[1] This application for judicial review raises important issues about the legislative competence of the Scottish Parliament and the relationship between this court, the Parliament and the Executive in respect of legislation enacted by the Parliament. It was described to me by counsel for the Lord Advocate as the first challenge in the courts to an Act of the Scottish Parliament in which petitioners who (either in person or through representative organisations) actively campaigned against and made representations about the policy of the legislation during its progress through the Parliament seek to continue the debate about that policy through the courts after Royal Assent has been given.

[2] The Protection of Wild Mammals (Scotland) Act 2002 ("the Protection of Wild Mammals Act") was passed by the Scottish Parliament on 13 February 2002 and received the Royal Assent on 15 March 2002. One of the principal effects of the Act is to make it a criminal offence to engage in the activity of mounted foxhunting with dogs, or to permit land or dogs to be used for this activity. By section 12(2) of the Act the preceding sections are to come into force on such day as the Scottish Ministers may by order made by statutory instrument appoint. By the Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 ("the Commencement Order"), made by the Scottish Ministers in the exercise of these powers, the day appointed for the coming into force of the Act is 1 August 2002.

[3] The petitioners are aggrieved by the prohibition of an activity in which they have hitherto engaged. It is averred that the first petitioner, Trevor Adams ("Mr Adams"), is a self-employed manager of foxhounds for the Duke of Buccleuch's Hunt (commonly known as "the Buccleuch Hunt"). The second petitioner, Nigel Murray ("Mr Murray"), is a farmer. The third petitioner, Richard Holman-Baird ("Mr Holman-Baird"), is a landowner, as is the fourth petitioner, Joe Scott Plummer ("Mr Scott Plummer"). The fifth petitioners, the Fife Hunt, are an unincorporated association engaged in traditional mounted hunting and the Chairman and Master thereof. The sixth petitioners, the Buccleuch Hunt Supporters Club, are an unincorporated association engaged in supporting the activity of traditional mounted hunting and the Chairman and Secretary thereof. The seventh petitioners, the Jedforest Hunt, are an unincorporated association engaged in traditional mounted hunting in the Scottish Borders. The eighth petitioners, the Countryside Alliance, formerly called the British Field Sports Society, are an unincorporated association and the Chairmen of the Association and of the Scottish Steering Committee thereof. Their objects are to represent, promote and preserve the rights and interests of their members as people involved in the life of the countryside, including countryside dwellers and workers, sportsmen and sportswomen, farmers, landowners and suppliers of countryside goods and services. They have a substantial number of members in Scotland. The first to sixth petitioners are members of the Countryside Alliance. The ninth petitioners, the Masters of Foxhounds Association ("the MFHA") are an unincorporated association and the Chairman and Secretary thereof. They are the governing body for foxhunting. The office-bearers of each of the above-mentioned associations are duly authorised to pursue the present proceedings on their behalf.

[4] The petitioners challenge the validity of the Protection of Wild Mammals Act on the grounds that it is, et separatim certain provisions of it are, incompatible with Articles 8 and/or 14 of, and/or Article 1 of the First Protocol to, the European Convention on Human Rights ("the Convention"). They aver that on those grounds the Act is outside the legislative competence of the Scottish Parliament. They further aver, separatim, that the Parliamentary proceedings on the Bill prior to its being passed were vitiated by procedural impropriety and, separatim, the provisions of the Act are so unreasonable that it does not constitute a proper exercise of the Scottish Parliament's legislative powers, and that for each of these reasons the Act is ultra vires the Scottish Parliament. During the course of the hearing there were deleted from the petitioners' pleadings: (1) averments that the Act is, et separatim certain provisions of it are, incompatible with Article 7 of the Convention because the scope of the new criminal offences created by the Act is unclear and uncertain; (2) an averment that the Commencement Order was not promulgated in bona fide; and (3) certain further averments, consequentially upon the main deletions.

[5] The petition came before me for a first hearing, which took place on eight days, from 2 to 11 July 2002.

[6] It is convenient at this stage to set out the main provisions of the Human Rights Act 1998 ("the Human Rights Act") and the Scotland Act 1998 ("the Scotland Act") which were referred to in the course of the hearing.

[7] The Articles of the Convention relied on by the petitioners, as set out in Schedule 1 to the Human Rights Act, are in the following terms. Article 8, entitled "Right to respect for private and family life" provides:

Article 1 of the First Protocol, entitled "Protection of property", provides:

Article 14, entitled "Prohibition of discrimination", provides:

[8] The rights and fundamental freedoms set out in these Articles are among those referred to as "the Convention rights" in the Human Rights Act. By section 3(1) of the Act, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. By section 21(1) "primary legislation" means inter alia any public general Act, and "subordinate legislation" means inter alia any Act of the Scottish Parliament. By section 6(1) it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By section 6(3) "public authority" is given a definition of sufficient breadth to extend to the Scottish Parliament and to this court.

[9] By section 7(1) of the Human Rights Act a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may inter alia bring proceedings against the authority under the Act in the appropriate court. By section 7(4), if the proceedings are made by way of a petition for judicial review in Scotland (i.e. in this court), the applicant is to be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act; and by sub-section (7), for the purposes of section 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. This Article of the Convention, as amended by Protocol No.11, provides inter alia that the European Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.

[10] The Scotland Act contains provisions which are the counterpart of those in the Human Rights Act. The Scottish Parliament is established by section 1 of the Act. There is provision in the Act for there to be a Presiding Officer of the Parliament (section 19); a Scottish Parliamentary Corporate Body ("the Parliamentary corporation"), the members of which are the Presiding Officer and four members of the Parliament (section 21); the participation of the Lord Advocate and the Solicitor-General for Scotland (the Scottish Law Officers) in the proceedings of the Parliament (section 27); a First Minister (section 45) and a Scottish Executive (section 44), whose members are the First Minister, such Ministers as he may appoint under section 47 and the Scottish Law Officers, all referred to collectively as "the Scottish Ministers"; and an Advocate General for Scotland (section 87; "the Advocate General").

[11] Section 28 makes provision for legislation by the Scottish Parliament, in these terms:

Section 29, however, sets limits to the legislative competence of the Scottish Parliament. By sub-section (1) it provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament, and by sub-section (2) that a provision is outside that competence so far as inter alia it relates to reserved matters or it is incompatible with any of the Convention rights (which expression has the same meaning as in the Human Rights Act) or with Community law. Reserved matters are defined in Schedule 5. The effect of treating them in this way is that, within the limits otherwise set by the Act, an Act of the Scottish Parliament may relate to any matter which is not a reserved matter. The provisions of the Protection of Wild Mammals Act do not relate to reserved matters, and to this extent are within the legislative competence of the Scottish Parliament.

[12] Further provisions are relevant to the question of legislative competence. Section 54 provides by sub-section (1) that references in the Act to the exercise of a function being within or outside devolved competence are to be read in accordance with that section, and by sub-section (2) that it is outside devolved competence (a) to make any provision by subordinate legislation which would be outside the legislative competence of the Parliament if it were included in an Act of the Scottish Parliament, or (b) to confirm or approve any subordinate legislation containing such provision. By section 126(1) it is provided that the expression "subordinate legislation" has the same meaning as in the Interpretation Act 1978, section 21(1) of which provides that the expression includes orders and other instruments made or to be made under any Act, and also includes an instrument made under an Act of the Scottish Parliament. By section 52(1) of the Scotland Act statutory functions, which by sub-section (7) means functions conferred by any enactment, may be conferred on the Scottish Ministers by that name and their functions may be exercisable by any member of the Scottish Executive. The Commencement Order, signed by a member of the Scottish Executive, was made in exercise of this function, and is subordinate legislation within the meaning of the Scotland Act. The effect of section 54(1) is that, if the Protection of Wild Mammals Act is outside the legislative competence of the Parliament, the Commencement Order is outside devolved competence. The position is no different from what it would have been if the Scottish Parliament had seen fit to provide by section 12 of the Protection of Wild Mammals Act that the Act was to come into force on 1 August 2002, without the need for a commencement order.

[13] Various safeguards have been built into the Scotland Act to ensure so far as possible that there is no breach of the limits of the Scottish Parliament's legislative competence. Section 31(1) provides that a member of the Scottish Executive who is in charge of a Bill shall, before its introduction, state that in his view it is within the legislative competence of the Parliament. Section 31(2) requires the Presiding Officer, on or before the introduction of a Bill, to decide whether the Bill would be within the legislative competence of the Parliament and to state his decision. Section 31(1) applies only to what may be termed "Government" Bills, while section 31(2) applies to all Bills, including members' Bills. As Lord Hope pointed out in A v The Scottish Ministers 2002 S.C. (P.C.) 63, in a passage at pps.66-67 on which I have drawn elsewhere in this paragraph:

By section 33(2), any reference by a Law Officer in relation to a Bill must be made within a period of four weeks beginning with the passing of the Bill. I do not need to discuss the consequences of a decision by the Judicial Committee that a Bill, or any provision of it, would not be within the legislative competence of the Parliament, because in the present case there was no intervention by any of the three Law Officers either before the passing of the Bill or within the period of four weeks thereafter. As Lord Hope explained, however, in the same passage, the fact that the Law Officers decided not to test the matter in this way is of no consequence at this stage. The court has power to deal with it as a devolution issue under Schedule 6 to the Scotland Act (which I shall discuss in a moment) after the Bill has been enacted if a member of the public claims that the provision was outside the Scottish Parliament's legislative competence.

