Strand, London, WC2A 2LL
B e f o r e :
THE HON MR JUSTICE MOSES
| (1)THE COUNTRYSIDE ALLIANCE & OTHERS
(2) FRANCES DERWIN & OTHERS
(3) BRIAN FRIEND & HUGH THOMAS
|- and -
|(1)H.M. ATTORNEY GENERAL
(2)THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS AND ANOTHER
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
David Anderson QC and Marie Demetriou (instructed by Clifford Chance) for the 2nd Claimants
Brian Friend and Hugh Thomas (3rd Claimants)
Philip Sales; Jason Coppel and Tom de la Mare (instructed by The Treasury Solicitor and DEFRA) for the Defendants
Rabinder Singh QC and Kate Cook (instructed by Herbert Smith LLP) for the Intervener
Crown Copyright ©
Lord Justice May:
The Hunting Act 2004 ("The Hunting Act")
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; norc) 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.
Parliamentary history of the Hunting Act
Hunting in England and Wales
(1) Claim no. CO/835/2005 in which the claimants are the Countryside Alliance and 10 individual claimants (the Human Rights claimants). This claim challenges the Hunting Act on human rights grounds.
(2) Claim no. CO/2446/2005 in which the claimants are 9 individual claimants (the European Law claimants). This claim challenges the Hunting Act on European Law grounds.
(3) Claim no. CO/967/2005 in which the claimants are Brian Friend and Hugh Thomas. They challenge the Hunting Act on grounds additional to those relied on in the other two proceedings.
a) The Act prohibits the hunting with dogs of foxes, mink and hares but permits the hunting of rabbits and rats with dogs.
b) The Act permits the use of dogs to flush out wild mammals for the purpose of shooting them, but DEFRA claims that it does not permit the pursuit of wild mammals by dogs to disperse them, even when the landowner has no desire to harm or kill them.
c) The Act permits the use of a dog below ground to hunt a fox to prevent damage to game birds or wild birds kept or preserved for the purpose of shooting; but prohibits using the same dog below the same ground hunting the same fox to prevent or reduce damage to livestock or chickens.
Further anomalies are listed in the Appendix to the Human Rights claimants' Detailed Grounds of Challenge. They also say that the Act is arbitrary, irrational and discriminatory because it leaves fishing and shooting game birds and mammals untouched. This, they say, casts doubt on the legitimacy of the objective of the Act. Mr Bradley gives explanations for each of these anomalies in paragraphs 74-84 of his witness statement, which we find reasonably persuasive.
"I do, however, recognise that despite the work done by the Inquiry and at the Hearings, there remains a very significant difference of opinion, not just amongst legislators and members of the public, but also amongst scientists (as was made clear on day 2 of the Hearings), about what would, in general, be the most humane method of killing foxes, particularly given that shooting may not always be an available option or be carried out by skilled marksmen."
"Stalking, if carried out to a high standard and with the availability of a dog or dogs to help find any wounded deer that escape, is in principle the better method of culling deer from an animal welfare perspective."
This was supported, it is said, by clear evidence (for example, Professor Bateson). The Hunting Act enables dogs to be used to retrieve wounded deer. There is unanimous agreement that deer populations need to be managed, but hunting accounts for only a small fraction of the number of deer killed each year. Hunting deer does not occur in most parts of England and Wales where there are deer. Hunting deer only takes place in three areas in West Somerset and Devon. Even in those areas, it accounts for only about 15% of the total cull required. Deer hunting was to be banned in the original Michael Bill. As we have said, Mr Anderson, but not Mr Gordon, more or less conceded (without formally doing so) that a ban on deer hunting might be justified, although paradoxically the most acute examples of the adverse effect of the hunting ban are those concerned with deer hunting on Exmoor.
The Burns Inquiry and Report
" 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 wild life, 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."
They delivered their Report on 9th June 2000 with an accompanying letter which included the following:
"Without doubt, conducting the inquiry has been a challenging experience. This is a complex issue that is full of paradoxes. We were helped by the terms of reference, which asked us to concentrate on the factual and analytical background to hunting. We have addressed those issues and we have not attempted to answer the questions of whether or not hunting should be banned. In particular, we have not sought to find a compromise solution, which we regarded as outside our terms of reference.
The result is a report that might appear long on analysis and short on solutions. But we believe that it will help to inform the debate that will follow the publication of our report.
We have travelled widely throughout England and Wales and listened to many people. We were left in no doubt about the sensitivity of the issue or the passion that it arouses. We have sought to conduct the inquiry in a very open manner. We have made as much as possible of our evidence available on the inquiry website. Our oral evidence sessions have been in public and transcripts have also been posted on the website as quickly as possible. We commissioned research papers, which were made available in draft and discussed at seminars, also open to the public.
In the process we believe that we have gone some way to reach a wider agreement about the analysis of the issues, although some important differences remain. Some of these differences could be narrowed further with more research conducted over a longer time period. Others are likely to remain because they are not capable of being resolved in this way."
The Human Rights Challenge
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.
2. There shall be no interference by a public authority with the exercise of this right except such as 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."
"In our opinion, other aspects of fox hunting 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. Only a landowner possessed of an extensive estate could undertake fox hunting within the confines of his own property. None of the petitioners claim to be able to do that. A typical hunt crosses 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."
The Lord Ordinary was right in concluding that fox hunting was not part of the private lives of the participants.
"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 physiological 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."
The judgment proceeds to consider the "ability to conduct one's life in the manner of one's own choosing" (paragraph 62); and observes that "the very essence of the Convention is respect for human dignity and freedom" (paragraph 65).
"Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Art. 8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of "private life"."
" the right asserted by Botta namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays concerns inter-personal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant's private life."
"Accordingly, in deciding what was the ambit of an individual's "private life" in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later state of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonably expectation of privacy."
" the impugned ban affected, to a significant degree, the possibility for the applicants to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their "private life" within the meaning of Article 8."
Article 8: interference with right to respect for the 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 2 EHRR 330. The rights 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 a 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."
Lord Hope reiterated at paragraph 53 that the object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy and that it is not concerned, as such, with the protection of his right to own or occupy property. Likewise at paragraph 63, Lord Hope cited a passage from Buckley v United Kingdom (1996) 23 EHRR 101 at page 115, paragraph 63, which considered whether or not a particular "habitation" constitutes a home which attracts the protection of Article 8(1).
Article 11 Freedom of Assembly and Association
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
"Freedom of thought and opinion and freedom of expression guaranteed by Articles 9 and 10 of the Convention respectively, would thus be of very limited scope if they were not accompanied by a guarantee to be able to share one's beliefs and ideas in community with others, particular through association with individuals having the same beliefs, ideas or interests.
The term "association" therefore possess an autonomous meaning; the classification in national law has only relative value and constitutes no more than the starting point."
This last observation went to reject a submission that there was a difference between private and public associations.
"The right to freedom of assembly is one of the foundations of a democratic society and should not be interpreted restrictively. The right is applicable to private meetings and to meetings in public thoroughfares, marches, and sit-ins. There is, however, no indication in the above case law that freedom of assembly is intended to guarantee a right to pass and repass in public places, or to assemble purely for social purposes anywhere one wishes."
The claimants contend that assembly and association for hunting is not for purely social purposes.
