A FRESH legal challenge to the Government's hunting ban was launched last week when a group led by an Irish horse breeder claimed that the Hunting Act 2005 breached European Union law on free movement of goods.
The challenge is separate to the claim lodged by the Countryside Alliance that the ban on hunting with dogs in England and Wales is a breach of European human rights law, although a judge ruled late last week that both cases should be heard together in early July.
As previously reported, the CA plans to attempt to persuade a special panel of nine law lords later in July that the 2005 Act is not a valid Act of Parliament, an argument rejected by the Court of Appeal and the High Court.
Under the newly launched EU claim, the English courts are being asked to declare the Hunting Act void.
This would be a more effective remedy than simply declaring it incompatible with the Human Rights Convention, which is all the Alliance can request in the human rights challenge.
Even if the courts were persuaded by the Government to refer the EU claim to the European Court of Justice at Luxembourg for a ruling on European law, the Attorney General would come under pressure to suspend any prosecutions for breach of the Hunting Act until the issue had been resolved – in effect allowing hunting to continue as before.
The nine claimants bringing the EU claim are led by Francis Derwin, who owns one of the largest horse dealerships in Ireland. He deals in about 800 horses a year, of which 300 or so are hunters. Before the Hunting Act came into force in February this year, Mr Derwin sold about 90 per cent of those hunters to customers in Britain. This year, he has been unable to sell any hunters at all.
Under European law, EU states must guarantee free movement of goods among member countries. Exceptions are allowed, but they must be proportionate. Governments must meet a higher standard of proportionality than required by human rights law.
In written submissions last week, David Anderson, QC, for the EU claimants, argued that the High Court was under a duty to apply European law, "if necessary refusing of its own motion to apply any conflicting provision of national legislation". He is seeking either an order quashing the Hunting Act or a declaration that it is of no effect and cannot be enforced.
The Government made it clear in court through its lawyers that Mr Anderson's arguments would be strongly resisted.