[14] So far as this court is concerned, sections 100-102 of the Scotland Act are of considerable importance. Section 100(1) provides inter alia that the Act does not enable a person (a) to bring proceedings in a court on the ground that an act is incompatible with the Convention rights, or (b) to rely on any of the Convention rights in any such proceedings, unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act) if proceedings in respect of the act were brought in the European Court of Human Rights. By sub-section (4) "act" means (a) making any legislation, or (b) any other act or failure to act, if it is the act or failure of a member of the Scottish Executive. Section 101 provides:

By section 102, where inter alia any court decides that an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve, the court may make an order removing or limiting any retrospective effect of that decision, or of suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected. This power is subject to the considerations mentioned in sub-section (4), and by sub-sections (4)-(7) the court which is considering whether to make an order under the section is to order intimation of that fact to be given to the Lord Advocate and (where the decision relates to a devolution issue within the meaning of Schedule 6) to the appropriate Law Officer, who in relation to proceedings in Scotland is the Advocate General.

[15] Schedule 6 makes provision in relation to devolution issues. In terms of paragraph 1, a "devolution issue" means inter alia a question whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament. By paragraph 5 intimation of any devolution issue which arises in any proceedings before a court or tribunal is to be given to the Advocate General and the Lord Advocate, and by paragraph 6 a person to whom intimation is given in pursuance of paragraph 5 may take part as a party in the proceedings, so far as they relate to a devolution issue. By paragraph 33 the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland may require inter alia any court to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party, and by paragraph 34 any of these Law Officers may refer to the Judicial Committee any devolution issue which is not the subject of proceedings.

[16] It remains to mention the position of the Parliamentary corporation. By section 21(1) the corporation is to perform the functions conferred on it by the Scotland Act or any other enactment. Sub-section (3) provides that the corporation shall provide the Parliament, or ensure that the Parliament is provided, with the property, staff and services required for the Parliament's purposes. Schedule 2 makes further provision about the corporation. There are provisions relating to its membership, to the holding of property and the appointment of staff by it, to ancillary powers, to the delegation of its functions, and to its proceedings and business, and for Crown status to be conferred on it by Order in Council, in particular so that it may be treated as a Crown body in respect of employment under it, land held, used or managed by it and operations carried out by it. By section 40(1) proceedings by or against the Parliament are to be instituted by or (as the case may be) against the Parliamentary corporation on behalf of the Parliament. Section 40(3) provides that, in any proceedings against the Parliament, the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator. "Order" includes an interim order (sub-section (5)). There is further provision in section 40 about inter alia proceedings against any member of the Parliament, the Presiding Officer or a deputy, any member of the staff of the Parliament, or the Parliamentary corporation, and by sub-section (4) the court is not to make such an order if the effect of doing so would be to give relief against the Parliament which could not have been given in proceedings against the Parliament.

[17] It has been necessary to set out the provisions relating to the Advocate General and the Parliamentary corporation at some length because of submissions about their respective positions on which I was asked to make a decision at the outset of the hearing. The matter arises in this way. The petition clearly raises a devolution issue within the meaning of paragraph 1(a) of Schedule 6 to the Scotland Act, that is to say a question whether an Act of the Scottish Parliament is within the legislative competence of the Parliament. By paragraph 5 of Schedule 6 to the Act, intimation of this devolution issue required to be given to the Advocate General and the Lord Advocate, either of whom might, by paragraph 6, take part as a party in these proceedings. By rule 25A.2 of the Rules of Court, read with the definition of "relevant authority" in rule 25A.1.1, the petition required to be served on both the Advocate General and the Lord Advocate. (Reference may be made to rule 14.7 and the annotations thereto for an explanation of what is meant by service and by intimation to a named person, as distinct from intimation on the walls of the court.) By rule 25A.5(1) intimation of a devolution issue in pursuance of inter alia paragraph 5 of Schedule 6 to the Scotland Act requires to be given in accordance with that rule, paragraph (2) of which provides that when the devolution issue is raised in the principal writ, service of the principal writ on the relevant authority shall be treated as such intimation.

[18] The petitioners were accordingly bound to serve the petition upon, and thereby intimate it to, both the Advocate General and the Lord Advocate. In terms of the schedule for service annexed to the petition, service in common form was sought on the Advocate General and the Scottish Ministers, and intimation (not service) was sought on the Lord Advocate as an interested party. As I understand it, the petition was served on the Advocate General in accordance with an interlocutor dated 15 May 2002. It is not entirely clear from this interlocutor, and from a subsequent interlocutor dated 6 June 2002 (which appointed intimation of the petition, as amended in terms of that interlocutor, on the Lord Advocate for any interest he might have), whether the petition was served on, as distinct from intimated to, the Lord Advocate, but no point is taken about this. At all events, both the Advocate General and the Lord Advocate had notice of the petition, and answers were lodged by each of them. Answers were lodged by the Lord Advocate as representing the Scottish Ministers and in the public interest. These are the main answers to the petition. The Advocate General also lodged answers, but only for the purpose of advancing certain preliminary submissions that (a) the Advocate General is not an appropriate respondent in respect of any challenge to the validity of an Act of the Scottish Parliament; (b) the appropriate respondent in respect of any such challenge is the Parliament; and (c) since proceedings against the Parliament must be instituted against the Parliamentary corporation in terms of section 40(1) of the Scotland Act, the Parliamentary corporation ought to have been called as a respondent. These contentions were not supported by either the petitioners or the Lord Advocate. By letter to the court dated 1 July 2002 on its behalf it was stated that the Parliamentary corporation was aware of the petition and had concluded that it should not enter process, on the basis that once a Bill has been passed and has received Royal Assent, thereby becoming an Act of the Scottish Parliament, in terms of section 28(2) of the Scotland Act, the Parliamentary corporation is not an appropriate respondent, whatever may have been the position prior to this stage having been reached.

[19] This is a convenient point at which to refer to a previous case relating to an earlier stage of the legislative process which led to the enactment of the Protection of Wild Mammals Act. In Whaley v Lord Watson 2000 S.C. 340 the petitioners (one of whom was Mr Adams) were refused an interim interdict against Lord Watson of Invergowrie "from doing anything in his capacity as a member of the Scottish Parliament relating to the proposed Protection of Wild Mammals Bill and in particular from introducing the Bill in Parliament and from encouraging any other member to do likewise." Lord Watson was the first respondent, and the Parliamentary corporation was allowed to lodged answers as the second respondent. It is not of direct relevance for present purposes to go into the reasons why interim interdict was sought and refused, but there are passages in the opinions which were delivered in the Inner House which have a bearing on the relationship between the Parliament and the courts. At pps.348-349 the Lord President (Lord Rodger) spoke of "the fundamental character of the Parliament as a body which - however important its role - has been created by statute and derives its powers from statute." He went on to say:

Further down p.349, Lord Rodger said:

At pps.357-358, Lord Prosser said:

At the stage at which the court was considering the matter, Lord Watson had gone no further than to submit a draft proposal for a Bill, and the Presiding Officer had signed a statement to the effect that the provisions of the Bill would be within the legislative competence of the Parliament, thus leaving the way clear for Lord Watson to introduce the Bill. So the court was obviously not called on to consider who would be the correct respondent or respondents once the Bill had been passed and had received the Royal Assent.

[20] As has been seen, the Advocate General is not a member of the Scottish Executive. The effect of section 87(1) of the Scotland Act, and the additions to the statutory provisions therein referred to which relate to ministerial offices and the salaries of the Law Officers, is to create a new post of Advocate General for Scotland in the United Kingdom Government. The present Advocate General has described her approach to the duties of her office in an article entitled "Three Years On: The Role of the Advocate General for Scotland" 2002 S.L.T. (News) 139. As explained by her, her principal role is as the adviser on Scots law to the United Kingdom Government. So far as devolution issues are concerned, she writes, at p.141:

[21] Counsel for the Advocate General submitted that her role in relation to Scottish legislation is limited in terms of the Scotland Act. Under section 33(1) she has a discretion, not a duty, to refer a Bill to the Judicial Committee of the Privy Council. A decision by her not to refer a Bill to the Judicial Committee creates no duty on the Advocate General to defend the validity of the Bill against challenge. Where a devolution issue arises, by paragraph 5 of Schedule 6 intimation to her is the correct procedure, rather than calling her as a respondent. Under paragraphs 33 and 34 of Schedule 5, the Advocate General has a discretion, not a duty, to require the court to refer to the Judicial Committee a devolution issue which has arisen in proceedings before it, or to refer to the Judicial Committee any devolution issue which is not the subject of proceedings. By Rule 2.12(4) of the Judicial Committee (Devolution Issues) Rules Order 1999 it is open to the Advocate General to intervene as a respondent to an appeal to the Judicial Committee. So there is no obligation on the Advocate General to intervene at all, or at any particular stage, in proceedings in which a devolution issue is raised. For that reason, counsel submitted, the observations by Lord Hardie in Davidson v The Scottish Ministers 2002 S.C. 205 at p.429 about the decision of the Advocate General not to be represented in that case were unjustified. Not all cases raise constitutional issues which make it appropriate for the Advocate General, in the exercise of her discretion, to intervene. She has a discretion as to whether to take part as a party in the proceedings at the outset under paragraph 6 of Schedule 6, or at the stage at which the court is considering whether to make an order under section 102, in terms of section 102(5). Counsel referred to the Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee (Cm.5240, December 2001), paragraphs 26 and 27, and submitted that it is the intention of both the United Kingdom Government and the Scottish Ministers that intervention should be avoided where possible.