"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), and a restriction that, without reference to any association, nearly 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 Art 11; but a restriction of the latter kind is not. If it were otherwise, the prohibition of any activity would infringe Art 11. We agree entirely with the conclusion of Lord Brodie on the question in Whaley v Lord Advocate. 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 (para 80)."
Article 1 of the First Protocol Protection of Property
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
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.
" 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 Art 1. That interest is comparable with an interest in operating a licensed restaurant (Tre Traktorer Aktiebolag v Sweden) or in carrying on a medical practice (Karni v Sweden) or in practising a profession (Van Marle v Netherlands), each of which has been recognised as a possession.
 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.
 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 Art 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.
 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 had the direct, and not merely consequential effect' of preventing the first petitioner from practising his profession (para 129). He did not go further and he did not need to."
"Referring to its previous case law, the Court notes that insofar as it concerns a loss of future income, the applicants' complaint falls outside the scope of Article 1 of Protocol No. 1, which is not applicable to future earnings, but only to existing possessions, that is to say income once it has been earned or where an enforceable claim to it exists (Denimark v the United Kingdom, no. 37660/97, decision of 26 September 2000; Ian Edgar [Liverpool] Ltd. V the United Kingdom, no. 37683/97, decision of 25 January 2000; see also Van Marle and Others v the Netherlands, judgment of 26 June 1986, Series A no. 101, p 13, para 39-41). The applicability of Article 1 however extends to law practices and their clientele, as these are entities of a certain worth that have in many respects the nature of a private right and thus constitute assets and therefore possessions within the meaning of the first sentence of Article 1.
(see Olbertz v Germany and Doring v Germany both cited above; see also Van Marle and Others v.the Netherlands cited above, p. 13, para. 41)."
"The Court agrees with the Commission that the right relied upon by the applicants may be likened to the right of property embodied in Article 1; by dint of their own work, the applicants had built up a clientθle; this had in many respects the nature of a private right and constituted an asset, and hence, a possession within the meaning of the first sentence of Article 1. This provision was accordingly applicable in the present case.
The refusal to register the applicants as certified accountants radically affected the conditions of their professional activities and the scope of those activities was reduced. Their income fell, as did the value of their clientθle and, more generally, their business. Consequently, there was interference with their right to the peaceful enjoyment of their possessions."
"The right analysis seems to us to be that provided the state could properly take the view that the benefit to the community outweighs the detriment to the individual, a fair balance will be struck, without any requirement to compensate the individual. Should this not be the case, compensation in some appropriate form may serve to redress the balance, so that no breach of AIPI occurs."
Article 14 Prohibition of Discrimination
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
(a) Those who wish to hunt or control wild mammals such as foxes, hares or deer using means other than dogs, such as with a bird of prey, by shooting, or any of the other legal methods available;
(b) Those who wish to take part in either coarse or game fishing; and
(c) Those who wish to shoot duck, geese, wildfowl or game birds.
"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."
The court found it difficult to see how a single characteristic or status could be attributed to all those who in countless ways participate in hunting. The Scottish Act did not prohibit the killing of foxes by a particular sort of people or by people having particular characteristics.
"Where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed at that group."
The claimants say that, although the Hunting Act is of universal application, it in fact has a disproportionate adverse impact on a particular group by comparison with persons not in that group. The ban has a disproportionate adverse effect on those who live in the countryside, particularly those who live in remote rural areas of Somerset, Devon and Cornwall and the upland areas of Wales and Cumbria. They also say that the Hunting Act violates Article 14 because it fails to treat differently people whose situations are significantly different. It was for this reason, it is said, that the Government opposed an outright ban and supported the regulation of hunting on a selective basis.
"Five questions can be posed as a framework for considering the question of discrimination. (1) Do the facts fall within the ambit of one or more of the Convention rights? (2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the different in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justified in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?"
"There is no free-standing right under Article 14 against discrimination. In this case the question is whether the facts fall within the ambit of Article 8. If my conclusion is right that article 8(1) is not engaged, it follows that Article 14 is not triggered. I will assume, however, that the retention of fingerprints and samples does amount to an interference under Article 8(1), albeit a justified interference under Article 8(2). On this supposition the first Michalak question must be answered in the affirmative."
"The list of grounds in article 14 is not exhaustive, and necessarily includes each of the specifically proscribed grounds as well as "other status". The European Court of Human Rights has interpreted "other status" as meaning a personal characteristic: Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 717, 732-733, para 56. I do not understand Lord Woolf CJ  1 WLR 3223, 3238 to have expressed a different view in paragraph 47 of his judgment. On the other hand, the proscribed grounds in Article 14 cannot be unlimited, otherwise the wording of Article 14 referring to "other status" beyond the well established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of Article 14."
(See also R (Carson) v Work and Pensions Secretary  UKHL 37,  2 WLR 1369 at paragraphs 13, and 53 to 54.) Lord Steyn then examined whether the ground for different treatment in the South Yorkshire case amounted to a status in the sense of a personal characteristic within the meaning of Article 14. Having done so, he summarised the position in paragraph 51, saying that "the difference in treatment is not analogous to any of the expressly proscribed grounds such as sex, race, gender or religion".
Articles 6 and 7
Section 3 of the Human Rights Act 1998
"A person commits an offence if he hunts with the result that unnecessary suffering is caused to a wild mammal with a dog,, unless his hunting is exempt." (The words in italics inserted)
and by making comparable adjustments to other sections. In our judgment, this would plainly amount to judicial legislation, impermissible even under section 3 of the 1998 Act. In saying this, we take due account of what Lord Nicholls and Lord Steyn said in relation to section 3 in Ghaidan v Godin-Mendoza  3 WLR 113 at paragraphs 30 and 33, and 45-48. We note that Lord Nicholls said that the answer to the difficult question how far section 3 requires a court to depart from the intention of the enacting Parliament depends on the intention reasonably to be attributed to Parliament in enacting section 3. In the following paragraphs, Lord Nicholls considered this question. Mr Gordon's suggested reading would also but this is not necessary to our decision come quite close to resurrecting in another guise the registration scheme in the original Michael Bill, which the House of Commons rejected.
The European Law Challenge
i) Whether the claimants, are, in reality seeking to exercise rights protected by the treaty?
ii) If such rights can be identified, whether the Hunting Act has an aim which can justified under the Treaty and if so, whether it is a measure proportionate to that aim.
Article 28: protection of free movement of goods
"Quantitative restrictions on imports and all measures having an equivalent effect shall be prohibited between Member States."
There is and can be no dispute that the hunters and greyhounds previously exported from the Republic of Ireland into the United Kingdom are "goods" within the meaning of Article 28. Two issues form the main grounds of dispute; first, whether the asserted freedom falls outside Article 28 on the grounds that the Hunting Act is not a measure having an equivalent effect to quantitative restrictions on imports and, second, whether the Hunting Act has too uncertain and indirect an effect on the export of the animals in question.
"All measures capable of hindering intra-community trade, whether directly or indirectly, actually or potentially."
"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 continued by identifying measures which were equivalent to quantative restrictions on imports contrasting them with their resale price maintenance provision in issue in that case:
"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 the 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 the Dassonville judgment , so long as those provisions apply to all relevant traders operating within the national territory and so long as they effect 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 States meeting the requirements laid down by that State is not by nature such to prevent their access to the market or to impede access any more than it impedes the access to domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty."
