University of Surrey Roehampton and is Director of the Centre for Research in Animals, Society and Culture at that institution. His special research interest is in human-animal relations. He is the author of an anthropological account of foxhunting. Dr Marvin's study reviews the facts of hunting with particular emphasis on its function in community life in rural areas. He draws numerous sociological conclusions. The Lord Ordinary's summary (at paras [38]-[40]) gives the flavour of the report. Dr Marvin's main conclusions are as follows.
"Without the actual hunting of foxes in the traditional manner on horseback and with a pack of hounds Hunts would cease to exist and with this cessation would come the collapse of an entire social and cultural world ... The removal of foxhunting from the Scottish Borders would result in a profound and deeply felt social and cultural impoverishment, a collapse of sociality and a loss of the community that has been created by it: and this at a time when there are pressures on community and sociality and when the loss of both clearly creates conditions of social isolation and exclusion."
Other issues as to the effects of the legislation
[35] The petitioners aver that the Act has damaged and will damage the local economies and, in particular, the economic interests of those employed in foxhunting and ancillary trades and services. Valuable services provided by the hunts, such as the fallen-stock service, will no longer be available to local farmers. There will also be environmental costs. The selective effect of foxhunting, from which fit and healthy foxes generally escape unharmed, contributes to a healthy, balanced and sustainable population of the species. Hunts also voluntarily carry out important work in the countryside that benefits conservation and the maintenance of habitats. The Act has had an adverse impact on the welfare of foxes themselves.
The balancing of interests
[36] The petitioners aver that when all of these factors are taken into account, and considered against the paucity of the evidence that foxhunting is cruel and the lack of any right to compensation, it cannot be said that the petitioners must necessarily fail to show that the balance has been wrongly struck between their interests and those of the general community.
The scope of the discretionary area of judgment of the Scottish Parliament
[37] In our assessment of the scope of the Parliament's legitimate discretion in this case, the principal issues that arise from the submissions for the parties are (1) whether the Parliament had before it any proper factual basis for the conclusion that mounted foxhunting with dogs was cruel per se; and whether, if it had, it was entitled to make the judgment that the infliction of such cruelty by such means for the purpose of sport and recreation should be proscribed by law; and (2) whether the likely impacts of the legislation would be such that it should not be enacted.
Evidence that foxhunting is cruel
[38] Counsel for the petitioners submitted, as a preliminary matter, that the Parliament had reached its decision on this question on insufficient evidence or, at best, on evidence that was outweighed by other more authoritative evidence.[39] In our opinion, counsel for the petitioners have taken a wrong approach to this question. The factual basis upon which a legislature decides to enact a specific provision is not governed by the rules of admissibility and sufficiency of evidence that would apply in a court of law. A legislator is entitled to bring to bear on his decision his personal knowledge gained from his experience of life and from the representations that he may receive on current political topics from informants, pressure groups, committee witnesses, and so on. It is entirely for the judgment and experience of the individual legislator to decide which competing factual account he prefers. He is entitled to accept any account that in his judgment is reliable, no matter that it may be contradicted from other sources.
[40] Moreover, in our opinion, the submission for the petitioners is unsound to the extent that it treats this is a purely factual issue. The question whether foxhunting is cruel involves both a question of fact and a value judgment.
[41] The factual question is whether foxhunting 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.
[42] Even on the assumption that the chase involves no distress to the fox, there was evidence in the veterinary opinion (supra) and in the Burns Report (supra) that at least the kill inflicted pain, however briefly. Moreover, no matter how many veterinary surgeons subscribed to the opinion to which we have referred, and no matter how persuasive that opinion might seem, any MSP was entitled to prefer the evidence and representations to the contrary that came from other sources, including a veterinary surgeon, Mr William Swann, and the Scottish Society for the Prevention of Cruelty to Animals whose views were supported by a number of references in the scientific literature, and to conclude that foxhunting inflicted material pain upon the quarry.
[43] In judging whether that constituted cruelty, the legislator 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.
[44] The history of the 2002 Act shows that all of these issues were before the legislators at every stage of its progress. Our own conclusion is that there was adequate factual information to entitle the Parliament to conclude that foxhunting inflicted pain upon the fox and that there was an adequate and proper basis on which it could make the judgment that the infliction of such pain in such circumstances constituted cruelty.
Social, economic and environmental impacts
[45] The Parliament's consideration of the Bill was informed at every stage by representations of the opponents of the Bill. They constituted an articulate and well-organised lobby. It is clear that the social and economic impacts of the proposed legislation were among the main considerations to which the Parliament's attention was drawn. The balancing of the advantages and disadvantages of proposed legislation to the public in general and to specific interest groups is at the heart of the legislative process. It was for the legislature to judge what were the likely impacts and whether such impacts were acceptable if the purpose of the legislation was to be achieved. That, in our view, was unquestionably a matter for the elected legislature.
