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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Countryside Alliance & Ors, R (on the application of) v Attorney General & Anor Rev 2 [2006] EWCA Civ 817 (23 June 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/817.html Cite as: [2006] 3 WLR 1017, [2006] UKHRR 927, [2006] HRLR 33, [2007] Eu LR 139, [2006] EWCA Civ 817, [2007] QB 305

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
[2005] EWHC 1677

		C1/2005/2072 Royal Courts of Justice Strand, London, WC2A 2LL
		23/06/2006

The Master of the Rolls:

This is the judgment of the court, dismissing both appeals and refusing permission to appeal to Messrs Friend and Thomas.

INDEX


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

Preliminary

These appeals

1. This case concerns an issue that has been prominent, and highly controversial, in English public life for many years, and which reached its climax in the much-debated Hunting Act 2004 that (put shortly) prohibited the hunting with dogs of certain wild mammals. There are before the court two appeals from a single judgment of the Divisional Court [2005] EWHC 1677; [2006] EuLR 178 and an application for permission to appeal. We deal with the latter at the end of this judgment. In the first, "human rights", appeal the Appellants are the Countryside Alliance and a number of individuals. In the second, "European Community", appeal the Appellants are all individuals. They are identified in Appendix I to this judgment, where we reproduce the description of those Appellants and of some of the witnesses that was given in §§ 31-55 of the judgment of the Divisional Court. The Respondents took issue with some of the claims made by those persons about their situation and the effect on them of the Hunting Act. The Appendix nonetheless serves conveniently to identify the parties and what they say about their own particular cases.
2. There is a very substantial overlap between the two appeals. The facts asserted by the one group of are accepted and relied on by the other group of Appellants. The benefit of a successful appeal in the one case would redound to the Appellants in the other case. However, it became clear before us, rather more so than it had before the Divisional Court, that the contentions in the two appeals differ from each other in some respects, not all of which are matters of detail. In what follows we will address the appeals as a single case, whilst taking care where appropriate to identify the differences between them. We adopt the practice of the Divisional Court of speaking summarily of the HR appeal and the EC appeal.
3. A striking feature of the appeals is the burdensome nature of their presentation. The Divisional Court commented in strong terms on the weight of material that had been placed before it in an attempt to explicate the arguments: see §57 of its judgment. Despite the Divisional Court's very full account of that material, which the parties on specific enquiry by this court only criticised in marginal respects, the 32 files of evidence that were before the court below have only been reduced in number to 15, to which must be added the three volumes of material and six files of authorities filed by Mr Friend in support of his application for permission to appeal. It is right to say that most of the material emanates from the Appellants. Moreover, the comparative modesty that has been exercised by the parties to the appeal in respect of evidential material has not been matched in the citation of authorities. No effective attempt had been made to provide a consolidated index to these authorities, whether alphabetical or chronological, to ease our way through the maze of cases that were cited. Leaving Mr Friend aside, there are now before the court 18 files of authorities, containing the truly extraordinary number of 189 items. In addition, counsel between them filed 164 pages of skeleton argument, and addressed the court for the better part of five days.
4. All this means that, like the Divisional Court, our first duty is to distinguish the wood from the trees. In dealing with the background issues (which we suspect will be well-known to most or all of those who persevere with this judgment) we will largely rely on the work of the Divisional Court. Anyone who thinks that he needs to know more can find it in the full and impressive judgment of that court.

The Hunting Act 2004

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

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

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

7. Section 5 bans hare coursing.

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

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

10. Schedule 1 provides for exempt hunting. Exempt hunting includes:

(i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include:

a) that the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause;

b) that it does not involve the use of more than two dogs; nor

c) the use of one dog below ground otherwise than in accordance with paragraph 2.

The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground.

ii) hunting rats (paragraph 3) or rabbits (paragraph 4);

iii) retrieving hares which have been shot (paragraph 5);

iv) flushing a wild mammal from cover for falconry (paragraph 6); and

v) rescuing an injured wild mammal using not more than 2 dogs above ground on condition that reasonable steps are taken as soon as possible to relieve its suffering.

It is the defendants' case that hunting is by definition intentional. Subject to that, the offences created by the Hunting Act are absolute in the sense that there is no provision equivalent to those in section 1 of the Protection of Animals Act 1911, where an element of some of the offences of cruelty to animals is that the offender causes the animal unnecessary suffering. Hunting wild mammals with a dog is banned, unless it is exempt hunting, whether or not it causes unnecessary suffering.

The Parliamentary history

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

The practical aspects of different types of hunting with dogs and its impact on the rural economy, agriculture and pest control, the social and cultural life of the countryside, the management and conservation of wildlife, and animal welfare in particular areas of England and Wales;

The consequences for these issues of any ban on hunting with dogs; and

How any ban might be implemented.

The Burns Report plays a large part later in the argument. The Divisional Court valuably appended a summary of that report to its judgment, and we reproduce that summary in Appendix II. As to the Parliamentary history the Divisional Court said this, in its §§12-21:

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

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

14. In 2002, the Protection of Wild Animals (Scotland) Act 2002 was passed by the Scottish Parliament, receiving the Royal Assent on 15th March 2002. The validity of this legislation was unsuccessfully challenged on human rights grounds in Scottish courts in Adams v Scottish Ministers [2002] UKHRR 1189 (Outer House) and [2004] SC 665: Scot CS 127 (Inner House). The Scottish statute is broadly similar to, but not identical with, the Hunting Act. The challenge in the Scottish courts was on broadly the same human rights grounds as are relied on by the Human Rights Appellants in the present proceedings, although there are differences in the evidence relied on and the circumstances of the individual Appellants.

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

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

17. The same choices were presented to both Houses of Parliament in 2002 in the form of a Parliamentary Motion. The House of Commons again voted for prohibition: the House of Lords for regulation. Alun Michael MP, the minister for Rural Affairs, then conducted public hearings on the subject at Portcullis House.

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

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

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

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

The nature of hunting:background

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

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

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

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

25. In England and Wales, there are 174 registered fox hunting packs, one fox hunting club, 65 beagle packs, 12 harrier packs, 8 basset packs, 3 deerhound packs, 23 minkhound packs and 6 fell packs (with 2 affiliated fell packs). There are 27 registered Welsh gun packs and 56 registered Welsh hunting packs, although those registered with the Federation of Welsh Packs are only a proportion of the total number of packs in Wales. Hunting by registered packs takes place from early Autumn until the Spring, not in the close Summer breeding season. Most hunts go out twice a week.

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

A summary of the parties' cases

8. This section gives a summary account, intended only to put what follows in the substantive part of the judgment into context. It is not a substitute for scrutiny of the parties' cases as reviewed in detail later in the judgment. It will be convenient first to mention the various bases on which it is alleged that articles of the ECHR and EC Treaty are engaged, before then mentioning issues of justification and proportionality.
9. The HR case. In some limited respects the Hunting Act will directly infringe rights under the ECHR. However, more widely, the Act will indirectly infringe rights under the ECHR, in that it is alleged that the effect of the Act will be significantly to reduce the extent of hunting in England and Wales, so that many hunts will close down or reduce the extent of their activities. The engagement of various articles of the ECHR is said to be as follows.
10. Article 8. The Act will have a direct effect in two respects. First, landowners who at present use their land for hunting by themselves or others will be prevented from doing so. That is an interference with the right to respect for their home created by article 8. Second, people who currently want to hunt and enjoy doing so will be prevented from engaging in what is for them an important part of their lives. That is an interference with the respect for their private lives and their right to personal autonomy that article 8 protects.
11. The Act will have an indirect effect in a variety of ways. The most important of them are based on the position of hunt servants who will lose their employment if their hunts close down. First, interference with their employment is interference with their personal autonomy. Second, those who live in accommodation tied to their employment will be evicted from their homes, thus infringing their rights to respect for their homes under article 8.
12. Article 11. The Act directly infringes rights under article 11, because it prohibits the assemblies that hunt meetings constitute, and prohibits or significantly interferes with the freedom of association of persons in and around hunting.
13. Article 14. The Hunting Act in its various effects falls within the ambit of articles 8 and 11 and article 1 of the First Protocol. It discriminates by imposing unequal handicaps either on the hunting community at large; or on specific groups, such as countryside dwellers or dwellers in particular rural areas such as parts of Somerset. This contention was rejected by the Divisional Court, which did not grant permission to appeal in this respect. We granted that permission on the basis that no argument was addressed to us on it, the point being reserved for potential use elsewhere.
14. Article 1 of the First Protocol. The asserted a very wide range of respects in which the Act deprived persons of property rights, or interfered with the peaceful enjoyment of those rights. These are best set out as listed by the Divisional Court in its §162. Items (i)-(ii) and (ix)-(xi) allege direct control of the use of property by the actual terms of the Act; the remainder, indirect interference, following upon the expected effects of the Act on the hunting industry:

In respect of land

i) Use of land to hunt by the owner;

ii) Permitting others to hunt over one's own land;

iii) The value of land;

iv) Expense associated with the removal of buildings and equipment which is of use only in the hunting industry;

v) The reinstatement of land which has been modified specifically for hunting with dogs;

In respect of livelihoods

vi) An individual's job and/or his livelihood;

vii) The benefit of an existing contract of employment or contract for services;

viii) Goodwill in and/or the value of existing businesses which are reliant on the hunting industry for a large proportion of their income and even the viability of their business;

In respect of other Property

ix) Dogs;

x) Horses; Vehicles;

xi) Miscellaneous equipment.

15. The EC case asserts that the hunting ban imposed by the Hunting Act directly infringes various articles of the EC Treaty. It is not in dispute that, for instance, horses are bred in at least one other member state for use in hunting in England & Wales, an example being the business conducted by the first Claimant, Mr Derwin. It is also established that persons come from other member states in order to hunt in England; thus, as set out in Appendix I, the Claimant Diana Johnson operates a business to provide hunting holidays for foreign visitors, some of whom come from the EU; and the Claimant Viscount Hughes Le Hardy de Beaulieu lives in Belgium but owns a house in Dorset and has been coming to England to hunt for nearly 25 years. He takes part in 35-40 hunts in various parts of England during each hunting season. As a result of the Hunting Act, he will no longer come to England to hunt. Evidence was accepted by the Divisional Court that these activities are substantial in nature, but the EC made clear that any interference at all with interstate trade (for instance, if Mr Derwin were the only importer, and imported only a small number of horses annually) would be sufficient to place the United Kingdom under an obligation to justify the whole of the hunting ban.
16. The EC claim is that the Hunting Act by rendering hunting illegal has an effect equivalent to a quantitative restriction on such imports (article 28 EC); and restricts the freedom of persons such as Mrs Johnson to provide services to persons from other member states and the freedom of persons such as Viscount Hughes Le Hardy de Beaulieu to come from other member states to receive services connected with the pursuit of hunting (article 49 EC).
17. The Respondents concede none of the foregoing, save that they accept that the Hunting Act will directly affect the freedom of use of property in some respects, so as potentially to engage article 1 of the First Protocol to the ECHR. The Respondents contest the Appellants' assertions as to the likely effect of the Hunting Act, on which the claims to indirect interference are based. However, even taking those claims as accepted, as did the Divisional Court, the Respondents say that the arguments advanced under article 8 extend the ambit of that article far beyond anything justified by the Strasbourg jurisprudence; that the claim under article 11 is plainly misconceived, because those who presently hunt can still lawfully assemble for purposes permitted by the Act; and that save as admitted none of the alleged possessions count as such for the purposes of the First Protocol. Further, in relation to all of the ECHR claims the Respondents say that even taking the Appellants' case at its highest the interference that is feared will not be of a sufficient weight or level to engage the protection of the Convention.
18. As to the EC Appellants' claims, the Respondents deny that the Community jurisprudence can be read to enable the provisions of the Hunting Act to be characterised as either equivalent to a quantitative restriction on imports in the terms of article 28 or as imposing a restriction on freedom to provide services as understood by the terms of article 49.
19. Justification and proportionality If the Respondents are wrong in any of their contentions in §§ 17 and 18 above they have to establish a justification for the various ways in which the two treaties are engaged; and have to do so in any event in ECHR terms because of the concession made in respect of article 1 of the First Protocol. The Respondents say, drawing on a range of material that is legitimately available in the unusual circumstance of legislation that was promoted by the legislature itself rather than by the government, that the reason for the legislation was the prevention of cruelty to animals, overlaid with a specific ethical objection to the infliction of such cruelty for the purposes of sport. Those were legitimate objectives of the state, and in assessing their reasonableness and admissibility the authorities of the state should be accorded a considerable degree of discretion. These arguments applied in broadly the same terms to the HR appeal and to the EC appeal.
20. There are some significant differences between the Appellants in the cases that they put on justification and proportionality. The HR Appellants contend that it is impossible, within the bounds of what it is permissible to refer to, to ascertain any objective or principle in the Hunting Act. The burden on that issue rests on the Respondents, and it has not been discharged. Even if that is not so, and addressing the claims made by the Respondents, first, the cruelty of hunting has not been established, accordingly it was irrational of Parliament to rely on that as a basis for legislation; second, to the extent that hunting interferes with the welfare of the quarry it is not demonstrated at least in the case of foxes to be more cruel than the only viable alternative in meeting the accepted need to control the fox population, namely shooting; third, it is not established that members of Parliament acted for ethical reasons, and if they did that would have been an impermissible imposition of their own private moral views on those of the hunting community; and fourth, that while the Appellants regarded the Michael Bill itself as an infraction of their rights, for Parliament to reject the Bill's registration scheme dependent on utility and least suffering and substitute a complete ban was, in the context of alleged concern about cruelty, irrational.
21. The EC Appellants concentrated their case on fox hunting. They told us that they would not have brought proceedings in respect of the Michael Bill had it passed into law, and therefore would however reluctantly have accepted the Bill's complete ban on stag hunting. As to the purpose of the Hunting Act, they asserted that Parliament had sought to apply the tests of utility and least suffering that had been adopted by the Michael Bill, but scrutiny of the facts demonstrated that those objectives did not justify the total ban imposed by the Act. Accordingly, the necessary factual basis had not been laid for any justification of the breaches of articles 28 and 49 that the ban entailed. If, which the EC denied, the legislature had been moved by the "ethical overlay", that was not a permissible source of justification in Community law. And as to the degree of judgement accorded to the member state, it is more difficult in their case than in that of the HR Appellants to establish justification for an interference.

