R. (ex rel. Countryside Alliance et al.) v. United Kingdom (Attorney General), (2007) 378 N.R. 1 (HL)

• Case Date: November 28, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 378 N.R. 1 (HL)

Countryside Alliance v. U.K. (2007), 378 N.R. 1 (HL)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. JL.005

R (on the application of Countryside Alliance and others and others (appellants)) v. Her Majesty's Attorney General and another (respondents)

R (on the application of Countryside Alliance and others (appellants) and others) v. Her Majesty's Attorney General and another (respondents) (conjoined appeals)

([2007] UKHL 52)

Indexed As: R. (ex rel. Countryside Alliance et al.) v. United Kingdom (Attorney General)

House of Lords

London, England

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

November 28, 2007.

Summary:

Countryside Alliance (the Human Rights (HR) complainants), consisted of two groups: the first including people involved in professional hunting or hare coursing and people dependant on that sport for their livelihood (e.g., the owner of a livery business and a trainer of hare coursing greyhounds); and the second group comprising landowners, masters of hunts and of a beagle pack, etc. The HR complainants alleged that the prohibition on hunting wild mammals with dogs (e.g., foxes, deer and mink) and the hunting (and coursing) of hares imposed by the Hunting Act, 2004, was incompatible with articles 8, 11 and 14 and article 1 of the First Protocol to the European Convention on Human Rights. A second group of complainants (the European Community (EC) complainants), including businesses from other European Union member states, alleged that the Act was inconsistent with articles 28 and 49 of the Treaty that established the European Community (EC Treaty).

The Queen's Bench Divisional Court, in a decision reported [2005] EWHC 1677; [2006] EULR 178, found that the Hunting Act, 2004, was not incompatible with the European Convention or the EC Treaty. The complainants appealed.

The Court of Appeal, in a decision reported [2006] EWCA Civ. 817; [2007] Q.B. 305, dismissed the appeal. The claimants appealed again.

The House of Lords dismissed both appeals.

Civil Rights - Topic 908

Discrimination - General principles - Nondiscriminatory laws - Countryside Alliance (the HR complainants) complained that the prohibition on hunting wild mammals with dogs (e.g., foxes, deer and mink) and the hunting (and coursing) of hares imposed by the Hunting Act, 2004, was incompatible with art. 14 of the European Convention on Human Rights - Article 14 prohibited discrimination on the basis of sex, race, colour, etc., "or other status" - The HR complainants argued that they were subject to adverse treatment as compared with those who did not wish to hunt and were in no way involved in hunting (i.e., on the ground of their "other status") - The House of Lords affirmed the dismissal of the complaints - Lord Bingham of Cornhill stated that "in the present case, assuming in the HR claimants' favour that they are the subject of adverse treatment as compared with those who do not hunt and are in no way involved in hunting, and assuming further that their complaints fall within the ambit of one or more articles of the Convention, I cannot link this treatment to any personal characteristic of any of the claimants or anything which could meaningfully be described as 'status'" - See paragraphs 23 and 24 - Lord Hope of Craighead agreed that s. 14 was not contravened - See paragraphs 59 to 64 - Baroness Hale of Richmond stated that membership in the hunting community was not in her view another "status" for the purpose of art. 14 - See paragraph 130 - Lord Brown of Eaton-under-Heywood and Lord Rodger of Earlsferry held that the claim under art. 14 could not succeed in light of recent decisions of the House in this area of the law - See paragraph 145.

Civil Rights - Topic 2160.7

Freedom of association - Limitations on - Hunting - [See Civil Rights - Topic 2366 ].

Civil Rights - Topic 2366

Freedom of assembly - Denial of right of - What constitutes - Countryside Alliance (the HR complainants) complained that the prohibition on hunting wild mammals with dogs (e.g., foxes, deer and mink) and the hunting (and coursing) of hares imposed by the Hunting Act, 2004, was incompatible with art. 11 of the European Convention on Human Rights - Article 11 provided for the right to freedom of peaceful assembly and freedom of association - The HR complainants argued that since the only purpose of their assembling or associating was to hunt foxes, the prohibition of such hunting effectively restricted their right to assemble and associate - The House of Lords per Lord Bingham of Cornhill held he would not be content to treat art. 11 as inapplicable on the present facts - However, if there were impermissible interferences with art. 11 Convention rights, those interferences were justified where: (1) the interferences were prescribed by law; (2) the interferences were directed towards one of the objects or aims specified in the second paragraph of the respective articles (i.e., in this case protection of morals); and (3) the interference was necessary in a democratic society and was proportionate to the legitimate aim pursued - See paragraphs 16 to 18 and 43 to 46 - Lord Hope of Craighead opined that s. 11 was not engaged in this situation, stating that s. 11 did not guarantee a right to assemble for purely social purposes - See paragraphs 56 to 58 - Baroness Hale of Richmond opined that the ban on hunting with hounds did not engage art. 11 - See paragraphs 117 to 132 - Lord Brown of Eaton-Under-Heywood and Lord Rodger of Earlsferry agreed that art. 11 was not engaged - See paragraphs 142 to 144.

