As a matter of law, the current challenges in the courts by the Countryside Alliance have absolutely no chance of success. Politically, the hunters may feel they should be seen by their followers to be ‘doing something’ about the imminent implementation of the Hunting Act, but I would be most surprised if their legal advisers have not sat them down in some quiet study and told them that their legal challenges have no substantive merit whatsoever.
So it came to pass in January in the High Court when two senior judges dismissed the hunters’ application for judicial review of the Parliament Act 1949. On each substantive argument the case for the pro-hunters was lost. The hunters argued that the 1949 act was not properly ratified by Parliament and, in short, was a way of circumventing the powers of the House of Lords. In rejecting these submissions, the court accepted that the 1949 act was a valid act of Parliament and properly created by its predecessor the Parliament Act 1911.
This makes sense. If the hunters had succeeded, not only would the Hunting Act have fallen, but the War Crimes Act, allowing war criminals to be brought to justice, and the Sexual Offences (Amendment) Act, lowering the age of homosexual consent to 16, would also have perished.
As for any future challenge of the act in Europe, there is widespread acceptance that the Hunting Act is compatible with European Convention on Human Rights (ECHR). The Parliamentary Joint Committee on Human Rights has confirmed that in respect of Article 8, any legal challenge would be fruitless and that the control of unregulated hunting is a legitimate aim for the purposes of Article 1 of Protocol 1 to the ECHR.
It is blatantly obvious that there is no right in the ECHR to inflict cruelty upon animals. The act still enables people to enjoy their own property and therefore there is no need to evoke Article 8, which relies on breaches of physical integrity. The crux of the Hunting Act is that no one has a right to engage in cruel sports, whether using their own property or public property, and that is in perfect harmony with the ECHR.
The pro-hunters have already attempted to challenge the act’s European credentials in Scotland and failed. A Scottish petition for judicial review of the Protection of Wild Mammals (Scotland) Act 2002, Scotland’s equivalent of the Hunting Act, was rejected by the judge as “incompetent” and that is just what will happen south of the border.
The hunters in Scotland attempted to engage Article 2, the right of freedom of assembly, but the judges in Scotland firmly dismissed that argument, saying that the act did not prohibit “the assembling of a hunt on horseback or otherwise, but rather the activity upon which the hunt might engage”.
That, of course, is the central point of this dispute. There is nothing in the legislation in Scotland or England which prevents riders from enjoying the skills of equestrian activities. What the hunters are arguing for in the courts is the right to kill wildlife at the end of it.
The Hunting Act will come into effect on 18 February. The hunters will most likely apply for an injunction to prevent its commencement after they fail in their next round of legal challenges, but the court has no power to grant an injunction, even if it were to be asked for. Section 15 of the Hunting Act 2004 states that it will come into force three months from the date it was passed. The courts have no power to issue an injunction delaying the strictures of an act of Parliament.
The hunters have lost the political debate and are about to lose the legal arguments too.
John Cooper, chairman of the League Against Cruel Sports and barrister at 25 Bedford Row