(a) absence of harmonisation;
(b) rules laid down by the importing Member State relating to the requirements to be met by the products in question e.g. form and labelling;
(c) export of goods from one Member State where those goods are lawfully manufactured and marketed, i.e. the exporting state has no rules relating to the requirements to be met by the goods to be exported equivalent to the rules laid down by the importing Member State.
There would be no difference, if the roles of the exporting state and the importing state were reversed. The hallmark of such a measure is the closeness of its analogy to a quantative restriction on imports. Such a measure impedes the free movement of goods between Member States because domestic products have no numerical limit impeding their access to the market, whereas imported products are restricted by reference to their quantity.
"any more than it impedes the access of domestic products".
An arrangement which does not have any effect on the free movement of goods between Member States, in contrast to an effect on the trade of a domestic product within a Member State imposing the measure in issue, does not have an equivalent effect to that of a quantitative restriction on imports. Thus it is not within the prohibition in Article 28.
"Moreover, insofar 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."
"In the circumstances of this case, the aspect of the freedom to provide services prevails over that of the free movement of goods. .. therefore, as the Advocate General has concluded in paragraph 32 of her Opinion, there is no need to make an independent examination of the compatibility of that order with the Treaty provisions governing the free movement of goods." (See paragraph 27).
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 a person for whom the services are intended. "
" 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."
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.
Article 39: Free movement of workers
"Freedom of movement for workers shall be secured within the Community."
Mr Friend's and Mr Thomas' claim
(a) Articles 8, 9, 10, 11, 14, 17 and 53 of the European Convention on Human Rights.
(b) The Race Relations Act 1976.
(c) The provisions of a number of international agreements.
Race Relations Act 1976
Justification and proportionality
(a) in accordance with the law;
(b) necessary in a democratic society; and
(c) in accordance with the general interest [for the protection of health or morals].
These matters also embrace questions whether the Act:
(d) has a sufficiently important legitimate aim or objective to justify limiting a fundamental right or freedom;
(e) there is a rational connection between the legislative objective and the means used to achieve it; and
(f) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.
(See Lord Clyde giving the judgment of the Privy Council in De Freitas v Ministry of Agriculture  1 AC 69.) The questions of necessity and legitimate aim or objective are associated with the concept of pressing social need. The legislation must not only have a legitimate policy objective. It must satisfy a proportionality test.
i) The court's first role is to interpret and apply legislation which Parliament enacts (paragraph 55).
ii) In looking for Parliament's intention, the court has a variety of legitimate aids, some internal to the statute itself and some external, found outside the statute. External aids include the background to the legislation, because no legislation is enacted in a vacuum (paragraph 56).
iii) Cautious reference may be made to clear and unambiguous statements recorded in Hansard made by the minister or other promoter of the Bill as background, but these cannot control the meaning of an Act of Parliament (paragraphs 58, 60). This is not "questioning" what has been said in Parliament contrary to Article 9 of the Bill of Rights (paragraph 60).
iv) The Human Rights Act 1998 requires the court to exercise a new role in respect of primary legislation, evaluating it in terms of Convention rights. "If the legislation impinges upon a Convention right the court must then compare the policy objective of the legislation with the policy objective under which the Convention may justify a prima facie infringement of the Convention right." For this the court will look primarily at the legislation, but the court may need to look outside the statute for the complete picture. What is relevant is the underlying social purpose of the legislation (paragraph 61; see also Lord Hope of Craighead at paragraph 116).
v) The legislation must also satisfy a "proportionality" test to decide whether the means employed by the statute are appropriate and not disproportionate to its adverse effect. This involves a value judgment (paragraph 62).
vi) For this value judgment, the facts will often speak for themselves. But the court may need additional background information tending to show the likely practical impact of the statutory measure, why the course adopted is or is not appropriate, and the nature and extent of the social problem at which the legislation is aimed (paragraph 63).
vii) The additional background material may come from a number of sources (paragraph 64) which may to a limited extent include matters stated in Parliament (paragraph 65, see also Lord Hope at paragraph 118 and Lord Hobhouse of Woodborough at paragraphs 141, 142 for a rather more expansive general approach). The court will seldom resort to Hansard (paragraph 66).
viii) It is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. It is not to be judged by the quality of the reasons advanced in support of it in the course of Parliamentary debate, nor by the subjective state of mind of individual ministers or other members. The court is called upon to evaluate the proportionality of the legislation, not the minister's explanation of the policy options or of his explanations to Parliament (paragraph 67; see also Lord Hope at paragraph 117 and Lord Hobhouse at paragraph 143).
(1) Legitimate aim;
(2) Necessary in a democratic society and proportionality; and
(3) In accordance with the law.
"The enactment of every statute on the subject [of animal welfare] has necessarily involved the making of a moral judgment."
The Burns Inquiry did not consider moral or ethical issues. The nature of the evidence available to legislators was such that its assessment necessarily required an element of moral or value judgment. It is impossible to know for certain to what extent hunted animals suffer during the chase and the kill. This is just not because they cannot express themselves but because of the nature of hunting. The chase can be portrayed as no different in substance from vigorous and healthy exercise; the kill as excluding suffering because of the speed at which it often occurs. Whether or not you accept those arguments cannot depend purely on scientific evidence, because science has not yet provided, and is unlikely to provide, any definitive answer. It must depend in part on beliefs as to the sentient capacity of animals (not presently susceptible to definitive proof); the extent of the respect which should be accorded to them; whether a precautionary approach should be adopted; and the relevance of the fact that hunting may be a purely recreational activity. The Burns Report noted in paragraph 6.10 that reliance on physiological and behavioural indicators would leave room for argument about whether particular indicators were a sign of poor welfare or merely of exertion within normal limits. There is a better understanding of the physiological changes which occur when a deer is hunted, "although there are still substantial areas of disagreement" (paragraph 6.33). There comes a point where in "the argument ceases to turn purely on scientific evidence, but instead, becomes a broader judgment about animal welfare" (paragraph 6.32).
"Moreover, and importantly, I am wholly unpersuaded that the evidence the claimants wish to adduce would assist in deciding the justification issue. The proposed new material would comprise psychiatric and other research evidence on the effect of corporal punishment, including in particular the effect of corporal punishment in an environment where "the relationship between school and home is a crucial issue in the progress and development of each child", and parental evidence on the effect the ban on corporal punishment has had on children since section 548 came into effect. But this evidence would resolve nothing, it is well known that different views are held on the desirability of the corporal punishment to children. Evidence by parents, experts and others that in their opinion corporal punishment has an overall beneficial effect, or that it may do so in certain circumstances, would be no more than evidence in support of one view on a much discussed social issue affecting every family."
"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."
"Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is "in the public interest". Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.
Furthermore, the notion of 'public interest' is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is 'in the public interest' unless that judgment be manifestly without reasonable foundation."
" may have been possible, and indeed a proposal to this effect was made during the debates on the draft legislation. However, Parliament chose instead to lay down broad and general categories within which the right of enfranchisement was to arise. The reason for this choice, according to the Government, was to avoid the uncertainty, litigation, expense and delay that would inevitably be caused for both tenants and landlords under a scheme of individual examination of each of many thousands of cases. Expropriation legislation of wide sweep, in particular if it implements a programme of social and economic reform, is hardly capable of doing entire justice in the diverse circumstances of the very large number of different individuals concerned."