[22] In the present case, counsel submitted, the Advocate General has been called, not merely as a possible intervener, but as the first respondent, the person regarded as responsible for defending at least some of the acts complained of by the petitioners. As a Law Officer of the United Kingdom Government she is not answerable to this court for the acts of the Scottish Parliament or the Scottish Executive. She must remain free to adopt whatever position she considers appropriate from the point of view of the United Kingdom Government, which might or might not involve supporting an Act of the Scottish Parliament. She is entitled, and bound, to maintain a position which is independent of that of the body which made the law. Different considerations would arise in relation to proceedings before the European Court of Human Rights, because the respondent in such proceedings is the United Kingdom Government. In such proceedings the United Kingdom might or might not be represented by the Advocate General. This is of no relevance to a challenge, such as the present petition, before the domestic courts, including the Judicial Committee of the Privy Council. The correct respondent in the domestic courts is the person who was responsible for carrying out the act complained of. Counsel went on to submit that the Scottish Parliament was responsible for carrying out the act complained of. This, he submitted, is borne out by the scheme of the Scotland Act. If the petitioners are victims in terms of section 100(1), the act complained of in terms of section 100(4) is making the Protection of Wild Mammals Act. Under section 28(1) it is the Scottish Parliament which makes laws. As for the Royal Assent, counsel referred to a submission to be advanced for the Lord Advocate, that once Royal Assent had been granted the Act was a legislative measure produced by one branch of the legislative pillar of the State, so that these proceedings are not merely concerned with the activities of the Parliament itself. Counsel submitted that the "legislative pillar" is nothing other than the Parliament itself. Royal Assent is a step in the process by which laws are made by the Parliament: the Sovereign assents to what has been done by Parliament. The need to obtain Royal Assent does not alter the fact that the making of legislation is a function of Parliament. Counsel said that there is very little authority on the matter. He referred to the Royal Assent Act 1967, Bradley & Ewing, Constitutional and Administrative Law (12th ed., 1997), at p.209 and Erskine May, Parliamentary Practice (22nd ed., 1997), pps.563-564. He submitted that, while Royal Assent is required to give Bills passed by both Houses of the United Kingdom Parliament "the complement and perfection of a law" (see Erskine May at p.563), the need for Royal Assent to be given to an Act of the Scottish Parliament does not detach it from the Parliament. It remains an act of the Scottish legislature. No distinction could be drawn between the Scottish legislature on one hand and the Scottish Parliament on the other: the Royal Assent is not external approval. Under reference to the passages which I have quoted from Whaley v Lord Watson, supra, counsel submitted that, as a statutory body which must act within statutory powers, there is no reason why the Parliament should not be answerable to this court in respect of the legislative competence of its legislation. So the only appropriate respondent in proceedings which challenge the validity of its legislation is the Scottish Parliament. Having regard to the provisions of section 40(1) of the Scotland Act, the Parliamentary corporation ought to have been called as a respondent. For this reason, he submitted, the petition is incompetent and should be dismissed. So far as the position of the Lord Advocate is concerned, while there is no difficulty about his representing the Scottish Ministers and the public interest, his proposed representation of the Scottish Parliament is more difficult. He is entitled to intervene, but it is not always necessarily the case that his position will coincide with that of the Parliament, for example after a change of Government.

[23] Counsel further submitted that, if the correct respondent is the Parliamentary corporation, the court is precluded from granting an order for reduction (i.e. annulment) of the Protection of Wild Mammals Act, in terms of section 40(3); the court can only grant a declarator. It should not be possible for the petitioners to avoid the effect of this provision by proceeding against the Advocate General. The only competent remedy available to the petitioners is a declarator, in terms of section 29(1), that the Act is not law, as being outside the legislative competence of the Parliament. The "decision" referred to in section 102(1) is, he submitted, a decision to make a declarator. Counsel concluded by saying that, insofar as the petition founds on alleged procedural impropriety it is incompetent: see section 28(5) of the Scotland Act. In this respect, he adopted the submissions to be advanced for the Lord Advocate. For all these reasons counsel submitted that the petition is irrelevant and incompetent and in any event the conclusion for reduction of the Protection of Wild Mammals Act is in any event incompetent.

[24] Counsel for the petitioners submitted that the Advocate General is properly called as a respondent. The petitioners have complied with the Rules of Court, which make it clear that the appropriate respondent is the Advocate General. There is a very good reason for this. By contrast with the position under the Government of Wales Act 1998, in which the appropriate respondent to legal proceedings would be the Welsh Assembly, the appropriate respondent in proceedings in this court is the "relevant authority", that is to say the Advocate General and, in the case of a devolution issue, the Lord Advocate. It is, he submitted, a surprising feature of this case that the Advocate General has fundamentally misunderstood her role as a Law Officer of the Crown. She has responsibilities, including responsibilities to the court, when matters arise such as the validity of an Act of the Scottish Parliament. The petitioners have complied with rule 25A.2 by serving the petition on the Advocate General as the relevant authority, whose role, in a case of this type, is to represent the public interest and to assist the court. The question of the validity of legislation almost always is a matter of general public importance in which the attitude of the Crown is likely to assist the court. Counsel referred to Northern Ireland Road Transport Board v Benson [1940] N.I. 133, in which the Attorney General was invited to argue certain questions which had arisen in the course of the proceedings as to whether a legislative provision was ultra vires the Parliament of Northern Ireland. At p.169 Murphy L.J. said:

Counsel submitted that this was echoed by Lord Hardie in Davidson v The Scottish Ministers, supra. The court should be concerned to ensure that the position of the United Kingdom Government is properly explained. It is a matter of surprise and concern, he submitted, that the Advocate General takes such a different view. Counsel referred to section 99(1) of the Scotland Act, which provides that rights and liabilities may arise between the Crown in right of Her Majesty's Government in the United Kingdom and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment as they may arise between subjects. Clearly, he submitted, the Crown in right of Her Majesty's Government has a major and legitimate interest in ensuring that a subordinate legislature does not exceed the powers given by a sovereign legislature. The United Kingdom Government has a close interest in whether a legislature established by an Act of the Westminster Parliament has acted within or outside its powers. Had Parliament intended that the Parliamentary corporation, representing the Scottish Parliament, should be a respondent in cases of this nature, it would have said so. The Advocate General has the responsibility for ensuring that the Scottish Parliament acts consistently with the Treaty obligations of the United Kingdom. The various provisions enabling the Advocate General to intervene in legal proceedings show that she has a major stake in devolution issues.

[25] Counsel went on to submit that the Parliamentary corporation is not an appropriate respondent, because its functions do not extend to constitutional matters. He compared the provisions of the Scotland Act relating to the Parliamentary corporation with provisions of the House of Commons (Administration) Act 1978 and the Parliamentary Corporate Bodies Act 1992 in support of a submission that the functions of such a body relate to the holding of property, the employment of staff, and similar administrative functions. The functions of the Parliamentary corporation do not extend to constitutional matters. Once Royal Assent has been given to a Bill, the Scottish Parliament is functus officio. Counsel concurred with a submission to be advanced for the Lord Advocate that, once Royal Assent has been given, an Act of the Scottish Parliament is an act of the State.

[26] On the question of the remedies available in this court, counsel submitted that, in terms of section 4 of the Human Rights Act, the court is confined to making a declaration of incompatibility where it finds that a provision of the primary legislation by a sovereign legislature, i.e. the United Kingdom Parliament, is incompatible with a Convention right. Nothing in the Scotland Act suggests that the powers of the court are similarly restricted in relation to an Act of the Scottish Parliament. If the court was not to have power to reduce an Act of the Scottish Parliament as being ultra vires the Parliament, that would have been stated explicitly in the Act. This court has power to reduce an Act of the Scottish Parliament, which, as provided by the Human Rights Act, is subordinate legislation. The powers of the court are the same as they are in relation to a by-law made by a local authority: see, for example, Scottish Motor Traction Co v Lanarkshire County Council 1929 S.C. (H.L.) 110. Reduction is one of the normal remedies for an ultra vires act.

[27] In conclusion, counsel for the petitioners submitted that it cannot have been the intention of the United Kingdom Parliament that the Scottish Parliament should have been convened as a respondent in a challenge to its legislation. To make the Advocate General a respondent does not restrict the scope of her discretion as to whether to become involved in the proceedings. Counsel accepted that it is a matter for her judgment as to whether or not to advance a substantive argument. The United Kingdom Government has an important interest in seeing that a devolved body does not act ultra vires. The Advocate General has, he submitted, no interest to argue that the Parliamentary corporation should have been called as a respondent.

[28] Counsel for the Lord Advocate said that, while he agreed with the substance of the submissions for the petitioners, he did not adopt their reasoning. He had no submissions to make about the wider role of the Advocate General. This, he said, is a matter for her discretion. It is, he submitted, necessary to use the term "respondent" with care, as it is not used in the Rules of Court. The true question is whether the participation of the Parliamentary corporation in the proceedings is necessary: Wilson v Independent Broadcasting Authority 1979 S.C. 351 at p.356. In practical terms, the Parliamentary corporation has indicated that it does not wish to participate. The Lord Advocate, he submitted, is the general contradictor. He has power to refer the matter to the Judicial Committee of the Privy Council and in a sense, when he has chosen not to do so, he is defending his own decision when there is a challenge to an Act of the Scottish Parliament. Counsel referred to R v Secretary of State for the Home Department, Ex parte Fire Brigades Union [1995] 2 A.C. 513, per Lord Browne-Wilkinson at pps.550-551, in support of a proposition that, where legislation imposes on the Executive a duty to bring it into force, by extension, once it has been brought into force, it is the duty of the Executive to defend it. Reference was also made to the speech of Lord Lloyd at p.571.