Hunting in some more detail

The various quarries

22. The Hunting Act prevents the hunting with dogs of foxes, deer, hare and mink. We should say something shortly about each of these categories.
23. Fox hunting is the most prominent and discussed form of hunting prohibited by the Hunting Act, and the cases before the Divisional Court and before us largely turned on that activity. As we have seen, the EC Appellants before us limited their submissions to the effect of the Hunting Act upon fox hunting. Statistics produced by the Countryside Alliance are set out in §7 above. It is generally recognised that there is a need to control the fox population in the interests of crops, livestock and game birds. The Burns Report [§§ 5.42-5.43, Appendix II §§ 34-35] found that hunting with dogs of the type addressed by the Hunting Act made only a minor contribution to the management of the fox population in lowland areas; in upland areas, alternative methods were less easily available. With the demise of hunting with dogs, farmers are likely to adopt other methods of control to take its place, the most obvious being shooting and snaring.
24. Lord Burns and his colleagues were not asked to determine whether any particular form of hunting was "cruel", and they did not do so. They however concluded, in terms to which we revert later in this judgment, that:

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

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

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

26. As to the effect of hunting on the quarry, there is available what the EC Appellants described as a highly sophisticated study by Professor Bateson, which was the basis both of the conclusion of the Burns Report that most scientists agree that deer are likely to suffer in the final stages of hunting [Burns Report, § 6.33; Appendix II §51] and of the proposal in the Michael Bill to ban deer hunting entirely, on the basis that the activity could never satisfy the overall principle of the Bill of utility and least suffering. The EC Appellants, but not the HR Appellants, would not contend that such a ban on deer hunting was unlawful. They however pointed out that a study such as that of Professor Bateson had never been carried out on foxes when, they submitted, it easily could have been: the absence of any such evidence in the case of fox hunting in their contention seriously undermined the case for a ban on that activity.
27. Hares are regarded as, at most, a minor agricultural pest. They are subject to two forms of hunting, hunting with dogs and hare coursing (the latter being a form of organised competition based on the hunting skill of the dogs). Because these are recreational activities hare-friendly habitats tend to be encouraged in order to maintain numbers. For that reason, the effect of the ban might well be to cause numbers to decline. [Burns Report §§ 5.94-5.95; Appendix II §§ 39-41]
28. The Burns Committee concluded that both forms of hunting seriously compromised the welfare of the hare in the chase, and that although in normal hunting death of the hare usually followed immediately on capture, in coursing there could be a serious delay. [Burns Report §§6.67-6.68; Appendix II §§ 63-64]. The Michael Bill would have banned hare coursing outright, presumably for the same reason as in the case of deer hunting.
29. Mink are regarded as a pest, preying on a wide variety of other creatures. Trapping is the main method of attempted control, mink hunts having no significant effect on the mink population save, possibly, in some localised cases. Without the benefit of any studies, the Burns Committee assumed on a commonsense basis that the experience of the chase, or of being dug out, seriously compromised the welfare of the mink. [Burns Report, §§ 5.121-5.122 and 6.71; Appendix II §§ 42-44 and 67]

The reasons for and effect of hunting

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

Pest control

31. This issue has featured very largely in the debate on hunting, and in the submissions in this case, but we have had difficulty in determining the weight to give to it. Fox hunting accounts for a modest proportion of the total of foxes killed: see the figures given by Baroness Mallalieu, quoted in § 7 above; the Burns Committee concluded that the effect of a ban on hunting of deer and hares with dogs might be to cause a decrease in the numbers of the pest, rather than the increase to be expected if hunting were an effective method of control (see §§ 25 and 27 above); and mink hunting makes only a very modest contribution to the control of the species (see §29 above). Those figures are consistent with the evidence (Baroness Mallalieu's first statement, §189) that hunts take active steps to preserve the natural habitat of quarry species.
32. It is also difficult to reconcile some of the evidence most relied on in this case with any view of hunting as primarily an exercise in pest control. It is hard to think that persons who come from Belgium and Portugal to hunt in England have as their principal motive participation in a pest control exercise.
33. The correct assessment of this point is, in our view, that the central importance of hunting for its participants is as an exercise in sport and recreation: see §§ 35-37 below. In the course of that sport, and as a direct incident of it, some services in pest control, differing significantly in their importance as between the various quarries, are provided to the farming community. The hunting ban means that alternatives have to be found to take the place of such pest control as is provided by the hunts. It is the comparison between the effect on the quarry of those alternatives, particularly shooting and snaring, on the one hand; and the effect on the quarry of the hunting that those alternatives will replace on the other; that is the basis of the argument about whether the ban will in overall terms reduce cruelty, alternatively reduce the compromise of animal welfare identified by the Burns Committee.
34. This issue is of some importance, not least because it is plain that the point of departure of the Michael Bill was pest control. It will be recalled that the Bill's tests for "registration" that is, for permission to continue to hunt, were utility and least suffering. "Utility" was described thus in clause 8(1) of the Bill:

The first test for registration in respect of proposed hunting of wild mammals is that it is likely to make a significant contribution to the prevention or reduction of serious damage which the wild mammals to be hunted would otherwise cause to-

(a) livestock,

(b) game birds…..,

(c) food for livestock,

(d) crops….,

(e) growing timber,

(f) fisheries,

(g) other property,

(h) the biological diversity of an area.

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

Sport and recreation

35. There is no doubt, and it is not disputed, that all of the types of hunting that are banned by the Hunting Act are seen by those who participate in them as a valuable form of sport and recreation. And all of the types of hunting share the common characteristic, important to the participants, of involving the chasing by hounds of a live quarry. That is why the still permitted alternative of drag hunting (where hounds and riders follow a pre-laid trail) is not acceptable to the Appellants, and in their view would not enable the present hunt structure to survive. As Baroness Mallalieu put it in §93 of her second witness statement, "Drag hunting centres around the relationship between horse and rider whereas the appeal of fox hunting comes from the relationship between hound and huntsman."
36. The same point was made by Mr Joseph Cowen, Senior Master of the Fernie Foxhounds, in §39 of his first witness statement, in relation to the interests not only of those who ride to hounds but also of those who follow the hunt on foot:

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

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

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

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

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

Hunting as a way of life

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

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

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

Hunting as an industry

39. The EC Appellants, supported by the HR Appellants, said that hunting was a significant economic activity, with marked economic links with other member states of the European Union. The Divisional Court had before it plenty of evidence to demonstrate that hunts themselves are large businesses, charging substantial fees to members and to casual visitors, including those from abroad, and employing a significant number of people. In addition, businesses like that of Mr Derwin, in horse trading, and Ms Johnson in providing hunting holidays, depend on the existence of hunting and, on the case advanced by the Appellants, on the continuation of hunting in the form that it took before the Hunting Act. Various figures, which in our view were largely speculative, were included in the evidence as to the overall value of the hunting industry; but we were told of one specific if extreme example, that in the village of Exford in Somerset 20 per cent of local employment depended directly or indirectly on stag hunting.
40. In what follows we do not lose sight of the fact that, whilst for hunt followers hunting is a pleasant, albeit to many of them very important, form of pleasure and recreation, for those who are employed by hunts; and for those who have built businesses to supply the needs of hunts and hunt followers; hunting with dogs in its traditional sense is a source of employment and profit.

The facts on which these appeals proceed

41. There is a particular difficulty attaching to the facts of this case. As we have seen, much of the case does not turn on the direct effect of the Hunting Act, in the sense that it in its terms infringes the rights of the Appellants. Rather, the concern is that the Hunting Act, by prohibiting what is the essence and essential feature of hunting with dogs, the chase of a live quarry, will cause many hunts to fail for want of support; with consequent impact on the employment and possibly the accommodation of hunt employees, and economic damage to businesses that are dependent on hunting. We have already quoted in §§35-37 above some of the evidence as to that central feature of hunting with dogs. The Appellants were adamant that, with that feature permanently removed, as the Hunting Act removes it, hunts would rapidly decline, with the consequences already indicated.
42. That case was accepted by the Divisional Court as the basis on which it should proceed. It said in §85 of its judgment:

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

43. The Respondents pointed out that, twelve months after the state of affairs on which the original evidence had been based, there was so far little sign that the feared effects had actually come to pass, and before us filed further evidence that was said to demonstrate that the current hunting season had been even more popular, judged by turn-out of participants, than hunting had been before the Hunting Act had come into effect; the Countryside Alliance had defiantly claimed that hunting would survive, ban or no ban; and therefore the case in support of the Act causing the threatened decline was at best not proven.
44. As in her evidence before the Divisional Court, so in supplementary evidence before us, Baroness Mallalieu, on behalf of the Countryside Alliance, said [further Witness Statement, §3] that the present situation was essentially temporary or transitional, and indeed dependent on the outcome of these proceedings:

The hunting community is currently maintaining the integrity of its various organisations in the hope or expectation that the Hunting Act will either be repealed by a future Government or declared to be unlawful. [Many of the persons quoted in the respondents' evidence] state that they view the ban as temporary and will seek to maintain their hunt infrastructure until the law is changed.

45. In addition, Baroness Mallalieu pointed to examples of hunts already cutting back on staff; and the EC Appellants said that some of the hunting-related business activities, for instance that of Mr Derwin in selling hunters into the United Kingdom, had already been significantly affected by the ban.
46. The EC Appellants, while supporting the submissions of the that we address below, took a robust approach to the way in which this problem affected their case. That case, as we have seen, is that any interference at all with interstate trade was sufficient to engage one or other of the articles of the EC Treaty, and thus to oblige the Respondents to justify that interference in Community terms. Such interference was established by, for instance, the difficulties of Mr Derwin in trading in the United Kingdom, which were continuing at the date of the appeal. Mr Sales submitted that, judged by the views of the Burns Committee, economic effects of that type were likely to be temporary; but that would not appear to be a sufficient answer whilst the interference continues to occur. And as to justification in EC terms, the Appellants said that that did not turn on the extent, nature or length of the interference. Once it was established that the ban engaged one of the articles of the Treaty, it was the ban itself that had to be justified, in EC terms, and without direct reference to the feature of its effects that engaged the court in the first place.
47. The HR Appellants had no such simple answer, because the indirect effect of the ban upon the viability of hunting and thus of hunts is central to most of the claims under articles 8 and 11 and article 1 of the First Protocol: see §§ 11-14 above. And the issue of justification in its various emanations under the ECHR raises issues of proportionality, that can only be assessed in the context of the extent of the injury to other rights caused by the legislation complained of.
48. We have not found this an easy matter to resolve. It is, we think, unusual for a court to be asked to declare legislation to be unlawful on the basis not primarily of what the legislation says but rather of how individuals (eg hunt followers) may react to that legislation, and how that reaction may impact, at one or more removes, on other individuals (eg hunt employees). We however think that the correct approach in the circumstances of this appeal is as follows.
49. First, Mr Gordon QC, for the HR Appellants, was justified in drawing our attention to the forecast of the Burns Committee that a ban such as that imposed by the Hunting Act would have a significant effect on the economy of hunting and of connected activities over something like a ten year period. The Committee said:

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

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

In our judgment, the Article 8(1) "private life" debate has become clouded with imprecision. There are 10 Human Rights Appellants and the Countryside Alliance naturally wishes to represent the hunting community generally. Submissions have tended to generalise the Appellants. But an Article 8(1) challenge has to be made for one or more individuals. Even for individuals, it is a struggle to make a case on the authorities for interference with their private lives. For the hunting community generally the case is, we think, untenable. Mr Gordon's submissions in reply implicitly accept this.

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

The policy objectives of the Hunting Act

Introduction

52. We have to deal with this issue separately because the issues of justification and proportionality, that potentially arise in both the HR appeal and the EC appeal, are governed by the court's assessment of what the legislature was seeking to achieve by passing the Hunting Act. First, however, we need to clarify further how this issue relates to the remainder of this judgment.
53. First, as a contribution to the actual outcome of these appeals analysis of the policy of the Hunting Act is largely, though not entirely, academic. That is because, for the reasons that we set out at length later in this judgment, the Act only engages the law of the ECHR in a limited respect; and (an issue on which we differ from the Divisional Court) does not engage the law of the EC Treaty at all. Second, the Divisional Court dealt with the issues of the policy of the Hunting Act; and the justification for and proportionality of the terms of the Act; together in a single and, if we may respectfully say so, very valuable exposition in §§ 259-351 of its judgment. The Court adopted that approach because it considered that the issues of justification and proportionality, although formally different as between the HR and the EC issues, were in practical terms the same in their outcome in each case. We have been persuaded by Mr Anderson QC that, for the reasons that we explain in §§ 158-159 below, different and more formidable questions arise in the arena of Community law. It is therefore necessary to treat justification and proportionality separately for the HR and for the EC appeals.
54. Accordingly, the present section of this judgment addresses only the issue preliminary to those questions, of what can legitimately be discerned as the policy objective of the Hunting Act: it being against that objective that the justification for and proportionality of the Act's prohibitions have to be judged. Nonetheless, although our treatment is structurally different from that of the Divisional Court, we have found its analysis of the policy issue of the greatest value. That has enabled us to deal with that issue comparatively shortly; any reader who seeks a fuller treatment can turn with confidence to the judgment of the Divisional Court.

The correct approach to legislative policy

55. The Divisional Court set out at length, in its §268, the guidance given in the leading authority, Wilson v First County Trust Ltd [2003] UKHL 40, [2004] 1 AC 816. We respectfully agree with the Divisional Court's analysis, which we did not understand to be challenged before us. From that analysis the Divisional Court in its §269 drew important conclusions for the present appeal:

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

Our findings as to the policy objectives

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

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

57. First, we reject the opening contention of Mr Gordon QC for the HR Appellants that no legislative aim could be found in the Hunting Act, and therefore that it was impossible for any restriction contained in or flowing from it to be justified in ECHR terms. That narrow approach would make vulnerable a very large proportion of all English legislation. In truth, and confining ourselves to the sources carefully delineated by the Divisional Court as quoted in §55 above, we know a great deal more about the reasons why Parliament legislated as it did in this case than is usually available to a court. Crucial in these respects is the public debate over many years, that was given formal expression in the Portcullis House hearings; and the specific decision taken by Parliament to reject the proposals in the Michael Bill.
58. Those sources leave no doubt that a principal objection to hunting is the perception that the practice involves cruelty to the quarries. That perception may be right or may be wrong, a matter to which we will have to revert when we address the justification for the legislation; but it is plainly a substantial concern of those who oppose hunting, including the members of Parliament who voted for the ban. And the overwhelming implication of Parliament's rejection of the Michael Bill is that that Bill did not meet members' concerns because it did not sufficiently address the issue of cruelty. As we have seen in §§ 33-34 above, the focus of the Michael Bill was pest control, with hunting that made a contribution to pest control only to be banned if there was an alternative means of control that would cause significantly less suffering to the quarry. In the context of the hunting debate, that limited and pragmatic solution could only have been rejected because members of Parliament saw the cruelty of hunting as the touchstone of their objection to the practice, and not merely an adjunct to regulation of a pest control activity.
59. The second element in the policy of the Hunting Act is what has been, not entirely happily, described as the "ethical overlay". It goes without saying that animal suffering is an ethical issue, with disagreement turning on the justifications, pragmatic rather than moral, for causing suffering in any particular case. On that issue, as we have seen, the Divisional Court concluded that, in addition to its concerns about suffering as such, Parliament considered that the causing of suffering for purposes of sport and recreation (sport and recreation being, as we have pointed out in §§ 33-37 above, the main interest of those who hunt) is unethical and so far as is practical and proportionate should be stopped. That insight, far from being a subsidiary aspect of the objections to hunting, transforms the terms of the debate. We would respectfully adopt what was said about it by the Lord Justice-Clerk (Gill) when addressing the Protection of Wild Mammals (Scotland) Act 2002 in Adams v Scottish Ministers 2004 SC 665 [41]:

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

60. That is an easily recognisable ethical sentiment, that has played a prominent part in the hunting debate. It was not respected by the Michael Bill; it is respected by the Hunting Act. We agree with the Divisional Court that that sentiment was immanent in Parliament's reasons for rejecting the Michael Bill and in its place legislating as it did.
61. The HR Appellants however argued before the Divisional Court, and before us, that that understanding of the policy of the Hunting Act was not open to the court, apparently whether or not it could in fact be drawn from the materials before the court, because it was not the legislative policy espoused in the Respondents' evidence. That was clearly seen by the Appellants as a matter of some importance, since they devoted some thirty paragraphs of their skeleton argument to it. We briefly comment as follows.
62. First, in the passage complained of in the Divisional Court's judgment, §340, that court said that it rejected "the contention that the court should not discern a legislative aim which goes beyond that espoused by the Government, both originally and in this litigation". But that passage principally referred to the fact that the policy of the Hunting Act is not that of the Government, but of the House of Commons. As the Divisional Court went on immediately to explain:

It was rationally open to the House of Commons to espouse a different or modified legislative aim and in particular to supplement the Government's aim with a sustainable ethical overlay.