"The lawfulness of the prohibition of an economical activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued." (See R v Maff ex parte Fedesa Case-331/88  ECR I.4013 at 406 para 13).
"I doubt whether identification of the Community legislator, or distinctions between primary and secondary legislation, either at the Community or at the national level, are of much assistance in determining the margin of appreciation available to a national decision." (See Robert Walker LJ, as he then was, in R v Maff at page 384 B to D).
Any justification must be compliant with the European Convention on Human Rights (see e.g. Carpenter). Thus the claimants contend that justification under the Treaty requires no less a foundation than under the Human Rights Act 1998. None of these points are in issue; but it is necessary to consider what Community jurisprudence adds to issues of justification .
"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."
"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."
"It is true that the court in its judgment in Henn & Darby accepted that in principle it is for each Member States 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."" (See also the Advocate General in Omega between paragraphs 100 and 103).
"65. It remains to be examined whether a Member State may rely on Article 36 in order to restrict the export of calves to other Member States for reasons relating to the protection of public policy or public morality which are not the subject of the Directive.
66. CIWF supports recourse to those justifications simply by drawing attention to the views and reactions of a section of national public opinion which believes that the system put in place by the Directive does not adequately protect animal health. So, 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."
"All the rules of conduct and values which operate as standards in a society." (See note 49 at paragraph 101).
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
LORD JUSTICE MAY: For the reasons given in the Court's written judgment, copies of which have been provided to the parties and which are now available for publication, these applications for judicial review are dismissed. In saying that, we would like to thank, again, all those who have contributed to these proceedings, in particular, since we last met to those counsel and others who have helped us enormously in getting typographical and other errors removed from the draft. Thank you very much.
MR DE LA MARE: I appear on behalf of the Secretary of State. My learned friend, Mr Bowen, appears for the Human Rights Act claimants and Mr Anderson and Mr Demetriou for the EEC claimants and Miss Cook for the Intervener. There are essentially two matters by way of final disposal. First of all the issue of costs, and secondly, the issue of permission to appeal.
The Secretary of State's position on costs is really blindingly simple. The Secretary of State invites your Lordships to direct that the claimants pay the costs of and occasioned by their application and the EC claimants to pay the cost of and occasioned by their application. We do not seek a costs against the Friend claimants. I am instructed to say, on the other hand, that we do expect this to be the end of that particular strand of litigation. Those claimants have appeared, despite the warning given by Collins J in refusing permission. If there is any intention to progress that claim any further to the Court of Appeal we would, in those circumstances, were we to be successful in defending that renewed application for permission to seek costs. But on that basis, as long as that is clearly understood, we seek no costs against those counsel.
It is probably sensible, in the light of the fact that my learned friend, Mr Bowen, supported by Mr Anderson, intends to make an application that there should be no order as to costs. I will listen to that application and then respond to it, then perhaps, if it is convenient to your Lordships, we deal with the issue of permission to appeal after that.
LORD JUSTICE MAY: So be it. Let us do the costs first. Mr Bowen? Could I just say we have had a very written skeleton from Mr Anderson. We have not had one from you, should we have or not?
MR BOWEN: I have a short note, which I am delighted to hand up. It is no more or less than I am about to say.
LORD JUSTICE MAY: What we have got is somebody's draft of an order which suggests various possibilities.
UNKNOWN SPEAKER: That is the word Mr De La Mare and we have contributed via the square bracket.
MR BOWEN: First of all in relation to the question of costs, my Lord, the points I now make are obviously at the forefront of your minds eye, I sincerely hope, in relation to the plain and clear public interest element of this case, the nature of this case. The Countryside Alliance were responsible for bringing this challenge. Very clearly there are, I think, the second to eleven claimants individually, plainly, played a crucial role. It would be naive to think that those eleven individuals came to Court entirely unprotected by internal arrangements with the Alliance. There is a mechanism by way of indemnification which was subject of much concern and scrutiny at the earliest stage of this case. But it is not yet tested and it would be concerning to the claimants if indeed it was necessary to get into that territory at all. So what I would like to just preface my main submission that there should be no order, with the fact that if you are against me, you should draw some distinction between the position of the Alliance and the individual claimants.
There is no suggestion that the Alliance, in so far as you are going to be against me, will not be good for the money.
LORD JUSTICE MAY: You are obviously making these submissions not only on behalf of the individuals but on behalf of the Alliance.
MR BOWEN: I distinctly have two hands. The first point I would like to make in relation to costs is that it is almost inevitable that if the Alliance had not brought various groups together and had not been the centre point for research initially and consultation and debate, as they have been throughout, you will have seen, throughout the various enquiries. When the Act was finally passed in plainly controversial circumstances another challenge will almost certainly have come from somewhere. It is like so many things a matter of speculation, but I think I can say it is very probable that a claimant, with the benefit of funding from the Legal Services Commission would have emerged. Accordingly, and I do not say this in merth in any way, the Countryside Alliance have in a perverse way carried out some public service for the government, by funding what would in any case have been substantial costs, irrespective of whether we have gone over the top on evidence or not, even if the case was brought in a more factually and evidentially slimmed down fashion. The government, the State as a whole, would almost certainly have had to have paid. If they had been legally aided there would have been no prospect of enforcing the event of a win. So that on its own must, in my respectful submission, be a compelling reason for saying that this is a no order case. I would like to bolster that by saying that, quite clearly, and I do not want to repeat everything that Mr Lissack said in opening, the impact on whole communities, on individuals, lost livelihoods on the way that people have chosen to live their lives in this case is profound. I think your Lordships entirely accept that. For understandable reasons have found against us on our technical Human Rights argument.
To an extent it adds further insult to injury -- I think is a phrase that has come up on paper and possibly orally when this case was opened -- that there should also be a financial condemnation in addition to the rejection of our argument. Now, I can further bolster that by saying that the government have not been wholly successful. Plainly Mr Anderson is on slightly stronger ground than me because of the manner in which he dealt analytically with his claim. But nonetheless the question of legitimate aim was plainly not easy. You have not, this Court has not adopted wholesale the government's defence on legitimate aim.
MR JUSTICE MOSES: If you loose a case where the issue is not easy, then you do not have to pay all the costs. Is that the principle?
MR BOWEN: I am not saying that at all.
MR JUSTICE MOSES: I do not understand the principle you are contending.
MR BOWEN: I will move to my main principle which you will probably find more helpful. I do not want to get into the bowels of the arguments and in the absence of my leader, who is in Ireland, fishing or relaxing (Laughter).
MR JUSTICE MOSES: Shooting woodcock.
MR BOWEN: Not hunting, I am sure. But the major point, which is taken in similar cases -- the New Zealand Maori case I am thinking of particularly -- is that this claim was not brought, out of personal gain, personal motive by the Alliance. It was brought for the very simple reason, that there was a massive ground swell of opinion and disagreement with what the State was doing, but somebody had to come to Court and argue against it. On that basis, we have represented, the claimants two to eleven, have represented rural communities all over England and Wales, many of whom, substantial parts of those communities share those views and share those believes. So, in short, if ever there was a public interest case, this is it. Yes, we have lost and I entirely accept that. If I do not know if Mr De La Mare may or may not in his response start talking about protected costs orders, paragraph 74 of Corner House Research and those five or six guidelines which we plainly would not fitted into because this case would have happened anyway, even if such an order had been made.