The Scottish Parliament's moral judgment
[46] If the Parliament was of the view that foxhunting was cruel, and was aware of the likely impacts of the legislation, the next question is whether the Parliament was entitled to make the judgment that foxhunting should be proscribed by law.[47] The starting point on this issue, in our opinion, is that the prevention of cruelty to animals has for over a century fallen within the constitutional responsibility of the legislature. The enactment of every statute on the subject has necessarily involved the making of a moral judgment. In our view, the 2002 Act should be seen as a further step in a long legislative sequence in which animal welfare has on numerous occasions been promoted by legislation related to contemporary needs and problems.
[48] Looking at the Act in that context, we consider that it represents a considered decision by the Parliament on a long-standing and highly charged public controversy. In our view, any judgment on that controversy is pre-eminently one for MSPs (R v DPP ex p Kebiline, supra, Lord Hope of Craighead at pp 380E-381E; Brown v Stott, supra, Lord Bingham of Cornhill at pp 58I-59B). MSPs are elected on their policies on matters such as this. Once elected, they have the means at hand to inform themselves on the factual and moral issues, and are open to representations from all interest groups. They are subject to the constraints of the legislative process, which requires inter alia that the principle of a Bill should be expressly considered and voted on before any question of the details of the proposal can arise. That consideration involves the formal reception of evidence and the analysis of the issues in the course of debates.
[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 2002 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.
[50] The judgment of the Parliament in this case had the consequence that certain individuals and groups would suffer economic loss without right to compensation. That was a material consideration, but not a decisive one. Most legislation that is enacted for some public benefit results in economic detriment to some persons or bodies. The lack of compensation is merely one of many material factors that go into the exercise by which the intended public benefit is balanced against adverse social, economic and other impacts and against private disadvantage. This is certainly not an area in which the courts have any special expertise. The considered judgment of the Parliament upon it lies squarely within the scope of that discretionary area into which, in our view, the court should not intrude.
[51] For these reasons, we consider that the Lord Ordinary was right in his general approach to this matter (at para [92]) and in his conclusion that the prohibition of foxhunting was capable of being regarded as necessary in a democratic society for the protection of morals (art 8(2)) and necessary in accordance with the general interest (art 1 of the First Protocol, para 2).
[52] That was pre-eminently a judgment for the legislature. In our opinion, there is no reason why we should conclude that the legislature exceeded or misapplied its discretionary area of judgment, still less substitute our own views on the matter. This general issue affects the entire case; but it arises specifically in relation to the case under article 1 of the First Protocol and we shall return to it in that context.
IV THE APPLICABILITY OF THE ARTICLES RELIED ON
Article 8
Introduction
[53] Article 8 of the Convention provides that:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The petitioners maintain that the statutory prohibition constitutes an interference with the right to respect for the private lives of the individual petitioners and those whom the other petitioners represent, and with the right to respect for the homes of the second, third and fourth petitioners.
The Lord Ordinary's Opinion
[54] The Lord Ordinary concluded inter alia that on the facts averred by the petitioners and discussed in Dr Marvin's report (supra), article 8 was not engaged. He did not regard the land owned by the second, third and fourth petitioners as being the "home" of any of them within the meaning of article 8. He considered that it was clear from the averments that each of those petitioners owned a large estate with ample space for a variety of open-air activities that could be carried on well away from his house. He considered that while the concept of "home" was flexible, its principal connotation was that of a person's dwellinghouse or habitation and its immediate surroundings. The concept of home could apply to a large estate only in an extended sense, which he did not believe to be the sense used in the Strasbourg jurisprudence (para [102]).[55] The Lord Ordinary further considered that foxhunting had no characteristics that would bring it within the concept of private life as that concept has evolved in the Strasbourg jurisprudence. It was an activity carried on in the open air. It involved a large number of participants. It was open to all-comers and was therefore inclusive rather than exclusive. It could be carried on, principally at least, on private land rather than on public roads, but it was private land to which all who wished to participate were admitted for the occasion. It constituted a spectacle for them as well as for those followers who used the public roads.
[56] The Lord Ordinary was further of the view that Dr Marvin's discussion of the social aspects of fox hunting emphasised the public rather than the private nature of the activity because the social consequences were so diffuse. By reference to Botta v Italy ((1998) 26 EHRR 241), he concluded that foxhunting gives rise to interpersonal relations of such broad and indeterminate scope that it cannot be described as the private life of its participants. He said that it went well beyond the "certain degree" contemplated in Niemietz v Germany ((1992) 16 EHRR 97) and could not be regarded as falling within the "personal sphere" recognised by the Strasbourg court.
