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14 May 2021,Sam March
[R (The Electronic Collar Manufacturers Association and Petsafe) v DEFRA [2021] EWCA Civ 666](https://www.bailii.org/ew/cases/EWCA/Civ/2021/666.html)
Dismissing an appeal brought by The Electronic Collar Manufacturers Association and Petsafe, the Court of Appeal ruled on 11 May 2021 that the proposed ban on electronic shock collars was neither irrational, nor violated property rights.
Background
For many years, animal welfare groups have campaigned for shock collars to be banned, on the grounds that they are cruel and unnecessary.
On 27 August 2018 DEFRA decided to implement a ban on the use of remote-controlled hand-held electronic collar devices (shock collars) for cats and dogs in England. This is to be done by way of secondary legislation under powers contained in s.12 Animal Welfare Act 2006.
The first Appellant is an unincorporated trade association. It represents those who make and sell shock collars and other electronic training aids for dogs in the United Kingdom. The second Appellant makes and sells shock collars. The Appellants had challenged DEFRA’s decision by way of judicial review, which was dismissed at first instance.
The Appeal
There were five grounds of appeal in the claim for, which the court at paragraph [5] considered could be better be dealt with as two grounds of appeal, which related to
whether DEFRA’s decision was “Wednesbury” irrational (meaning so unreasonable that no reasonable decision maker could have come to it); and
whether the decision was disproportionate to the appellant’s property rights protected by Article 1 of Protocol 1 ('A1P1') to the European Convention on Human Rights ('the ECHR') and by Article 34 of the Treaty on the Functioning of the European Union ('the TFEU').
Irrationality
The Appellants alleged that DEFRA’s decision was outside the range of reasonable responses open to it in the circumstances. This rested on two main arguments: first, it said that there was an irrational inconsistency between the Secretary of State's approach between shock collars and containment systems (such as electric fences); and second it was alleged that an abrupt change of position on the matter by the Secretary of State was irrational. Neither of these arguments found favour with the court.
In ruling that that the Secretary of State was rationally entitled to decide to treat shock collars differently from containment systems, Laing LJ (with whom Henderson LJ and David Richards LJ agreed) held at paragraph [97]
“The evidence before the Secretary of State overwhelmingly suggested that containment systems are set up by professionals who provide training and ensure that the system is appropriate to the animal and its environment. There was no such evidence about e-collars.”
In 2013, DEFRA’s position had been that the report before them, known as “Lincoln 2”, did not provide evidence of a 'significant risk of harm to animal welfare' and that, for a ban to be justified, it was necessary to show that e-collars were 'harmful to the long-term welfare of dogs'. However, between 2013 and 2018, the Government’s criteria for necessity changed to the following
the Government would need to be satisfied that a ban was both in the public interest and supported by considerations of animal welfare;
there was evidence that electronic aids could have a negative impact on the welfare of some, but not of all, dogs. The evidence was not 'strong enough' to support a ban;
nevertheless, the use of electronic aids should be limited; they should only be used as a last resort, on the recommendation of a professional, and used by competent operators.
However, at paragraph [101], Laing LJ ruled that this change of position was not irrational. There were reasonable reasons to impose a ban and reasonable reasons not to. Where both decisions were within the band of reasonable responses, it would be “very difficult to see how it can be irrational for a decision maker to change his mind, even if the underlying evidence is the same.”
Property rights
The Appellants argued that the judge had erred in two stages of his assessment of whether the ban was a proportionate infringement on the right to property for two reasons; first that less intrusive measures could have been imposed, and second that a fair balance had not been struck between the competing interests and rights at play.
In order to succeed, the Court held at paragraph [102] that any less intrusive means must be capable of achieving the legitimate aim which was at issue, namely animal welfare. There was no evidence before the court, one way or the other, about whether systems of regulation in other jurisdictions worked or not in achieving this aim. Laing LJ, added
“Finally, the concern about e-collars is that, if they are not banned, no system of regulation will prevent a cruel owner from using one to inflict unnecessary suffering on an animal. These factors mean that whether regulation is preferable to a ban is essentially a policy judgment.”
The court also doubted whether there was really an interference with the Appellant’s property rights at all in the context of proposed but unenacted legislation which has practical, but no legal, effect. Laing LJ considered that there was “much force” in the argument that
“The evidence in this case did not establish an interference with the As' possessions for the purposes of A1P1. At its highest, the evidence showed no more than a potential effect on future income. That is not enough.”
Commentary
We welcome this common sense judgment from the Court of Appeal. Defra has the power to promote animal welfare via regulations under the Animal Welfare Act, which is exactly what is intended with the ban. The nature of the challenge was entirely transparent, this being the pursuit of commercial interest. Edie Bowles, Advocates for Animals.