International Law - Topic 6065

International relations - International legal rights agreements - European Community Treaty - A group of complainants (the European Community (EC) complainants), including businesses from European Union member states and foreign visitors, alleged that the prohibition on hunting wild mammals with dogs (e.g., foxes, deer and mink) and the hunting (and coursing) of hares imposed by the Hunting Act, 2004, was inconsistent with articles 28 and 49 of the Treaty that established the European Community (the EC Treaty) - The EC claimants alleged that the Act had a very severe adverse effect on their businesses and the visitors claimed that they would no longer come to the United Kingdom to hunt if the ban remained in force - The House of Lords, per Lord Bingham of Cornhill, opined that the 2004 Act did not engage s. 28 of the EC Treaty, which prohibited quantitative restrictions on imports or measures having equivalent effect - However, Lord Bingham held that given the current state of the European Court of Justice (ECJ) authorities this conclusion was not clear beyond the bounds of reasonable argument - Therefore it was up to the House, as the final domestic court of appeal, to seek a definitive ruling from the ECJ on this issue - As to article 49, which prohibited restrictions on freedom of nationals of member states to provide services for nationals of other EU states, Lord Bingham opined that the hunting ban did not engage s. 49, but stated that since the matter was not acte clair, he would have thought it necessary to refer the matter to the ECJ if resolution of that issue were necessary to the decision of the House - However, Lord Bingham held that the Hunting Act, 2004, was justifiable in Community law, so no ruling by the ECJ was necessary to enable the House to decide the appeal - See paragraphs 25 to 35 - Lord Hope of Craighead opined that whether art. 28 or art. 49 were applicable was not acte clair, however, no good purpose would be served by seeking a preliminary ruling from the ECJ on these issues because the restrictions were justified within the meaning of the EC Treaty - See paragraphs 66 to 89 - Baroness Hale of Richmond agreed that if, which was not clear, either art. 28 or 49 were engaged by the hunting ban, then the ban was justified - See paragraphs 131 and 132 - Lord Brown of Eaton-Under-Heywood and Lord Rodger of Earlsferry agreed that the jurisprudence of the ECJ on the applicability of arts. 28 and 49 was not yet clear - Lord Brown opined that he did not regard the hunting ban (if ultimately found to engage arts. 28 or 49), to be justified - He would not refer the matter to the ECJ - See paragraphs 147 to 149 and 162 to 166.

Cases Noticed:

Pretty v. United Kingdom (2002), 35 E.H.R.R. 1, refd to. [paras. 11, 54, 94, 139].

Peck v. United Kingdom (2003), 36 E.H.R.R. 719, refd to. [para. 11].

Brüggemann and Scheuten v. Germany (1977), 3 E.H.R.R. 244, refd to. [para. 11].

G and E v. Norway (1983), 35 D.R. 30, refd to. [paras. 12, 55, 139].

Buckley v. United Kingdom (1996), 23 E.H.R.R. 101, refd to. [paras. 12, 139].

Chapman v. United Kingdom (2001), 33 E.H.R.R. 399, refd to. [para. 12].

Niemietz v. Germany (1992), 16 E.H.R.R. 97, refd to. [paras. 13, 54, 93].

Sheffield City Council v. Smart, [2002] EWCA Civ. 4; [2002] L.G.R. 467 (C.A.), refd to. [para. 13].

Harrow v. Qazi, [2003] N.R. Uned. 260; [2004] 1 A.C. 983; [2003] UKHL 43, refd to. [paras. 13, 54].

Kay et al. v. London Borough of Lambeth et al., [2006] N.R. Uned. 45; [2006] 2 A.C. 465; [2006] UKHL 10, refd to. [para. 13].

Sidabras and Dziautas v. Lithuania (2004), 42 E.H.R.R. 104, refd to. [para. 14].

Anderson v. United Kingdom (1997), 25 E.H.R.R. C.D. 172, refd to. [para. 17].

Chassagnou v. France (1999), 29 E.H.R.R. 615, refd to. [paras. 17, 58, 119, 156].