Submissions for the parties
[57] Counsel for the petitioners renewed the submissions which the Lord Ordinary rejected other than the submission that there was an interference with the first petitioner's right to respect for his home.[58] Counsel submitted that Dr Marvin's report provided the necessary factual basis on which article 8 could be seen to be engaged. It showed that hunting was an intensely social activity that connected its participants closely with one another, with rural society and affairs, and with the countryside. In rural communities with relatively limited opportunities for recreation it had played an important part in bringing people from disparate backgrounds together. In this way it contributed to the fostering and maintenance of a sense of community, both at the hunt itself and at hunt-related social activities. On the concept of private life expounded in Niemietz v Germany (supra, at para 29) there was an interference with the fabric of the petitioners' daily lives. The Lord Ordinary had adopted an unduly narrow notion of the concept, having held in effect that an activity was not part of private life unless it was carried on in private. Private life was wider than privacy. Article 8 protected the right to establish and develop relationships with other human beings. It protected activity beyond that which was done only in total privacy. This was the concept of the development of relationships with "the outside world" recognised in Pretty v United Kingdom (Application 2346/02, 29 April 2002, at para 61). Article 8 protected the right to conduct one's life in a manner of one's own choosing, even in pursuit of morally harmful activities (Pretty v United Kingdom, supra, at para 62). This could involve interaction with others even in a public context (PG and JH v United Kingdom, Application 44787/98, 25 September 2001, at para 56; Brüggemann and Scheuten v Federal Republic of Germany (1977) 3 EHRR 244, at paras 55 to 57).
[59] As to the second, third and fourth petitioners' right to respect for their homes, the Lord Ordinary ought not to have decided the point on the pleadings. He had decided, for example, that the 940 acres owned by the fourth petitioner could not reasonably be regarded as his home. If these petitioners had failed to demonstrate that their respective properties were their homes within the meaning of article 8, that question should be remitted to proof. The observation of the Strasbourg court in Steel and Morris v United Kingdom (Application 68416/01, 22 October 2002) to the effect that the concept of home was inapplicable to places freely accessible to the public and used for activities not relating to the private sphere was not in point, because the petitioners' land was not freely accessible to the public and was not used for such activities. Pentidis v Greece (RJD 1997-III, 983) was distinguishable on a similar basis.
[60] Counsel for the respondents adopted the reasoning of the Lord Ordinary (at para [103]). Counsel submitted that the case for the petitioners overlooked the crucial qualification in the Niemietz judgment to the effect that respect for private life included only "to a certain degree" the right to establish and develop relationships with other human beings (at para 29). The petitioners' argument proceeded on the erroneous basis that private life extends to every facet of the creation and development of human relationships. The claim to respect for private life was automatically reduced to the extent that the individual brought his private life into contact with public life or into close connection with other protected interests (Brüggemann and Scheuten v Federal Republic of Germany, supra).
Conclusions
[61] In the submissions for the parties on this article, as on the others, we have been referred to numerous decisions of the Commission and the Court at Strasbourg. While we have not overlooked these decisions, we consider that to compare and contrast the facts of the numerous cases that have been decided under a particular article is an exercise of limited value. We shall not engage in an extended analysis of the cases cited to us. We shall apply what we understand to be the essential principles to the special facts of this case.
The concept of "private life"
[62] The concept of private life is difficult to define comprehensively (PG and JH v United Kingdom, supra, at para 56; Pretty v United Kingdom, supra, at para 61; Niemietz v Germany, supra, at para 29). We shall not attempt what the Strasbourg Court has declined to do. The concept of private life secures for the individual a sphere within which he can freely pursue the development of his personality and establish relations of various kinds (Brüggemann and Scheuten v Federal Republic of Germany, supra, at para 55; Botta v Italy, supra, at para 32). The individual's life has an "inner circle" in which he may live as he chooses and exclude the outside world (Niemietz v Germany, supra, at para 29); but respect for private life must also comprise to a certain degree the right to establish and develop relationships with others (Niemietz v Germany, supra; Brüggemann and Scheuten, supra, at para 57). The zone of interaction with others, even in a public context, may fall within the scope of private life (PG and JH v United Kingdom, supra, at para 56).[63] But not every law that affects the individual's ability to develop his personality by doing as he wishes can be regarded as an interference with his private life (Brüggemann and Scheuten, supra, at para 56). Although recognising that the concept of private life can extend to the establishment and development of relationships with others, the Strasbourg Court has been at pains to say that the concept extends in that way only "to a certain degree" (Niemietz v Germany, supra, at para 29; Brüggemann and Scheuten, supra, at para 57). In our view, it is fallacious to argue that, because a certain activity establishes and develops relations with others, it is on that account within the scope of private life.
