November 2, 2019
In 2010, Catriona Murdoch wrote of the High Court ruling that a Welsh ban on the use of collars designed to deliver electric shocks to cats and dogs did not violate Article 1 of the First Protocol of the ECHR nor impeded the free movement of protected goods. under European Union law. I followed up with a comment on the status of animal welfare in EU law here.
Any animal owner living near a busy road or with less than adequate fencing will be aware of the availability of an electronic containment system that prevents animals from escaping by administering a shock via a collar, a system to which they are conditioned by the warning of a radio signal when approaching the border. Portable electronic collars are different in that the shock can be administered anywhere and anytime at the convenience of the pet owner.
Now the High Court has ruled that the Secretary of State has legally banned the use of these portable remote control electronic collars for cats and dogs. In The Electronic Manufacturers Association Petsafe Ltd v Secretary of State for Environment, Food and Rural Affairs  EWHC 2813 (Admin), Morris J ruled that the Secretary of State had complied with his consultation obligations and made a decision that was within the reasonable range of responses available to him. He had undertaken a new assessment of the evidence that existed before his decision and had come to a different conclusion; therefore, his decision was not made irrational by the fact that he had previously considered that the evidence was insufficient to justify a ban. The request was therefore rejected.
Substantive facts and law
The plaintiffs, who were manufacturers of electronic necklaces, sought judicial review of the defendant Secretary of State’s ban. The consultation on the ban was launched between March 12 and April 27, 2018, with more than seven thousand responses. Until then, Defra’s position was that there was not enough evidence to justify such a ban.
On April 26, the Secretary of State made a statement during parliamentary questions in which he referred to cruelty to animals through the use of “shock collars”. In August, he announced his decision to introduce regulations under the Animal Welfare Act 2006, section 12 to ban collars.
The applicants argued that the consultation and the decision-making process were flawed and that the decision was tainted with the appearance of predetermination; Was Wednesbury unreasonable; and violated their rights under Article 1 of Protocol 1 to the ECHR and Article 34 of the Treaty on the Federation of the European Union. The first guarantees the right to free enjoyment of goods; the second prohibits “quantitative restrictions on imports and all measures having equivalent effect“ between the Member States of the European Union. I’ll explain why the latter is relevant at the end of this post.
Reasoning of the Court’s decision
The Secretary of State had complied with the four elements of the duty to consult, as set out in R v North and East Devon HA Ex p. Coughlan  QB 213. These include:
- Predetermination – The consultation was to be undertaken at a time when the proposals were still in the formation stage, which meant that the decision-maker had to be open-minded about the policy issue at hand at the relevant time. In this case, opponents of the ban had been given an opportunity to make representations and there was no evidence of predetermination, or the appearance of predetermination, at any stage of the consultation process.
- Sufficient reason for the proposal – The general obligation was to make it clear to those who might be interested in the topic what the proposal consisted of and why it was under consideration. This consultation document included sufficient reasons to allow those consulted to give intelligent consideration and intelligent response.
- Sufficient time – None of those consulted had requested an extension of time.
- Careful Consideration – The decision-maker had the right to consider all of the responses and then form their own opinion, with no obligation to consider every detail or to adopt the majority opinion. The Secretary of State had dutifully 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’s unreasonableness – What was at issue here was not the Secretary of State’s shift in stance on the ethics of electronic necklaces, but on the underlying rationality of his decision. The decision at issue was the August 2018 decision and not the decision to consult taken at the end of February 2018. As of August 2018, the Secretary of State had received and considered a substantial number of responses to the consultation. As the August 2018 decision was taken with the aim of promoting animal welfare, there had to be evidence that the use of electronic collars was detrimental for this purpose: a ban could not be imposed just because, for for reasons of morality or ethics, it was wrong in principle to inflict an electric shock on an animal. Such evidence existed, as revealed by the responses to the consultation.
The Secretary of State had undertaken a new assessment of the evidence and had come to a different conclusion; therefore, his change of post did not make his decision irrational. It could not be said that the decision was outside the reasonable range of answers available to him, nor that there was a demonstrable flaw in the reasoning that had led to it.
As with the 2010 challenge to the Welsh Assembly ban, the argument based on Article Protocol 1 – the right to peaceful enjoyment of one’s possessions – fell through. While a ban on electronic collars could result in interference with the property of plaintiffs’ limbs, the promotion of animal welfare was a legitimate aim that could justify restricting the right of possession. The proposed ban was rationally linked to this objective. There is no evidence that this objective could have been achieved by less intrusive means, namely effective regulation. Various alternative regulatory measures had been proposed, but how they would work in practice was unclear. In addition, the regulations would only address concerns about the potential misuse of collars, and not damage resulting from the electric shock itself. The ban was not disproportionate to the benefits of promoting animal welfare and was appropriate to achieve this objective. Consequently, there has been no violation of Article 1 of Protocol 1 or of Article 34 of the TFEU.
Why is Article 34 TFEU at stake here? As Morris J. points out, the protection of animal welfare is a legitimate objective and capable of justifying a measure within the meaning of Article 36, which authorizes restrictions on free trade. As the judge said,
By applying the proportionality test under Union law,[…]I am first of all convinced that the proposed ban is appropriate or appropriate to achieve this objective. Second, even if the regulatory alternative might turn out to be “cheaper”, it would still not address the concern over the administration of the electric shock itself. Third, with respect to the balance between burden and benefit, the relevant burden for the purposes of Article 34 is the impact on imports rather than the overall trade in electronic necklaces. Having found that the latter burden was not disproportionate, it follows that the lower burden on imports is not disproportionate.
Speaking as the owner of an extremely energetic and ambitious Springer Spaniel, I must admit that I was pressured to turn my garden into Alcatraz after his twelfth attempt to kill himself on the coastal road near my property. Thorough training with the containment collar and radio signal – plus a few bad shock-spawning mishaps – kept her safe at home, while roaring through 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 wearer of the device to administer an electric shock whenever the wearer of the collar is perceived to be misbehaving. As Morris J points out,
it is inherent in the difference between a device operated manually and a device operated automatically without human intervention, that the former, and not the latter, is likely to be misused or certainly used other than in accordance with the manufacturer’s instructions; and in this way, the scope of damage to animal welfare is greater.