Whaley v. Lord Advocate, 2004 SC 78, refd to. [paras. 18, 57].

Wendenburg v. Germany (2003), 36 E.H.R.R. C.D. 154, refd to. [para. 21].

Tre Traktörer AB v. Sweden (1989), 13 E.H.R.R. 309, refd to. [para. 21].

Karni v. Sweden (1988), 55 D.R. 157, refd to. [para. 21].

Van Marle v. Netherlands (1986), 8 E.H.R.R. 483, refd to. [para. 21].

R. v. Waltham Forest NHS Primary Care Trust; Ex parte Malik, [2007] EWCA Civ. 265; [2007] 1 W.L.R. 2092 (C.A.), refd to. [para. 21].

R. v. Security Industry Authority; Ex parte Nicholds, [2006] EWHC 1792; [2007] 1 W.L.R. 2067, refd to. [para. 21].

Kjeldsen, Busk, Madsen and Pedersen v. Denmark (1976), 1 E.H.R.R. 711, refd to. [paras. 24, 61].

R. v. Chief Constable of South Yorkshire Police; Ex parte LS, [2004] N.R. Uned. 151; [2004] 1 W.L.R. 2196; [2004] UKHL 39, refd to. [paras. 24, 61, 145].

R. v. United Kingdom (Secretary of State for the Home Department), [2006] N.R. Uned. 194; [2007] 1 A.C. 484; [2006] UKHL 54, refd to. [paras. 24, 60, 130, 145].

Procureur du Roi v. Benoît and Gustave Dassonville, [1974] E.C.R. 837, refd to. [paras. 27, 68].

Keck v. Mithouard, [1993] E.C.R. I-6097, refd to. [paras. 27, 68].

Commission of the European Communities v. Kingdom of Spain, [2003] E.C.R. 1-459, refd to. [para. 28].

Karner Industrie-Auktionen GmbH v. Troostwijk GmbH, [2004] E.C.R. 1-3025, refd to. [paras. 28, 68].

Ditlev Bluhme, [1998] E.C.R. I-8033, refd to. [para. 30].

Omega Spielhallen-und Automatenaufstellungs - GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, [2004] E.C.R. I-9609, refd to. [paras. 30, 71].

Konsumentombudsmannen (KO) v. Gourmet International Products AB (GIP), [2001] E.C.R. I-1795, refd to. [paras. 33, 71].

Erich Ciola v. Land Vorarlberg, [1999] E.C.R. I-2517, refd to. [para. 33].

Carpenter v. United Kingdom (Secretary of State for the Home Department), [2002] E.C.R. I-6279; [2003] Q.B. 416, refd to. [paras. 33, 71].

Adams v. Scottish Ministers, 2004 SC 665, refd to. [paras. 36, 55, 108].

Dudgeon v. United Kingdom (1981), 4 E.H.R.R. 149, refd to. [para. 45].

Norris v. Ireland (1988), 13 E.H.R.R. 186, refd to. [paras. 45, 158].

Giacomelli v. Italy (2006), 45 E.H.R.R. 871, refd to. [para. 54].

Friend v. Lord Advocate, [2005] CSIH 69; 2006 SC 121, refd to. [para. 57].

Rassemblement Jurassien et Unité Jurassienne v. Switzerland (1979), 17 D.R. 93, refd to. [para. 58].

Stec v. United Kingdom (2005), 41 E.H.R.R. S.E. 295, refd to. [para. 59].

Belgian Linguistic Case (No. 2) (1968), 1 E.H.R.R. 252, refd to. [para. 60].

CILFIT v. Ministero della Sanità, [1982] E.C.R. 3415, refd to. [para. 66].

Lyckeskog, Re, [2002] E.C.R. I-4839, refd to. [para. 67].

Aragonesa de Publicidad Exterior SA and Publivía SAE v. Departamento de Sanidad y Seguridad Social de la Generalitat de Cataluña, [1991] E.C.R. I-4151, refd to. [para. 69].

United Kingdom (Her Majesty's Commissioners of Customs and Excise) v. Schindler, [1994] E.C.R. I-1039, refd to. [para. 71].

R. v. Inland Revenue Commissioners; Ex parte Professional Contractors Group Ltd., [2002] S.T.C. 165, refd to. [para. 72].

Esso Española SA v. Comunidad Autónoma de Canarias, [1995] E.C.R. I-4223, refd to. [para. 72].

R. v. Shayler, [2003] 1 A.C. 247, refd to. [para. 78].

Torfaen Borough Council v. B & Q plc, [1989] E.C.R. I-3851, refd to. [para. 81].