[29] Counsel went on to submit that under section 40(3) of the Scotland Act the restriction on remedies is engaged only in proceedings against the Parliament. He agreed with counsel for the Advocate General that under section 100 it is necessary to see what act is complained of. In the present case the petitioners complain of the passing into law of the Protection of Wild Mammals Act. In terms of the Scotland Act, there is a distinction between a Bill and an Act. A Bill becomes law only when Royal Assent has been given: section 28(2). The passing of a Bill by Parliament is only one step. The Bill is transformed into an Act by the Royal Assent, the responsibility for which rests with the Crown. The provisions of Schedule 6 make it clear that when an Act of the Scottish Parliament is subject to challenge, intimation is to be given to the Law Officers, and not to the Scottish Parliament. Finally, counsel submitted that, since section 40 does not apply to proceedings such as the present, the usual remedies in an application for judicial review are available, including the remedy of reduction.

[30] I do not accept the submissions for the Advocate General. It is clear from the terms of the various provisions of the Scotland Act which allow the Advocate General to intervene at various stages that whether, and if so at what stage, to appear in legal proceedings is a decision which lies within her discretion. For this very reason, her decision not to intervene at all or at any particular stage should not, without good reason, be the subject of comment by the court. No doubt in considering how to exercise her discretion the Advocate General would have regard to the submissions proposed to be advanced by the Lord Advocate. The service of the present proceedings on the Advocate General was not, in terms either of the pleadings or the Rules of Court, intended to, and moreover could not, oblige her to act as principal contradictor of the petition, or indeed a contradictor at all, and thus to fetter the exercise of her discretion. As I have said, the petition should have been served on, and not merely intimated to, the Lord Advocate; and it was for him, as a Scottish Law Officer and one of the Scottish Ministers, to take the point if he was of the view that another person was the appropriate contradictor. Even if the appropriate contradictor had not yet received service or intimation, that would not oblige the Advocate General to enter legal proceedings or to advance submissions when she was not otherwise minded to do so. I do not accordingly agree with the complaint of the Advocate General that she was wrongly called as a "respondent", or with the petitioners' reasons for saying that she should nevertheless have participated in these proceedings.

[31] In my opinion the Parliamentary corporation would not be an appropriate contradictor in proceedings in which a devolution issue such as the present is raised, and accordingly service on or intimation to that body was not required. This is so for a number of reasons. It seems to me to be clear from the terms of section 28 of the Scotland Act that an Act of the Scottish Parliament, which by definition has received Royal Assent, has a specific character such that its enactment is not merely an act of the Parliament. The Act has passed out of its hands. Accordingly, proceedings in which a question is raised whether an Act of the Scottish Parliament is within the legislative competence of the Parliament are not proceedings against the Parliament within the meaning of section 40(1), which require to be instituted against the Parliamentary corporation. Had the United Kingdom Parliament intended otherwise, express provision would have been made in Schedule 6 to the Scotland Act for intimation of the proceedings to the Parliamentary corporation. Moreover, the functions of the Parliamentary corporation do not extend to appearing as a contradictor in such proceedings, with or without intimation. It appears to me to be clear from the scheme of the Scotland Act that the Lord Advocate is regarded as being the appropriate contradictor in such proceedings, as befits his role as a Scottish Law Officer acting in the public interest. I have already commented on the position of the Advocate General as a possible contradictor. Nothing said during the course of the hearing suggested that the Protection of Wild Mammals Act has implications for the United Kingdom Government such that she might reasonably be expected to intervene. At present there is no legislation for England and Wales which corresponds to the Protection of Wild Mammals Act in prohibiting mounted foxhunting with dogs. No doubt the Countryside Alliance and the MFHA have concerns about the prospect of similar legislation in England and Wales, and I formed the impression that these petitioners would have liked the Advocate General to intervene in the present proceedings on behalf of the United Kingdom Government so that what was said on her behalf might be exploited by the petitioners elsewhere. As it is, the Lord Advocate is in my opinion the proper Law Officer to defend the Protection of Wild Mammals Act against the challenge mounted in these proceedings. It also follows, incidentally at this stage, that in the event of a successful challenge the remedy of reduction of the Protection of Wild Mammals Act would be competent, because section 40(3) of the Scotland Act would not apply.

[32] The submissions about the Advocate General and the Parliamentary Corporation occupied much of the first day of the hearing. I considered them overnight, and on the second morning of the hearing I gave reasons, in terms similar to the foregoing, for rejecting the submissions of the Advocate General. At this, counsel for the Advocate General sought leave to withdraw and I allowed him to do so, on the understanding that, should intervention by the Advocate General subsequently appear to be necessary, he would be allowed to return to make further submissions. In the event, there was no further intervention by the Advocate General. Since, as I understand it, her answers were lodged solely to allow the submissions which I have rejected to be advanced, and she does not regard herself as having any locus otherwise in these proceedings, the appropriate course appears to me to repel all the pleas-in-law for the Advocate General, and I shall do this. Counsel for the petitioners moved for the expenses of the first day of the hearing to be awarded against the Advocate General, but I said that I would reserve all question of expenses meantime, so this remains to be disposed of.

[33] With these preliminary issues out of the way, I now turn to the main substance of the first hearing. Counsel for the Lord Advocate moved me to sustain the first, second and seventh pleas-in-law for the Lord Advocate and to dismiss the petition. These pleas relate respectively to the title and interest of the petitioners, the competency of the petition and the relevancy of the petitioners' averments. Counsel for the petitioners moved me to allow a second hearing on the petition and answers, at which evidence would be led about disputed matters of fact. They also moved me to pronounce an interim order, which I shall discuss in due course. It was agreed between counsel that the first hearing should take the form of a debate which would be opened by junior counsel for the Lord Advocate, taking the petitioners' averments pro veritate at this stage. It is to be understood from this that, where I refer to averments of fact in the petitioners' pleadings, I am not to be taken as accepting that they, or any of them, are necessarily true: evidence would require to be led at a second hearing to prove these averments, so far as not admitted by the Lord Advocate.

[34] Since the main focus of the debate is of course the Protection of Wild Mammals Act, it is appropriate at this stage to set out its terms more fully. The long title of the Act is: "An Act of the Scottish Parliament to protect wild mammals from being hunted with dogs; and for connected purposes." Section 1 provides:

By section 10(1) the expression "to hunt" is defined as including to search for or course, and references to hunting with, or the use of, "a dog" are to be interpreted as also applying to hunting with, or (as the case may be) the use of, two or more dogs. There are also definitions relating to the "owner" or "occupier" of land. By sections 2 to 6 certain activities are excepted from the ambit of section 1, so that persons who engage in them do not commit an offence under section 1(1). Since nothing turns for present purposes on the details of these provisions, an outline of them is sufficient. By section 2 a dog under control (as that expression is defined in section 10(4)) may be used to stalk a wild mammal, or flush it from cover above ground, for various purposes, but only if action is taken to ensure that, once the target wild animal is found or emerges from cover, it is shot, or killed by a bird of prey, once it is safe to do so. An offence is not committed if a dog kills a wild mammal, being of a pest species (the definition of which in section 10(1) includes foxes), if the dog is being used with the intention of flushing the wild mammal from cover or from below ground in order that it may be shot or killed by lawful means. It is not an offence to use a dog under control to flush a fox from below ground or from an enclosed space within rocks or other secure cover above ground, but only for specified purposes and if reasonable steps are taken to ensure that the fox is flushed as soon as reasonably possible after it is located and shot as soon as possible after it is flushed. Section 3 excepts the use of a dog in connection with falconry and shooting, section 4 excepts the use of a dog for a search by an authorised person and section 5 excepts the use of a dog for retrieval and location in certain circumstances, including the use of a dog under control below ground in order to locate a fox which the person using the dog reasonably believes is orphaned (as that expression is defined in section 10(1)), but only if that person takes reasonable steps to ensure that the fox, once located, is despatched by a single dog or otherwise killed as humanely as possible. Section 6 makes provision for certain further activities to be excepted, as may be specified by the Scottish Ministers by order made by statutory instrument approved by resolution of the Scottish Parliament. No such order has yet been made.

[35] It was not disputed before me that one of the principal effects of the Act is to render unlawful mounted foxhunting with dogs. It was also agreed that foxes are the only species of wild mammal still to be hunted in this way in Scotland. The persons principally aggrieved by the legislation are those with an interest in the continuation of mounted foxhunting with dogs. I propose at this stage to refer to the petitioners' pleadings, and certain other material referred to therein, so that it can be seen what the petitioners allege are the effects of the prohibition. As averred by the petitioners, Mr Adams is a member of the MFHA. He and his wife regularly take part in mounted hunting and the many social activities associated with it in the area where they live. Mr Murray is a past Master of the Lauderdale Hunt, which he permits to hunt over his farmland. Mr Holman-Baird runs a pack of foxhounds in Kincardineshire. Mr Scott Plummer is Joint Master of the Buccleuch Hunt, with which he regularly hunts. Hunting foxes with dogs has long been a lawful activity and has indeed been exempted from the scope of recent animal-welfare legislation such as the Wild Mammals (Protection) Act 1996, as well as earlier statutes. There are ten Hunts in Scotland, most of them based in the Borders, while the Fife Hunt are based in Fife. The Fife Hunt and the other Hunts are funded by subscription and from the proceeds of regular fund-raising events, many of them organised by Hunt Supporters Clubs such as the Buccleuch Hunt Supporters Club. Many of the members of the Countryside Alliance and all of the members of the MFHA are closely involved in mounted hunting, and some of them depend on it for their livelihood or as an important part of their way of life or both. Hunting foxes with dogs is an activity central to the ethos of the Borders communities in which Mr Adams, Mr Murray and Mr Scott Plummer are resident and the Buccleuch Hunt Supporters Club and the Jedforest Hunt carry on their activities. It is largely carried out on private land, always with the full consent of the landowners in question. Local stock farmers in the country over which the Fife Hunt and the Jedforest Hunt (and other Hunts respectively) hunt regard the control of foxes as essential; since the nature of the terrain means that there is no practical alternative to hunting with dogs, the Fife Hunt, the Jedforest Hunt and other Hunts are invited to hunt over these farmers' lands.

