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Countryside Alliance v Attorney General: House of Lords Judgment

The Lords have given judgment today in R (Countryside Alliance) v Attorney General. There were two appeals in fact: one by huntsmen and landowners heavily engaged in the hunting “lifestyle” so to speak, who argued that the Hunting Act 2004 breaches their Convention rights to respect for private life, to freedom of assembly and protection of property, and discriminated against them contrary to the article 14 Convention right. The other appeal was by among others Irish people and British people heavily engaged in the hunting business, who argued that the hunting ban breaches EU rules on free movement of goods and services, under articles 28 and 49 of the EC Treaty. Together these appeals form the second prong – the human rights and EC prong – of the legal challenge to the hunting ban, the first prong of which (the “Parliament Acts prong”) failed in the Lords in 2005 in Jackson v Attorney General.

This prong, too, has failed. Unsurprisingly in my view – it seems to me to have been sublimely obvious from the start that, even if any of the rights claimed was affected, the ban was amply justified in both human rights and EU law terms. But the legal caravan rolled on regardless, and so we end up with this inevitable judgment.

The Lords all agreed that article 8 did not apply: as Lord Bingham explained in his speech, hunting is carried out in public and none of the Strasbourg cases gets close to saying a “lifestyle” such as involvement in hunting is protected by the article 8 right to respect for private life. The majority also thought article 11 on freedom of assembly was inapplicable – Lord Bingham was the only one who thought it might be engaged here. Again, the Lords were unanimous that involvement in hunting does not amount to a personal characteristic or status on grounds of which one can be discriminated against under article 14 – so the right not to be discriminated against was not applicable, either. The only Convention right engaged is the article 1 of Protocol 1 right to protection of property – but all the Lords agreed Parliament was entitled to conclude the hunting ban was in the general interest, and that in doing so it struck a fair balance between the private interests of huntsmen and the wider rights of the community. Lord Bingham said this was a paradigm case of judicial deference to democratic judgment:

Here we are dealing with a law which is very recent and must (unless and until reversed) be taken to reflect the conscience of a majority of the nation. The degree of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre-eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament. (–§45)

He, and all the other Lords, ruled that, in spite of there being some uncertainty about the extent to which national rules effectively banning certain products or activities interfere with European free movement rules – in the Commission v Italy case the ECJ will address the question as far as free movement of goods is concerned when the Grand Chamber eventually rules on it – the ban was clearly a justifiable restriction on free movement in any event.

So on both human rights and EU law, an easy and obvious result. But there were a Cheap Oakleys couple of interesting passages in their Lordships’ speeches.

First, a one-liner from Lady Hale, in response to an argument by David Anderson QC that it is more difficult to justify restrictions on EU fundamental freedoms that interferences with Convention rights:

The suggestion that the EC claimants might succeed while the human rights claimants did not would be illogical and unjust and fuel the fires of anti-communitarian sentiment in a quite unnecessary way. (–§131)

If you follow that logic it seems to me to have interesting an important consequences for public law in the UK.

Second, though, and more interesting, was Lord Brown’s disagreement with Lord Bingham about deference – together with passionate argument that, though he accepted article 8 does not apply here, it ought to. First, deference:

I readily accept, as Lord Bingham suggests… that a degree of respect should be accorded to the decision of a majority of the country’s democratically elected representatives reached after intense debate. I am unpersuaded, however, that this is “pre-eminently” a case for such respect and I confess to some difficulty with my Lord’s suggestion that: “The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.”… The democratic process is a necessary but not a sufficient condition for the protection and vindication of human rights. Sometimes the majority misuses its powers…. Take the Irish legislation criminalising homosexuality considered in Norris v Ireland… Or consider the UK Government’s ban on gays in the military which was only ended after successful article 8 challenges were brought in Strasbourg.(–§§157-158)

And now the application of article 8, on which it seems to me he makes a very powerful liberal and democratic case for ordinary interests to be protected by article 8, so that legislators must at least justify banning them:

Take music or dance; or chess or bridge; or polo or golf; or climbing or canoeing. Should not a human rights convention ideally operate to ensure that all such activities could only be banned for good reason. Some perhaps may be regarded as more personal than others, carried out in circumstances of greater intimacy. But why should that be critical? All of them are activities to which people may choose to devote much of their lives and which for some are all-important. The Cheap Oakley Sunglasses alternative, clearly, is that any or all of these activities could be banned, perhaps by some Taliban-like administration, and that those affected, amateurs or professionals, however fundamentally, would have no right to call for a justification for the ban and no redress in the courts were none afforded. The government enacting such legislation would, of course, be politically accountable to the electorate. But if a majority in the country favoured such a ban, prompted, say, by feelings of prejudice or jealousy towards a wealthy or intellectual elite, there might in fact be political advantage in it.(–§140)

Great stuff, this: a modern rethinking, perhaps, of Dicey’s idea that your right to free speech is no less and no more important than your freedom to listen to a band or eat a bun.

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