It is now a well-trodden path, from the countryside to the House of Lords, seeking to preserve the right to foxhunting. It was a path that was trodden again by the Countryside Alliance in late 2007. However, as in the previous two trips to the House of Lords, they were to return home disappointed.
The battle to ban foxhunting in England and Wales has been somewhat of a long running saga. Defeated due to lack of parliamentary time during the first labour administration, the ban was finally passed in 2004, notwithstanding it having been rejected by the House of Lords. Special provisions under the Parliament Act were invoked to allow the Act to pass onto the Statute Book despite the opposition of the House of Lords and it was that process that was to provide the first challenge to the validity of the Hunting Act 2004.
So having once debated and considered the merits of a foxhunting ban, in their legislative capacity, the House of Lords were then asked to rule, in their judicial capacity, whether the Hunting Act 2004 had been lawfully enacted without the consent of the House of Lords. The very fact that this appeal was entertained at all by the House of Lords was remarkable in light of the general rule that there may be argument in a Court as to what an Act of Parliament means but there may be no argument as to whether it should be on the Statute Book at all. Although the Countryside Alliance were allowed their day in court, it was to prove unsuccessful. The Act, in England and Wales, duly entered into force.
Running in parallel to these proceedings in the Westminster Parliament, the Scottish Parliament also introduced a ban on foxhunting. This was also subject to challenge before the Scottish courts on the grounds that such legislation was outwith the competence of the Scottish Parliament in terms of the Scotland Act 1998. Those arguments drew a similar response from the Scottish courts as had been given by the English courts.
Therefore, in late 2007, the foxhunting lobby, both north and south of the border, had a final throw of the dice. They this time came to the House of Lords and argued that the Hunting Act 2004 (which applied in England and Wales) and the Protection of Wild Mammals (Scotland) Act 2002 were both incompatible with human rights law and European Community law.
Those challenging the law argued that they could be divided broadly into two categories:
- people who were professionally involved in hunting; and
- people whose land was used for hunting.
Both groups argued that their rights under Article 8 (respect for private and family life), Article 11 (right to association and assembly), Article 1 of Protocol 1 (protection of property) and Article 14 (prohibition on discrimination) had been breached. The House of Lords was not willing to find that Article 8, Article 11 or Article 14 applied to the claimants. They were, however, willing to accept that Article 1 of Protocol 1 could apply to certain of the claimants, namely those whose land had previously been used for hunting. However, although they found that the article was applicable, the House of Lords held that the interference with that right could be justified in terms of the human rights legislation. The cases founded upon human rights therefore all failed.
That left a challenge that the respective bans were in breach of European Community law, in particular Article 28, which prohibits any quantitative restrictions on imports between member states and Article 49 which prohibits any restrictions on the freedom to provide services within the European community.
The House of Lords tended towards the view that these Articles were engaged by the claimants but, prior to answering that question, they would have sought guidance from the European Court of Justice on the interpretation of those provisions. That was not, however, necessary to resolve the case as, in the opinion of the House of Lords, the restrictions which were placed on imports and the provision of services respectively could be justified in terms of European Community law and were therefore not unlawful. In relation to Article 28, an exemption existed for "the protection of health and life of animals …" as well as on the grounds of "public morality [or] public policy". Only the public policy exemption applied to Article 49. Although it was a strict test to derogate from these articles, the House of Lords were satisfied that the test was met and the possible inconsistency with the EC provisions was justified and therefore lawful. It was therefore unnecessary to get an opinion from the European Court of Justice.
The appeals were therefore refused and the foxhunting lobby's final attempt to overturn this legislation had failed. With their rights of appeal exhausted, other than the slim possibility of a petition to the European Court of Human Rights in Strasbourg, this law stands and the ban on foxhunting, both north and south of the border, will now remain in place until such time as Parliament itself decides it is time to revisit the issue.