[36] The petitioners go on to aver that hunting is a long-established activity in which people from many different walks of life participate. It is well-organised

and subject to detailed regulation. The MFHA are the governing body for hunting foxes. They recognise Hunts, each of which has its own constitution but each of which must also operate under the MFHA's Rules and Code of Conduct. The MFHA also register Hunt terrier men. The rules are designed to ensure that hunting is carried on as humanely as possible, and that all terrier work conducted in association with hunting under the MFHA's rules meets proper and humane standards. Adherence to the rules is ensured by the existence of disciplinary processes. Each pack of hounds registered with the MFHA hunts over a specified area of land registered by the

MFHA (a "country"). These areas vary from 100 to 400 square miles. Each

Hunt has a Master or Masters who must be members of the MFHA. They are generally unpaid and are responsible for employing and supervising Hunt staff; meeting and maintaining contact with farmers and landowners within the Hunt's area; arranging the programme of hunting days; and directing events on each day's hunting. The area to be covered in a day's hunting requires careful planning, since this depends on the goodwill and the agreement of local farmers and landowners, whose wishes are as a matter of course taken into account in planning the day's hunting. During the Hunt it is the Huntsman who controls the hounds, by means of his voice and his horn. The hounds look to him for direction. The Huntsman liaises with the Master in arranging the land to be hunted over; selecting the hounds that are to hunt on a particular day; arranging for the hounds and horses to arrive at the Hunt meet; and finding and hunting foxes throughout the day. The Huntsman is assisted by a Whipper-in. A Field Master is also designated to marshal the mounted followers in order to ensure that they do not enter land which they do not have permission to enter; that they follow routes that do minimum damage to crops and grazing land; and that they do not impede the hounds or the work of the Hunt's staff. The Hunt will also have a terrier man who is responsible for any terrier work that is necessary during the day. This usually involves the digging out and humane shooting of a fox that has gone to ground. Under MFHA rules, when a fox is run to ground, it may be dug out only at the request of the landowner, farmer or shooting tenant. The rules do not allow a fox which is in a natural earth to be flushed to be hunted further. The terrier man also carries out earth-stopping before a day's hunting.

[37] The petitioners further aver that the number of mounted followers is variable. While the rules of the various Hunts differ, anyone who can ride competently and pays a modest subscription is usually welcome to join the Hunt. Followers on foot, on bicycle or by car may well outnumber the mounted followers. Hunting contributes, they aver, to the social cohesiveness of the rural communities in which it is carried on. Most of the Border Hunts hunt two or three times a week. For many of those who take part, hunting is the principal and most important activity outside their work and a vital part of their lives. Many retired people have no other activity that regularly brings them into contact with other members of the community. Many members of the Buccleuch Hunt Supporters Club have no recreation other than the events organised by the Club. Studies carried out by the Borders Foundation for Rural Sustainability have shown that the Border Hunts and their Hunt Supporters Clubs provide the focus for a large number of events within the community. The activities of Hunt Supporters Clubs such as the Buccleuch Hunt Supporters Club also involve those who are not members of the Club, so promoting interaction between the Hunts and the wider community. The cessation of mounted hunting in the Borders would result in a profound social and cultural impoverishment for those petitioners who live or are based there and for numerous members of the Borders community.

[38] Reference is made in the petitioners' pleadings to a report by Dr Garry Marvin, a senior lecturer in the School of Sociology and Social Policy at the University of Surrey, Roehampton and Director of the Centre for Research in Animals, Society and Culture at the same university. He has a special research interest in human/animal relations and, in addition to his existing publications in that area, he is writing an anthropological account of foxhunting. His report is dated 15 June 2002. This was of course after the date when the Protection of Wild Mammals Act received Royal Assent, but counsel for the Lord Advocate did not object to reference being made to its contents, since it is referred to in the petitioners' pleadings and if I were to allow a second hearing evidence would be led from Dr Marvin as an expert witness. In the introduction Dr Marvin states:

After tracing the history of the emergence of foxhunting as "a formal, sporting, practice" Dr Marvin goes on to discuss statistics, which suggest that the five Borders Hunts (the Berwickshire, the Buccleuch, the Jedforest, the Lauderdale and the Liddesdale) between them hunt for a total of 365 days during the season, which lasts for seven months of the year, during the autumn and winter, with over 1000 participants, both mounted and non-mounted, who each participate on an average of twenty or so days per season. In this passage, Dr Marvin describes foxhunting as "an intensely social activity" and says that the participants "constitute and create a community whose lives are tightly interconnected through the event".

[39] Dr Marvin then goes on to discuss participation in hunting practice. He says that "foxhunting is a unique sports hunting event because it is only the hounds who are hunting". At no point during foxhunting does a human attempt to directly find, pursue and kill the quarry. Humans create the conditions in which this form of hunting can be enacted but they are not directly involved in hunting per se. He goes on to say that "the point that is fundamental for the paper is that all human participants are participating at one remove from the central act of hunting; indeed they may not participate directly in hunting." He then makes the point that "in an important sense, there is no distinction between those on horseback on those on foot/in cars - at one level they both participate in the same way - both sets of people are present as active observers of hunting." The mounted and non-mounted participants enact the second level activity of attempting to follow the hounds: "The pack of foxhounds attempting to pursue a fox across the countryside creates the conditions and possibilities for a unique equestrian, sporting, event for the mounted participants". After giving reasons why mounted and non-mounted participants join in the activity, he says that "there are no spectators of hunting" because: "Each person who deliberately sets out on a hunting day to follow the activity of the hounds across the countryside is fully engaged with that event and in that event and, given that the only involvement that any of them can have with the hunting act is one of observation, it could be argued that, despite the differences in the ways in which they enact this observation, they are all equal as participants. In terms of countryside pursuits foxhunting is unique in terms of its shared, communal, quality." In other passages, Dr Marvin says that foxhunting is "a collective event", it is "a way of life", it is "not a sport put on for the benefit of others who simply come to watch" but "is one created by its participants for themselves" and that the Hunts are "directly responsible for creating a significant part of the living fabric of rural life."

[40] Dr Marvin finds that foxhunting is central to the entire social life of a range of people associated with the Border Hunts. Hunting allows for "wider social interactions than any other institution or association in the rural world." At p.22, he states:

When he comes to his conclusions, Dr Marvin repeats some of these points, before going on to say:

[41] The petitioners aver that while hunting is partly a recreational activity, it is also an effective means of controlling the numbers of foxes. It is generally accepted that foxes are pests whose numbers need to be controlled. This is the reason for earth-stopping, which prevents foxes from remaining underground or going to ground soon after they are found. On a hunting day a Hunt might expect to cull one or two foxes. Of equal importance, however, is the fact that during a day's hunting the fox population will be dispersed over a wide area, so reducing the potential for damage to be done by foxes. In addition the Hunts, such as the Fife Hunt, provides services which are valued by local farmers, such as knackering and disposal of fallen stock. The activity of hunting foxes also contributes to the local economy and to employment within rural communities. After reference to general economic assessments by the Macaulay Land Use Research Institute and the Borders Foundation for Rural Sustainability, the petitioners aver that a substantial proportion of those employed in connection with hunting live, as does Mr Adams, in accommodation which is tied to their employment.

[42] Elsewhere in their pleadings, the petitioners aver that foxes prey on lambs, poultry, piglets, game and ground-nesting birds. It is generally accepted that they are a pest species and that, in order to limit the damage caused by them, their population requires to be culled. The result of a temporary suspension of mounted hunting in 2001 owing to the outbreak of foot and mouth disease has been a substantial increase in the number of foxes killing livestock. Most of those involved in land management consider such culling to be necessary. There are currently only four legal methods of controlling the fox population, namely shooting, trapping, snaring and hunting with dogs. Methods of shooting foxes include "lamping" (shooting at night using high-powered rifles) and gun packs, which involve the use of dogs and guns in woodland areas. In some areas (for example in parts of the Borders) there is no practicable method apart from hunting with dogs for controlling the numbers of foxes; in particular, the use of gun packs is not possible, for reasons of safety, in areas where there are houses nearby. Hunting, the petitioners aver, is a selective means of controlling the fox population, since fit and healthy foxes generally escape unharmed and this contributes to a healthy, balanced and sustainable population of the species. In addition Hunts such as the Fife Hunt and the Jedforest Hunt and their members and supporters voluntarily carry out important work in the countryside that benefits conservation and the maintenance of habitats. The banning of foxhunting will accordingly have an adverse effect on conservation of habitats and habitats of species. There is some reference, to which I shall return in due course, to the numbers of foxes killed by, and to the effectiveness of, and the degree of suffering caused by, these various methods of hunting.

[43] Counsel for the Lord Advocate drew my attention to various statutory provisions intended to prevent cruelty to animals. I do not propose to go into these in detail. Reference was made to the Cruelty to Animals (Scotland) Act 1850, the Protection of Animals (Scotland) Act 1912 (as amended by the Protection of Animals (Scotland) Act 1912 Amendment Act 1921, and by the Protection of Animals (Amendment) Act 1988), the Protection of Animals Act 1934 and the Wild Mammals (Protection) Act 1996. Mention was made in particular of the Conservation of Seals Act 1970, section 1 of which prohibits certain methods of killing seals, section 11 of the Wildlife and Countryside Act 1981, which prohibits certain methods of killing or taking wild animals, and the Protection of Badgers Act 1992, which contains provisions relating to the taking, injuring, killing or cruel ill-treatment of badgers. Mention was also made of two species which have historically been hunted with hounds in Scotland. Deer have not been hunted with hounds for many years, and by section 17(3) of the Deer (Scotland) Act 1996 the only permitted method of killing deer is by shooting. Otters have been hunted with hounds more recently, but I was told that this had been discontinued some time before the coming into force of the Wildlife and Countryside Act 1981, which by section 9(1) and Schedule 5 makes otters a protected species and prohibits killing them. Counsel for the Lord Advocate submitted, in light of these provisions, that the prevention of cruelty to animals has long been recognised as being in the public interest and as being a fit subject for legislation, and counsel for the petitioners did not seek to take issue with this. The point was also made that there are differences between Scotland on the one hand and between England and Wales on the other: in the latter, for example, there is still mounted hunting of deer with hounds.