[64] In this case, the prohibited activity is not within that "inner circle" of activities that an individual conducts entirely in private. The question is whether it falls within that "certain degree" to which private life extends into the outside world; or to put the matter in another way, whether, if carried on in public, the prohibited activity falls within that "zone of interaction" with others that is nevertheless within the scope of private life (PG and JH v United Kingdom, supra, at para 56).
[65] We do not agree with the Lord Ordinary's view (para [103]) that foxhunting has no characteristics that would bring it within the concept of private life. Taking the petitioners' averments pro veritate, we consider that certain aspects of foxhunting support the view that it forms part of private life; for example, the fact that it is the principal leisure pursuit for many people and is therefore an aspect of the development and fulfilment of their personalities; and the fact that it affords them the opportunity of forming social relationships and, as senior counsel for the petitioners put it, is "a core part of their lives." But the question cannot be determined by reference to those considerations alone.
[66] In our opinion, other aspects of foxhunting prevent its being part of the private lives of the participants. It is conducted in the open over large tracts of private and public land. In the Borders, it is conducted on 62% to 65% of the land area (Lord Ordinary's Opinion, at para [97]). Only a landowner possessed of an extensive estate could undertake foxhunting within the confines of his own property. None of the petitioners claims to be able to do that. A typical hunt will cross the land of several owners. It is not a solitary activity. Even if only the mounted participants are taken into account, it is undertaken by a substantial number of people. For the majority of participants it is a sport, however central it may be to their lives. When followers are taken into account, the hunt takes on the character of a spectator sport. It is also a public spectacle. The fact that the hunt is inclusive rather than exclusive points against its being part of the private lives of the participants. If any competent horseman is welcome to join the hunt for a modest subscription, as the petitioners aver, the individual participant has no control over the identities or numbers of those with whom he shares the activity. Moreover, the social aspects of hunting extend far beyond the hunt itself. They involve the wider community, a point that is emphasised in Dr Marvin's Report (supra, at pp 10-22).
[67] Although foxhunting does involve for the participants an element of establishing and developing interpersonal relationships, it does so in such a broad and indeterminate way that it cannot be described as part of their personal lives (cf Botta v Italy, supra). In these respects, it extends further beyond the inner circle of private life than the "certain degree" to which we have referred.
[68] In our view, the Lord Ordinary was right in concluding that foxhunting is not part of the private lives of the participants, as the concept of private life is understood in the jurisprudence.
The concept of "home"
[69] In our opinion, the second, third and fourth petitioners have failed to make a relevant case that the prohibition of foxhunting infringes their rights to respect for their homes. The second, third and fourth petitioners' homes are on the estates referred to in the pleadings. The issues here are (a) whether the parts of their estates that they use for foxhunting are part of their homes within the meaning of article 8(1), and (b) whether the prohibition of foxhunting is incompatible with their right to respect for their homes.[70] Niemietz v Germany (supra, at para 30) establishes that the concept of "home" (domicile) extends beyond an individual's dwellinghouse; but nothing in that case supports the conclusion that an extensive country estate on which a person lives can be regarded as his "home." We agree with the Lord Ordinary (at para [103]) that "home" connotes a dwellinghouse or habitation and its immediate surroundings. We do not accept that it includes whatever land is held with a house, however extensive that land may be.
[71] Senior counsel for the petitioners submitted that, if we did not accept that the petitioners' whole estates were their homes, a proof would be required to establish the sufficiency of their connections with their land. There may be circumstances in which the issue may be the sufficiency of a person's connection with a piece of land (eg Mabey v United Kingdom, (1996) 22 EHRR CD 123); but that is not the issue in this case. The issue is whether the nature of the relevant estates is such that they can be regarded as part of the petitioners' homes. Prima facie they are not. It is for the petitioners to aver circumstances that might lead to a different conclusion. They have not done so. There is therefore no scope for proof on the issue.
[72] Even if the estates are the homes of the second, third and fourth petitioners within the meaning of article 8(1), we are not persuaded that the statutory prohibition is incompatible with the rights of those petitioners to respect for their homes. If those petitioners formerly permitted all-comers to traverse their estates in the course of the hunt, they were not, in our view, thereby enjoying the right to respect for their homes. In our view, the prohibition of foxhunting, although undoubtedly an interference with the petitioners' freedom to use their estates as they choose, cannot be regarded as an infringement of their right to respect for their homes.
[73] We conclude therefore that the petitioners averments do not make a relevant case that article 8(1) is engaged by the statutory prohibition. On that view, the question of justification in terms of article 8(2) does not arise.
Article 11
Introduction
[74] Article 11 provides inter alia that:
"Everyone has the right to freedom of peaceful assembly and to freedom of association with others ..."
[76] Counsel for the petitioners also founded on specific averments to the effect that since the Act came into force the number of mounted followers of the fifth and seventh petitioners has fallen by about 80% and 50% respectively; the viability and continued existence of the nine surviving Scottish hunts are under serious threat; and the fifth, sixth and seventh petitioners are likely to cease to exist.