Second, it is not correct to say, as did the Appellants, that the evidence of the Respondents' deponent, Mr Bradley, contained no justification for any finding of "ethical overlay". In his §48 Mr Bradley said in terms that:

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

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

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

The HR appeal

Preliminary: the Human Rights Act

64. In these proceedings the Appellants originally sought a declaration pursuant to section 4(2) of the Human Rights Act that the Hunting Act was incompatible with articles 6, 7, 8, 11 and 14 of the Convention, and with article 1 of the First Protocol to the Convention. In this court they are relying only on rights contained in article 8(1), article 11(1) and article 1 of the First Protocol. As we have already observed, they are reserving the right to rely on article 14 if this case goes to a court at a higher level. The Attorney-General and the Secretary of State for the Environment, Food and Rural Affairs were nominated as being the proper defendants to the claim for the declaratory relief sought, and not because of any decision either of them have made. The Act does not purport to prescribe rules for standing if a declaration like this is sought, in contrast to the rule in section 7(1)(a), which entitles a person who claims that a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) to bring proceedings against that authority in the appropriate court, but only if he is (or would be) a victim of the unlawful act.
65. In that context section 7(7) provides that for the purposes of section 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights. By that article that court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. Strasbourg case law treats a person as a victim within the meaning of article 34 if they run the risk of being directly affected by a law or other act of state interference which violates their Convention rights (see Marckx v Belgium (1979) 2 EHRR 330; Institut de Prêtres Français v Turkey 92-A DR 15 (1998) Appl. No. 26308/95). In the present proceedings there has been no suggestion that the Appellants do not have standing to seek the proposed declaration, and at the centre of their concern is the fear that the Hunting Act creates the risk of violating their Convention rights.
66. They assert that the language of the Hunting Act is so uncompromising that it is not possible to "read down" its provisions pursuant to s 3(1) so that it may be given effect in a way which is compatible with their Convention rights. This is why they seek the declaration of incompatibility that was refused by the Divisional Court.

The HR Appellants' case

67. The case of the HR Appellants was very conveniently set out in a chart prepared for the purposes of this appeal. Their evidence embraced not only the situation of the ten individual Appellants (for which see Appendix I), but also the perceived effect of the Act on 11 other witnesses whose identity and interests were summarised helpfully on the chart. These were an Exmoor farmer who runs holiday cottages; a foot follower of a hunt in Gloucestershire; a coursing trainer in Dorset; a North Yorkshire farmer and landowner; a sheep farmer in Gloucestershire; a hare courser in Lancashire; a hare hunter and courser in North Yorkshire; the owner, huntsman and master of a fell pack in Cumbria; a kennel man in Oxfordshire; a feed merchant in Somerset; and a huntsman, terrierman and kennel man in Aberdare.
68. The evidence describes the way in which each of these witnesses, and also the ten individual Appellants, consider that the Act has impacted on their lives. In the case of each article relied on, the court must be ready to ask itself three questions:

i) Is the article engaged?

ii) If "yes", have the shown that there is a risk that the way in which they will be directly or indirectly affected by the Act will interfere with their rights under the article?

iii) If "yes", can the Respondents justify the interference?

69. So far as the second question is concerned, there is a threshold to be crossed before an act of a public authority can be recognised as interfering with a right. For instance, although the notion of "private life" in article 8 is said to be a broad one and is designed to protect a person's physical or moral integrity, the Strasbourg court has said that not every act or measure which may be said to affect the physical or moral integrity of a person necessarily gives rise to an interference of which the court will take note (Costello-Roberts v UK (1995) 19 EHRR 112, § 36).
70. We will turn now to consider the three articles that are relied on in this appeal.

Article 8

Article 8 – Right to respect for private and family life

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

71. It is convenient to start our consideration of this article by reference to the recent speech of Lord Walker in M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 WLR 637 in which he drew attention at § 83 to the article's unique feature, which is that it is concerned with the failure to accord respect. He went on to give three examples of the way in which the article has operated in well-known cases:

i) To criminalise any manifestation of an individual's sexual orientation plainly fails to respect his or her private life (even if in practice the criminal law is not enforced);

ii) So does intrusive interrogation and humiliating discharge from the armed forces (because the individual is a homosexual);

iii) Banning a former KGB officer from all public sector posts, and from a wide range of responsible private sector posts, is so draconian as to threaten his leading a normal personal life.

72. Lord Walker drew his examples from Dudgeon v UK (1981) 4 EHRR 149; Norris v Ireland (1989) 13 EHRR 186; Smith and Grady v UK (1999) 29 EHRR 493; Lustig-Prean and Beckett v UK (1999) 29 EHRR 548; and Sidabras and Dziautas v Lithuania (2004) 42 EHRR 104. He went on to say, however:

Less serious interference would not merely [not] have been a breach of article 8; it would not have fallen within the ambit of the article at all.

73. The Appellants' article 8 challenge was advanced on four discrete fronts. These are described on the chart as "autonomy", "culture/community", "loss of livelihood/home", and "use of home". We will consider each of these elements in turn.

Autonomy

74. This challenge was expanded in argument to embrace private and family life, autonomy and lifestyle. The interests of the Appellants and their witnesses that were said to qualify for protection under this head were variously described as: social life; social and family life; destruction of animals; friends involved in hunting; 40 years as a terrierman, with life centred around the job and mink hunting in spare time; work dependent on hunting; business; hunted since childhood; voluntary work; family established the hunt in 1909 and have been involved ever since; family has owned the beagle pack since 1905; work dependent on hare coursing, and family involvement in hunting and coursing; field master of hunt; attends hunt social events; relations with neighbours; courses with father; relations with neighbours; and friendships with other hare-hunting people.
75. The relevant language of the article is: "Everyone has a right to respect for his private and family life". In Niemietz v Germany (1993) 16 EHRR 97 the Strasbourg court said at § 29:

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

76. What the Appellants have seized on is the reference to the right to establish and develop relationships with other human beings, together with the explanation that the understanding of the notion of "private life" should not be taken as excluding activities of a professional or business nature. The qualification "to a certain degree" must, however, be noted.
77. More recently, in Pretty v UK (2002) 35 EHRR 1, the court gave a more comprehensive explanation of the concept of private life at § 61:

As the Court has had previous occasion to remark, the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.

78. Again, the Appellants rely on the reference to the right to establish and develop relationships with other human beings and the outside world. They also place heavy reliance on the reference to personal autonomy that entered the Strasbourg jurisprudence in the Pretty case.
79. In R (Razgar) v Home Secretary [2004] UKHL 27; [2004] 2 AC 368 Lord Bingham cited part of this extract from the Pretty judgment, and also § 47 of the Strasbourg court's judgment in Bensaid v UK (2001) 33 EHRR 10, before saying of the phrase "private life":

Elusive though the concept is, I think one must understand 'private life' in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed ('The Developing Scope of Article 8 of the European Convention on Human Rights', [1997] EHRLR 265, 270):

"Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people's moral worth by taking account of their need for security."

80. Although "private life" is described as a "broad term", however, this court must not interpret it more widely than would the Strasbourg court: see R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323:

[T]he duty of national courts is to keep pace with Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

81. For this reason it would be wrong for us to give an extravagant meaning to the phrases "self-determination" and "personal autonomy" which surfaced for the first time in the judgment in Pretty. These words draw their meaning from the context in which they appear in that judgment. The whole of the passage from §§ 61-67 shows that the court was concerned with the right of an individual to make personal choices about her own body, even extending to the choice of preferring assisted suicide rather than an undignified and distressing end to her life. That this restricted meaning of the phrase "personal autonomy" was intended is clear from the court's discussion of the Canadian case of Rodriguez v Attorney-General of Canada [1994] 2 LRC 136 in § 66 of its judgment, where it said that "comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make choices about one's own body."
82. In Peck v UK (2003) 36 EHRR 41 the Strasbourg court reverted to the way in which a person's article 8 rights might be violated in relation to his activities in a public, as opposed to a private, context. The court acknowledged at § 57 that there was a zone of interaction of a person with others, even in a public context, which might fall within the scope of "private life". It cited in this context its earlier judgment in PG & JH v UK Appl. No. 44787/98 in which it said:

Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, though not necessarily conclusive factor.

And in Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 Lord Nicholls said, succinctly, at § 21:

Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.

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

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

84. An aggravating factor in that case was that as a result of the publicity caused by the statute in question and its application to the applicants they had been subjected to daily embarrassment as a result of their past activities, and this affected their ability to lead a normal personal life.
85. Another decision of the Strasbourg court featured prominently in the Appellants' argument. This was its decision in Botta v Italy (1998) 26 EHRR 241. The court stated (at §32) that the guarantee afforded by article 8 of the Convention was primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. And it went on to say (at § 33) that the State's positive obligations might involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves. However, for this obligation to exist there had to be a direct and immediate link between the measures sought by the applicant and his private and/or family life (see § 34).
86. On the facts of that case, where a disabled applicant was complaining about the failure of the municipal authorities to provide him with access to the beach and sea at the Italian resort to which he went for a holiday, the court found (at §35) that there could be no conceivable direct link between his private life and the measures the State was being urged to take in order to make good the omissions of the private bathing establishments which he wished to frequent when he was on holiday.

Culture/ community

87. Under this heading the Appellants grouped such interests as social/economic impact on local community; part of coursing community; integration with local community; cultural heritage. They placed heavy reliance on the decision of the European Commission on Human Rights in G & E v Norway 35 DR 30 ([1983] Appl. Nos. 9278/81 & 9415/81) and the judgment of the Strasbourg court in Chapman v UK (2001) 33 EHRR 18.
88. In G & E v Norway the applicants were two Norwegian Lapps. One was a reindeer shepherd and the other was a fisherman and hunter. They belonged to a minority group, with their own culture and language. There are about 50,000 Lapps, 60% of whom live in Norway, although many of them can neither read nor write Norwegian. For hundreds of years the Lapps have worked with reindeer, fishing and hunting. Every year they move their herd of deer around, so that there is a great demand for space. Although the history of the Lapps goes back several thousand years, over the centuries more and more people have invaded what they call "the land of the Lapps" and more recently, and especially after the Second World War the Lapps have seen their land taken away from them and their culture slowly being destroyed.
89. The European Commission of Human Rights was of the opinion that under article 8 a minority group was in principle entitled to claim the right to respect for the particular lifestyle it might lead (as being "private life", "family life" or "home") and it was prepared to accept that the consequences of constructing a hydroelectric plant (which would involve covering an area of 2.8 square kilometres with water) would constitute an interference with the Lapps' private lives, as members of a minority who moved their herds of deer around over a considerable distance. The fact that the environment of the plant would also be affected could also interfere with their "possibilities of enjoying the right to respect for their private life". Their complaint failed only at the third hurdle, because the Commission considered that the likely interference was justified under article 8(2).
90. That case was all about the lifestyle of a nomadic national minority. So was Chapman v UK. The judgment of the European Court of Human Rights in this case helpfully brings together a number of international texts which articulate concern with the welfare of members of national minorities. Thus the 1995 Framework Convention for the Protection of National Minorities, which 37 of the 41 Member States of the Council of Europe had signed by February 2000, and which 28 (including the UK) had ratified, included by article 5(1) an undertaking to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. Other Council of Europe texts included Recommendation 1203 (1993) of the Parliamentary Assembly on Gypsies in Europe and its recognition that gypsies, as one of the very few non-territorial minorities in Europe, "need special protection".
91. The court also showed (at §§ 60-61) how the institutions of the European Union had showed themselves astute to protect minorities, and particularly gypsy people, and how the situation of roma and sinti (as minorities) had become a standard item on the Human Dimension section of the agenda of Review Conferences held by the Organisation for Security and Co-operation in Europe. A report in 2000 by the newly appointed High Commissioner for National Minorities had noted that nomadism had been central to romani history and culture and said in terms that whether an individual was nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. A little later the report referred to the importance of individuals of being able to pursue the lifestyle that expressed their group identity.
92. Against this background the Strasbourg court held (at §73) that the applicant's occupation of her caravan was an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. Measures which affected her stationing of her caravan therefore had a wider impact than on the right to respect for her home alone: they also affected her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition. A little later (at §96) the court recognised that the vulnerable position of gypsies as a minority meant that some special consideration should be given to their needs and their different lifestyle both in the regulatory planning framework and on arriving at decisions in particular cases:

To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.

Loss of livelihood/home

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

Use of home

94. Under this heading the grouped such interests as: hunting on land (self and others): business based at home; manages land for bio-diversity: hare hunting integral part; chases deer off land; permits others to hunt on his land; and hosts coursing events on own land.
95. In Harrow LBC v Qazi [2003] UKHL 43; [2004] 1 AC 983 Lord Hope of Craighead said at §50:

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

96. It is clear that he was influenced in this respect by the following extract from the dissenting opinion of Sir Gerald Fitzmaurice in Marckx v Belgium (1979) 2 EHRR 330 at §7:

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

97. This thinking coloured the approach of the Strasbourg court in Niemetz v Germany (see §73 above), in which the applicant complained that the police had conducted a search of his law office without lawful authority. The court said at §§ 30-31:

30. As regards the word 'home', appearing in the English text of Article 8, the Court observes that in certain Contracting States, notably Germany (see para 18 above), it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word 'domicile' has a broader connotation than the word 'home' and may extend, for example, to a professional person's office.

In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person's private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words 'home' and 'domicile' could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of 'private life' (see para 29 above).

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

The Divisional Court's approach

98. The Divisional Court approached the article 8 issues by considering "right of respect for private and family life" and "right of respect for the home" in two, not four, discrete compartments. Of the former it said:

135. A person, or family perhaps, who from time to time enjoys watching the spectacle of a hunt from a public road or who follow a hunt by car or on foot, but whose main occupation and interests lie elsewhere, may be sorry if they can no longer do this. But the ban scarcely impinges on their personality or its development, nor intrudes upon essential social relationships. On the other hand, those for whom hunting is a core part of their lives, and perhaps has been a core part of the community in which they have lived all their lives; those for whose families hunting has been a central, personal and community activity for generations, may stand differently. So also those for whom hunting provides their only, or main, source of employment and income. Although hunting is a community open-air activity, and although its associated social activities do not, in the main, take place in the privacy of a single home, people thus affected can at least make a case, we think, that the ban intrudes into their private existences. We are quite satisfied that there are such people. In a sense, it is unnecessary to count them. Some of those who live and have hunted in and around Exford in Devon appear to be examples. But the number of people affected to the extent that they are able at least to make a case for interference under Article 8(1) must be quite small. This would affect the question of justification and proportionality, if there were interference under Article 8(1).

136. We take the 2^nd and 3^rd Appellants as perhaps having the strongest cases here, although it may seem invidious to single them out from the other 8 Appellants. Their circumstances are summarised in paragraphs 32 and 33 above. We think that the question for them is whether hunting is so much a part of their personal integrity and social and inter-personal development that the ban may properly be said to interfere with their private lives. This is on the authorities a matter of degree for which an evaluative judgment is required. In the end, the Strasbourg cases contain largely anchorless generalisations, moderated only by the facts of the individual cases. The facts of most of these cases are far removed from those in the present case. But we agree with Mr Sales that the ambit of personal integrity and social and inter-personal development which they address tends towards intensely personal matters of physical or psychological integrity in a domiciliary context. But not all of them. Sidabras perhaps represents something of a watershed...

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

99. So far as the right to respect for the home was concerned, the Divisional Court said this:

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

145. The second question is whether there is interference with a person's right to respect for their admitted home, if the Hunting Act were to result in loss of their home because it is tied to their employment or business and the Hunting Act interferes with their employment or business….

146. In our judgment, the case here is not made out upon the majority decision in Qazi. As Lord Hope said, the object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his right to privacy. It is not concerned with protection of his right to own or occupy property. This is the province, if at all, of Article 1 of Protocol 1 – see Lord Millett at paragraph 89.