[44] In the pleadings for the Lord Advocate there is an account of unsuccessful attempts which have made since 1986 to have hunting with dogs prohibited by legislation by the United Kingdom Parliament. I see no need to repeat this. One step that was taken was the appointment in December 1999 by the Home Secretary of a committee, chaired by Lord Burns, to carry out an inquiry into hunting with dogs. The committee reported on 9 June 2000. My attention was drawn in particular to Chapter 6 of the report, which relates to animal welfare. The committee stated that the three main aspects of foxhunting which gave rise to concern on welfare grounds are the chase, the "kill" by the hounds above ground, and digging-out/terrierwork. They said that there is a lack of scientific evidence about the welfare implications of hunting, which needed to be compared with those which arise from other models such as shooting and snaring. At paragraph 6.49 they stated:

[45] My attention was also drawn to passages in speeches delivered by Lord Burns and by Lord Soulsby, a member of the Burns Committee, in a debate in the House of Lords on 12 March 2001, when Lord Burns said that, in the passage I have quoted, the Committee were not implying that hunting is cruel, because there were not sufficient verifiable evidence or data safely to reach views about cruelty, and Lord Soulsby said that the report did not imply that the whole of the procedure of chasing an animal with hounds was cruel, and that a compromise of animal welfare was found only in the terminal stages of the hunt.

[46] Counsel for the petitioners also referred to a Veterinary Opinion on Hunting with Hounds by L H Thomas and W R Allen, published on the Internet in July 2001 and supported at that time by 294 members of the Royal College of Veterinary Surgeons (a number, which I was told, had grown to 400 by the date of the hearing). In the conclusion, the authors submitted that hunting by hounds is the most natural and humane way of controlling the population of fox, deer, hare and mink in the countryside. "Humane, since at all times the wild animal remains in its natural environment and the relatively short period of physiological stress that may be suffered in the final phase of the hunt, followed by the almost instantaneous kill is not only acceptable but is the preferred method of culling a wild animal."

[47] Mention was also made of Appendix 9 to the Burns Report in which there is discussion of hunting with dogs and its regulatory background in various countries. There is no need to go into this in any detail, beyond observing that in only a few countries is mounted foxhunting with dogs practised, there are more countries where hunting on foot with dogs is practised, and European countries where it is not practised or is largely banned include Spain, Belgium, Germany, Sweden, Denmark, Finland and Norway. So there is no uniformity of approach among European countries.

[48] The proceedings of the Scottish Parliament are, by section 22(1) of the Scotland Act, regulated by standing orders, which by section 36(1) include provision for three stages. In the first stage, there is general debate on a Bill with an opportunity for members to vote on its general principles, the second stage is for the consideration of, and an opportunity for members to vote on, the details of a Bill, and the final stage is that at which a Bill can be passed or rejected. Lord Watson first announced his intention of sponsoring the Wild Mammals Bill in July 1999, and introduced it into the Parliament on 1 March 2000 as a member's Bill. Throughout the proceedings the Scottish Executive was neutral on the question whether the Bill should be enacted. The long title of the Bill was the same as that of the Act. The Rural Affairs Committee (later called the Rural Development Committee) of the Parliament ("the Committee) was assigned as the lead Committee. It was charged with preparing a report to the Parliament on the general principles of the Bill and whether they should be agreed to. The Committee began to consider the Bill in April 2000. It sought evidence from twenty organisations, including the Countryside Alliance. It received detailed comments on the Bill from most of these organisations, and also a submission from the MFHA. It received about 4,600 letters about the Bill. It took oral evidence from a number of organisations, including the Countryside Alliance and the MFHA. All of this evidence and correspondence was made available to members of the Parliament at all stages of the Bill.

[49] On 12 July 2001 the Committee published its Stage 1 report. Mounted hunts were discussed at paragraphs 45-66 of the report, the primary sources of information being the Countryside Alliance and the MFHA. At paragraph 61 the Committee stated:

In paragraph 62, the Committee stated that "the spectator, or sporting element of mounted hunting relates to the chase, and not the kill, which few people actually witness." On the basis that the chase might be protracted to ensure good sport, the Committee reflected that foxes probably do suffer stress when chased by mounted hunts. At paragraph 63 they stated:

After discussing the treatment of foxes who have gone to ground, the Committee went on at paragraphs 65 and 66 to state:

[50] The evidence before the Committee allowed it to reach certain conclusions based on statistics. The ten mounted hunts in Scotland kill altogether an average of 543 foxes a year, while hill packs kill about 850, about 12,600 are shot, about 3,240 are snared and about 2,160 are killed by terrier work (paragraph 16). In comparing the efficiency of the mounted hunts with that of the hill packs (which carry out fox control outwith the Borders and other lowland areas), the Committee stated, at paragraph 86:

The Committee's conclusions and recommendation were contained in paragraphs 98 to 102. In the last two of these paragraphs, the Committee stated:

[51] Notwithstanding this recommendation, following the Stage 1 debate on 19 September 2001 the Scottish Parliament agreed to the general principles of the Bill. The Committee was charged with the detailed consideration of the Bill at Stage 2. Thereafter the Committee considered and, in some cases, accepted amendments to the Bill. During this stage, the Committee received written submissions from a number of individuals and organisations, including the Countryside Alliance. On 30 October 2001 it decided to hear oral evidence from three organisations (the Scottish Gamekeepers Association, the Scottish Hill Packs Association and the National Working Terrier Federation). As I understand it, this was in connection with the drafting of exceptions to the general prohibition in what was then Clause 1. The Bill completed Stage 2 on 4 December 2001. It completed Stage 3 on 13 February 2002. At all stages in the Bill's progress through the Parliament the votes in the Parliament were free votes. The papers before me include reports of the entire proceedings in the Parliament, which show that there was extensive discussion of the Bill by the members of the Parliament, who expressed a wide range of opinions.

[52] As I have said, in addition to their case under the Convention, the petitioners bring their case on the common law grounds of procedural impropriety and unreasonableness, which, they aver, render the Protection of Wild Mammals Act ultra vires the Scottish Parliament. I propose at this stage to consider the competency of the common law case.

[53] There are familiar grounds upon which an application for judicial review may be brought at common law. In CCSU v Minister for Civil Service [1985] 1 A.C. 374, in a well-known passage at pps.410-411, Lord Diplock classified under three heads the grounds upon which administrative action is subject to control by judicial review. He called these illegality, irrationality and procedural impropriety. He said that by "illegality" as a ground of judicial review he meant that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. By "irrationality" he meant what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. By "procedural impropriety" he meant not only basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision, but also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such a failure does not involve any denial of natural justice. This passage is of course by no means the last word on the scope of judicial review, which will no doubt be re-examined in light of the Human Rights Act: see, for example, certain remarks in R (Daly) v Secretary of State for the Home Department [2001] U.K. (H.L.) 26. Irrationality and procedural propriety are accordingly two of the recognised grounds for judicial review. The question, however, is whether judicial review on such grounds is competent in the present case, having regard to the provisions of the Scotland Act.

[54] The petitioners submit that this court ought to reduce the Protection of Wild Mammals Act on grounds which may be summarised as follows: the Act is not a bona fide or reasonable exercise of limited legislative powers; it is unnecessary for the good government of Scotland; it is partial and unequal in its operation; it involves oppressive or gratuitous interference with rights; it will have damaging and disproportionate economic and social effects; it is based on incompletely informed views as to the moral desirability or appropriateness of criminalising certain types of conduct; proceedings on the Bill were vitiated by procedural impropriety, especially owing to reformulation of its scope at Stage 2; and the Scottish Parliament failed to take account of limitations on its legislative powers. They aver that the legislative powers of Parliament are limited because it can only enact legislation that is reasonable and necessary for the legitimate aims of good government in Scotland.

[55] Counsel for the Lord Advocate submitted that the identification of the limits placed by the United Kingdom Parliament on the Scottish Parliament by the Parliament Act is a matter of construction of the Act. In Whaley v Lord Watson 2000 S.C. 340 the Lord President at p.348 (in a passage more fully quoted by me in paragraph [19]) said that the Parliament has been created by statute and derives its powers from statue. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. Counsel submitted that, as a matter of construction of the Scotland Act, section 29 defines the scope for judicial interference on the ground that an Act of the Scottish Parliament is outside its legislative competence. Parliament did not envisage any other grounds of review. This is reinforced by sections 101 and 102. It could not have been the intention that persons in the position of the petitioners could avoid this by invoking the common law grounds of judicial review, which are accordingly excluded by the Act.

[56] Counsel next submitted that the Parliament has become a general legislative body. The provisions referred to by Lord Hope in A v The Scottish Ministers 2002 S.C. (P.C. ) 63 at p.67 are an important part of the balance struck in the Scotland Act between the Parliament and the courts. It would be surprising if this could be overthrown otherwise than on the grounds articulated in section 29. Schedule 6 does not anticipate that there will be challenges on any grounds other than can be raised in devolution issues. Section 28 confers on the Parliament the power to make laws, which have all the characteristics of public general statutes. By section 28(5) a challenge on the ground of procedural impropriety is expressly excluded. This reflects, counsel submitted, what was said about the United Kingdom Parliament by Lord Morris in British Railways Board v Pickin [1974] A.C. 765 at p.790:

Counsel submitted that the Scottish Parliament is in the same position as the United Kingdom Parliament, because it is expected that, except that in reserved matters, the Scottish Parliament will be the legislature which enacts public general statutes.