Submissions for the parties
[77] In relation to the individual petitioners, counsel for the petitioners submitted that an individual did not enjoy the right to freedom of association if in reality the freedom of action or choice that remained available to him was either non-existent or so reduced as to be of no practical value (Chassagnou v France (1999) 29 EHRR 615, at para 114).[78] In relation to the fifth to ninth petitioners, counsel submitted that article 11 applied to an association of persons, particularly where the legislation might injure the association in terms of loss of members and prestige (Grande Oriente d'Italia di Palazzo Giustiniani v Italy, (2002) 34 EHRR 22, at para 15). The true issue was not whether article 11 was engaged, but whether the restriction of the petitioners' freedom of association could be justified.
[79] Counsel for the respondents submitted that in cases such as Grande Oriente v Italy (supra), NF v Italy ((2002) 35 EHRR 4) and Vogt v Germany ((1996) 21 EHRR 205) restrictions were imposed on persons because they were members of an association. The restrictions therefore directly affected the association's membership, revenue and prestige. In the present case, the restriction was imposed on an activity. The restriction affected individuals' membership of their associations, and the membership, revenue and prestige of those associations, only indirectly.
[80] Article 11 safeguarded the freedom of the individuals to associate together for a common legitimate purpose. But if the state was entitled to prohibit a particular activity, those who wished to carry it out could not invoke article 11 to contend that they had a right of association for that purpose. The associations themselves could not, in such circumstances, claim that their rights under article 11 were infringed because the indirect effect of the prohibition was to affect adversely their membership, revenue and prestige.
Conclusions
[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 (NF v Italy, supra) or of a political party (Vogt v Germany, supra). Such a restriction may infringe the rights of the association itself if its effect is to cause direct injury to it (Grande Oriente v Italy, supra).[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 (cf Chassagnou v France, supra), 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 Adv (2004 SC 78). As his Lordship said in that case, 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. On that view, the question of justification does not arise.
Article 1 of the First Protocol
Introduction
[84] Article 1 provides as follows.
"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 or to secure the payment of taxes or other contributions or penalties".
The case under article 1 is pled on behalf of the first to fifth and the seventh petitioners.
[85] The detailed averments set out by the Lord Ordinary (paras 105-107) have since been amended to narrate the effect that the Act has had on these petitioners. It is now averred that since the Act came into force, the first petitioner has sold or given away four horses, is seeking to sell another and has had one destroyed. He has also sold one horse box. The second petitioner has lost rental income. The tenant of the livery stable on his land has suffered loss of income and for the last five months has been unable to pay the rent. The third petitioner has had to subsidise gun days from his own means. He has been unable to find a buyer for one of his hunting horses. The fifth petitioners have reduced the number of hounds from seventy to forty-seven and have disposed of six hunt horses. The seventh petitioners have had fifteen hounds destroyed. Some hounds have been re-deployed to hunts operating in England; but it is uncertain for how long and to what extent this opportunity will continue. Since foxhounds are unsuitable as domestic pets and are expensive to keep, many will require to be put down. The seventh petitioners have disposed of five hunt horses. The fifth and seventh petitioners have made employees redundant.
The issues before the Lord Ordinary
[86] Before the Lord Ordinary, it was accepted that article 1 is engaged to the extent that the Act restricts the use which the second, third and fourth petitioners may make of the land that they own and the use which the third, fifth and seventh petitioners may make of the hounds that they own. The issues under article 1 were (1) whether the effect of the Act was a de facto expropriation of the hounds or merely a control of their use; (2) whether it was necessary to deal with the land and the hounds as the Act does in accordance with the public or general interest in terms of the first or second paragraph of the article, whichever applies; and (3) whether the article was engaged at all in respect of the first petitioner's apprehended loss of his livelihood as a self-employed manager of hounds and of the tied house in which he and his wife live.
The Lord Ordinary's conclusions
[87] The Lord Ordinary held that the Act did not have the effect of a de facto expropriation of the third, fifth and seventh petitioners' hounds. It amounted merely to a control of their use (paras [129]-[130]). He then considered the balancing exercise provided by the second paragraph of article 1. Being of the view that it was within the discretionary area of judgment of the Parliament to prohibit foxhunting (at para [92]), he held that on the averments it was open to the Parliament to strike the balance by controlling the use of property in the way it had, in accordance with the general interest in the prevention of cruelty to animals, without conferring a right to compensation (Pinnacle Meat Processors Company v United Kingdom (1998) 27 EHRR CD 217; Slough and King v United Kingdom, ECHR, 26 September 2000, an admissibility decision).[88] The Lord Ordinary also held that it was sufficiently clearly averred that the first petitioner's livelihood and his tied house constituted a possession within the meaning of the article (Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309; Karni v Sweden (1988) 55 DR 157). It was also sufficiently averred that the Act had the effect of controlling this possession.
