COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE BUXTON
| THE QUEEN (on the application of) THE COUNTRYSIDE ALLIANCE
|- and -
|(1) H.M. ATTORNEY GENERAL
(2) THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
(on the application of)
|- and -
|H.M. ATTORNEY GENERAL
THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS
David Anderson QC and Marie Demetriou (instructed by Clifford Chance) for the 2nd Appellants
Brian Friend and Hugh Thomas ( in Person)
Philip Sales; Jason Coppel (instructed by The Treasury Solicitor and DEFRA) for the Respondents
Rabinder Singh QC and Kate Cook (instructed by RSPCA Legal Department) for the Intervener
Crown Copyright ©
The Master of the Rolls:
This is the judgment of the court, dismissing both appeals and refusing permission to appeal to Messrs Friend and Thomas.
|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|
|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||§§52-63|
|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 ' case||67-70|
|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 1 of the First Protocol||108-115|
|Justification and proportionality||116-125|
|The EC Appeal||§§ 126-172|
|Justification and proportionality in Community terms||158-172|
|The application for permission to appeal of Messrs Friend and Thomas||§§ 173-179|
|Details of the Individual Appellants||Appendix I|
|Excerpts From The Burns Report||Appendix II|
The Hunting Act 2004
5. Section 1 of the Hunting Act 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 2 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 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
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. As to the Parliamentary history the Divisional Court said this, in its §§12-21:
12. The Hunting Act 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 15th March 2002. The validity of this legislation was unsuccessfully challenged on human rights grounds in Scottish courts in Adams v Scottish Ministers  UKHRR 1189 (Outer House) and  SC 665: Scot CS 127 (Inner House). The Scottish statute is broadly similar to, but not identical with, the Hunting Act. The challenge in the Scottish courts was on broadly the same human rights grounds as are relied on by the Human Rights Appellants in the present proceedings, although there are differences in the evidence relied on and the circumstances of the individual Appellants.
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.
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 & 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. 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 15th 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 18th November 2004, became the Hunting Act under the provisions of the Parliament Act 1911 as amended by the Parliament Act 1949.
21. Thus in short, the Hunting Act 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 paragraph 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 was passed by a large majority of Members of Parliament from all major parties.
The nature of hunting:background
22.The validity of the Hunting Act 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 paragraphs 8 to 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 (paragraph 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 (paragraph 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, 8 basset packs, 3 deerhound packs, 23 minkhound packs and 6 fell packs (with 2 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 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 represents oppression of a rural minority by an elected Parliamentary majority. We also note that the Appellants in the present proceedings do not attribute bad faith to the elected Parliamentary majority.
A summary of the parties' cases
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
x) Horses; Vehicles;
xi) Miscellaneous equipment.
Hunting in some more detail
The various quarries
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 grounds 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, §§ 6.49 and 6.59; Appendix II, §§ 56 and 59]
because of the widespread support that 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, §5.75; Appendix II §38]
The reasons for and effect of hunting
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-
(b) game birds…..,
(c) food for livestock,
(e) growing timber,
(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 Appellants of Parliament's decision to depart from the principles and structure of the Michael Bill.
Sport and recreation
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 §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.
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
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 Appendix I, §§ 33 and 34) were the best examples of such people.
Hunting as an industry
The facts on which these appeals proceed
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 Appellants 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 Appellants 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.
The hunting community is currently maintaining the integrity of its various organisations in the hope or expectation that the Hunting Act will either be repealed by a future Government or declared to be unlawful. [Many of the persons quoted in the respondents' evidence] state that they view the ban as temporary and will seek to maintain their hunt infrastructure until the law is changed.
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 reduce 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 [Burns Report, § 3.72; Appendix II, §19].
In our judgment, the Article 8(1) "private life" debate has become clouded with imprecision. There are 10 Human Rights Appellants and the Countryside Alliance naturally wishes to represent the hunting community generally. Submissions have tended to generalise the Appellants. 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 private lives. For the hunting community generally the case is, we think, untenable. Mr Gordon's submissions in reply implicitly accept this.
The policy objectives of the Hunting Act
The correct approach to legislative policy
Accordingly, our first task, in the search for the comparative policy objectives upon which we have to make a value judgment, is to look primarily at the Hunting Act 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 debateable, 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" (Lord Nicholls at paragraph 67 of Wilson). 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
We discern from evidence admissible on the principles in Wilson that the legislative aim of the Hunting Act 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.
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.
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 Appellants, that the evidence of the Respondents' deponent, Mr Bradley, contained no justification for any finding of "ethical overlay". In his §48 Mr Bradley said in terms that:
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 ' 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.
The HR appeal
Preliminary: the Human Rights Act
The HR Appellants' case
i) Is the article engaged?
ii) If "yes", have the 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 Respondents justify the interference?
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.
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.
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.
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.
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 Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.
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',  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."
[T]he duty of national courts is to keep pace with Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.
Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive factor.
Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.
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 the enjoyment of their private life.
To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.
Loss of livelihood/home
Use of home
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.
It is abundantly clear (at least it is to me) – and the nature of the whole background against which the idea of the [ECHR] 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....
30. As regards the word 'home', appearing in the English text of Article 8, the Court observes that in certain Contracting States, notably Germany (see para 18 above), 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
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 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 2nd and 3rd Appellants as perhaps having the strongest cases here, although it may seem invidious to single them out from the other 8 Appellants. Their circumstances are summarised in paragraphs 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 perhaps represents something of a watershed...