[57] Counsel went on to submit that this is not a challenge to the actings of the Scottish Parliament as an institution, but to an Act of the Scottish Parliament, which is an instrument passed by Parliament and has also received the Royal Assent. It has thereby become an act of the State. An Act of the Scottish Parliament, like an Act of the United Kingdom Parliament, is subject to the United Kingdom's obligations under Community law and the Convention, and this is reflected in the Scotland Act. It would be astonishing if a public general statute made by the Scottish Parliament could be challenged on the grounds of irrationality with no provision to that effect in the Scotland Act. There is no provision in the Act that the Parliament can only enact legislation that is reasonable and necessary for the legitimate aims of good government in Scotland. In East Kilbride District Council v Secretary of State for Scotland 1995 S.L.T. 1238 Lord Penrose held inter alia that, although the court had jurisdiction to review the making of a statutory instrument which had become final upon the expiry of the statutory time limits for a negative resolution in Parliament, according to the Scottish authorities such a statutory instrument could only be held to be ultra vires on the grounds that it had not been authorised by the enabling statute or that the procedure required by the statute had not been followed: and while subsequent English authority was in favour of challenges on the additional grounds of bad faith, improper motive or manifest absurdity, the first two of these arose only rarely and the third could be satisfied only in the most extreme and extraordinary circumstances, so that it could not be said that the Scottish authorities had omitted anything of practical importance. Counsel submitted that, a fortiori, an Act of the Scottish Parliament is not reviewable on these grounds. The Scottish Parliament is not exercising powers delegated on a specific basis, as is usual when subordinate legislation in the form of a statutory instrument is made, but has a general law-making power subject to certain reservations and other limitations. Sections 28, 29, 100, 101 and 102 and schedule 6 form a very specific code, unique to Acts of the Scottish Parliament. Such safeguards as are required are provided by reference to the Convention, which prevents the Parliament from acting in an arbitrary or perverse manner, contrary to human rights.

[58] In reply to these submissions, counsel for the petitioners took as their starting point the passages from the opinions of the Lord President and Lord Prosser in Whaley v Lord Watson which I have previously quoted. This court, they submitted, has jurisdiction over the Scottish Parliament, just as it would have over any other body created by law. Counsel went on to submit that the ordinary rule of construction is that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words: Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] A.C. 260 per Viscount Simonds at p.286. The legislation of the Scottish Parliament is subordinate legislation: it is defined as such by section 21(1) of the Human Rights Act. It is in principle subject to judicial review by the courts, as is any subordinate legislation. Although there might be a degree of deference accorded to the decisions of such a body, this does not affect the principle.

[59] Counsel went on to refer to three cases. In Kruse v Johnson [1898] 2 Q.B. 91 a specially constituted court held that in determining the validity of by-laws made by public representative bodies, such as county councils, the court ought to be slow to hold that a by-law is void for unreasonableness. A by-law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes, or unjust, or made in bad faith, or clearly involves an unjustifiable interference with the liberty of those subject to it. At p.98 Lord Russell C.J. said that, notwithstanding that the procedure for making a by-law provided safeguards, including the possibility of its being disallowed by the Queen, with the advice of her Privy Council,

This approach was accepted in Scotland, in Aldred v Miller 1925 J.C. 21. Reference was also made to R. v Immigration Appeal Tribunal, ex parte Manshoora Begum [1986] Imm A.R. 385 per Simon Brown J. at pps.393-394. Counsel submitted that these authorities show that, although the court might be slow to interfere with subordinate legislation, it nevertheless has jurisdiction to do so.

[60] Counsel went on to submit that it is implicit in a statute which delegates power that the power is to be exercised not only within its bounds but reasonably. The decision of Lord Penrose in East Kilbride District Council v Secretary of State for Scotland is not inconsistent with this, given that Lord Penrose was not considering the question of reasonableness in that case. Counsel accepted that section 28(5) of the Scotland Act excludes scrutiny of what is done in the Scottish Parliament on procedural grounds, but the petitioners rely, they explained, on the concept of procedural impropriety to demonstrate that the Parliament did not identify any legitimate aim for the Protection of Wild Mammals Act and did not act rationally; the fundamental complaint was with the substance, not the procedure. The reformulation of the Bill at Stage 2 led the Parliament into irrationality. The protection of section 28(5) is only available to a valid Act of the Scottish Parliament: if the Act is not law because it is outside legislative competence, then section 28(5) does not apply.

[61] Counsel submitted, finally, that sections 29(2), 101, 102 and Schedule 6 do not expressly exclude the jurisdiction of the courts on traditional common law grounds. If the submissions for the Lord Advocate were correct, section 54 would have the effect of excluding such grounds even in relation to subordinate legislation within the meaning of that section, i.e. statutory instruments made by the Scottish Ministers.

[62] In my opinion the question whether the jurisdiction of this court to review Acts of the Scottish Parliament on traditional common law grounds is excluded must be decided on a proper construction of the Scotland Act as a whole. Obviously, as was held in Whaley v Lord Watson, and was not disputed before me, the jurisdiction of this court over the Parliament is not excluded by the Act, and to that extent the Parliament is not sovereign. But, despite the reference in the Human Rights Act to Acts of the Scottish Parliament being subordinate legislation, such Acts have in my opinion far more in common with public general statutes of the United Kingdom Parliament than with subordinate legislation as it is more commonly understood. Indeed, the definition of "subordinate legislation" in the Scotland Act makes this distinction clear. The Parliament is a democratically-elected representative body. It has under section 28(1) a general law-making power, except in relation to reserved matters and the other matters specified in section 29(2). In consequence of this, it can not only pass its own Acts, it can amend or repeal, in their application to Scotland, pre-devolution acts of the United Kingdom Parliament. An Act of the Scottish Parliament, once passed, requires Royal Assent to become law. It is of a character which has far more in common with a public general statute than with subordinate legislation, though it might be preferable to regard it as being sui generis.

[63] What appears to me to be of significance is that the Scotland Act is clearly intended to provide a comprehensive scheme, not only for the Parliament itself, but also for the relationship between the courts and the Parliament. I agree with the submission for the Lord Advocate that sections 28, 29, 100, 101, 102 and Schedule 6 are definitive of the extent of the court's jurisdiction and of the procedure to be followed when a devolution issue is raised. It necessarily follows that traditional common law grounds of judicial review are excluded, and that there is no room for the implication of common law concepts in considering the legislative competence of the Parliament. This means that it is not open to this court to find that an Act of the Scottish Parliament (or a provision of it) is not law, unless it is outside the legislative competence of the Parliament in one of the respects provided by section 29, that is to say, for present purposes, incompatibility with Convention rights. When I asked counsel what the common law would add to the statute (provision for the concept of illegality being provided by section 29, and procedural impropriety as a ground of judicial review being excluded by section 28(5)), counsel said that it would extend title and interest to sue to persons other than "victims" within the meaning of section 100(1). It seems to me that the intention of the United Kingdom Parliament was to exclude interference by busybodies (counsel's expression), and to confine the challenge to an Act of the Scottish Parliament (or a provision of it) to such persons as can claim the necessary title and interest as "victims". Section 54 may be construed consistently with this approach. It would not be appropriate for me to express a concluded view as to whether the effect of section 54 is to exclude traditional grounds of judicial review in relation to subordinate legislation within the meaning of that section, but it may be that the intention is indeed to confine the challenge to subordinate legislation to the grounds set out in section 29, and thus, so far as Convention grounds are concerned, to those who can claim "victim" status.

[64] In my opinion, therefore, the petition is incompetent in so far as it proceeds on traditional common law grounds.

[65] Given my decision that the challenge to the Protection of Wild Mammals Act as being outside the legislative competence of the Parliament is confined to that part of the petitioners' case which alleges that the Act is incompatible with Convention rights, it appears to me to be appropriate to take as my next topic the question which of the petitioners has title and interest to bring the present proceedings. The starting point is section 100(1) of the Scotland Act, which enables only those persons who could claim to be victims for the purposes of Article 34 of the Convention to bring proceedings on the ground that an act is incompatible with the Convention rights. No difficulty accordingly arises in respect of the four individual petitioners, whose claims to be victims of violations of their Convention rights I discuss under the appropriate headings. Problems arise, however, in relation to the Fife Hunt, the Buccleuch Hunt Supporters Club, the Jedforest Hunt, the Countryside Alliance and the MFHA. Each of these is an unincorporated (or voluntary) association, which does not in law have an existence distinct from that of its members. It is for this reason that an unincorporated association cannot at common law sue or be sued in its collective name alone; the names either of all the members, or of responsible members such as office bearers, must be added: Renton Football Club v McDowall (1891) 18 R. 670; Pagan & Osborne v Haig 1910 S.C. 341 (a case relating to the Fife Fox Hounds). It is for this reason that the instance of the present petition was amended at an early stage to add the names of appropriate office bearers. But this does not dispose of the question of title and interest to sue. As Lord McLaren said in Renton Football Club v McDowall at p.674, every assemblage of persons who may conceive that their collective rights have been invaded must be entitled to redress by taking proper means for having their case judicially considered. But "collective interest" is not the same as the individual interests of each of the members, even if those interests are identical.

