Introduction

Whaley & Anor v. Lord Advocate (Scotland) is a notable judgment delivered by the United Kingdom House of Lords on November 28, 2007. The case centered around the challenge to the Protection of Wild Mammals (Scotland) Act 2002, enacted by the Scottish Parliament. The appellants, Brian Leonard Friend and Jeremy Hagan Whaley, sought a judicial review of the Act, arguing that it exceeded the legislative competence of the Scottish Parliament as defined by section 29 of the Scotland Act 1998. They contended that the Act was incompatible with the European Convention on Human Rights (ECHR), the Race Relations Act 1976, and various international obligations of the United Kingdom.

The primary issues revolved around the scope of the Scottish Parliament's legislative competence, the applicability of specific articles of the ECHR, and the interplay between domestic law and international obligations. The case also intersected with broader societal debates concerning animal welfare, traditional hunting practices, and legislative autonomy.

Summary of the Judgment

The House of Lords dismissed the appeal brought by Mr. Friend and Mr. Whaley, upholding the decision of the lower courts that the Protection of Wild Mammals (Scotland) Act 2002 was within the legislative competence of the Scottish Parliament. The Lords agreed that even if Article 11 of the ECHR were applicable, any interference with the appellants' rights would be justified under the circumstances.

The judgment delved into the interpretation of the Scotland Act 1998, particularly section 29, which delineates the limits of the Scottish Parliament's legislative authority. The Lords examined the compatibility of the Act with various articles of the ECHR, ultimately concluding that the Act did not infringe upon the appellants' rights in a manner that would render it unconstitutional.

Analysis

Precedents Cited

The judgment referenced several key cases that influenced the court’s reasoning:

• R (Countryside Alliance) v Attorney General [2007] UKHL 52: This case examined the extent to which hunting with hounds could engender human rights claims under the ECHR.
• A v The Scottish Ministers [2002] SC (PC) 63: Addressed the application of Convention rights within Scottish legislation.
• G and E v Norway (1983) 35 DR 30: Discussed the protection of minority group lifestyles under ECHR Article 8.
• Chassagnou v France (1999) 29 EHRR 615: Clarified that activities primarily for pleasure or recreation do not generally engage certain ECHR rights.
• Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711: Explored the scope of discrimination under Article 14 of the ECHR.

These precedents collectively informed the court’s interpretation of how the ECHR applies to legislative actions and the boundaries of the Scottish Parliament’s competence.

Legal Reasoning

The House of Lords meticulously analyzed the legislative competence under the Scotland Act 1998. Key points in their legal reasoning included:

• Section 29 of the Scotland Act 1998: This section specifies the areas where the Scottish Parliament lacks legislative authority. The Lords affirmed that Section 29(2)(d) confines scrutiny of Scottish legislation to its compatibility with specific Convention rights.
• International Obligations: The judgment clarified that certain international obligations are excluded from the scope of reserved matters and thus do not constrain the Scottish Parliament unless specifically incorporated into domestic law.
• Applicability of ECHR Articles: The Lords evaluated each contested article (Articles 8, 9, 10, 11, 14, 17, 53) to determine their relevance and applicability. They concluded that most were not pertinent to the appellants’ claims, either because the activities in question did not engage those rights or did not fulfill the necessary thresholds for protection.
• Justification of Legislative Actions: Even if certain rights were engaged, the Lords maintained that any interference was justified and proportionate, aligning with public interest considerations such as animal welfare.

The Lords emphasized the principle that the courts should not overstep in determining legislative competence, deferring to Parliament's judgment unless clear overreach is evident.

Impact

The judgment has significant implications for:

• Legislative Autonomy: It reinforces the autonomy of the Scottish Parliament in enacting legislation within its competent domains, particularly concerning animal welfare and traditional practices.
• Human Rights Considerations: The case clarifies the boundaries of ECHR protections in the context of public activities, distinguishing between activities that engage protected rights and those that do not.
• Judicial Review: It delineates the extent to which courts can scrutinize legislative actions, emphasizing a balance between judicial oversight and parliamentary sovereignty.
• Future Cases: Sets a precedent for how similar challenges to Scottish legislation will be evaluated, particularly those invoking human rights under the ECHR.

Complex Concepts Simplified

Legislative Competence

Legislative competence refers to the authority granted to a legislative body to enact specific types of laws. Under the Scotland Act 1998, the Scottish Parliament has defined areas where it can legislate, and beyond which it cannot. This ensures a clear division of powers between the UK Parliament and the devolved Scottish Parliament.

European Convention on Human Rights (ECHR) Articles

• Article 8: Right to respect for private and family life.
• Article 9: Freedom of thought, conscience, and religion.
• Article 10: Freedom of expression.
• Article 11: Freedom of assembly and association.
• Article 14: Prohibition of discrimination.
• Article 17: Prohibition of misuse of ECHR rights.
• Article 53: Protection of domestic human rights laws from being overridden by the ECHR.

These articles form the basis for individual rights and freedoms protected under the ECHR, influencing how domestic legislation is scrutinized for compliance.

Judicial Review

Judicial review is a process by which courts examine the legality of actions or decisions made by public bodies, including legislative actions. In this case, the appellants sought a judicial review to challenge the legislative competence of the Scottish Parliament in enacting the hunting protection law.

Conclusion

The House of Lords' decision in Whaley & Anor v. Lord Advocate (Scotland) reaffirms the legislative autonomy of the Scottish Parliament within its defined competencies under the Scotland Act 1998. By meticulously assessing the applicability of various ECHR articles and scrutinizing the interplay between domestic and international obligations, the court upheld the legitimacy of the Protection of Wild Mammals (Scotland) Act 2002. This judgment underscores the principle that while human rights protections are paramount, they operate within a framework that respects the delineated powers of devolved legislative bodies. The decision provides clarity for future challenges to Scottish legislation, emphasizing a balanced approach between judicial oversight and parliamentary sovereignty.