Pet Shock Collar Ban (Part 2)

2 November 2019 by Rosalind English

Back in 2010 Catriona Murdoch wrote about the High Court’s decision that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs did not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law. I followed with a comment on the status of animal welfare in EU law here.

Any pet owner living near a busy road or with less than adequate fencing will be aware of the availability of an electronic containment system which prevents animals escaping by administering a shock via a collar, a system to which they become conditioned by the warning of a radio signal as they approach the boundary. Hand-held e-collar devices are different in that the shock can be administered anywhere and at any time at the whim of the animal’s owner.

Now the High Court has ruled that the Secretary of State has lawfully banned the use of these hand-held remote-controlled e-collar devices for cats and dogs. In The Electronic Manufacturers Association Petsafe Ltd v the Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin), Morris J ruled that the Secretary of State had complied with his consultation obligations and reached a decision which fell within the reasonable range of responses open to him. He had undertaken a fresh evaluation of the evidence which existed prior to his decision and reached a different conclusion; therefore, his decision was not rendered irrational by the fact that he had previously considered the evidence insufficient to justify a ban. The claim was accordingly dismissed.

Background facts and law

The claimants, who were manufacturers of e-collars, applied for judicial review of the defendant secretary of state’s ban. The consultation about the prohibition was put out between 12 March and 27 April 2018, with over seven thousand responses. Until then, Defra’s position was that there was insufficient evidence to justify such a prohibition.

On 26 April, the secretary of state made a statement in the course of parliamentary questions in which he referred to animal cruelty by the use of “shock collars”. In August, he announced his decision to introduce regulations under the Animal Welfare Act 2006 s.12 to ban the collars.

The claimants submitted that the consultation and process leading to the decision were materially flawed and that the decision was vitiated by the appearance of pre-determination; was Wednesbury unreasonable; and breached their rights under Article 1 of Protocol 1 to the ECHR and Article 34 of the Treaty of the Federation of the European Union. The first guarantees the right to free enjoyment of possessions; the second prohibits “Quantitative restrictions on imports and all measures having equivalent effect“ as between Member States of the European Union. I will explain why the latter is relevant at the end of this post.

Reasoning behind the Court’s decision

The Secretary of State had complied with the four elements of the duty of consultation, as set out in R v North and East Devon HA Ex p. Coughlan [2001] QB 213 . These comprise:

• Pre-determination – Consultation had to be undertaken at a time when proposals were still at a formative stage, meaning that the decision-maker had to have an open mind on the issue of principle involved at the relevant time. In this case, opponents of the ban had had the opportunity to make representations and there was no evidence of any pre-determination, or the appearance of pre-determination, at any stage of the consultation process
• Sufficient reason for proposal – The general obligation was to let those with a potential interest in the subject matter know in clear terms what the proposal was and why it was under consideration. This consultation document included sufficient reasons to allow consultees to give intelligent consideration and an intelligent response
• Adequate time – None of the consultees had requested an extension of time.
• Conscientious consideration – The decision-maker was entitled to consider the whole range of responses and then form their own view, with no obligation to consider each item of detail or adopt the majority view. The secretary of state had conscientiously considered the responses, including whether regulation would be a viable alternative to an outright ban

The consultation as a whole was clearly not unfair.

Wednesbury unreasonableness – What was in issue here was not the change in the Secretary of State’s position on the ethics of e-collars, but on the underlying rationality of his decision.  The decision in issue was the Decision in August 2018 and not the decision to consult made at the end of February 2018. By August 2018, the Secretary of State had received and considered a substantial number of consultation responses. As the decision of August 2018 was made for the purpose of promoting animal welfare, there had to be some evidence that use of e-collars was detrimental to that purpose: a ban could not be imposed solely because, as a matter of morality or ethics, it was wrong in principle to inflict an electric shock upon an animal. Such evidence did exist, as had emerged from the consultation responses.

The secretary of state had undertaken a fresh evaluation of the evidence and reached a different conclusion; therefore, his change of position did not render his decision irrational. It could not be said that the decision was outside the reasonable range of responses open to him, nor that there was a demonstrable flaw in the reasoning leading to it.

As in the 2010 challenge to the Welsh Assembly ban, the argument under Article Protocol 1 – the right to peaceful enjoyment of possessions – was unsuccessful. Whilst a ban on e-collars might entail an interference with the possessions of the claimants’ members, the promotion of animal welfare was a legitimate aim capable of justifying the restriction of the possession right. The proposed ban was rationally connected to that aim. There was no evidence that that aim could have been achieved by less intrusive means, namely effective regulation. Various alternative measures of regulation had been put forward but it was unclear how they would work in practice. Moreover, regulation would address only concerns about potential misuse of the collars, not the harm arising from the electric shock itself. The ban was not disproportionate when considered against the benefits of promoting animal welfare and was appropriate for achieving that objective. Accordingly, there had been no infringement of either Article 1 Protocol 1 Article 34 of the TFEU.

Why is Article 34 TFEU in play here? As Morris J reminds us, the protection of animal welfare is a legitimate objective and capable of justifying a measure pursuant to Article 36, which allows restrictions to free trade. As the judge said,

Applying the proportionality test under EU law, … first I am satisfied that the proposed ban is suitable or appropriate for achieving that objective. Secondly, even if the alternative of regulation could be shown to be “less onerous”, nevertheless it would not meet the concern arising from the administering of the electric shock itself. Thirdly, as to the balance between burden and benefit, the relevant burden for Article 34 purposes is the impact upon imports rather than upon the entire trade in e-collars. Having found the latter burden not to be disproportionate, it follows that the lesser burden upon imports is not disproportionate.

Comment

Speaking as an owner of a wildly energetic and ambitious springer spaniel, I have to confess that I was driven to turn my garden into Alcatraz after her dozenth attempt at killing herself on the coast road near my property. Careful training with the containment collar and the radio signal – as well as a few mishaps engendering a nasty shock – have kept her safe at home, whilst roaring around the East Anglian countryside under our non-electronic supervision on walks. But there is a world of difference between this system and one that allows the bearer of the device to administer an electric shock every time the collar wearer is perceived to be misbehaving. As Morris J observes,

it is inherent in the difference between a manually operated device and one operated automatically without human intervention, that the former, and not the latter, is open to misuse or certainly use other than in accordance with manufacturer’s instructions; and in this way the scope of harm to animal welfare is greater.

Related posts:

• Expanding the moral circle to non-human animals
• Animal welfare after Brexit: upwards or downwards?
• Animal transport: where are we now with EU law?
• One trade freedom we could do without
• Pigswill and public health: a load of old bull from the EU
• Legal personhood for non-human animals (Part 1)
• Legal personhood for non-human animals (Part 2)