My understanding is that the fact that the individual claimants and/or the Alliance, trying to change those guidelines, did not come to Court to try to seek such an order, in no way undercuts your Lordship's discretion, which plainly generally exists in this jurisdiction to make no order. The fundamental rule, as stated, many times over, is that there is no rule. This is a case which cries out, justice wise, for no order, my Lord. Unless there is anything else, that is all I say.
LORD JUSTICE MAY: Just this. The suggestion is made in one of the multi choice questions we have got on the draft in front of us, that if that submission does not succeed, or does not succeed entirely, there should be an order that the costs ward or whatever it might be should not be enforced against the individual claimants without leave of the Court. Speaking for myself, I see some force in that. You are asking for that, are you?
MR BOWEN: I am certainly asking for that, my Lord. What I have not covered is in so far as you are against me on no financial recovery at all for the government, then, if you are at least half sympathetic to the submission, then there is a certain logical force in saying they should recover half their costs.
LORD JUSTICE MAY: As another fallback position are you or are you not asking for a part order as to costs to be made against you? It is a bit difficult, because apart from general submissions such as you have made, the Human Rights claimants did not actually succeed on anything.
MR BOWEN: We approached the borderline in a very difficult area, my Lord, and we defeated -- defeated is the wrong word, but I do not want to get into an argument.
LORD JUSTICE MAY: We have got the point about legitimate aim.
MR BOWEN: I accept it was a defeat. It was not a crushing defeat, it was a thoroughly respectable defeat in a very difficult area. You have very candidly accepted my Lords, both of you in argument, that this could, permission allowing, we would say should go higher. It is not inconceivable that your Lordships' comrades in the Court of Appeal and higher may well disagree.
LORD JUSTICE MAY: In which event you would probably get any costs order made in this Court reversed.
MR BOWEN: That would be a shame, and waste of breath higher up my Lord. It would be far better to get it right first time (Laughter).
LORD JUSTICE MAY: Okay. Mr Anderson?
MR ANDERSON: My Lord, I cannot improve on those submissions, we adopt them. May I start up where Mr Bowen left off. In the event that your Lordships are minded to make some sort of costs order against us, I have a submission specific to the European claimants that that issue should be reduced to reflect the -- I accept limited extent -- to which on some issues we did win. I focus in saying that on what we described the first hurdle. The point from our point of view being that we got over the first hurdle. It is true we got over it only in the end by means of services, but that seemed to be enough.
LORD JUSTICE MAY: You are in a slightly different position, that the Article 1 Protocol 1 point was conceded to an extent by the defendants. Your Article 49 point was not.
MR ANDERSON: Yes. We needed to win on something to get into the Court at all. The defendants, and there is no criticism of them, they fought very hard on every gateway. A great deal one suspects of the work that was put into their European side of their case was devoted to defending the gateways. What happened in the end was that the Army came over the drawbridge. In that very basic sense one of the two issues in the case was won by us.
LORD JUSTICE MAY: Help us on this. In the Human Rights claim, the Countryside Alliance was a claimant. I think I am right in saying that in your claim they were not.
MR ANDERSON: That is correct.
MR JUSTICE MOSES: They would not have been because most of foreigners. I must not say that - fellow members of the community.
LORD JUSTICE MAY: Mr Bowen is suggesting that if we make a costs order at all, it is effectively a costs order against the Countryside Alliance. But we cannot do that in your proceedings.
MR ANDERSON: No, you cannot do that, my Lord. I suspect this issue is more illusory than real. My solicitors are in funds, in a sum which they believe would be quite adequate.
LORD JUSTICE MAY: We have got to get the technical point right.
MR ANDERSON: There is no corporate or unincorporated body in my case, just ten individuals.
LORD JUSTICE MAY: We cannot consider making a 'not to be enforced' against your claimants without permission of the Court. The ground for doing so is not there.
MR ANDERSON: That is right, I do not think there is any point. So, your Lordship has the point on the issues. We do not say that the way to go is one of these rather complicated issue based orders. If there is a point there, it should be a discount. We say that 20% discount from whatever your Lordships might have been otherwise minded to order is an appropriate way to go. I do not think I can assist you further on costs?
LORD JUSTICE MAY: Mr Friend, nobody is seeking that you and Mr Thomas pay costs. You have nothing to say on cost?
MR FRIEND: I believe I was told that I would not be charged costs if I undertook not to carry on with these proceedings.
LORD JUSTICE MAY: I do not understand that as an undertaking to that effect. In this Court the defendants are not seeking a costs order against you. They are hoping that you are going to stop. But they are not seeking an undertaking. Am I right, Mr De La Mare?
MR DE LA MARE: Quite right, my Lord.
MR FRIEND: I think it only fair to say, I think my personality and the 1 hour and 10 minutes I speak show I would not, if such condition was imposed, I would accept that.
LORD JUSTICE MAY: There is not a condition being asked. Nobody is asking you -- nobody is seeking a costs order against you. I take it you have nothing to say.
MR JUSTICE MOSES: The only point of Mr De La Mare standing up was to warn you that, if you seek permission to appeal, it having been refused here in the Court of Appeal, or getting it, lose in the Court of Appeal they may not take so benign an attitude. That was the only warning shot across your bows.
MR FRIEND: I am grateful for you so saying so.
LORD JUSTICE MAY: Yes Mr De La Mare?
MR DE LA MARE: Can I deal with Mr Bowen's submission first of all? I would suggest it is a rather bold submission for a number of reasons. First of all, the Country Alliance is an extremely well funded organisation. It has not exactly stinted its litigation. It has appeared armed to the teeth with two Queen's counsel, two junior counsel, city solicitors, a very top heavy case, that has incurred a substantial amount of expense all round. It is not a classic impoverished interest group or pressure group, seeking to discharge the public interest.
LORD JUSTICE MAY: The submissions are not put on that basis.
MR DE LA MARE: I appreciate that.
MR JUSTICE MOSES: They are saying that this was of such overwhelming public importance that had they not been an organisation, it would fall out with the Corner house principles. This was a classic case where they could have got a protected costs order.
MR DE LA MARE: I appreciate that.
MR JUSTICE MOSES: The public interest demanded that this issue be litigated.
LORD JUSTICE MAY: They are also saying that if the Countryside Alliance had not been there with the financial ability to bring the case, one or more of the claimants would have got public funding.
MR DE LA MARE: I will come to that point in a second. The reason I make the point I do about the resources is, first of all, on any view it is a relevant factor to your discretion. Secondly, it is the kind of category into which cases where the exceptional step of a no order as to costs has been made, where the effect of imposing costs in the litigation has been to disable, if you like, or impede the litigant of capacity of that group, to pursue public interest cases. There is no suggestion that the Countryside Alliance is not going to be able to pursue with the utmost vigour whatever course it thinks necessary in pursuing this litigation. It is relevant to that extent.
Secondly, in so far as it is said that this is a case that raises real public interest issues, I would to a certain extent engage with that. For the simple reason that precisely these issues have already been litigated twice in Scotland. For whatever reason the Countryside Alliance which was a party to that--
LORD JUSTICE MAY: Speaking for myself, I would not accept that entirely. There was this case called Adams and a lot of the points were raised in Adams, but nothing like all of them. Nor were the facts the same.