Society for the Protection of Unborn Children Ireland Ltd. v. Grogan, [1991] E.C.R. I-4685, refd to. [para. 84].

Conegate v. United Kingdom (Her Majesty's Commissioners of Customs and Excise), [1986] E.C.R. 1007, refd to. [para. 84].

Campbell v. MGN Ltd., [2004] 2 A.C. 457; 321 N.R. 135 (H.L.), refd to. [para. 91].

X v. Iceland (1976), 5 D.R. 86, refd to. [para. 92].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Razgar, [2004] N.R. Uned. 129; [2004] 2 A.C. 368, refd to. [para. 95].

von Hannover v. Germany (2004), 40 E.H.R.R. 1, refd to. [para. 102].

Whaley v. Lord Advocate, [2007] N.R. Uned. 195; [2007] UKHL 53, refd to. [para. 115].

Jackson et al. v. United Kingdom (Attorney General), [2005] N.R. Uned. 143; [2006] 1 A.C. 262; [2005] UKHL 56, refd to. [paras. 120, 134].

Bellinger v. Bellinger, [2003] 2 A.C. 467; 303 N.R. 1; [2003] UKHL 21, refd to. [para. 125].

Goodwin v. United Kingdom (2002), 35 E.H.R.R. 447, refd to. [para. 125].

Ghaidan v. Godin-Mendoza, [2004] N.R. Uned. 112; [2004] 2 A.C. 557; [2004] UKHL 30, refd to. [para. 125].

Karner v. Austria, [2003] 2 F.L.R. 623, refd to. [para. 125].

R. v. Special Adjudicator; Ex parte Ullah, [2004] N.R. Uned. 117; [2004] 2 A.C. 323; [2004] UKHL 26, refd to. [para. 126].

AGOSI v. United Kingdom (1986), Series A; No. 108, refd to. [para. 129].

Denimark v. United Kingdom (2000), 30 E.H.R.R. C.D. 144, refd to. [para. 148].

James v. United Kingdom (1986), 8 E.H.R.R. 123, refd to. [para. 155].

R. v. Bouchereau, [1977] E.C.R. 1999, refd to. [para. 164].

Statutes Noticed:

European Community Treaty, art. 28, art. 49 [para. 4].

European Convention on Human Rights, art. 8. art. 11, art. 14 [para. 3]; First Protocol, art. 1 [para. 3].

Hunting Act, 2004 (U.K.), generally [para. 1].

Authors and Works Noticed:

Clayton and Tomlinson, The Law of Human Rights (2000), para. 16.57 [para. 56].

Dilliard, Irving, The Spirit of Liberty, Papers and Addresses of Learned Hand (3rd Ed. 1960), p. 190 [para. 110].

Edward, David, National Courts - the Powerhouse of Community Law (2002-2003), 5 Cambridge Yearbook of European Legal Studies 1, p. 7 [para. 67].

Edward, David, Reform of Article 234 Procedure: The Limits of the Possible, in O'Keeffe, D., Judicial Review in European Union Law (2000), pp. 122, 123 [para. 67].

Hand, Learned, The Spirit of Liberty, in Dilliard, Irving, The Spirit of Liberty, Papers and Addresses of Learned Hand (3rd Ed. 1960), p. 190 [para. 110].

Mill, John Stuart, On Liberty (1859), p. 68 [para. 112].

O'Keeffe, D., Judicial Review in European Union Law (2000), pp. 122, 123 [para. 67].

Radford, M., Animal Welfare in Britain: Regulation and Responsibility (2001), c. 3, pp. 34, 41, 85 [para. 37].

Counsel:

Richard Gordon, Q.C., David Anderson, Q.C., and Marie Demetriou (instructed by Clifford Chance), for the appellants, HR;

Philip Sales, Q.C., and Jason Coppel (instructed by DEFRA and Treasury Solicitor), for the respondents, EC;

Rabinder Singh, Q.C., and Kate Cook (instructed by RSPCA), for the intervenor.

These appeals were heard on October 10, 11 and 15-18, 2007, by Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood. The decision of the House of Lords was delivered on November 28, 2007, when the following opinions were filed:

Lord Bingham of Cornhill - see paragraphs 1 to 52;

Lord Hope of Craighead - see paragraphs 53 to 89;

Lord Rodger of Earlsferry - see paragraphs 90 to 109;

Baroness Hale of Richmond - see paragraphs 110 to 132;

Lord Brown of Eaton-under-Heywood - see paragraphs 133 to 166.