Our Conclusions on Article 8

100. We agree with the Divisional Court. For the most part the Appellants' submissions stretch the ambit of article 8 far wider than has ever been recognised in Strasbourg jurisprudence. For instance, they seek to deploy what was said in Pretty about an adult person's right to choose whether to live or die by asserting a far-ranging right to self-determination. They seek to interpret the right to respect for the home in a manner far removed from the interpretation of that phrase in Lord Hope's speech in Qazi. And they seek to convert what was said about protecting the rights of nomadic national minorities in G & E and Chapman into a generalised right of respect for different types of community activities. This is not what article 8 is all about.
101. As the Divisional Court said, Mr Summersgill and Ms Drage came closest to qualifying for consideration on article 8 grounds. Mr Summersgill has been passionate about hunting since he first followed a hunt on foot at the age of 10. He left school with no qualifications at the age of 15 and has been employed in the "hunting industry" ever since. He was appointed huntsman for the Devon and Somerset Staghounds at the age of 24, and his witness statement describes how over the last 14 years both his working life and his social life have revolved around the hunt, which provides him with a tied cottage as part of his employment package. If he lost his job, he believes that he has no transferable skills, and he would lose his home as well.
102. Ms Drage has run a small livery business in the Cotswolds since 1993. She looks after 18 horses for 14 paying customers, all of whom keep their horses for the sole purpose of hunting. She believes that the hunting ban will destroy her business and her livelihood and she will lose her home (which is provided rent free in the circumstances she describes in § 3 of her witness statement).
103. However much one may sympathise with the plight of these and other witnesses, we do not consider that article 8 is engaged even in these cases. The last 50 years have seen the destruction, for various reasons, of many people's way of life in this country, often by deliberate decisions by Government. The collapse of the heavy manufacturing and the coal-mining industries are just two cases in point. What tipped the scales in the Sidabras case was that the applicants were prohibited by a blanket ban on employment from a wide swathe of alternative employments. In Niemetz, once the applicants' law office was treated as their home, the state's intrusion undoubtedly showed want of respect for their privacy. In the sexual orientation cases the state shows disrespect for an applicant's right to conduct personal relationships in private in the way he/she chooses. No such special factors apply to the present case. Even if the feared consequences do arise (an outcome that is still far from certain) they will not be caused by any lack of respect in article 8 terms for the Appellants' private or family life or for their homes. We do not consider that any question of respect for their private or family life or their homes comes into play.
104. We have reached the foregoing, clear, conclusions on the assumption that some at least of the consequences of the Hunting Act feared by the Appellants will in fact eventuate: see §§ 48-51 above. But at the same time it is valuable to remind ourselves of circumstances in the real world. The new evidence adduced by the Respondents shows that things appear to have gone on very much as before, even if trail-hunting is regarded as a very inferior form of sport to the real thing. We do not know what the future may hold, and in those circumstances no court in any event could properly declare the Act to be incompatible with the Appellants' Convention rights, whether under article 8 or otherwise, because there is no evidence of a direct and immediate link between the passing of the Act and the interests the Appellants seek to protect in these proceedings.
105. We accordingly conclude that article 8 is not engaged in any of the respects asserted by the Appellants, and that therefore the question of justification of the Hunting Act under article 8(2) does not arise.

Article 11

Article 11 – Freedom of assembly and association

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

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

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

[82]     But there is a material distinction, in our opinion, between a restriction which compels an individual to join an association or prohibits him from joining it, or penalises him in either event, and a restriction that, without reference to any association, merely prohibits a particular activity with the indirect result that persons cannot associate for the purpose of carrying it out. A restriction of the former kind is capable of engaging article 11; but a restriction of the latter kind is not. If it were otherwise, the prohibition of any activity would infringe article 11. We agree entirely with the conclusion of Lord Brodie on this question in Whaley v Lord Advocate (2004 SC 78). As his Lordship said in that case, the 2002 Act does not prohibit the assembling of a hunt, on horseback or otherwise, but rather an activity upon which the hunt might engage. The members remain free to assemble together for a mock chase, or a drag hunt or simply a communal ride. What is subject to regulation is the nature of the quarry and the method of the kill, not the fact or manner of association (at para [80]).

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

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

Article 1 of the First Protocol

First Protocol, Article 1 – Protection of Property

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

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

108. The Divisional Court provided a useful summary of the Appellants' claims, which we have already set out in §14 above. The Respondents accepted before the Divisional Court (see §166 of that court's judgment), as they accepted before us, that article 1 is engaged in this case, since the Hunting Act in terms directly interferes with those items of property that we have identified in items (i)-(ii) and (ix)-(xi) of the list reproduced in §14. The Respondents also accepted that article 1 would be engaged to the extent that the Hunting Act had the indirect consequence of diminishing the value of land or other property or of damaging the established goodwill of a business.
109. As to the first of those categories, where it is conceded that article 1 is engaged, case law at Strasbourg has drawn a clear distinction between those cases in which the effect of State action is to deprive an individual of his possessions, either de jure or de facto, and those cases which are concerned with "control of use". The accepted that the present case fell into the second category, like the cases concerned with the UK Government's ban on handguns which came to the Strasbourg court in 2000 (Ian Edgar (Liverpool) Ltd v UK) [2000] ECHR Appl. No. 37683/97; and Denimark Ltd v UK [2000] ECHR Appl. No. 37660/97).
110. It follows that in those cases where it is conceded that the Act imposes controls on the use of property the court must inquire whether a fair balance has been struck between the demands of the general interest of the community and the requirements relating to the protection of their fundamental rights, so that the holders of that property do not suffer an individual excessive burden. It is well settled in English case law that any question as to what the public interest requires should be determined by democratic principles, and that the assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament.
111. The governing principles have recently been set out by Neuberger LJ, giving the judgment of this court in R (Trailer and Marina (Leven) Ltd) v Environment Secretary [2004] EWCA Civ 1580; [2005] 1 WLR 1267 at §§ 41-58, where the court was primarily concerned to inquire whether the absence of any provision for compensation in respect of a control of use necessarily infringed article 1 of the First Protocol. The Divisional Court expressly cited § 58 of this judgment in which Neuberger LJ said that the right analysis seemed to be that provided the state could properly take the view that the benefit to the community outweighed the detriment to the individual, a fair balance would be struck, without any requirement to compensate the individual. Should this not be the case, compensation in some appropriate form might serve to redress the balance, so that no breach of article 1 of the First Protocol would occur.
112. Earlier, at § 46, he had observed that any contrary conclusion would have very far-reaching results, severely crippling the legislature's freedom to introduce socially beneficial legislation in the fields of town and country planning, health and safety at work, and so on.
113. The answer to this part of the claim therefore lies in an analysis of whether the Appellants who possess property rights that qualify for protection have been required to suffer an individual excessive burden when the appropriate balance is struck. That enquiry is part and parcel of the analysis of the justification for and proportionality of the legislation, which we address in the next section. Because for the reasons there set out we are satisfied that a fair and legitimate balance has indeed been struck, it is unnecessary to say very much about the arguments we heard which related to the assets which might properly be treated as the Appellants' "property" for these purposes, which is the issue that arises in connexion with the second, and conditional, part of the Respondents' concession that is set out in §108 above.
114. It is sufficient to say that we reject the breadth of the ' claims as to the loss of their "livelihood". Strasbourg case law, while stating that a professional man's clientele may form part of his possessions, as may the goodwill of a business, has very clearly ruled that any element of a claim that relates to loss of future income does not qualify in this respect, unless an enforceable claim to future income already exists. The Divisional Court set out the relevant Strasbourg case law in §§ 170-172 of its judgment. We agree with their approach, including their unwillingness to follow the judgment of the Inner House of the Court of Session in Adams at §97, in so far as it may have suggested that the livelihood of a self-employed person occupies some middle position between marketable goodwill and future income.
115. We conclude, therefore, that article 1 of the First Protocol is engaged only to the limited extent conceded by the Respondents. That finding, however limited it is in the overall context of the appeal, nonetheless requires us to address the issues of justification and proportionality.

Justification and proportionality

116. It was suggested in Mr Gordon's original skeleton that these issues might differ in their terms and impact according to which article of the ECHR was engaged. That point was not further developed, and we are very doubtful whether it is correct. Certainly, we have identified no respect in which discussion of these issues in respect of article 1 of the First Protocol would not be valid in respect of other articles of Convention were they, contrary to our conclusions already set out, also engaged in this case.
117. The point of departure of this enquiry is the policy objective of the Hunting Act identified by the Divisional Court in §339 of its judgment and with which, for the reasons set out in §§ 52-60 above, we respectfully agree. For ease of reference we set out again the Divisional Court's summary:

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

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

118. Fundamental to this enquiry is the basic principle of Convention law that in respect of policy decisions that directly or indirectly touch on Convention rights the democratic decisions of domestic policy makers should be accorded a significant margin of discretion. We note in anticipation that no such general rule is available in EC law: see § 158(i) below. For the ECHR it is only necessary to cite, as did the Divisional Court, the observation of the Grand Chamber in Hatton v United Kingdom (2003) 37 EHRR 28[97]:

in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight.

119. Nevertheless, the Appellants bluntly submitted, in §§ 201-202 of their skeleton argument, that:

the ethical overlay identified by the DC could not be a legitimate aim whether as part of the composite aim identified by the Court or otherwise.

That was because the scientific evidence as to the suffering caused to quarries, as opposed to the suffering that would be caused by other methods of pest control, for instance by shooting, was uncertain, and the uncertainty could not be resolved by moral indignation about the supposed immorality of hunting. That argument however ignores what the Divisional Court found, and we agree, was the essence of the "ethical overlay", that the causing of suffering to animals for sport is unacceptable. That, we would have thought, was plainly a view open to members of the House of Commons, and one that is well beyond the competence of a court to enquire into.

120. The Appellants however said that it still had to be established that hunting did indeed cause suffering to the quarry, or at least caused no more suffering than other methods of pest control. In that enquiry the court had to be guided by the well-known observation of Lord Hope of Craighead in R v Shayler [2002] UKHL 11; [2003] 1 AC 247 [61], that:

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

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

121. As we have seen, the Appellants objected that the suffering of the quarry was not yet scientifically proved, and therefore the legislators could not assume it. But the legislators had a significant amount of material before them from which suffering could be inferred, not least the view of the Burns committee that hunting seriously compromises the welfare of all of the species of quarry: see §§ 24, 26, 28 and 29 above. We would therefore respectfully adopt the conclusion of the Divisional Court in §§ 341 and 343 of its judgment:

We consider that there was sufficient material available to the House of Commons for them to conclude that hunting with dogs is cruel. In analytical terms, this "material" is evidence, but we espouse the view of the Inner House in Adams that the nature of the subject matter is such that evidence is not to be strictly regarded as if it were evidence in court – rather material from which a view as to cruelty could rationally be reached.

122. Over and above these general considerations, articles 8 and 11 require that the measures should be necessary in a democratic society, and article 1 of the First Protocol that the measure should be necessary in the general interest. The remedy must also be proportionate to the removal of the problem that it seeks to address.
123. As to proportionality, it was submitted that a total ban on hunting was not required, and that in particular the machinery of the Michael Bill would have been a limited and proportionate response to the objections found in hunting. We share the serious scepticism of the Divisional Court, expressed in §345 of its judgment, as to the practical workability of the Michael formula. But, more fundamentally, Parliament's objection to the Michael proposals, as we have already explained, was that they did not meet the objection to the use of wild animals for sport. Once that objection is identified, and is recognised as a legitimate basis for legislation, then a total ban was clearly a proportionate response.
124. As to the other necessary criteria, we are content to adopt what is said in §348 of the judgment of the Divisional Court:

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

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

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

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

We respectfully agree.

The EC Appeal

Introduction

126. The point of departure of Mr David Anderson QC's admirable submissions on behalf of the EC Appellants was some fundamental, and we believe uncontested, principles of Community law. Those were:

i) It is of the essence of the Community that there should be no unjustified barriers to interstate trade.

ii) A member state can only lawfully create such a barrier, whether to trade in goods or in services, for strictly limited reasons.

iii) It therefore follows that any provision in a member state's domestic legal order that creates such a barrier can only be lawfully enforced if the member state can justify it in Community terms.

iv) The importance of the fundamental values that these rules protect, and the importance of the subordination of national to Community values, is underlined by the absence of a de minimis rule: any interference with interstate trade, however minor, engages this area of the Community's jurisprudence.

v) Once the jurisprudence is engaged by domestic legislation, the member state is required to justify that legislation in all of its aspects, and not merely in respect of any aspect of it that directly interferes with interstate trade.

127. These are necessary if severe provisions in order to ensure that trade between member states is indeed subject to Community norms, and not impeded by national legislation that subordinates free trade to national preferences and interests. Those principles operate in a rational and coherent way when applied to national legislation that may in its terms be directed at the supply of goods or services within the member state, but which, by laying down national rules that impede or deter supplies from other member states, interferes with cross-border trade. The principles are a good deal less easy to rationalise when they are sought to be applied to social legislation peculiar to a particular member state, that is not in terms directed at all at, and only incidentally impinges on, the supply or acquisition of goods or services. That is the case with the Hunting Act. We fully accept, however, that such legislation also must be tested against Community jurisprudence. And Mr Anderson did not shrink, and was right not to shrink, from the necessary implications of that jurisprudence: that once the Hunting Act is shown to engage the free trade provisions of the EC Treaty, to however modest an extent, then none of the provisions of the Hunting Act can be enforced unless they can be justified in Community terms. Thus, for instance, to take the example that we mentioned in §15 above, if the only provable effect of the hunting ban on interstate trade was that someone currently exporting 25 horses per annum from the Republic of Ireland to England could no longer find a market for some of them, then on a rigorous view of the requirements of the Treaty article 28 would be engaged. The justification that would have to be advanced would not simply be a justification of the interference with trade, but would have to be in terms of justification of the whole hunting ban. That is why in this case much time has been spent in debating the comparative cruelty to foxes of hunting with dogs and shooting; and the permissibility of legislators bringing ethical principles to bear on the regulation of conduct within the state: neither of them considerations with any obvious relevance to trade. More extreme cases can easily be hypothesised. Take the recent legislation in Scotland, and proposed in England & Wales, to ban smoking in public bars. It would seem that it would only require one current regular tourist from France to this country to prove that his pleasure in coming here was contributed to so greatly by the current freedom to drink and smoke at the same time that in future he will go elsewhere or stay at home (just as with the Hunting Act Viscount Hughes Le Hardy de Beaulieu, §15 above, will no longer come to England to hunt) for it to be necessary to justify in Community terms the whole of national policy as to smoking in public.
128. The Community organs are well aware of these difficulties: difficulties that in their more extreme forms might be thought at least potentially to undermine the effective application of core Community values to the cases for which those values are necessary and appropriate. As we will see as we address the current jurisprudence, much of it is concerned with exploring the limits to which the important principles as to free movement of goods and services can sensibly be taken. Those considerations are particularly pressing in relation to the Hunting Act.
129. We therefore proceed as follows. First we consider whether the Hunting Act "engages", that is to say has to have applied to it, the two articles of the Treaty on which the Appellants rely, article 28 (forbidding restrictions on imports of goods) and article 49 (forbidding restrictions on freedom to provide services). We then consider, on the hypothesis that those articles are engaged, whether the restrictions found in relation to the Hunting Act can be justified in Community terms.

Article 28: free movement of goods

130. Article 28 (ex article 30) provides:

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States

The issue is therefore whether the ban on hunting with dogs in England and Wales that is introduced by the Hunting Act is a measure that in the relevant sense in Community jurisprudence has an equivalent effect to a quantitative restriction on imports from other states of the Community into the United Kingdom.

