Law Report: Ethics not a basis for local authority to ban hunting: Regina v Somerset County Council, ex parte Fewings and others. Queen's Bench Division (Mr Justice Laws), 9 February 1994

A local authority, acting under section 120(1)(b) of the Local Government Act 1972, cannot have regard to moral considerations when deciding whether to ban stag hunting on its land, but has to make an objective judgment about the proper management of the land, including the best means of managing the deer herd.

Mr Justice Laws quashed the council's decision to ban the hunting of deer with hounds on council-owned land at Over Stowey Customs Common.

The Quantock Staghounds had regularly hunted red deer over the land which the council had acquired under the Local Government Act 1972. The council, by 26 votes to 22, passed the ban because councillors were deeply opposed to hunting on ethical grounds.

Their attention was not drawn to the source of their statutory power to impose the ban on hunting, section 120(1) of the Local Government Act 1972, which provides that the council may acquire land 'for the purposes of . . . (b) the benefit, improvement or development of their area'. The applicants, representing the Quantock Staghounds, questioned the legality of the council's ban.

Robert Carnwath QC and David Hogate (Cripps Harries Hall, Tunbridge Wells) for the applicants; Michael Supperstone QC and Philip Sales (County Solicitor) for the council.

MR JUSTICE LAWS said that the true construction of section 120 was of critical importance. In deciding whether a local authority had exceeded its powers the court might examine the motives underlying its actions.

In the context of local government, a public body might only act in fulfilment of the duty cast on it by statute, and had no possession of legal rights akin to those of a private person.

The primary question therefore was whether the councillors' moral objections to the practice of hunting were capable of justifying the prohibition as a measure which conduced to 'the benefit, improvement or development of their area'.

There might be circumstances in which a prohibition on hunting could be said to promote such a statutory purpose as was contained in section 120, but the prohibition would objectively relate to the preservation or betterment of the area's amenities and would not spring from or be fuelled by the ethical perceptions of the councillors about the rights and wrongs of hunting.

Further, it was possible to construct instances in which, in the exercise of statutory power by a local authority, moralistic considerations would rightly be regarded as relevant.

But in such cases the moral element in the decision was itself part and parcel of the purposes for which the power in question was conferred.

It was plain the councillors' decision was not taken on the basis that the ban would conduct to the herd's better management. It was taken because those in favour of the ban thought hunting to be morally repulsive. There was no other basis for the decision.

The true question, therefore, was whether the council was entitled to reach a decision based on a moral position whose rationale had nothing to do with issues of management at all.

There was nothing in the submission that Parliament intended to bestow a greater power on a elected local authority than it might have given to an unelected body. The words 'the benefit, improvement or development of their area' were not wide enough to permit the council to take a decision about activities carried out on its land which was based on free-standing moral perceptions as opposed to an objective judgment about what would conduce to the better management of the estate.

Section 120(1)(b) was not within the class of provisions which required the decision-maker to have regard to moral considerations as such. A prohibition on hunting could only be justified if the council reasonably concluded that the prohibition was objectively necessary as the best means of managing the deer herd, or was otherwise required on objective grounds for the preservation or enhancement of the amenity of its area. The view that hunting was morally repulsive had othing whatever to do with such questions.

Section 120(1)(b) conferred no entitlement on a local authority to impose its opinions about the morals of hunting on the neighbourhood.

If Parliament intended to confer power on a subordinate body to regulate the morals of other people, it would choose words which made it plain beyond peradventure that there was the purpose of the provision.

Whether hunting should be banned or limited seemed to be pre-eminently a matter for the national legislature.