MR DE LA MARE: The essential structure of the case made in Adams was reliant upon the same view in this case, as it came down to the same proportionality exercise, the same question about deference.
MR JUSTICE MOSES: Also I suppose you could make the point: if all the points were not argued in Scotland why were they not. They should have been. This is the second time, days have been spent in Court, though it did not have to bring it on the same time as the Parliament case, for some reason nobody has ever explained to me and they had the privilege of taking, while immigrants and others wait in the wings to get their cases on, six days of this Court's time. The tax payer, they say, ought to bear some of the burden.
MR DE LA MARE: Indeed, my Lord. The point I would make about the Adams litigation is they also had the option to go to the House of Lords in that mitigation. They chose not to pursue an appeal. I would suggest it is somewhat illusory to suggest that there is an authoritative ruling on the House of Lords in the Scottish legislation would not have had a significant bearing on this litigation as well.
So, to the extent that it is a public interest issue, there has been ample opportunity to ventilate these arguments beforehand. They have been ventilated and they have been lost. The litigation has been taken. Every point has been taken. It is not a case where there is even a suggestion that they could met the pre-emptive costs order conditions in the Corner House case.
I do not say that is a bar to making the submission that Mr Bowen makes, but it is highly relevant. If you want to say that this is public interest litigation, you should get a protected costs order, you should flag them up from the beginning. The Court should have an opportunity to control the way the litigation is handled in order to ensure that there is some proper balance being struck, by the costs protections, on the one hand, and the position of the public purse on the other. For those reasons, I say the conditions for no order as to costs disposal are not made out.
Dealing briefly with the point Mr Bowen made about legal aid submissions. That is rather an integral argument. It is also rather unattractive in the circumstances where it is unreal to expect the Countryside Alliance would not have intervened.
MR JUSTICE MOSES: They could have found individual applicants. Each and every single one could have afforded this litigation. So it would be very odd if they found eleven applicants who were merely legally aided.
MR DE LA MARE: Two points I was going to make as to the level of detail. One, they could have found applicants who could have happily funded the litigation in its entirety. Secondly, the Legal Services Commission decided whether or not to grant funding to a case. First of all, they would have looked at the merits and one would imagine they tried to get legal funding to begin with. We (inaudible) about that. Secondly, if where you make an application to the Legal Services Commission, the Legal Services Commission will look at the extent to which it is reasonable to expect other people to bear a proportion of the costs of litigation. There is no indication that that step has been taken. Quite why the public purse should meet the entire costs on both sides in a case such as this, I am really at a loss to see.
As for Mr Anderson's argument. I understand the argument he makes and it is an argument about some reasonable level of discounting. I say that the EC case as a whole has effectively been won in the circumstances to hive off a piece of that particular piece of litigation. It is somewhat of an artificial exercise. I take his gateway point. Yes, the gateways were hotly contested. But in terms of how much time that actually took up in terms of preparation of the case and indeed in argument -- the point was very shortly dealt with -- I say it was a very small point. If I have to get to negotiating or making submissions about the level of discount, I would say 10% is much closer to the mark than 20%. I say 100% is actually the better result. Unless I can assist your Lordships further, those are the Secretary of State's arguments.
LORD JUSTICE MAY: Mr Anderson, do you want to reply?
MR ANDERSON: Only the on one point, the suggestion that the issue of services was not really very hotly contested. On the contrary, it was supported by abundant authority and highly ingenious and prolonged argument on behalf of the government.
LORD JUSTICE MAY: Mr Bowen?
MR BOWEN: Just two very quick points. The Countryside Alliance is described as a very rich organisation. I am not privy to their accounts but I can say, fairly, that they are simply in funds to the extent that their individual members put them in funds. There has been a nationwide attempt to get the copies, to get money to fund this litigation this far and further.
The second point relates to why was it not ventilated in Adams. That decision was taken by a separate legal team in relation to whether or not to appeal the Inner House's decision, it was a different piece of legislation.
LORD JUSTICE MAY: I do not think you need bother about that. Thank you very much, we will consider that in a moment. The questions of permission to appeal. We will hear Mr De La Mare but, at the moment, we are inclined to give permission to appeal to the Human Rights claimants on the Article 8 point, the Article 11 point and justification and proportionality, but not otherwise. That essentially means leaving out Article 14 and the section 3 point. May be other bits and pieces but that is the essence of it.
We are inclined to give permission to appeal to the European Law claimants on Article 28 and justification and proportionality but not otherwise.
We will hear Mr Friend, but we are not inclined to give you permission to appeal. We will give you an opportunity to address us in a minute. Mr Bowen, do you want to persuade us to go further than we have indicated?
MR BOWEN: Could I just try to persuade you in relation to the livelihood question under Article 1 of the first Protocol. Your Lordships think possibly -- you disagreed with the Court of Appeal in Scotland. There is a considered decision of both the Outer House and the Inner House. Plainly, those decisions are deserving of considerable respect, particularly those that of the Inner House.
MR JUSTICE MOSES: Why do you need the point. What possible further benefit can it bring you?
LORD JUSTICE MAY: I am sorry to butt in. I am in agreement with my Lord. The Article 1 First Protocol gateway is already open. There is unquestionably a properly debateable issue about livelihood, but where does it get you in practical terms?
MR BOWEN: If your Lordships are saying that once through the gateway the balance to be struck in terms of the general interest of the community against the infringed Convention rights, is the same whether or not you have just got a small breach, a dead hound, a slaughtered horse. That gets me through the gateway. If you have swains of individuals who say, claim at least and uncontroverted by evidence, that they are going to be able to do little else than stack shelves in Sainsbury's. In some cases, Mr Bigham for instance, who has been a terrier man for 42 years. He is in his early 60s. He says he is hard pushed to think what he is going to do.
If the position is that the justification exercise is in fact no different and if, my Lord, Moses J, is right that it make no difference to the finding, I do not need it. But speaking entirely for myself, that would be surprising.
LORD JUSTICE MAY: Mr Bowen, the judgment says what it says, and we are not going to say anything extemporary which modifies what we have said in the judgment. Nor can we foretell what other courts might think was important or not important. But subject to that, the justification and proportionality issue was argued in this Court, very much in the round, and I, for my part, did not detect that the case was advanced on any majorly different way, depending whether you won or lost individual issues such to this. One concern which the Court has, and I trust the representatives of the parties also have, is to confine the costs of any appeal to proportionate.
MR BOWEN: That I entirely understand and appreciate, my Lord.
LORD JUSTICE MAY: If one is thinking in terms of consuming, let us say, half a day in the Court of Appeal on the livelihood issue, essentially to no purpose, why do it?
MR BOWEN: If indeed it is an academic issue, then I will not pursue the point, my Lord.
LORD JUSTICE MAY: You are not going to get a decision from the two of us today that it is an academic issue, for the reasons which we have given.
MR BOWEN: That I appreciate, my Lords. I have to advance my position on the basis that it is in fact not academic. I think I can also say, although I do not have detailed. That particular part of the argument, did not -- Mr Gordon went for a day and a bit, not the day-and-a-half quite I do not think. He certainly did not spend half-a-day on livelihoods. Equally Mr Sales' reply was probably on that issue 10 or 15 minutes. A lot of it is on paper. There is now a conflict between the Divisional Court here and the Court of Appeal at the Inner House. It would seem sensible that it was unresolved. Even if it were academic, little extra costs that the law could be clarified for the benefit of certainty and future cases generally.
