Electric shock pet collar ban did not breach human rights

23 November 2010 by Catriona Murdoch

Petsafe Ltd, R (on the application of) v The Welsh Ministers [2010] EWHC 2908 (Admin) (16 November 2010) – Read judgment

The High Court has ruled that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs does not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law.

The Judicial Review application was brought by two interested parties, Petsafe Ltd and The Electronic Collar Manufacturers Association against the Welsh Ministers who after a lengthy consultation period dating from 2007, brought into force the Animal Welfare (Electronic Collars (Wales)) Regulations 2010 (SI 2010/934) (“the 2010 Regulations”) which banned the use of electric collars. The 2010 Regulations were created under the powers conferred to the Welsh Ministers under the Animal Welfare Act 2006 (“AWA 2006”). A breach of the 2010 Regulations is an offence punishable with up to 51 weeks imprisonment and/or a fine not exceeding Level 5 (£5,000).

This case raises interesting issues concerning the applicability of human rights arguments to animals, and whether pain should be interpreted in the same way for humans and animals. Another interesting point is the comparison in the expected standard of welfare when comparing animals to children: is it anomalous that one can physically discipline a child but cannot use an electric collar on a pet?

The claimants based their challenge on five grounds;

1. Breach of Article 1 of the First Protocol ECHR (right to peaceful enjoyment of property)
2. Breach of Article 34 of Treaty on the Functioning of the European Union (“EU Treaty”) (Article 56 prohibits the unjustified restriction on the freedom to provide services was initially pleaded but subsequently dropped at the hearing).
3. Domestic public law grounds of Wednesbury unreasonableness and perversity.
4. Acts which are criminalised by the 2010 Regulations under 2(1)(a) and (b) are not qualified or restricted in their application to animals “for which a person is responsible” under s.12 of the AWA 2006. As such they are thus outwith the power conferred by it.
5. The 2010 Regulation 2(1)(c) has perverse consequences, in that although the provision creates a prohibition by reference to the statutory concept of responsibility for an animal, it makes it a criminal offence for a person to be responsible for a cat or a dog to which an electronic collar is attached irrespective of the reason for which the person is taking responsibility for that animal. Responsibility and therefore criminality could include the person who is ordered in to remove the electronic collar.

Electric shock collars are prohibited under Regulation 2 of the 2010 regulations, which provide:

(1) It is prohibited for a person to –

(a) attach an electronic collar to a cat or a dog;
(b) cause an electronic collar to be attached to a cat or a dog; or
(c) be responsible for a cat or a dog to which an electronic collar is attached.

Other types of electronic devices used to control animals including what are known as “scat-mats” are not covered by the 2010 Regulations.

Scotland does not support the ban and the decision is England has been deferred until the results of further research.

The Welsh Ministers carried out three extensive consultations, seeking expert advice from respected organisations such as the Kennel Club, The RSPCA and the Pet Advisory Committee, veterinary surgeons, political parties, dog trainers, collar manufactures and members of the public. At the end of the consultations, Wales decided to ban the use of electronic collars on the basis of animal welfare concerns as well the need to comply with the AWA 2006.

Human rights

The claimants submitted that the ban led to

[a]n unjustified deprivation of their possessions and a breach of Article 1 of the First Protocol to the European Convention on Human Rights. In respect of the latter she submitted that the claimants’ business interests and their ability to sell electric collars in Wales is a right in the nature of an asset which can be capitalised and thus an economic interest in the nature of goodwill which falls within the scope of Article 1 of the First Protocol. (para 57 Judgment)

The court ruled that any interference with Article 1 of the First Protocol was a justifiable interference because the prohibition on the use of electronic collars was aimed at the promotion of animal welfare.

The claimants strongest submission in relation to human rights was that the ban is an unjustified and disproportionate restriction on the free movement of goods contrary to Article 34 of the EU Treaty. The High Court held that whilst Article 34 was engaged any interference with trade was proportional and necessary. R (on the application of Countryside Alliance v Attorney General, in which the House of Lords (now the Supreme Court) dealt with similar arguments in relation to foxhunting, was considered and found to be comparable in that the prohibition was a measure of social policy aimed at animal welfare and not at intra-Community trade:

Any impediment on trade between Member States was a minor and unintended consequence (para 75 Judgment)

Not irrational, unreasonable or perverse

The High Court also dismissed these challenge to the 2010 Regulations on the basis of the more traditional public law grounds: irrationality, Wednesbury unreasonableness and perversity. The claimants had raised six features of the 2010 Regulations which they argued were problematic:

1. The criminality attached to use under section 4 of the AWA 2006
2. The procedural powers of AWA 2006 including entry of premises and seizure of animals
3. The inconsistency of the use of electric fencing for livestock
4. The severe effect of the claimants’ trade
5. The failure of the Welsh Ministers to await the outcome of further research on the use of the collars by DEFRA
6. The decision by the Welsh Ministers to proceed when the evidence to support the proposition that electronic collars are harmful remains unproven.

The court gave these submissions fairly short shrift:

In the light of the fact that the collars rely on the administration of an electric shock, that there are other methods of training or controlling animals which do not involve any negative physical impact on the animal and do, on the evidence before the Welsh Ministers, help address the underlying causes of the unwanted behaviour which the use of electronic collars suppress but do not address and the divided opinions of the scientists mean that the decision to ban the collars cannot be seen as irrational. The decision was supported by the majority of those responding to the consultation exercise including a number of respected animal welfare organisations and animal behaviourists. The Welsh Ministers only made their decision after receiving advice from the Chief Veterinary Officer for Wales and the decision has been approved by the democratically accountable and elected National Assembly for Wales. [79]

Regulations not beyond powers of the Welsh Ministers

The court then went on to deal with final two grounds of the claimants challenge. The claimants submitted that the 2010 Regulations are ultra-vires (beyond the powers) because 2(1)(a) and (b) are not restricted in their application to animals “for which a person is responsible” as required by section 12 of AWA 2006. In addition it was submitted that 2(1)(c) has perverse consequences because responsibility (and criminality) could be attached even for a person removing the electronic collar whilst the animal is under its temporary care (the likely example being a vet could find himself in trouble for removing a collar).

The first ground was rejected and it was held that Regulation 2(1)(a) and (b) should be construed as referring to animals for which a person was responsible and on that basis the Regulations were not ultra vires s.12 AWA 2006.The High Court rejected the “excessively literal construction” of Regulation 2(1)(c) as advanced by the claimants. This was again neither irrational, Wednesbury unreasonable or perverse.

Comment

This case opens the floor to further debate on the age-old question of whether animals are entitled to equivalent or even comparable rights to humans. Professor Conor Gearty notes in a paper on the topic that the very strength of human rights as evolved from the Universal Declaration of Human Rights is its encompassing “net of solicitude” towards new and different categories of humans.

The collapse of intellectual confidence in the specialness of the human, the decline in arguments for human uniqueness vis-a-vis the rest of the living things on the planet, now offers a window of opportunity for other animals, or rather to be accurate for their human protagonists, to be able to say much more convincingly than in the past that certain animals deserve to fit within the world of right behaviour and of entitlement to proper treatment that hitherto has been the preserve of the human alone.(p.9)

Gearty sees no reason in principle why human rights should be subject to a species barrier. Perhaps soon cases such as Petsafe will be fought on similar lines as a case involving inhuman and degrading treatment. In the meantime, pets in Wales and England are safe… for now.

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