Submissions for the parties
[89] Counsel for the petitioners submitted that in substance the Act had the practical effect of a de facto expropriation of the hounds. The petitioners offered to prove that the hounds will cease to be of any use and will have to be destroyed. In striking the fair balance inherent in the words "except in the public interest," the court should give weight to the absence of any provision in the Act for compensation. It was accepted, however, that the third petitioner was in a different position from the fifth and seventh petitioners since he used hounds with both hunts and gun packs. It could not be said that the petitioners whose rights under this article were engaged must necessarily fail to show that the balance has been unfairly struck between their interests and those of the general community. In any event, in striking the balance the Lord Ordinary failed adequately to consider the wider interests of the public that were affected by the prohibition.[90] Counsel for the respondents adopted the reasoning of the Lord Ordinary on the expropriation question. The Act did not deprive the third, fifth and seventh petitioners of their ownership of hounds or ban their use for permitted purposes. The Court should consider only the direct effects of the legislation. Compensation could not be provided for indirect effects (Pinnacle Meat Processors Company v United Kingdom, supra; Slough & King v United Kingdom, supra). If there was merely control of the use of property, compensation was a relevant but not decisive factor (Sporrong & Lönnroth v Sweden, (1982) 5 EHRR 35; Baner v Sweden, (1989) 60 DR 128). In this case, in view of the discretionary area of judgment which the Parliament had in such matters, it did not follow from the lack of compensation that the balance had been unfairly struck.
[91] In the cross-appeal, counsel for the respondents submitted that the Lord Ordinary erred in holding (at para [129]) that the first petitioner's livelihood was a possession for the purposes of this article. Any impact on him from the legislation was an indirect consequence of its regulation of the use of the property of others. His conduct was affected, but not his possessions. In any event, even if the first petitioner's livelihood was a possession, and the Act had the effect of controlling its use, the Lord Ordinary was correct in holding (at para [130]) that the balancing exercise provided by the second paragraph of the article had not resulted in unfairness.
[92] Counsel for the petitioners submitted that the concept of a possession extended to economic rights and interests, such as the first petitioner's livelihood. If the petitioners' rights under article 1 were engaged, the next question was whether the legislation struck a fair balance between the general interest of the community and the individual's fundamental rights. Since there was little or no evidence that foxhunting was cruel, the Act could not be said to be necessary in the general interest. The wider interests of the community included the economic interests of those employed in the hunting economy, the social interests of the hunting communities, the services provided by hunts to local farmers, the ecological benefits of hunting, and the welfare of foxes themselves. In addition, there were the fourth petitioner's reservations about the use of gun packs on his land. Conscience as to the use of one's own land was recognised as a factor to be taken into account (Chassagnou v France, supra). If the balancing exercise had been properly carried out, the legislation could not be justified.
Conclusions
Deprivation or control of use
[93] We accept that there can be an expropriation of property for the purposes of this article even if there is no formal legal confiscatory act (Sporrong & Lönnroth v Sweden, supra). If the right conferred by article 1 is to be practical and effective, the court must consider whether the situation complained of amounts to a de facto expropriation by depriving the petitioners of all meaningful use of the property in question (cf Fredin v Sweden, (1991) 13 EHRR 784, at paras 41-45).[94] In the present case the effect of the Act is not to deprive the third, fifth and seventh petitioners of their hounds. Those petitioners may continue to use them for a variety of sporting purposes consistent with the Act. There is no averment that the hounds cannot be used for other sporting purposes. On the contrary, it is averred that the third petitioner uses them for "gun days" when foxes are flushed to guns. The petitioners aver that it is likely that hounds kept by the third, fifth and seventh petitioners will have to be put down and that the fifth and seventh petitioners have already put some down, although some have been re-deployed to hunts in England. In our opinion, these averments do not establish a relevant case that there has been a de facto expropriation of the third, fifth and seventh petitioners' hounds. The Act merely controls the use of them (cf Pinnacle Meat Processors Company v United Kingdom, supra; Slough and King v United Kingdom, supra; Tre Traktörer Aktiebolag v Sweden, supra). The petitioners may decide to destroy some or all of the hounds, but that is not a direct effect of the Act. It is only a consequential effect of the control of their use. We agree with the Lord Ordinary's conclusion on this issue.
Fair balance in relation to expropriation
[95] If we had held that the Act constituted a de facto expropriation of the hounds, it would still have been necessary to consider whether the Act struck a fair balance as required by article 1. Counsel for the respondents accepted that in that event a provision for payment of compensation would normally be required in order to strike a fair balance (Baner v Sweden, supra). On the view that we have taken on the expropriation issue, it is unnecessary for us to consider this point further.[96] The Lord Ordinary also held that a provision for compensation was not necessary for a fair balance to be struck in the event that the Act merely controlled the use of the hounds. That conclusion was not challenged.