131. In order to understand the development of the Community jurisprudence that applies to this article it is necessary to revert to two fundamental authorities, Case 8/74 Dassonville [1974] ECR 837; and Case 120/78 "Cassis de Dijon" [1979] ECR 649.
132. Dassonville arose from a reference from criminal proceedings brought in Belgium against an importer of Scotch whisky from France, in breach of a requirement of Belgian law that such goods should bear an official certificate of origin. The ECJ found that it was much more difficult for French than for Scottish providers to obtain such a certificate. In those circumstances, the criminal provision offended against the fundamental principle stated by the ECJ in §§ 5-6 of its judgment:

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

Cassis de Dijon concerned a requirement of the law of the Federal Republic of Germany that fruit liqueurs marketed in that country should have an alcohol content of not less than 25 per cent. The famous cassis de Dijon, produced and marketed in France with an alcohol content of between 15 and 20 per cent, could not therefore be lawfully sold in Germany. The ECJ was, understandably, unable to find any justification for the German rule. It held in §14 of its judgment that:

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

133. The concern in both cases was directed at national legislation that imposed requirements as to the labelling, certification or nature of goods as a condition of their being sold on the market of a particular member state. In neither case did the ECJ exclude as a matter of principle the right of a member state to impose such requirements; but if their effect was, for no good reason, to impede access to the national market of goods already lawfully marketed in another member state, that constituted a breach of article 28 (as it now is). There was no suggestion thus far that the jurisprudence extended beyond national rules relating directly to goods; but the very wide terms in which the principles were stated, in particular in Dassonville, left open the possibility of the extension of article 28 to restrictions that were not, or were not principally, directed at the actual goods sought to be traded.
134. The limits of the jurisprudence were tested in the litigation that arose in the 1980s over the Sunday trading laws in England and Wales, which prohibited, under pain of criminal sanctions, the sale of a wide range of goods on a Sunday. That was found to reduce total sales, and thus inter alia reduce the volume of sales of goods imported from other member states. In a series of English criminal prosecutions the defence was raised that that impediment or deterrent to imports was in breach of article 28: just as a similar defence had succeeded in Dassonville. That issue reached the ECJ in Case C-145/88 Torfaen [1989] ECR I-3851. The ECJ concluded, at §§ 11, 14 and 17 of its judgment:

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

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

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

135. The ECJ returned to Sunday trading in a number of other cases, of which we can refer as an example to Case C-332/89 Marchandise [1991] ECR I-1027. The court held that in the case of legislation that affected the sale of both domestic and imported products article 28 would be engaged unless the objective of the legislation was one that was justified in Community law, and the terms of the legislation were not disproportionate to that objective. The court therefore departed from Torfaen to the extent that it held that issues of the social justification of the legislation were a matter for Community law rather than for the national authorities.
136. The boundaries of article 28 accordingly required further consideration. That exercise was undertaken by the ECJ in Case C-267 and 268/91 Keck [1993] ECR I-6097, which arose from a prosecution under French domestic law for re-selling goods at less than their original purchase price. It was submitted that the underlying prohibition, particularly when as in this case enforced in a border area, Strasbourg, potentially inhibited suppliers from other member states from using a means to attract new customers that was lawful in their own state; and therefore constituted a potential hindrance to intra-Community trade.
137. The ECJ set out its conclusions in §§ 14-17 of its judgment, which must be cited in full:

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

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

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

17. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty.

138. We draw the following points from that exposition:

i) The court explicitly makes a fresh start in the analysis of article 28, that being seen as necessary in view of the potential for misuse of that article when it is sought to be applied to rules that are not aimed at products from other member states.

ii) A distinction is made between the application of article 28 and the justification of restrictions that are identified by the application of the article. "Product rules" that are applied to goods lawfully marketed in another member state of their nature fall under article 28 and need to be justified by (Community-recognised) public interest objectives: §15. The important consideration, here as in Cassis de Dijon, is that goods that are established and marketed in one state cannot be marketed in another without modification to conform with the goods of the home state, thus inevitably creating a protectionist effect: see the passage from Cassis de Dijon cited in §132 above.

iii) By contrast, the application to goods coming from other member states of "selling arrangements" that apply to all traders within the market do not fall under article 28 at all, and accordingly do not require justification: §16. That is because all participants in the market are subject to the same limitations, which are not of their nature easier to fulfil on the part of domestic vendors than they are on the part of importers.

Accordingly, in Keck itself, article 28 (then article 30) was not to be interpreted as applying to legislation of a member state imposing a general prohibition on resale at a loss.

139. The EC Appellants argued that the Hunting Act could not be characterised as a "selling arrangement", and so Keck was simply irrelevant to it. The deterrent to trade such as that of Mr Derwin, indeed the impossibility of that trade continuing, that was the result of the hunting ban continued to fall foul of the rule as stated in Dassonville. The Respondents contended, and the Divisional Court held, that the logic of the ECJ's approach in Keck was that "selling arrangements" were merely an example of non-discriminatory rules of the host state, other than product rules, none of which fell under article 28. Before addressing those contentions as a matter of principle we need to consider some of the authorities decided after Keck that were put before us.
140. There is no case directly in point. That may well be because no attempt has so far been made to apply article 28 to legislation that in its objective and subject-matter is as far removed from control of marketing as is the Hunting Act, a matter to which we will have to return. Mr Anderson argued first in general terms that the court continued to use the language of "selling arrangements" and took it seriously. That however is because the cases referred to in that connexion do indeed relate to selling arrangements in the literal or narrow sense of that expression: see for instance Case C-412/93 Leclerc [1995] ECR I-0179 (restrictions on television advertising); Case C-71/02 Karner [2004] ECR I-3025 (restriction on allegedly misleading advertising); Case C-20/03 Burmanjer [2006] 1 CMLR 24 (restriction on itinerant selling). There were, however, three cases the decisions in which were said to be directly inconsistent with any view that the approach in Keck could be extended beyond "selling arrangements" narrowly understood. Those were Case C-67/97 Bluhme [1998] ECR I-8033; Case C-320-03 Austria [2006] 2 CMLR 12; and Case C-36/02 Omega [2004] ECR I-9609.
141. Bluhme concerned Danish legislation protecting an ecological area by prohibiting the keeping on it, therefore the import for that purpose, of bees other than of a particular species. The ECJ held that article 28 was engaged; but it is clear from §21 of its judgment that that was because it regarded the limitation on "the intrinsic characteristics of the bees" as, however unusually, a product rule: see § 138(ii) above. That is why the "selling arrangements" jurisprudence of Keck, whatever its exact limits and content, could not in any event apply. Austria concerned a ban on vehicles of a type characteristically employed in interstate trade from using an important route between north Italy and Germany. In enforcement proceedings the European Commission pointed out (Judgment, §38) that the ban mainly affected international transport of goods, and therefore was an obstruction to the free movement of goods protected by article 28. The ECJ agreed. At §65 of the judgment it recalled its earlier jurisprudence in Case 266/81 SIOT [1983] ECR 731[16]:

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

That led to a straightforward application of the Dassonville principle, but because of the impediment to transportation, rather than because of any of the issues ventilated in Keck, which case was not mentioned either by the Advocate-General or by the court. Austria does not assist in the issue now before us.

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

where a national measure affects both the freedom to provide services and the free movement of goods, the Court will, in principle, examine it in relation to just one of those two fundamental freedoms if it is clear that, in the circumstances of the case, one of those freedoms is entirely secondary in relation to the other and may be attached to it….In the circumstances of this case, the aspect of the freedom to provide services prevails over that of the free movement of goods.

The ECJ entered into that explanation because in §25 it had held that:

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

143. The Appellants argued that the latter observation entailed a finding that control of use of goods fell under article 28, just as the effect of the Hunting Act was to control the use to which, in particular, horses could be put if imported into the United Kingdom. The case therefore demonstrated that the Keck limitations on Dassonville, whatever they were, did not exclude the hunting ban from the general principle stated in the latter case. In our view, that argument places on Omega a weight that it cannot bear. The case was mainly about services, not goods. That was the basis on which it was referred; that was the basis on which submissions were made; that was the only basis on which the case was considered by the Advocate-General; that was the whole focus of the court's judgment. No reference was made by the court to any authority on article 28, and accordingly the court did not address any of the many issues of principle raised by the jurisprudence, by which, in the absence of direct authority, we must be guided. To those issues we now turn.
144. A review of the current state of the jurisprudence of the ECJ strongly persuades us that article 28 does not apply to the Hunting Act. We bear in mind in particular the following considerations. What follows largely but not entirely mirrors the analysis of the Divisional Court in §§ 204-228 of its judgment, with which we respectfully agree.

i) While the Dassonville principle remains intact, the ECJ in Keck consciously made a new start in its application to cases outside the area of product rules.

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

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

iv) That is achieved in §16 of Keck by holding that non-discriminatory "selling arrangements" simply do not fall within the Dassonville formula that encapsulates the reach of article 28. That is to be contrasted with the view taken in some of the Sunday trading cases, e.g. Marchandise, §135 above, where such rules were said to engage article 28 and to require justification in Community terms.

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

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

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

145. Mr Anderson submitted that the crucial difference between the Hunting Act, and provisions not only such as those in issue in Keck but also those in issue in Cassis de Dijon, was that whilst the latter merely limited access to the market the Hunting Act closed the market entirely. If product rules were forbidden, so a fortiori must be rules that took the products off the market entirely. There are two answers to that. First, the Hunting Act does not have the inherently protectionist effect that is the perceived vice of product rules: see §§ 132 and 138(ii) above. Second, the implication of the argument is that a member state can be under an obligation to keep intact, or even possibly to create, a market for the benefit of importers from other member states. That cannot be so, at least where the state is equally depriving its own citizens of that benefit.
146. We accordingly conclude without hesitation that the Hunting Act does not engage article 28.

Article 49: freedom to provide services

147. Article 49 (ex article 59) provides:

Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are provided.

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

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

149. The Divisional Court however held that that rational conclusion was precluded by authority. It cited the opinion of Advocate General Stix-Hackl in Omega; and the decisions of the ECJ in Case C-384/93 Alpine Investments [1995] ECR I-1141 and Case C-405/98 Gourmet International [2001] ECR I-1795. In addition, Case C-224/97 Ciola [1999] ECR I-2517; Cases C-34-36/95 De Agostini [1997] ECR I-3843; and Case C-60/00 Carpenter[2002] ECR I-6297 are relied on by Mr Anderson in the same sense.
150. In Omega submissions (addressed by the Advocate-General but not by the court) were made to the effect that since the prohibition on simulated homicide inhibited only one type of use of Pulsar's services, by analogy with Keck article 49 did not apply to it. The Advocate-General however held in her §36, a passage cited by the Divisional Court in its §242, that:

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

The Divisional Court continued:

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

151. Alpine Investments concerned a Netherlands prohibition on the "cold-calling" of clients not only within Holland but also in other member states. It was argued that the rule was non-discriminatory, did not favour Netherlands providers over those from other member states, and therefore was analogous with the selling arrangements recognised in Keck. The ECJ however pointed out [§§ 28, 38] that

such a prohibition deprives the operators concerned of a rapid and direct technique for marketing and for contacting potential clients in other Member States….[it] affects not only offers made by [the provider] to addressees who are established in that State or move there in order to receive services but also offers made to potential recipients in another Member State. It therefore directly affects access to the market in services in the other Member States and is thus capable of hindering intra-Community trade in services.

Gourmet concerned a Swedish ban on the advertising of alcoholic products, including products from other member states. The ECJ followed Alpine Investments in holding, at its §39, that:

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

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

152. That said, however, we would respectfully agree with the Advocate General in Omega, and with the Divisional Court, that it is inept to seek to apply the specific verbal formulae to be found in Keck to the provision of services. The isolation of rules relating to the services themselves, by analogy with the product rules identified in Keck, does indeed threaten to produce an outcome so indeterminate as to render article 49 otiose.
153. That however is not the end of the matter. Mr Sales invited us to address the problem of services by considering the nature of the inhibition, and the nature of its effect on cross-border trade, an argument that in these terms does not seem to have been explored in Omega. We were shown a good deal of material in that connexion, that related to freedom of establishment and the free movement of workers, as well to the provision of services. We found most helpful in that connexion some observations of Robert Walker LJ (as he then was) speaking on behalf of this court in R (Professional Contractors Group) v IRC [2001] EWCA Civ 1945; [2002] STC 165. Changes in the taxation of individuals who operated service companies were said to constitute an unlawful hindrance to the free movement of workers, freedom of establishment and freedom to provide services contrary to articles 39, 43 and 49 of the EC Treaty. Having considered the Community authorities in detail, and in particular the observations of Advocate General Fennelly in Case C-190/98 Graf [2000] ECR I-493, Robert Walker LJ said at §74:

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

154. That statement represents the ratio, on that issue, of the Professional Contractors Group case. As to whether it binds us we refer to the discussion later in the judgment of the decision of this court in the Eastside Cheese case [1999] EuLR 968; though we should say now that we have not discerned any principle laid down by or any decision of the ECJ sufficiently clearly in a sense contrary to the observation of Robert Walker LJ to bring into operation section 3 of the European Communities Act 1972. The principle reflects what Advocate General Fennelly in paragraph 32 of his opinion in Graf saw as the base principle of Keck: to prevent the exploitation of the Treaty as a means of challenging national rules whose effect is simply to limit commercial freedom.
155. If the analysis of Robert Walker LJ is applied to the present case, two conclusions emerge. First, the hunting ban does not have a direct inhibiting effect on the rights asserted, of the English providers such as Mrs Johnson to supply services, and of persons in other member states to receive such services. What it does is to render the market for such services within a particular member state less attractive, both to English and foreign providers and receivers. Second, we revert to the point made in §145 above. The complaint of all of those who deplore the hunting ban, whether English or foreign, is that it destroys the base activity, hunting with dogs, on which the market for the provision of the particular services in issue is predicated. It is very difficult to see how it can be a breach of article 49 simply to remove the factual opportunity to engage in a particular trade.
156. None of the cases mentioned in §149 above falsify that approach. The measure in Ciola directly inhibited the provision of services to residents of other member states. De Agostini, like Gourmet, concerned a Swedish ban on advertising, in this case advertising to children. Carpenter was based on what was construed as a direct interference with Mr Carpenter's business of providing cross-border services, by disrupting his private life. Although the case is something of a warning as to the artificialities that can arise unless issues under free movement provisions are carefully analysed, the case is structurally a long way away from the Hunting Act.
157. We therefore conclude, differing from the Divisional Court, that the Hunting Act does not engage article 49. We are not sorry to reach that conclusion. The reasoning that leads to it enables there to be avoided some of the exorbitant implications of the Appellants' arguments that we have drawn attention to in §127 above. At the same time, however, we recognise that the jurisprudence leading to this conclusion is less clear than that which attaches to article 28. If we were not in any event clear that a breach of article 49 in this case can be justified in Community terms we might have to contemplate a reference to the ECJ of the issue of the engagement of article 49. That step is, however, rendered otiose by our conclusions on justification, to which we now turn.

Justification and proportionality in Community terms

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

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

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

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

159. We think that there is force in these submissions. In what follows we will take care to be guided by the specific rules of Community jurisprudence. At the same time, however, it was agreed that the method of elucidating the basis of and ground for a particular piece of legislation was properly the same whether HR or EC issues were under consideration, and in particular that the approach in Wilson v First County Trust [2003] UKHL 40; [2004] 1 AC 816 was appropriate to the EC appeal. It will be recalled that in §56 above we concluded, with the Divisional Court, and on the basis of the material open to us under the rules in Wilson, that the legislative aim of the Hunting Act is a composite one of preventing or reducing unnecessary suffering to wild mammals, overlaid by a moral viewpoint that causing suffering to animals for sport is unethical. It is therefore to that rubric that we apply the rules of Community law.
160. Specific grounds on which the member states can act are provided in the EC Treaty. In relation to article 28, article 30 provides:

The provisions of Articles 28 and 29 shall not preclude prohibition or restrictions on imports, exports…. justified on grounds of public morality, public policy or public security; protection of health and life of humans, animals or plants…. such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

In relation to article 49, by virtue of article 55, article 46.1 provides:

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

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

161. Central to the EC Appellants' submissions was the contention that Community jurisprudence required very great caution before a member state could be permitted to rely on considerations of public policy or public morality to escape its obligations under fundamental requirements of the Community legal order, such as were the free movement of goods and services; and that there must be established something in the nature of a fundamental threat to the values of the member state before such a defence or excuse can be admitted. For that argument the Appellants relied on two sources: the opinion of Advocate-General Van Gerven in Case 145/88 Torfaen [1989] ECR I-3851; and Case C-1/96 Compassion in World Farming [CIWF] [1998] ECR I-1251.
162. We agree with the approach of the Divisional Court, at §§ 325-327 of its judgment, to CIWF. The short point was that the animal health issues involved in the activity in question, export of calves in veal crates, had in Community law been exhausted by the terms of a Directive, so the member state had no further legitimate role in respect of animal health. As to the added claim that the state could legislate on the further grounds of public policy, the ECJ said, at its §66, that in that case:

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

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

163. It is quite correct that the Advocate General in Torfaen expressed himself in strong terms, that could be read, as the EC Appellants were minded to do, as disqualifying from legitimacy in Community terms any reliance by a member state on its own view of "morality" as a justification for departure from Community norms. He said at §29 of his opinion:

It is true that the court in its judgment in Henn & Darby accepted that in principle it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory. However, the principle that it is not the purpose of Article 36 to reserve certain matters to the exclusive jurisdiction of the Member States implies that the court must exercise some control over what is regarded by a Member State as falling within the concept of public morality. The prevention of offence to religious convictions does not seem to me to fall within that concept.