[66] The only Scottish case on title and interest to sue in an application for judicial review to which reference was made in the course of the hearing is Scottish Old People's Welfare Council, Petitioners 1987 S.L.T. 179. At p.185 Lord Clyde considered the question of the title and interest of the petitioners, a voluntary association whose members included a very considerable number of individual members of the public, local clubs and other unincorporated associations. He said:

In the special context of an actio popularis, he said, a representation of the public by one or more members of the public is recognised. So in an actio popularis a voluntary association might act in a representative capacity. In the circumstances of the case, however, Lord Clyde held that the interest of the petitioners was too remote to give them a right to challenge the validity of the circular in question. The circular related to statutory benefits in the form of extra payments for severe weather conditions. Among the reasons for holding that the necessary interest had not been averred, Lord Clyde noted that there was no averment that the association or any of its members had claimed the benefit in question, or were intending to do so.

[67] In addressing me on this matter counsel for the petitioners accepted that it is not competent to make an abstract challenge to legislation on grounds relating to human rights, because of the requirement that the petitioner should claim to be a victim. Accordingly, they accepted that there is no scope for an actio popularis in proceedings of this kind. For that reason, there was no dispute about the submission by counsel for the Lord Advocate that the function of this court is to address the question whether, having regard to the effect that the legislation would have on each of the petitioners considered in turn, it could be said that any of their Convention rights have been infringed.

[68] Counsel for the Lord Advocate referred to a number of decisions of the European Court of Human Rights. In Klass v Germany (1978) 2 E.H.R.R. 214 the court said at paragraph 33:

The court went on to discuss circumstances in which it could be said that a law might by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In Young, James and Webster v United Kingdom (1981) 3 E.H.R.R 20 at paragraph 53 the court emphasised that, in proceedings originating in an individual application, it has, without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it. It accordingly limited its examination of the closed shop system complained of by the applicants to the effect of that system on them. In Krone-Verlag GmbH v Austria, application number 31564/96, admissibility decision of 7 March 2000, the court, in paragraph 2, said that by the term "victim", Article 34 of the Convention means the person directly affected by the act or omission which is in issue. Article 34 of the Convention may not be used to found an action in the nature of an actio popularis. Reference was also made to Dudgeon v United Kingdom (1981) 4 EHRR 149 and ADDB v Netherlands, application number 37328/97, admissibility decision of 31 August 1999.

[69] On the basis of these authorities, counsel submitted that a person can only claim to be a victim for present purposes if the Protection of Wild Mammals Act has a direct effect on him individually. In so far as the petition contains averments about the impact of the Act which are not directed to the effect on the petitioners' enjoyment of their Convention rights, counsel submitted that these averments are irrelevant and should be excluded from probation. So far as unincorporated associations are concerned, counsel referred to two further cases. In Norris v Ireland (1989) 13 EHRR 186 the applicant claimed that Irish legislation penalising certain homosexual acts in private between consenting male adults violated his right to respect for his private life under Article 8. He also made other claims, which the Commission held to be inadmissible. The National Gay Federation, an unincorporated association, joined with the applicant in the application, but the Commission declared its entire complaints to be inadmissible, because the Federation as such was not directly affected by the impugned legislation and, consequently, might not claim to be a victim of the alleged violation of the Convention within the meaning of Article 25 (now Article 34): see decision of 16 May 1985 on the admissibility of application number 10581/83. In Purcell v Ireland (1991) 70 D.R. 262 the applicants were a number of individuals and two unions who complained that a ministerial order made under legislation relating to broadcasting infringed their rights under Article 10 of the Convention. The Commission rejected the application in so far as brought by the two trade unions, saying at p.273 that the measure complained of did not affect the rights of the applicant unions themselves: the ministerial order did not refer to the exercise of any of their rights. The fact alone that the trade unions considered themselves as guardians of the collective interests of their members did not suffice to make them victims within the meaning of Article 25. It followed that in so far as the application was brought by the two trade unions, it was incompatible ratione personae with the provisions of the Convention and must be rejected. Counsel submitted on the basis of these authorities that unincorporated associations may have title and interest to sue only if their own Convention rights have been infringed: they are not entitled to complain about the alleged violation of their members' rights.

[70] In a related submission on interest to sue, counsel said that the interest of the petitioners, either separately or together, is the prohibition by the Protection of Wild Mammals Act of mounted foxhunting with dogs, as it has been practised by the Hunts. The issue before the court is therefore, they submitted, whether that prohibition infringes any of the petitioners' Convention rights. The question whether the prohibition of that or any other activity affects somebody else's Convention rights does not arise.

[71] Counsel for the petitioners responded to these submissions by emphasising that their complaint is that the legislation has the effect of criminalising their way of life: the risk of being prosecuted and convicted if they continue to engage in it. This way of life is, they submitted, built around the unique activity of mounted foxhunting with dogs, which goes wider and deeper than a leisure pursuit. Article 34 allows a claim to be made by a non-governmental organisation or group of individuals. An association should not be excluded from bringing an application if a significant part of their membership includes persons who would be directly affected by the act complained of. There are compelling reasons of policy why in appropriate cases pressure groups should not be discouraged. In the present case, the associations are duly authorised to sue by their membership.

[72] Counsel for the petitioners sought to rely on Scottish Old People's Welfare Council, Petitioners, supra, and to distinguish the cases founded upon by counsel for the Lord Advocate. They submitted that every person who engages in the prohibited activity will be at risk of prosecution, so that each individual member of the unincorporated associations has rights that are infringed. The two Hunts are made up of people who hunt, and the Supporters Club is made up of people who support hunting. If hunting becomes illegal, the Hunts will cease to exist and there will be no Hunts for the Supporters Club to support. The legislation is accordingly directed at the very thing that the associations do and is their raison d'être. Counsel submitted that it is not clear from Norris v Ireland why the application by the National Gay Federation (assuming it to be an incorporated association) was not admitted. In Klass v Germany, the test of being directly affected favours the petitioners. Unlike the position in Purcell v Ireland, the legislation is directed at the very activity that the petitioners have in common. Counsel also mentioned Open Door Counselling Ltd and Dublin Well Woman Centre Ltd v Ireland (1992) 14 EHRR 131, (1992) 15 EHRR 244, in which the Commission, at 14 EHRR 131, paragraph 64, concluded that there had been no violation of Article 8 in respect of the first applicant company, whose claim was a general one concerning the rights of its clients. This, counsel submitted, could be distinguished because the company was a separate legal person, unlike an unincorporated association.

[73] It is in my opinion clear from section 100(1) of the Scotland Act that the question of the petitioners' title and interest must be tested by reference to the decisions of the European Court of Human Rights as to those persons who would be regarded as victims, persons who are directly affected by the acts of which they complain. I was not addressed on the meaning of "non-governmental organisation" in Article 34, or on the question whether, when an application to the court is made by a group of individuals, they must do so in their individual names or whether they may use a group name (like "Scottish Old People's Welfare Council"). I was referred to no instance, however, where a complaint to the European Court of Human Rights by an organisation, whether or not incorporated, has been held to be admissible except where its interests as such are said to be directly affected. As I shall discuss in due course, Article 8 of and Article 1 of the First Protocol to the Convention are said to be engaged because the Protection of Wild Mammals Act prohibits the activity of mounted foxhunting with dogs and controls the associated use of land and of dogs. It may be the case that all the members of each of the Fife Hunt and the Jedforest Hunt are directly affected by the legislation in that they will be prohibited from continuing an activity in which they have hitherto engaged. The European Court might admit applications by each of these groups under these names, provided it was satisfied of the necessary direct effect on all the members so that it could be said that the Hunts as such are affected: but I say this with hesitation, because the case law to which I was referred points in the opposite direction, and the recognised practice, where a fairly large number of people are said to be directly affected by the act complained of, is to admit an application by a number of individuals who may among them be regarded as typical of the rest. But if there are members of either of the Hunts who cannot claim to be directly affected, because they support hunting rather than engaging in the activity themselves, then the matter becomes a great deal more difficult. If, as is accepted, an unincorporated association is no more than the aggregate of its individual members, this would mean that the use of the association name would in effect bring in as petitioners persons who could not individually claim to be directly affected and thus to be victims. At the very least, it appears to me that amendment of the petition would be required in order to make it clear whether or not all the members of each Hunt are directly affected, so that they could be regarded as victims. At present I am not satisfied that it has been relevantly averred that these two Hunts have the necessary title and interest to bring these proceedings. On the face of it, however, their authorised office bearers have, as individuals, the necessary title and interest. Because there may be scope for amendment, I do not think it appropriate to reach a concluded view about the title and interest of these Hunts at this stage.

[74] A complicating factor in relation to the Hunts is the ownership of their packs of hounds. I raised during the course of the hearing the question whether Hunt property, such as hounds, is held by trustees. I do not recall having been given a clear answer to this, but I find that the rules of the MFHA provide by paragraph 32 that a pack of foxhounds which belongs to a country (the area over which a Hunt hunts) should be vested in the name of the trustees (of each recognised Hunt) by a deed. No deeds relating to the Fife Hunt and the Jedforest Hunt have been produced, but it appears from one provision of the Minute of Agreement relating to the employment of Mr Adams by the Committee of the Buccleuch Hunt that this Hunt's pack is held by trustees, and I think it likely that there are similar arrangements for the Fife Hunt and the Jedforest Hunt. Thought could no doubt be given to possible amendment in respect of this matter also.

[75] The Buccleuch Hunt Supporters Club appear to me to be in a different position. They are said to be engaged in supporting the activity of traditional mounted hunting. It is not said that any of their members engage in this activity themselves. It may be that some of them engage in hunting, at least in the sense of being hunt followers, but this is not averred. In any event, I do not believe that the European Court would admit a claim by an association some only of whose members could claim to be victims in the sense of being directly affected by the legislation.

[76] I was told little about the Countryside Alliance. Clearly their objects, which I have previously quoted, would make membership