Is the first petitioner's livelihood a possession?
[97] We agree with the Lord Ordinary that the petitioners have relevantly averred that the first petitioner's economic interest in making his livelihood as a self-employed manager of foxhounds is a possession within the meaning of article 1. That interest is comparable with an interest in operating a licensed restaurant (Tre Traktörer Aktiebolag v Sweden, supra) or in carrying on a medical practice (Karni v Sweden, supra) or in practising a profession (Van Marle v Netherlands, (1986) 8 EHRR 483), each of which has been recognised as a possession.[98] The Lord Ordinary considered that, on the assumption that the Act directly prevented the first petitioner from engaging in his profession, it was sufficiently relevantly averred that it had the effect of controlling the use of that possession. We agree with this conclusion also, which, on that assumption, counsel for the respondent did not dispute.
[99] However, counsel for the respondents submitted that any interference with the possession was a consequential rather than a direct effect of the Act. It was agreed that the Lord Ordinary, in the context of article 8, was right in holding that the statutory prohibition would have, at most, a consequential rather than a direct effect on the first petitioner's tied house if his employment was terminated. Any interference with the first petitioner's right to practise his profession was a similarly consequential effect.
[100] The Lord Ordinary did not hold that the first petitioner's inability to practise his profession was a direct consequence of the legislation. He was careful to say that it was sufficiently relevantly averred that the Act had the effect of controlling the use of that possession "to the extent that [it] may have the direct, and not merely consequential effect" of preventing the first petitioner from practising his profession (at para [129]). He did not go further and he did not need to.
[101] In any event, the Lord Ordinary found that the balancing exercise provided by the second paragraph of article 1 was not unfairly exercised. We do not regard the Lord Ordinary's treatment of this matter as inconsistent with the manner in which he dealt with the first petitioner's tied house in the context of article 8 (para [102]). It is plain that in that context the loss of the tied house would be a consequential effect of the legislation. That matter is not disputed. In the context of article 1, however, it cannot be said on the averments that the loss of the possession in issue is not a direct effect of the Act. Insofar as the Lord Ordinary mentioned the tied house in this context, he said only that it may be regarded as a tangible demonstration that the possession which he found that the first petitioner had was a current asset. In our view, there was no need for him to say more at this stage.
Balancing exercise in relation to those petitioners whose rights are engaged
[102] There remains the question whether it can be said that those petitioners whose rights under article 1 of the First Protocol are engaged must necessarily fail on their averments to show that the balancing exercise required by the second paragraph of the article has been unfairly struck, with the result that the interference with their rights under the article cannot be justified.[103] We have already considered the Lord Ordinary's general approach to the discretionary area of judgment, with which we agree. The Lord Ordinary returned to the matter when he considered the balancing exercise that the second paragraph of article 1 required (at para [130]). He referred to the consequences of the Act for those petitioners whose rights under article 1 were interfered with, namely, the first petitioner, in relation to his livelihood; the second, third and fourth petitioners, in relation to their land; and the third, fifth and seventh petitioners, in relation to their hounds. Relying on Pinnacle Meat Processors Company v United Kingdom (supra) and Slough and King v United Kingdom (supra), the Lord Ordinary held that it was open to the Parliament to strike the balance by controlling the use of the petitioners' property in the interest of preventing cruelty to wild mammals, without conferring a right to compensation (para [130]). He also referred to statements that he had quoted earlier (paras [116] and [117]) from Chassagnou v France (supra) and James v United Kingdom ((1986) 8 EHRR 123).
[104] In our opinion, the submissions for the petitioners on this point are unsound. The Lord Ordinary summarised those submissions (at para [127]) before he proceeded to the balancing exercise required by the second paragraph of article 1 (para [130]). In his consideration of that exercise, he was balancing the effect of the Act on the petitioners against the judgment of the Parliament that foxhunting should be prohibited. For the reasons that we have given, we consider that that judgment was within the scope of the Parliament's discretion. We may reasonably infer that, in making it, the Parliament had in mind the likely effects of the Act on the wider community in foxhunting areas. The Parliament had conducted extensive inquiries into that very question. In any event, there is no averment that the Parliament did not have those factors in mind when it made its judgment.
[105] The Lord Ordinary therefore had to consider whether that judgment resulted in an unfair burden on those petitioners with whose rights under article 1 the Act interfered. We are not persuaded that he erred in the way in which he carried out that exercise.
Article 14
Introduction
[106] Article 14 provides as follows:-
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination of 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."