Nor does the protection of public policy seem to me to be applicable here. Reliance on that ground, the scope of which must be interpreted strictly, requires "the existence…..of a genuine and sufficiently serious threat to the requirements of public policy affecting one the fundamental interests of society.

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

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

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

A similar recognition of the role of the member state, in this case in relation to public morality, an area that might be thought to be more open to judicial scrutiny than is public policy, is to be found in the judgment of the ECJ in Case 121/85 Conegate [1986] ECR 1007[14]:

As the Court held in its judgment in [Henn & Darby] in principle it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory.

And the Respondents ventured to point out that the latter statement had been cited with approval by Advocate General Van Gerven in §26 of his opinion in Case 159/90 SPUC [1991] I-4685, thereby possibly indicating some reconsideration of the position that he had taken in Torfaen.

165. It is true that most or all of these statements are made in the context of the prohibited activity posing a genuine and sufficiently serious threat to a fundamental interest of society. As to that, the ECJ said in §32 of its judgment in Omega:

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

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

166. The EC Appellants sought to meet that conclusion in two ways. First, they said that the necessary foundation for the legislation, demonstration of an overall adverse effect of a hunting ban on the welfare of foxes, had not been established. We have already dealt with an aspect of that argument when addressing the issues that arise in the HR appeal. As we there demonstrate, the issue is more complex than one of simple scientific proof. We are further fortified in that approach by a case relied on in this connexion by the Appellants, Case C-192/01 Denmark [2003] ECR I-9693. That case concerned the recurrent difficulties caused by conflict between the rules on free movement of goods on the one hand and public health rules on the other. The ECJ held at its §46, in the passage relied on by the Appellants, that a national authority seeking to rely on danger to public health as a reason for inhibiting imports must show by scientific demonstration that the danger indeed exists. That is no doubt so when a claim that is capable of scientific demonstration is the only basis on which an interference with trade is sought to be justified.
167. That is not so in respect of the Hunting Act. The public policy implemented by the Hunting Act is more complex than simply a limitation on injury to foxes, as the description set out in §159 above demonstrates. In short, the policy encompassed the prevention and reduction of causing suffering to animals, together with the view that causing suffering to animals for sport is wrong. Accordingly, although the legislators had to have proper grounds in relation to the interference with the fox's welfare for thinking that the activity of hunting, taken as a whole, was cruel, it was in policy terms a matter for them to decide whether the scientific information was a sufficient basis for their actions. Since it is agreed that no allegation of bad faith is now made against the legislators, their conclusion is not properly challengeable.
168. Second, even granted the legitimacy of the legislators' objectives, the question still remains as to whether those objectives could have been obtained by less restrictive measures. That principle of proportionality is a familiar rule of Community law, repeated for instance in §36 of the judgment in Omega. The candidate for the role of less restrictive measures, and easily to hand, was the Michael Bill. That argument is, however, based on a misunderstanding of the aim of the Michael Bill, such as we have already explained at length. The point of departure of the Michael Bill was pest control, and not the animal cruelty that informed the Hunting Act. The Michael Bill would not, or at least would not except in a very indirect way, have achieved what we have found to be the objectives of the Hunting Act.
169. Finally, though only as a footnote, we need to say something about the decision of this court in R v Secretary of State ex p Eastside Cheese [1999] EuLR 968, since it was strongly relied on by Mr Sales. That case again concerned the relationship between restrictions imposed on public health grounds and the free movement of goods, and engaged the limits to which the national authority, in this case the Secretary of State, had discretion as to the range of measures taken by it and the scientific evidence on which those measures should be based. At p 988F this court said that:

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

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

170. The difficulty with this submission is that it is based on the court's analysis set out earlier in the report, at p 986E. This court said there:

it is clear that the national legislature has a considerable margin of appreciation, especially in legislating on matters which raise complex economic issues connected with the Community's fundamental policies. In [Case C-331/88 Fedesa [1990] ECR I-4023] the Court of Justice said at para 14……:

….in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.

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

171. We accept Mr Anderson's submission that the passage in Eastside Cheese that is relied on is obiter; and that it cannot in any event bind us because we are obliged, by section 3 of the 1972 Act, to give precedence to decided principles of Community law. The significance of the Hunting Act having been debated and decided by Parliament is not that that renders the decision effectively unchallengeable, as the passage in Eastside Cheese might suggest; but rather that, as we say in §165 above, the Parliamentary process undergone in this particular case demonstrates that the hunting ban satisfies the requirement of fundamental importance in the affairs of the member state that is imposed by the rules of Community law.
172. We therefore conclude that even if, which we do not accept, the Hunting Act engages either article 28 or article 49 of the EC Treaty, judged by the norms of Community law its interference with the values protected by those articles was justified and proportionate.

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

173. Mr Friend and Mr Thomas instituted their own separate proceedings for judicial review. They join with others of their community either to ride with hounds or to follow on foot with the Cotley Hunt, the South Somerset Foxhounds, the Quantock Stag Hounds and other hunts. The Divisional Court dismissed their application and refused permission to appeal, and we heard their application for permission to appeal after we had concluded the hearing of the main appeals. We would like to pay tribute to them, not only for the admirable way in which they prepared their documentary case, but also for the clarity and moderation with which Mr Friend presented their oral submissions in a matter on which they both have very strong feelings. References to their claim, and to the way in which they put forward aspects of their case, appear in §§ 23, 27(3), 55, 61, 149, 186 and 246-258 of the Divisional Court's judgment. As that court observed Mr Friend and Mr Thomas originally relied on ECHR articles 8, 9, 10, 11, 14, 17 and 53; on the Race Relations Act 1976; and on the provisions of a number of international agreements.
174. So far as this last head of claim is concerned, we agree with what the Divisional Court said in its §257 about the fact that none of the international instruments relied upon have been incorporated by statute into domestic law, so that the rights the Appellants assert are not directly enforceable by private individuals in our domestic court. If and in so far as any of these treaties contain material that reflects the English common law, it is the common law rights and not any supposed Treaty rights that might form the basis of a claim. We also agree (see the judgment of the Divisional Court at §255) that the hunting community is not an ethnic group and that it has no entitlement to protection against discrimination on "racial grounds" arising out of any of the matters about which they make complaint. These Appellants do not qualify as an ethnic group within the meaning of the Race Relations Act by reason of the long history of hunting which they describe eloquently in their Detailed Statement of Grounds (at §6) and in their skeleton argument in this court (at §§ 37-39).
175. In this court Mr Friend and Mr Thomas were content to rely on the HR Appellants' arguments based on ECHR articles 8 and 11, so that it is not necessary to give them any separate consideration in this part of this judgment. They have abandoned their claim under article 10. They seek permission to pursue their separate claims under articles 9, 14, 17 and 53. Articles 17 and 53, however, give rise to no free-standing claim, for the reasons set out by the Divisional Court in §§ 253-4 and 256-7 of its judgment, with which we agree.
176. So far as articles 9 and 14 are concerned, we see no reason to add anything very much to the reasons given by the Divisional Court in §§ 248-250 and 183-198 of its judgment. Lord Nicholls' explanation of article 9 is now reported as R (Williamson) v Secretary of State [2005] UKHL 15, [2005] 2 AC 246. He said at §24:

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

177. Mr Friend and Mr Thomas say that hunting is at the very core of mankind's psyche and those who exercise their conscience to follow a way of life embracing that psyche subscribe to a belief that is at least of comparable importance to that of a religious belief: to many it is of greater importance. We do not consider that this ingenious argument would find favour with the court at Strasbourg, which has referred to the main purpose of hunting in the present day as providing pleasure and relaxation for those who take part in it while respecting its traditions (Chassagnou & Others v France (2000) 29 EHRR 615 at §§ 105 and 108).
178. We have already described how the HR Appellents have not sought to advance any article 14 arguments in this court, although we have granted them formal permission to appeal so that the issues could remain alive at a higher level of court. Mr Friend and Mr Thomas maintain that the Act discriminates against them in that it favours other groups engaged in like activities because they belong to an ethnic group that follows the ancient culture of hunting with hounds which others find offensive. They also argue that their culture and way of life fall within the ambit of their private and family life (the same as a gypsy or an aborigine) and their freedom of conscience, and that the Act is "aimed at maliciously and viciously oppressing a particular social and political group".
179. For the reasons we have already given, and for the reasons given by the Divisional Court, we do not consider that the arguments deployed by Messrs Friend and Thomas have any real prospect of success. We therefore refuse permission to appeal.