137. We regard the cases of the 2nd and 3rd Appellants 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 example Sidabras, 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."
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 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 were to result in loss of their home because it is tied to their employment or business and the Hunting Act interferes with their employment or business….
146. In our judgment, the case here is not made out upon the majority decision in Qazi. 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 paragraph 89.
Our Conclusions on Article 8
Article 11 – Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others...
 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.
 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, 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 ).
 We are therefore satisfied that the petitioners have not made a relevant case under article 11.
Article 1 of the First Protocol
First Protocol, Article 1 – 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.
Justification and proportionality
the legislative aim of the Hunting Act 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 Appellants, largely supported in this respect by the EC Appellants, raised a complex series of objections to the legitimacy of that aim as a reason or justification for interference with rights protected by the ECHR. 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.
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.
the ethical overlay identified by the DC 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 enquire into.
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.
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 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.
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.
 In judging what 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…..
 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 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, 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
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 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.
Article 28: free movement of goods
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 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.
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 connexion, 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.
Cassis de Dijon 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 per cent. The famous cassis de Dijon, produced and marketed in France with an alcohol content of between 15 and 20 per cent, could not therefore be lawfully sold in Germany. The ECJ was, understandably, unable to find any justification for the German rule. It held in §14 of its judgment that:
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.
 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….
 [R]ules 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….
 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.
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 [Cassis de Dijon] 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], 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 the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty.
i) The court explicitly makes a fresh start in the analysis of article 28, 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 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 and need to be justified by (Community-recognised) public interest objectives: §15. The important consideration, here as in Cassis de Dijon, 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 Cassis de Dijon cited in §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 at all, and accordingly do not require justification: §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 itself, article 28 (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.
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, which case was not mentioned either by the Advocate-General or by the court. Austria does not assist in the issue now before us.
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 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….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 in §25 it had held that:
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.
i) While the Dassonville principle remains intact, the ECJ in Keck 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 §14): such is the case with the Hunting Act.
iii) That new start is not correctly analysed (as the Appellants 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.
iv) That is achieved in §16 of Keck by holding that non-discriminatory "selling arrangements" simply do not fall within the Dassonville formula that encapsulates the reach of article 28. That is to be contrasted with the view taken in some of the Sunday trading cases, e.g. Marchandise, §135 above, where such rules were said to engage article 28 and to require justification in Community terms.
v) It therefore must follow from the approach taken in Keck that Sunday trading rules are seen as not engaging article 28; 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.
vi) The law is said to be different because Keck 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 had been thought to cause difficulties: not only Sunday trading, but also rules as to resale, as in Keck itself. The concern was to mark those cases off from the Cassis de Dijon line of authority which, rightly or wrongly, was to be left intact: see §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 than was the ban on resale in Keck. That is not only so on commonsense grounds, but more particularly because of the concern about the application of article 28 to rules that are not directed at products from other member states: see sub-paragraph (ii) above. The Hunting Act 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 §16 of Keck as the necessary touchstone of the application of article 28.
Article 49: freedom to provide services
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 provided.
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.
… transposition of the restriction made in the Keck and the Mithouard case to the freedom to provide services is un-persuasive because, where there are sufficient international implications, the 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 the services, without any distinction at all being permissible in this respect between rules relating to arrangements for the provision of service and rules that relates directly to the services themselves.
The Divisional Court continued:
We suspect the reason why Keck 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, 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.
such a prohibition deprives the operators concerned of a rapid and direct technique for marketing and for contacting potential clients in other Member States….[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 concerned a Swedish ban on the advertising of alcoholic products, including products from other member states. The ECJ followed Alpine Investments in holding, at its §39, that:
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 Alpine Investments the providers in the home state were impeded in selling into other member states; in Gourmet 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.
What I derive from these authorities (and especially from Graf, 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.
Justification and proportionality in Community terms
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.
The provisions of Articles 28 and 29 shall not preclude prohibition 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.
In relation to article 49, by virtue of article 55, article 46.1 provides:
The provisions of this chapter and measures taken in pursuant 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.
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 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, touches upon animal welfare.
It is true that the court in its judgment in Henn & Darby 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 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 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 Torfaen, but also that there was a substantial body of Community jurisprudence that pointed in a significantly different direction.
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 Case 121/85 Conegate  ECR 1007:
As the Court held in its judgment in [Henn & Darby] 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 Respondents ventured to point out that the latter statement had been cited with approval by Advocate General Van Gerven in §26 of his opinion in Case 159/90 SPUC  I-4685, thereby possibly indicating some reconsideration of the position that he had taken in Torfaen.
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 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 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 Hunting Act within the requirements of Community law.
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 was plainly a decision of a national legislature; it therefore attracted that broad margin of appreciation.
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 [Case C-331/88 Fedesa  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 Fedesa (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, a national 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 Eastside Cheese 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 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.
The application for permission to appeal by Mr Friend and Mr Thomas
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.
Chapter 1 INTRODUCTION
Chapter 2 HUNTING
Chapter 3 HUNTING AND THE RURAL ECONOMY
Chapter 4 SOCIAL AND CULTURAL ASPECTS
Chapter 5 POPULATION MANAGEMENT AND CONTROL
Chapter 6 ANIMAL WELFARE