The Lord Ordinary's conclusions
[108] The Lord Ordinary accepted that article 14 applied widely (para [136]). He concluded that those who engage in foxhunting have a personal characteristic or status falling within the terms of article 14 and therefore that the statutory prohibition would discriminate against those petitioners whose Convention rights were engaged in comparison with those whose activities were excepted from it. However, taking into account the discretionary area of judgment of the Parliament, the Lord Ordinary held that this discrimination was justified.
Submissions for the parties
[109] Counsel for the petitioners submitted that the Lord Ordinary misdirected himself in his approach to the Parliament's discretionary area of judgment and, in consequence, in his conclusion that the interference with the petitioners' rights under, inter alia, article 14 was justified.[110] In support of the cross-appeal, counsel for the respondents submitted that the Lord Ordinary erred in holding that article 14 was engaged at all. Those involved in foxhunting did not have a personal characteristic or status within the purview of article 14.
Conclusions
[111] In our opinion, the Lord Ordinary was right in holding that the petitioners have failed to plead a relevant case that there has been discrimination against any of them in the enjoyment of their Convention rights without an objective justification. Moreover, we consider, for the reasons that we have given, that the Lord Ordinary was correct in his approach to the discretionary area of judgment. On that view, we consider that he did not misdirect himself in concluding that the interference with the petitioners' rights was justified under article 14.[112] In any event, we consider that the cross-appeal on article 14 is well-founded. In Kjeldsen, Busk Madsen and Pedersen v Denmark ((1976) 1 EHRR 711, at para 56) the Strasbourg court expressed the view that article 14 "prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic ('status') by which persons or groups of persons are distinguishable from each other." In recent years, the range of persons who may be said to share a personal characteristic has been widened (Wandsworth London Borough Council v Michalak, [2002] 4 All ER 1136, Brooke LJ at para 34). Article 14 has been held to apply, for example, to discrimination between owners of one breed of dogs as against owners of other breeds (Bullock v United Kingdom, (1996) 21 EHRR CD 85); to discrimination between small and large landowners (Chassagnou v France, supra), and to discrimination between owners of fishings who had previously enjoyed an income from them and owners who had not (Baner v Sweden, supra).
[113] In each of those cases, however, the discrimination was between persons or groups of persons. Any discrimination brought about by the present legislation is, in our view, not between persons but between activities. All persons are prohibited from hunting with dogs. On the other hand, all persons may participate in other lawful types of hunting. There is nothing in the personal characteristics or status of any petitioner that bears on this. This is demonstrated by the position of the third petitioner, who formerly hunted with dogs and now hunts with gun packs. Counsel for the petitioners recognised that it might be paradoxical to make any findings of discrimination under article 14 in relation to him.
114] In our opinion, the Lord Ordinary was wrong in holding that someone who takes part in foxhunting has, on that account, a personal characteristic or status. It is relatively straightforward to attribute a characteristic or status to a person who owns a specific asset, or who holds a statutory licence or who is a member of a profession. But we find it difficult to see how such a single characteristic or status could be attributed to all of those who in countless ways participate in hunting; for example, horsemen, grooms, farriers and so on. We prefer the conclusion of Lord Brodie in Whaley v Lord Adv (supra) that the 2002 Act prohibits the killing of foxes in a particular way. It does not prohibit the killing of foxes by a particular sort of people or by people having a particular characteristic. On that view, we consider that the petitioners' rights under article 14 are not engaged at all.
V DISPOSAL
Are the petitioners entitled to proof before answer?
[115] In general, litigants such as the petitioners will be allowed at least proof before answer of their averments unless the court can conclude that, even if all material averments were proved, they would nonetheless not be entitled to the remedy that they seek.[116] Counsel for the petitioners have submitted that there are numerous unresolved issues of fact, principally the disputed factual questions as to whether foxhunting is cruel and the averments, which are not expressly admitted by the respondents, as to the socio-economic impact of the legislation. In addition, counsel for the petitioners have submitted that the judgments that the court has to make as to the applicability of the human rights founded on by the petitioners can be made only when these factual issues have been resolved.
[117] We disagree. The issue is no longer whether foxhunting is cruel or whether the 2002 Act will have adverse social and other impacts. The issue is whether Parliament had sufficient evidence before it to entitle it to pass the Act. We have already expressed our conclusions on that point.
[118] Furthermore, to the extent that we have to decide whether the respective articles are engaged at all, we have been able to reach our conclusions on that question taking the petitioners' averments pro veritate.
[119] In all the circumstances, it seems to us that there is no material dispute on any primary question of fact and that all disputed issues relate to the inferences, conclusions and judgments that fall to be drawn from those facts. In the circumstances, therefore, we consider that no material purpose would be served by our sending this case to inquiry. In our view we can decide this question now.
Decision
[120] We shall refuse the reclaiming motion and sustain the cross appeal so far as it relates to article 14.