Summary

180. In this section we give a summary of the judgment for the convenience of readers. It should be read with the detailed reasons set out above, which it is intended to summarise.
181. This hearing has involved the determination of two full appeals, and one application for permission to appeal. This Court has dismissed that latter application, for the reasons set out at §§173 - 179 above. The 'HR' Appeal was based upon the submission that the ban contained in the Hunting Act infringed a number of the Appellants' rights under the ECHR. The 'EC' appeal relied upon the submission that the ban infringed the Appellants' rights under the free movement provisions of the EC Treaty. These two appeals have also been dismissed, for the reasons summarised in the following sections.
182. The Policy Objectives of the Hunting Act. As a precondition to the determination of the two appeals in this case, the Court was required to address the question of whether the Divisional Court had correctly interpreted the legislative aim and objectives of the Hunting Act. The HR Appellants had advanced a number of challenges to the Divisional Court's approach, including; that no legislative aim can be derived from the Hunting Act; that the Respondents had adduced insufficient evidence before the lower court to support the conclusion reached by that court; and that the Divisional Court had consciously defined an objective wider than that intended by the legislature [§§57 & 62 above].
183. We agree with the conclusions of the Divisional Court on this question, that the objective of the Hunting Act is a composite one of preventing or reducing unnecessary suffering to wild mammals, together with the view that causing suffering for sport is unethical [§56 above]. This Court also agrees with the Divisional Court that it is manifest from the available background material that the legislature did frame the Hunting Act with such an ethical sentiment in mind [§§58–60 above]. As to the Appellants' submissions, this Court is of the view that they are either misconceived or based upon a misunderstanding of the nature of the enquiry which a court will undertake in determining the objectives of an Act of Parliament [§§57 & 62 above].
184. The HR Appeal. The essence of this appeal is that the ban engages and infringes, either directly or indirectly, the Appellants' rights under articles 8 and 11 and article 1 of the first protocol. On that basis, the seek a declaration under section 4 of the Human Rights Act that the Hunting Act is incompatible with the ECHR. It should be noted that, in so far as the Appellants rely upon alleged indirect infringements, this Court has proceeded on the assumption, as did the Divisional Court, that some at least of the consequences that the Appellants submit will flow from the ban will actually manifest themselves, even though the nature and extent of the consequences are by no means certain in the present state of the evidence.
185. Article 8. The HR Appellants submitted that the ban infringes their article 8 right to respect for their personal autonomy, their culture/community/lifestyle, their home and their use of that home. These submissions encompassed both direct and indirect infringements; direct in the sense that certain Appellants would be prevented from hunting or using or allowing others to use their land for such a purpose; and indirect in that the ban will, allegedly, cause a decline in hunting activities, which may then place in jeopardy the Appellants' homes and livelihood [§§9–11 above]. In this Court's view these submissions are based upon an over-wide definition of the ambit of article 8 and do not in fact raise any question of a failure to respect the Appellants' rights to their private or family lives or their homes. These claims do not engage article 8 [§§100–105 above].
186. Article 11. The HR Appellants submitted an infringement of article 11 based upon the fact that the ban allegedly prohibits the assembling of hunting meetings and prohibits, or interferes with, the freedom of association of persons in and around hunting [§12 above]. In agreement with the decision of the Scottish Courts and with the Divisional Court, we are of the opinion that this argument fails. At its highest the ban merely prohibits a particular activity that could be undertaken by an assembled group, but does not prohibit the assembly itself. Therefore it cannot be said that the ban infringes article 11, whether or not people continue to assemble now that they are prohibited from undertaking certain activities [§§106-107 above].
187. Article 1 protocol 1. The HR Appellants claimed that the ban has deprived them of their property rights, or has interfered with their peaceful enjoyment of those rights, in various ways [§14 above]. In respect of a number of the Appellants' submissions, the Respondents conceded that the ban did infringe the Appellants' rights under article 1 protocol 1 [§108 above]. However, this Court takes the view that those claims in relation to which the Respondents made no concessions fail for not engaging the article: on the basis that the Appellants are relying upon interests which cannot be said to be 'property' for the purposes of article 1 protocol 1 [§114 above].
188. In respect of the conceded infringements we conclude, as did the Divisional Court, that these infringements are justified within the requirements of article 1 protocol 1. This determination has been reached on the basis of the following conclusions: that the aim pursued by the Hunting Act is legitimate; that the ban is proportionate to the aim pursued; and that the passing of the ban was a permissible course of action for the State to take considering the significant margin of discretion accorded to it in such a circumstance [§§109-113 & §§116–125 above]. Therefore, the Appellants' submissions on article 1 protocol 1 fail.
189. Article 14. No argument on this article was pursued before this Court [§13 above].
190. The EC Appeal. The essence of the EC appeal is that the ban engages and infringes two of the free movement provisions contained in the EC Treaty: the free movement of goods, enshrined in article 28, and the free movement of services, in article 49. It was not in dispute before this Court that there exists established interstate trade in goods and services related to hunting between the UK and other member states [§15 above].
191. Article 28. The EC Appellants submitted that the ban falls within article 28 as being equivalent to a quantitative restriction upon imports of hunting-related goods into the UK from other member states [§16 above]. However, this Court has not been persuaded that article 28 is wide enough to encompass the ban. Like the measures removed from the ambit of article 28 in the Keck case the ban is a restriction which is not aimed at products from other member states, or at products at all, and does not have a discriminatory effect on imported products [§§144-145 above]. Therefore, on the basis of the jurisprudence of the ECJ [see §§131 – 143 above], the ban does not engage article 28 [§§144-146].
192. Article 49. The EC Appellants submitted that the ban falls within article 49 on the basis that it restricts the freedom of providers, based in the UK, to provide hunting-related services to nationals of other member states; as well as the freedom of those nationals of other member states to receive such services in the UK [§16]. A preliminary question which this Court was required to address was whether the Divisional Court was correct to conclude that the post-Keck principles of article 28 cannot be applied to an application under article 49 [§§148–151 above]. On this limited point, we agree with the Divisional Court [§152 above]. However, on the more general question of whether the ban then engages article 49 we have reached a different conclusion from that of the Divisional Court. This Court takes the view that, to engage article 49, a measure must have a direct inhibiting effect on the free movement of services. It is not sufficient that the measure merely decreases the demand for a particular service within a member state. Such is the case with the Hunting Act; and therefore, article 49 is not engaged [§155 above].
193. Notwithstanding that the Appellants failed to establish the alleged infringements of articles 28 and 49, this Court for completeness addressed the question of whether such infringements could be justified in EC terms. This Court was persuaded by the EC ' submission that when considering whether an infringement is justified and proportionate under the EC Treaty the court is required to take into account different principles from when it is considering the same question under the ECHR [§§158-159 above]. Nevertheless, even proceeding on that basis, we conclude that the alleged infringements of articles 28 and 49 would be justified on the following grounds: that the aim pursued was a legitimate exercise of public policy; that the ban was proportionate to that aim; and that the State was acting within its discretion in prohibiting an activity that was seen as posing a threat to an interest of high importance [§§161 - 172 above].
Appendix I
Details of the Individual Appellants: Excerpt from the Judgment of the Divisional Court [§§31-55]
194. The individual Human Rights Appellants are Donald Summersgill, Lesley Drage, Roger Bigland, Colin Dayment, Kim Gooding, Joseph Cowen, Kenneth Jones, Richard May, Giles Bradshaw and Jason Vickery. We give summary details of who they each are and of their connection with and commitment to hunting as follows. The details are derived from their witness statements, which are largely unchallenged.
195. Donald Summersgill is the professional huntsman for the Devon and Somerset Stag Hounds which hunts on Exmoor. He is 39 years old and has been the huntsman since 1990. He has never worked outside the hunting industry and is not qualified for anything else. He has been hunting all his life. Virtually all the members of his family hunt and are dependent on hunting for their livelihoods. If hunting remains banned, he will lose his home. He has a position in the rural community by reason of his employment. In short, his life and property rights revolve around the hunt and his professional activities. He considers hunting, but particularly stag hunting in Exmoor, to be part of the traditional way that people in that area have lived their lives. He sees himself as part of a minority group who have a separately recognised culture that brings very substantial benefits to the local farming and rural community. The effect of the ban on his life and his career is set out in full in his witness statement.
196. Lesley Drage runs a small livery yard business in Stow-on-the-Wold in Gloucestershire. The business is entirely reliant upon local foxhunts for its survival. She looks after 18 horses, all of which are used exclusively for hunting. The contractual arrangements with the owners are vested and, in the absence of the hunting ban, could be expected to endure for the long term. These contracts provide her business with a steady income. She employs 4 people who have the benefit of contracts of employment with her. Likewise, Ms Drage has the reciprocal benefit of those employment contracts. She also has the benefit of a long-term contractual arrangement with a local landowner who has granted her an informal lease over her business premises. Her business has goodwill and, in the absence of the hunting ban, could have been sold as a going concern. Diversification is not possible for her into any other type of equestrian activity, as she cannot afford and has no access to borrow the necessary capital. She is part of hunting society. Her job is her life. Like the 2^nd Claimant (and like all those for whom hunting is a way of life) she is part of a minority group who have a separately recognised cultural identity, which is not found elsewhere in suburban and urban England and Wales. The ban will devastate her life and her business and she will lose her home.
197. Roger Bigland is a professional terrier man. He has been employed by one of three foxhunts in the Cotswold area for the last 40 years. His current employer is the North Cotswold Foxhunt, for whom he has worked since 1990. If he loses his job he will probably, given his age and his lack of transferable skills, be unable to get another job. If he is lucky, he may find some low paid unskilled or manual labour. He has been with his present employers for the last 14 years and has the benefit of employment protection and vested rights under his contract of employment. His job is his passion and provides him and his wife with their only social life.
198. Colin Dayment is a self-employed farrier. His business is largely dependent upon hunting. His family have been in this business since 1904, and it was run by his father, his grandfather and his great grandfather before him. Mr Dayment is 52 and has been a farrier since he was 15 years old. He works alone and has no employees. 81% of his business is the shoeing of horses for local hunts. His business has been incorporated as Dayment & Son Ltd and he stands to lose the value of his 100% shareholding should the ban proceed. There are 7 packs of fox/staghounds within 20 minutes drive of his home. He believes that his business will not survive if hunting is criminalised and will thereby be deprived of the goodwill of the business built up by the family over the past 100 years. He also hunts and is, like the 2^nd Claimant, part of the same defined and self-defining Exmoor hunting community. His only social life revolves around the hunt.
199. Kim Gooding works with her husband, they are full time, self-employed trainers of hare coursing greyhounds. Their property has been adapted solely for the requirements of the business. If the ban is implemented, they will lose their livelihood and the value of the business. Their property will be significantly devalued, and it is more likely than not that they will lose their home through a forced sale. Mrs Gooding will be deprived of her current and cherished lifestyle. Her social life and that of her family depends upon hare coursing and the activities that surround it. The family will have to start again in a different walk of life.
200. Joseph Cowen is a landowner and is a trustee and the Senior Master of the Fernie Foxhounds, a foxhunt in Leicestershire. As a trustee and Master, the Fernie's properties, equipment, hounds, horses and contracts of employment with its staff are all vested in Mr Cowen. The Fernie hunts on his family land (of which he is a trustee) about 1 in every 3 days that it is out hunting. The family land has been managed specifically for the purposes of fox hunting and has thereby acquired a special amenity value that is threatened by the Act. The Fernie provides two important services to local landowners and farmers: control of the fox population and a fallen stock service. Mr Cowen and his family have a social life that revolves around the Fernie. The hunting ban will have a fundamental effect upon his family, their lifestyle, social life and that of the wider rural community.
201. Kenneth Jones is the Master of the Irfon and Towy Hunt and is a tenant sheep and cattle farmer in Mid Wales. The hunt goes over his land 3 or 4 times a season. The hunt hunts both on horseback and on foot as a gun pack. Generally when hunting, the hunt crosses the land of various different landowners during a day. However, at least twice a year as a gun pack and twice a year when mounted they hunt exclusively on the Llwyn Maddoc estate to protect pheasants from foxes. The ban will have a disastrous effect on his lifestyle, livelihood, social life and property rights. His grandfather founded the hunt in 1909 to protect his own and other local farmers' stock, as they were losing too many lambs to foxes. His grandfather remained Master of the hunt for the next 37 years. Since then, his family has been an integral part of the hunt. Mr Jones has been hunting since he was 5 years old. He has a wife and 3 children and they have always hunted together as a family. It is the central unifying force in their life. The hunt provides an invaluable pest control service and the hunt committee, of which Mr Jones is a member, employs a professional huntsman who would lose his job if the ban proceeds. The hunt provides the only social life for the whole community in what is a very rural and quiet area with limited social and recreational activities. Mr Jones feels passionately that the ban will unnecessarily degrade his own family and community life. He fears that without hunting there is even less reason for one of his own children to take over the family farm and that the ban will lead to further drift from the area of local young people.
202. Richard May is the Master and owner of a beagle pack. His family has bought its own land (which he now owns) for the purpose of hunting and shooting. Every three weeks he hunts exclusively over this land with friends he invites to join him. The pack has been in the ownership of his family for three generations. It was founded by his grandfather in 1905. The dogs are used for hunting hares. When the ban is implemented, he may be able to keep at most 3 or 4 dogs and will have no option but to destroy the rest of the pack. They are pack animals and are not suitable as domestic pets. A ban will mean that he will have to dismantle his kennels, remove wire fencing, concrete and drains at substantial cost to restore his land.
203. Giles Bradshaw owns a small farm in Devon. He currently allows the Tiverton Staghounds, Tiverton Foxhounds and the Taw Vale Beagles to cross his land about 3 or 4 times a year. He also uses his 4 dogs as a method of pest control on his farm, particularly to chase deer out from an area of woodland in order to deter them from destroying his willow coppices. Mr Bradshaw is concerned that under the terms of the Hunting Act, he will be forced against his conscience, to shoot deer unnecessarily. Both as a farmer and a landowner he needs to be able to plan his conduct so that it is within the law. He does not consider that the Hunting Act is clear and easily understood and DEFRA have been unable to clarify it for him.
204. Jason Vickery is a tenant farmer in Dorset. He hunts with the South and West Wilts Foxhounds and is a member of its committee. Mr Vickery's social and family life revolves around hunting. He grew up in a hunting family and met his wife through hunting. He also takes his young daughters out hunting with him and he has made most of his friends locally through the hunt. As a farmer, Mr Vickery relies on the hunt's fallen stock service, which is described more fully in the first statement of Ann Mallalieu. He considers that the hunting ban will have a devastating effect on his life.
205. The individual European Law Appellants are Francis Derwin, Shane Flavin, The Hon. Diana Johnson, Susan Lanigan-O'Keeffe, Viscount Hughes Le Hardy de Beaulieu, Gil Jose de Queiroz de Mendia, Barbara Rich, Marion Knoche, Kevin Lamacraft and Brian Divilly. Summary details of who they are and of their connection with and dependence on hunting in England and Wales are as follows. This again is taken from their witness statements and is largely unchallenged.
206. Francis Derwin owns one of the largest horse dealerships in Ireland. He buys horses from all over Ireland and deals in about 800 horses per year, of which 300 or so are hunters. Before the Hunting Act came into force, he sold about 90% of those hunters to customers in the UK. The Hunting Act has had a serious impact on Francis Derwin's business. He has been unable to sell any hunters at all this year.
207. Shane Flavin is also a horse dealer based in Ireland. An important part of his business has been the sale of hunters to customers in the UK. He has failed to sell any hunters at all since November 2004, when the Hunting Act was passed.
208. Diana Johnson has, since 1984, operated a business providing hunting holidays to foreign visitors. Many of these visitors come from other EU Member States. Diana Johnson built the business around her hireling business. Aside from hiring out hunters to her customers, she took them out on a wide variety of hunts and provided them with accommodation, transport, a valeting service and entertainment, such as hunt balls. To help her run her business, Diana Johnson employed a workforce all of whom came from other Member States of the EU. The ban on hunting has had an extremely damaging effect on her business.
209. Susan Lanigan-O'Keeffe is a horse breeder based in Ireland who specialises in half-breed horses most of which are sold as hunters to English buyers. The Hunting Act has resulted in a steep decline in her business. She will have to put down a number of her horses because she simply cannot sell them.
210. Viscount Hughes Le Hardy de Beaulieu lives in Belgium but owns a house in Dorset and has been coming to England to hunt for nearly 25 years. He takes part in 35-40 hunts in various parts of England during each hunting season. Viscount Hughes Le Hardy de Beaulieu uses his own horses when hunting near his house in Dorset, but uses hirelings when hunting in other parts of the country. When he returns to Belgium he keeps his horses in a livery yard in Dorset. As a result of the Hunting Act, he will no longer come to England to hunt. He would not consider drag hunting instead.
211. Gil Jose de Queiroz de Mendia lives in Portugal and has visited England on three occasions since 1999 to take part in hunting. On two of those trips he used the services of Diana Johnson, the 4^th Claimant, paying around €2000 for 3 or 4 days' hunting, including accommodation, meals and the provision of horses. He has also bought several hounds in England and taken them back to Portugal to use when hunting there. Following the hunting ban, he has no plans to come back to England to hunt.
212. Barbara Rich has two businesses: a horse livery business and a horse dealership, buying hunters in Ireland and selling them to customers in England and in other EU Member States. Prior to the hunting ban, both businesses were thriving; since the ban they have suffered dramatically. From having 40 liveries at any one time, Barbara Rich now has only one. She has sold only one hunter since December 2004. She used to sell 50 a year.
213. Marion Knoche lives in Germany. She and her partner have been coming to England to hunt for some 10 to 12 years. They normally come once or twice a year and take part in 5 separate hunts on each trip. They use hirelings and stay in bed and breakfast accommodation. They also buy hunting clothes and riding equipment when in England. As a result of the ban, Marion Knoche and her partner will no longer come to England to go hunting.
214. Kevin Lamacraft and his wife Ruth have run a hireling business since 1995. Amongst their customers are regular clients from Germany, France, Portugal, Austria and Scandinavia. The hunting ban has had a devastating effect on their business. Last year, he received £45,500 for the March to April period. This year he has generated only £14,500 during the same period. The sharp decline in business has meant that he has been unable to employ any workers.
215. Brian Divilly is one of the biggest breeders of greyhounds in Ireland. About 75% of his greyhounds are bred for coursing; prior to the hunting ban he sold a significant number of these to customers in England. The effect of the ban is that he no longer has a market for greyhounds in England. As a consequence he has had to cut back his breeding of coursing dogs by 50% this year.
216. In addition to the Appellants themselves, other people have given witness statements in their proceedings. These include, but are not limited to, the following. Simon Hart is the Chief Executive of the Countryside Alliance. He has conducted a survey of the hunts in England and Wales in order to ascertain (a) whether they receive European visitors, (b) whether they employ workers from other Member States of the European Union, and (c) whether the hunts have links with hunts in other Member States. The results of his survey are set out in his witness statement and demonstrate that a significant number of European visitors hunt in England and Wales. For example, the Cotswold Hunt state that Portuguese, Dutch, French and Irish visitors have subscribed to their hunt and they also receive regular visitors from France, Germany, Portugal and Sweden. The results also show that several hunts employ workers from other EU Member States. For example, the Pembrokeshire and Carmarthenshire Mink Hounds employed two French workers between 2002 and 2005. Finally, there are links between hunts in England and Wales and hunts in other EU Member States. For example, the Trinity Foot and South Hertfordshire Beagles visit the Tory Foot Beagles in Ireland annually and hunt regularly in France.
217. Jerry Desmond is Chief Executive and Secretary of the Irish Coursing Club. His witness statement explains that a significant proportion of coursing greyhounds bred in Ireland are sold to customers in England. He considers that the ban on coursing in England and Wales will mean that part of the market for Irish greyhound breeders will disappear.
218. Brian Friend and Hugh Thomas, Appellants in the third of the proceedings before the court, ride or follow on foot with the Cotley Hunt, the South Somerset Fox Hounds, the Quantock Stag Hounds and other hunts.
Appendix II
EXCERPTS FROM THE BURNS REPORT
SUMMARY AND CONCLUSIONS

Chapter 1 INTRODUCTION

219. …..
220. We were asked to focus on the hunting with dogs of foxes, deer, hares and mink. The use of dogs solely to locate or retrieve quarry was excluded from our terms of reference. We were not asked to recommend whether hunting should be banned. Nor were we asked to consider moral or ethical issues.
221. The committee gathered information through an open process of written and oral evidence, research reports, seminars, meetings and visits.

Chapter 2 HUNTING

222. Hunting with dogs is a diverse activity.
223. …..
224. …..
225. …..
226. …..
227. …..
228. …..

Chapter 3 HUNTING AND THE RURAL ECONOMY

229. …..
230. There is a complex set of relationships between hunting and a diverse range of other economic activities, mostly in rural areas, and largely horse-related, that either directly serve hunting or are in some way dependent on it.
231. There have been widely varying estimates given in recent years for the loss of jobs which would result from a ban on hunting.
232. The research which we commissioned attempted to estimate the jobs (full-time equivalents, FTEs) which currently depend on hunting, either directly or indirectly.
233. It is relatively straightforward to estimate the number of jobs which the hunts provide. It is much more difficult to estimate the other jobs which depend, directly or indirectly, on hunting. Identifying the number of participants and allocating their expenditure between hunting and other equestrian activities is particularly problematic.
234. Estimating the effects of a ban is also complex. It is necessary to take account of other factors such as the extent to which alternative activities would replace hunting, how the money currently used would be spent, other changes taking place in the rural economy and the differential impact in different areas.
235. It is difficult too to estimate the effects of a ban on hunting on individuals. These must take into account the extent to which the people concerned would be able to switch to other available employment, as well as the part-time and seasonal nature of many jobs.
236. We estimate that somewhere between 6,000 and 8,000 full-time equivalent jobs presently depend on hunting, although the number of people involved may be significantly higher. About 700 of these jobs (involving some 800 people) result from direct employment by the hunts. Another 1,500 to 3,000 full-time equivalent jobs (perhaps involving some 2,500 to 5,000 people) result from direct employment on hunting-related activities by those who are engaged in hunting. The remaining jobs, in a wide variety of business, are indirectly dependent on hunting. Of these, many will be in urban, rather than rural, areas. (Paragraph 3.43)
237. We are distinctly cautious in assessing, so far as we have to, the short, medium or long term effects of a ban on hunting which is regarded as permanent. The evidence of individual Appellants of the actual or anticipated effect on them is unchallenged, other than by general contentions whose force we find unpersuasive. There is bound, we think, to be a decline in riding to hounds. We hesitate to say how sharp that decline might be. The Burns Report was similarly cautious. Fox hunts will not, we suppose, all disband overnight. Still less will related social activities collapse immediately. On the other hand, we cannot but suppose that there would be a substantial contraction of hunting related activities in the medium term. More importantly, for present purposes, we proceed on the scarcely contested basis that a significant number of individuals, of whom the individual Appellants are representative, will suffer in a variety of tangible and economic ways and that some will lose all or part of their present livelihood. The extent to which they may be able to find alternatives is scarcely predictable. Some, no doubt, may not.
238. In terms of national resource use, the economic effects of a ban on hunting would be unlikely to be substantial, especially in the context of the drastic changes taking place in the agricultural sector. However, at least in the short and medium term, the individual and local effects would be more serious. Most jobs that are directly dependent on hunting are in the land-based sector. Some of those directly affected have specialised skills which would not transfer easily, and they would find it hard to find alternative employment. For these people especially, the adjustment process could be painful. Some thought would have to be given to the possibilities for re-training and acquiring new skills. (Paragraph 3.73)
239. For some business that are on the borderline of viability, the loss of revenue could lead to a bigger impact than the direct effect may suggest. For a small number of local communities which depend to a significant extent on hunting, and where there are limited alternative employment opportunities, the effects could also be more serious. (Paragraph 3.74)
240. Farmers would lose the benefit of a recreation they value. In addition, many of them would feel that they had suffered an economic loss since a free "pest control" service would have been removed; they would expect more predation of lambs, poultry, piglets and game birds; and they would lose the "fallen stock" service provided by many hunts. The negative impacts of a ban would be particularly resented because they would be viewed as unnecessary by many of those affected, and as an avoidable addition to other problems facing the farming community. (Paragraph 3.75)