LORD JUSTICE MAY: Mr Anderson?
MR ANDERSON: My Lords, I think you are seeking to bar me out only on workers and I understand the point made in the judgment, which is that the workers were secondary to the provision of services. Since I am without clients in Court, however, I think formally at least I should ask your Lordships also for permission to appeal on workers. So, if so instructed, I can take it further.
LORD JUSTICE MAY: Thank you. Mr Friend, our provisional view that you should not, you and Mr Thomas should not get permission to appeal runs as follows: we do not think you should get permission to appeal on those points that you alone took. We fully appreciate that you also took points which were common to the Human Rights claimants, article 8, Article 11 and Article 14 and so forth. They are, subject to what Mr De La Mare has to say to us going to get permission to appeal on those grounds. There is not any point, if I can put it that way without being in any way offensive, in you rowing in on the same ground, which is going to be covered any way. If they succeed, you benefit. If they do not succeed, you avoid the risk of having to go to the Court of Appeal. That is the sort of thought we are having now. Do you want permission to appeal?
MR FRIEND: I take your point, my Lord, but I do wish for appeal, because there are certain points you made in the judgment, that matters I put before the Court, could not be decided in the domestic courts. They cannot, and I knew they could not. But one has to exhaust domestic remedies before one goes to Europe. Although the other claimants may be unsuccessful on the co-points and the co-issues, they, I would wish, to take those to Europe, if indeed it gets that far. I notice that you are not going to grant permission on 14. Nine, conscience, I remember the comments you made I did not convince you. I was not talking about recreation, I was talking about way of life. I accept your views on 10. On 17, you ask me to elaborate. Perhaps in another court I can elaborate. I have never found anybody to take 53. On that principle alone, I seek permission. And 14. I take the other words. Also I did but make, I thought, quite a cogent argument on ethnic identity which you have rejected. I do think it should be looked at by another court and that would immediately link into 14. I would seek your permission to appeal but I do understand that if you do not, I do have the right to leave to appeal. That is all need to say my Lord.
LORD JUSTICE MAY: Do you wish to be given permission to appeal in tandem with the others, if they get it, on Articles 8 and 11?
MR FRIEND: Indeed, yes, my Lord.
LORD JUSTICE MAY: Yes, Mr De La Mare?
MR DE LA MARE: Like your Lordships, my client is very keen to, first of all, keep costs down, and secondly, to ensure that this case progresses as expeditiously as is reasonably possibly in the circumstances. Uncertainty in the law in this area is certainly not desirable.
My submissions therefore would be as follows. I do not particularly push the point about permission to appeal. I was going to make the unimaginative submissions that your Lordships reached very clear judgment. You have identified in advance--
LORD JUSTICE MAY: This is a case of public importance and it would be very odd if this Court thought it should end here.
MR JUSTICE MOSES: I thought your clients were delighted. The longer it goes on being litigated, the less they have to worry about what on earth is going to happen if the laws unfold. Do not answer that.
MR DE LA MARE: I was not intending to (Laughter). The only point I was going to make is that I would be grateful if your Lordship would clarify the basis upon which permission was going to be granted. Your Lordship already has done, namely that it is a public interest case, rather than one that has real prospects of success. With that marker I will say no more. Other than to say, in respect of Mr Friend, while I will say two things. In respect of Mr Friend, I well understand why your Lordships gives him mirror image permission. I wonder whether a little bit of case management might be sensible in the circumstances. Mr Friend very much wants to keep his points alive. Might it not be sensible that his claim was stayed effectively, recognising the fact that there is test case litigation going forward, so that the case being handled by Mr Bowen and his team can be resolved finally? Then all look alike cases -- there may be others apart from Mr Friend's -- can be disposed of once the law has been clarified by the Court of Appeal and higher if necessary. I can see that there may be other potential claimants in the woodwork. We do not want the Court of Appeal to be bombarded by all of them.
The second point I was going to make--
LORD JUSTICE MAY: Pause there. That, if I may say so, seems right. If we take the view that on pure case management grounds, it would be preferable if Mr Friend did not get our permission to get to the Court of Appeal, nevertheless he ought not to have that part of his claim which is going to the Court of Appeal killed for ever, it ought to be stayed.
MR DE LA MARE: Yes. The second point I was going to make, my Lord. I do not know whether I formally need to ask permission to appeal on my gateway point with Mr Anderson. I do not think I do, I do not think it is cross-appeal point, it is rather--
MR JUSTICE MOSES: It is a notice.
MR DE LA MARE: Indeed. We wish to clarify that. Obviously the Secretary of State will carefully consider whether or not to take that point.
LORD JUSTICE MAY: Yes, thank you. There is a suggestion that an extension of time for appellants' notices should go to something like Monday, 12th September. Is that a considered date?
MR BOWEN: It is a suggested date, my Lord, it is not agreed. Could I explain briefly our position on that? We can put a rapid notice of appeal in relation to points if on a consideration, we decide to take other elements of the case further. We could put our notice of appeal in relatively quickly. But Mr Gordon, and I do not know whether I should be embarrassed about this or not. Neither of us are really around in August and Mr Gordon has considerable sitting commitments in the first two weeks of September.
LORD JUSTICE MAY: That all sounds very great, but I should have thought the interests of your clients, who want to continue to hunt might come into it somewhere.
MR BOWEN: They do, of course they do, my Lord, and we will do whatever we are told and we will expedite it as much as we can. Nonetheless, a lot of people are away in August, it will be very difficult to.
MR JUSTICE MOSES: I bet there is somebody there in Allen & Overy who could do it.
MR BOWEN: Am I looking a brick wall, my Lord?
LORD JUSTICE MAY: Not necessarily, I am just trying to find out what the position is. Is an application going to made to the Court of Appeal to expedite this? You are going to have half a hunting season gone if you do not.
MR BOWEN: Could I take instructions, my Lord? I have not had chance to have extensive discussions on this issue (Pause).
The chairman of the Alliance is in Court, my Lord. Obviously, he has listened to both our joint pleas for clemency in relation to holiday commitments, and what your Lordships have said about the hunting season generally. He would be happy if our case was properly prepared and the skeletons were in by the 16th -- 14th September, which was a date, which was almost in agreement with Mr De La Mare. I think he had agreed the 12th, and my first proposal.
LORD JUSTICE MAY: That is a Friday, is it?
MR BOWEN: That is a Friday, yes. The 12th is a Monday. It then spoke to Mr Gordon who pointed he was sitting I think as a Recorder for the first two weeks.
LORD JUSTICE MAY: So, Mr Anderson, Friday 16th September?
MR ANDERSON: That would be fine. It is an extension effectively of two weeks, I believe because the notice will go in at the same time as the skeleton. Normally, if there were no expedition we would have 4 weeks for those two documents and the proposal is as far as I can see more or less six weeks.
LORD JUSTICE MAY: Notice of appeal and skeleton arguments of the appellants, Friday 16th September, yes? Is there any other matter we have not discussed on which the Court is being invited to rule? We will just retire.
MR FRIEND: My Lord, I have no response. I would be most unhappy about having my action stayed. I mean, I can see apart from case management, I have got no holiday commitments for a start. My right of access to Court, in my view, should not be stayed on the points that in fact nobody else.