Chapter 4 SOCIAL AND CULTURAL ASPECTS

241. It is commonly argued that hunting plays a critical role in the social and cultural life of rural communities. Hunting is itself a social activity, and hunts organise a wide range of social and sporting events. But it is also important to see hunting, especially organised hunting, in its wider context. It is a highly co-operative social activity taking place in a rural setting. Different people value different aspects but farmers and landowners are at its heart. Rural communities are diverse and changing but farmers, as a group, feel that their interests and way of life are not understood by central government and the urban majority.
242. The research which we commissioned examined the relative importance of hunting to the social and cultural life of four rural communities where hunting is actively pursued. Among the findings were that there were higher levels of support for hunting than previous surveys have suggested; that support tends to be based not so much o importance to the individual – although this was true for hunt participants and some farmers – but a belief that hunting had greater significance for the community as a whole and for others living there; that hunt-based social activities play a significant part in the social life of these communities, but are not as significant as those of the local pub or church; that support for hunting, and a belief in its importance to individuals and to the local community, was particularly strong in the Devon and Somerset study area; and that a significant minority who were opposed to hunting would welcome its abolition.
243. It is not possible simply to extrapolate these findings since the areas studied deliberately focused on those in which organised hunting actively takes place, rather than rural communities in general.
244. Rural communities are diverse. Many, especially those near urban centres, have experienced substantial changes in recent years as agriculture has declined in importance, communications have improved and people have moved in from towns. The part played by hunting in the social and cultural life of rural communities varies greatly, depending on factors such as their proximity to urban centres and the type of hunting taking place. (Paragraph 4.52)
245. The social activities organised by the hunts form an important feature of the social life of those communities in which hunting is actively pursued. For a significant minority, notably hunt participants and farmers in more isolated rural communities, the hunts play a dominant role. The loss of these activities, if that were the outcome of a ban on hunting, would be keenly felt. For those who take part, hunting is itself partly a social event, particularly during the winter months when alternative activities are scarce. For others, the social activities organised by the hunts are significant, but less so than those organised by other groups, in particular the pub and the church. Event those who would not feel greatly, at a personal level, the loss of the hunts' social activities consider that it would have a detrimental effect on the social life of others and on community life in general. A number would also feel that it would mark the end of an important, living cultural tradition. The precise balance between these different responses would vary from region to region and area to area. Generally, however, the impact would be felt most strongly in the more isolated rural areas. In areas of greater population density where these are more alternative activities available, and where the population is more socially diverse, a ban would make less of a social impact. (Paragraph 4.53)
246. It is clear that, especially for participants in more isolated rural communities, hunting acts as a significant cohesive force, encouraging a system of mutual support. Farmers and other landowners – many of whom feel increasingly isolated – are both the linchpins and the main beneficiaries of the system. Many of them also value hunting as an expression of a traditional, rural way of life and would strongly resent what they would see as an unnecessary and ill informed interference with it. As a result it would increase their sense of alienation. (Paragraph 4.54)
247. For another group, the hunt itself seems divisive, intrusive and disruptive. (Paragraph 4.55)
248. Because the organisation of point-to-points relies heavily on voluntary labour supplied by hunt followers and supporters, there could be difficulties in running these events. Pony clubs also often depend heavily on hunt followers and supports. To a lesser extent these too could be affected by a ban. These activities should be able to continue provided alternative forms of organisation develop. (Paragraph 4.56)

Chapter 5 POPULATION MANAGEMENT AND CONTROL

249. The pre-breeding population of foxes in England and Wales is thought to number some 217,000. They are perceived as pests mainly because of predation on lambs and game birds, although these are marked regional variations. Farmers and gamekeepers consider that they need a range of methods to control foxes. There is little information about the numbers of foxes which are killed and by what methods. Shooting is the most common method but the use of dogs is particularly prevalent in sheep-rearing upland areas.
250. In most areas of England and Wales farmers, landowners and gamekeepers consider that it is necessary to manage ox populations in view of the damage which foxes can cause to farming and game management interests. (Paragraph 5.41)
251. Methods involving guns probably account for the greater part of those foxes which are deliberatively killed, but there are marked regional variations. (Paragraph 5.41)
252. In lowland areas hunting by the registered packs makes only a minor contribution to the management of the fox population, and terrier work, especially by gamekeepers, may be more important. In these areas, in the event of a ban, other means of control have the potential to replace the hunts' role in culling foxes. (Paragraph 5.42)
253. In upland areas, where the fox population causes more damage to sheep-rearing and game management interests, and where there is a greater perceived need for control, fewer alternatives are available to the use of dogs, either to flush out to guns or for digging-out. (Paragraph 5.43)

Deer

254. There are estimated to be about 4,000-6,000 red deer in the areas hunted by the three registered packs in Devon and Somerset. About 1,000 deer need to be culled each year to maintain a stable population. The hunts kill about 160 deer each year, excluding the "casualty" deer which they dispatch.
255. The population needs to be managed, mainly because of the damage which deer cause to agricultural, forestry and conservation interests and because the numbers would otherwise increase substantially. Apart from hunting, the only other method of culling deer is by stalking/shooting.
256. It is generally accepted that red deer numbers in Devon and Somerset need to be controlled. Hunting with dogs presently accounts for about 15% of the annual cull needed to maintain the population at its present level. However, because of the widespread support which it enjoys, and consequent tolerance by farmers of deer, hunting at present makes a significant contribution to management of the deer population in this area. In the event of a ban, some overall reduction in total deer numbers might occur unless an effective deer management strategy was implemented, which was capable of promoting the present collective interest in the management of deer and harnessing such interest into sound conservation management. (Paragraph 5.75)

Hares

257. There are about 630,000 brown hares in England and Wales. They are most abundant in eastern England, where high numbers are often encouraged for shooting purposes. Hares are regarded, at most, as a minor agricultural pest. About 1,650 hares are killed by hunting by the registered packs and about 250 by the registered coursing clubs. Much larger numbers are killed by shooting and illegal coursing.
258. There is little or no need to control overall hare numbers and, indeed, they are a Biodiversity Action Plan species. However, the distribution of hares is uneven: they are abundant in some areas, mainly in the east f England, and scarce in much of Wales and the West Country. Hare hunting and coursing are essentially carried out for recreational purposes and have a relatively small direct impact on hare numbers. A ban would therefore have little effect in practice on agriculture or other interests. (Paragraph 5.94)
259. Because hare numbers tend to be maintained at high levels in areas where hunting/coursing occurs, the impact of a ban might well be that, in the absence of other changes, the population would decline in those areas. This would partly result from a loss of suitable habitat but also, in a few areas, from the shooting of hares to deter poaching and illegal coursing. However, in comparison with the impact of organised shooting on hare numbers, a ban on hare hunting and coursing would have a negligible effect. (Paragraph 5.95)

Mink

260. Mink are not a native species. Following their introduction to Britain mink rapidly increased in their distribution and abundance. However, over the last 10 years mink populations have declined substantially, and are not an estimated 18,000 in England and Wales. Mink prey on a wide variety of mammals, birds and fish. Trapping is the main method of killing mink, but mink hunts probably account for between 400-1,400 mink a year.
261. Mink can cause localised damage to poultry, game birds, fishing and wildlife interests. Because mink hunts kill relatively small numbers of mink, and because of their high fecundity and ability to disperse, hunting does not have any significant effect on the mink population at a national or regional level. It can, however, lead to temporary reductions in the mind population in specific localities. (Paragraph 5.121)
262. Trapping is potentially an effective means of control but it needs to be carried out fairly intensively from January to April every year to have a lasting impact. It is therefore relatively costly. Hunting can be helpful in providing a free service to farmers and others that identifies where mink are located, enabling them to target trapping efforts more effectively. (Paragraph 5.122)

Chapter 6 ANIMAL WELFARE

263. The issues of cruelty and animal welfare are central to the debate about hunting. Animal welfare is essentially concerned with assessing the ability of an animal to cope with its environment: if an animal is having difficulty in coping with its environment, or is failing to cope, then its welfare may be regarded as poor. This judgment is distinct from any ethical or moral judgments about the way in which the animal is being treated.
264. Except in relation to deer, little scientific work has been done to assess the impact of hunting on the welfare of the four quarry species. Because it is not possible to ask an animal about its welfare, or to know what is going on inside its head, it is necessary to draw up some indicators which enable one to make a judgment. The precise nature of these indicators will vary depending on the animal concerned but they will usually comprise a mixture of physiological indicators and behavioural indicators. But, because they are only indicators, there is often room for argument about the extent to which a particular finding indicates poor welfare as opposed to, for example, exertion that can be regarded as falling within natural limits. It is also necessary to consider whether the assessment of welfare should be on an absolute or comparative basis.
265. Animal welfare is concerned with the welfare of the individual animal, not the management of the wider population. In assessing the impact of hunting on animal welfare we are persuaded that it is necessary to look at it on a relative, rather than an absolute, basis. It should not be compared with only the best, or the worst, of the alternatives. Nor is it right to justify hunting by reference to the welfare implications of illegal methods of control. (Paragraph 6.12)
266. In the event of a ban on hunting, it seems probable that farmers and others would resort more frequently to other methods to kill foxes, deer, hares and perhaps mink. There would be a mixture of motives: pest control; the value of the carcass; and the recreational value to be derived from shooting. It follows that the welfare of animals which are hunted should be compared with the welfare which, on a realistic assessment, would be likely to result from the legal methods used by farmers and others to manage the [population of these animals in the event of a ban on hunting. (Paragraph 6.13)

Deer

267. The hunting of a red deer typically comprises a series of intermittent flights in which the deer exerts itself maximally in order to escape from the hounds. An average hunt which ends in the killing of the deer lasts about 3 hours. Scientific studies show that, at the end of a chase, deer have very low levels of carbohydrate (glycogen) in their muscles and that this largely explains why they are forced to stop.
268. There is a lack of firm information about the wounding rates which rise from stalking/shooting deer. Comparing the welfare implications o hunting and stalking/sheeting deer is a complex matter, requiring the balancing of the welfare of all the deer that are hunted against the welfare of the numbers of shot deer which are wounded.
269. Although there are still substantial areas of disagreement, there is now a better understanding of the physiological changes which occur when a deer is hunted. Most scientists agree that deer are likely to suffer in the final stages of hunting. The available evidence does not enable us to resolve the disagreement about the point at which, during the hunt, the welfare of the deer becomes seriously compromised. There is also a lack of firm information about what happens to deer which escape, although the available research suggests that they are likely to recover. (Paragraph 6.33)
270. Stalking, if carried out to a high standard and with the availability of a dog or dogs to help find any wounded deer that escape, is in principle the better method of culling deer from an animal welfare perspective. In particular, it obviates the need to chase the deer in the way which occurs in hunting. (Paragraph 6.39)
271. A great deal depends, however, on the skill and care taken by the stalker. It is unfortunate that there is no reliable information on wounding rates, even in Scotland where stalking is carried out extensively. In the event of a ban on hunting, there is a risk that a greater number of deer than at present would be shot by less skilful shooters, in which case wounding rates would increase. Consideration should be given to requiring all stalkers to prove their competence by demonstrating that they had undertaken appropriate training. (Paragraph 6.40)

Foxes

272. The three main aspects of foxhunting which give rise to concern on welfare grounds are: the case; the "kill" by the hounds above ground; and digging-out/terrier work.
273. There is a lack of scientific evidence about the welfare implications of hunting, although some post mortem reports have been received. The welfare implications of hunting need to be compared with those which rise from other methods such as shooting, and snaring.
274. The evidence which we have seen suggests that, in the case of the killing of a fox by hounds above ground, death is not always effected by a single bite to the neck or shoulders by the leading hound resulting in the dislocation of the cervical vertebrae. In a proportion of cases it results from massive injuries to the chest and vital organs, although insensibility and death will normally follow within a matter of seconds once the fox is caught. There is a lack of firm scientific evidence about the effect on the welfare of a fox of being closely pursued, caught and killed above ground by hounds. We are satisfied, nevertheless, that this experience seriously compromises the welfare of the fox. (Paragraph 6.49)
275. Although there is no firm scientific evidence, we are satisfied that the activity of digging out and shooting a fox involves a serious compromise of its welfare, bearing in mind the often protracted nature of the process and the fact that the fox is prevented from escaping. (Paragraph 6.52)
276. It is likely that, in the event of a ban on hunting, many farmers and landowners would resort to a greater degree than at present to other methods to control the numbers of foxes. We cannot say if this would lead to more, or fewer, foxes being killed than at present. (Paragraph 6.58)
277. None of the legal methods of fox control is without difficulty from an animal welfare perspective. Both snaring and shooting can have serious adverse welfare implications. (Paragraph 6.59)
278. Our tentative conclusion is that lamping using rifles, if carried out properly and in appropriate circumstances, has fewer adverse welfare implications than hunting, including digging-out. However, in areas where lamping is not feasible or safe, there would be a greater use of other methods. We are less confident that the use of shotguns, particularly in daylight, is preferable to hunting from a welfare perspective. We consider that the use of snaring is a particular cause for concern. (Paragraph 6.60)
279. In practice, it is likely that some mixture of all of these methods would be used. In the event of a ban on hunting, it is possible that the welfare of foxes in upland areas could be affected adversely, unless dogs could be used, at least to flush foxes from cover. (Paragraph 6.61)

Hares

280. There are two areas of welfare concern in respect of hare hunting and coursing: the chase and the "kill". Although no scientific studies have been carried out, there is evidence that, in the case of coursing, there can be a significant delay before a hare which has been caught by the dogs is dispatched.
281. There is a lack of firm scientific evidence about the effect on the welfare of a hare of being closely pursued, caught and killed by hounds during hunting. We are satisfied, nevertheless, that although death and insensibility will normally follow within a matter of seconds, this experience seriously compromises the welfare of the hare. (Paragraph 6.67)
282. We are similarly satisfied that being pursued, caught and killed by dogs during coursing seriously compromises the welfare of the hare. It is clear, moreover, that if the dog or dogs catch the hare, they do not always kill it quickly. There can also sometimes be a significant delay, in "driven" coursing, before the "picker up" reaches the hare and dispatches it (if it is not already dead). In the case of "walked up" coursing, the delay is likely to be even longer. (Paragraph 6.68)
283. In the event of a ban on hunting and coursing hares, it seems likely that a few more would be shot than at present. There are concerns about the welfare implications of shooting hares because of wounding rates. (Paragraph 6.69)

Mink

284. There have been no scientific studies of the welfare implications of hunting in relation to mink.
285. There is a lack of firm scientific evidence about the welfare implications of hunting mink. There seems reason to suppose, however, that being closely pursued, caught and killed by hounds, or being dug out or bolted, seriously compromises the welfare of the mink. The kill, by the hounds or by shooting, is normally quick once the mink is caught. In the absence of hunting, more mink would probably be killed by shooting and, mainly, trapping. These methods involve welfare implications but we do not have sufficient evidence to conclude how they compare with those raised by hunting. (Paragraph 6.71)