LORD JUSTICE MAY: We will have to work this out, but I do not think you have quite got the point. It is probably because I have not put it properly. You have asked for permission to appeal. We are going to consider whether we grant it to you or not. Mr De La Mare is suggesting we should not. I have explained to you a basis upon which we might not; that is to say, the separate points we do not give permission, but there are the points which are common to the Human Rights claimants upon which they are going to get permission to appeal. We make take the view that you should not be given permission to appeal on those grounds for purely pragmatic reasons.
MR FRIEND: I had understood, my Lord, I do understand now.
LORD JUSTICE MAY: Purely pragmatic reasons. The points are going to be taken by somebody else. If they win, you get the benefit of it. If they lose, you are better off because you have not risked the costs of doing so. But, if we refuse you permission to appeal, it is open to you to go to the Court of Appeal and try to persuade them, to give you permission to appeal. that is a givable.
MR FRIEND: I misunderstood the staying I apologise.
LORD JUSTICE MAY: But if you are refused permission to appeal and do nothing about it, that is the end of your claim.
MR FRIEND: I know, my Lord.
LORD JUSTICE MAY: We are trying to guard against the possibility that they go to the Court of Appeal, win for you and you can come back and say: I won part of this action.
MR FRIEND: I lost you just then, my Lord. That last bit.
LORD JUSTICE MAY: If the Human Rights claimants go to the Court of Appeal and win on Article 8 or Article 11, it would probably follow that you should have won on Article 8 and Article 11 in this Court.
MR FRIEND: I understand, my Lord.
LORD JUSTICE MAY: We need to keep alive that possibility. Because you, in those circumstances, would like to come back and say: I won against the government, and please can I have some cost?
MR FRIEND: I am right in my understanding that my own application for leave to appeal on the points that I have applied for, it is a separate issue.
LORD JUSTICE MAY: It is a separate issue. We will just retire.
LORD JUSTICE MAY: We have already indicated that each of these applications for judicial review is dismissed.
In the case of the Human Right claimants and the European Law claimants, submissions have been made to the effect that no order for costs nevertheless should be made against them, because this was a case of high and important public interest, which was going to be brought by somebody and that Countryside Alliance and, with them, the individual claimants, have taken a public stance in the public interest. Submissions are also made to the effect that although no application for protective costs order was made, nevertheless this is the sort of case in which the Court should consider not making a costs order against these claimants. A submission in which, in costs terms, we regret, we see no force is also made to the effect that, in some respects, the Human Rights claimants were successful in some of the arguments which will have taken up and did take up some of the time and expense.
A further submission is made on behalf of the European law claimants to the effect that there was one part of the argument resisted by the government upon which these claimants were successful, that is to say, the Article 49 of the European Treaty point. That is indeed correct. It is suggested that, in those circumstances, if a costs order is made against these claimants, it should nevertheless be less than 100%.
We have carefully considered these submissions, but we have reached the conclusion that this is a case where each of these two groups of defendants should be ordered to pay the defendant's costs of the proceedings in full.
We see the force of the suggestion that in the case of the Human Rights claimants who are, as it were, under the umbrella of the Countryside Alliance, who are themselves parties to those proceedings, an order should be made that the costs order we are making against them should not be enforced without leave of the Court. Expressing some sympathy with that, we nevertheless feel that it would be invidious for those claimants to be in an apparently better position than the European law claimants who technically speaking at least are not under the umbrella of the Countryside Alliance. We are given to understand that protection of that kind is in truth not necessary and we do not make that order.
In the case of Mr Friend and Mr Thomas, the defendants do not seek a costs order against them. Accordingly we do not make one.
As to permission to appeal, we give the Human Rights claimants permission to appeal, limited to the following issues, which we trust are sufficiently identified by the telegrams: the Article 8 point; the Article 11 point; the livelihood point under Article 1 of the first Protocol and the broad issue of justification and proportionality. We do not give permission to appeal on other issues in that claim.
We give the European Law claimants permission to appeal under the telegrams, the Article 28 point and justification and proportionality. We do not extend that to the issue about workers.
We refuse Mr Friend and Mr Thomas permission to appeal on all the points which they made which were not encompassed by the Human Rights claimant's case. As to Mr Friend and Mr Thomas' cases which do overlap or coincide with those parts of the Human Rights claimant's case upon which we have given permission to appeal, that is to say Article 8, Article 11 justification and proportionality. We refuse Mr Friend and Mr Thomas permission to appeal, but we do so upon the basis that, for those grounds, but not for the others, that is to say for the Article 8, Article 11 and justification and proportionality grounds, their time for re-applying for permission to appeal to the Court of Appeal on those issues, if they are, if they wish, is extended until after the determination of the Human Rights claimant's appeal in the Court of Appeal or to any other termination of that appeal. The thinking behind that is simply that there is no utility, as we see it, in Mr Friend and Mr Thomas also being enabled by this Court to appeal to the Court of Appeal on those issues when the very same issues are going to be advanced by the Human Rights claimants, but that the position should be covered, the contingency should be covered were the Human Rights claimants to succeed in the Court of appeal. In those circumstances, Mr Friend and Mr Thomas ought to have the opportunity of reviving those parts of their claim, if only to get the benefit of any success which the Human Rights claimants have had in the Court of Appeal.
The time for filing an appellant's notice, accompanied by a skeleton argument or detailed grounds of people in the case of the Human Rights claimants and the European Law claimants is extended until Friday 16th September. In giving those claimants the permission to appeal to the extent that we have, we first and foremost do so under Order 52.3(6)(b), that is to say, there is some other compelling reason why the appeal should be heard. This being a case of high public interest which, in our judgment, deserves, on that ground alone, to be considered in the Court of Appeal.
In those circumstances, it is unnecessary to indicate whether alternatively we would have given permission to appeal under order 52.3(6)(a), that is to say where the Court considers the appeal would have a real prospect of success. But in giving permission under sub-subparagraph (b), we are not to be taken to indicate that there might not be on some or all of these grounds have been, it might not have been proper for or some or all of these grounds to get to the Court of Appeal under subparagraph (a).
Is there any other matter apart from drawing up the order we ought to deal with it.
MR BOWEN: One brief matter from the HRA claimants respectively. I do not know whether any attempt will be made to appeal the Article 14 point, or indeed any other points that are still open. Is it my understanding of your order that we have until 16th September also to put in our process to the Court of Appeal on those aspects. I think unless your Lordships clarify the position, there may be some procedural confusion. I would respectfully suggest it would be for more sensible to put everything in at once, as opposed having complied with the ordinary 14 day rule in relation to those small parts.
LORD JUSTICE MAY: Yes, we agree with that. If you want to try to get permission on aspects on which we have not given permission, you have until that date to do so. Without in any way binding the Court, I should have thought that the application for permission would probably be heard at the same time as the appeal.
But if Mr Friend wishes to apply for permission to appeal in respect of which we have refused him, he has until 16th September to make that application.
MR FRIEND: That is most kind of you, thank you my Lord.
MISS COOK: It might be helpful if I indicate that the RSPCA would aim to continue to participate as an intervener in these proceedings.
LORD JUSTICE MAY: I cannot believe that anyone is going to object to that.
MISS COOK: Thank you, my Lord.
LORD JUSTICE MAY: We are grateful to everyone.