The Electric Collar Manufacturers Association v The Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin)

R (The Electronic Collar Manufacturers Association and Petsafe Limited) v The Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2813 (Admin), in the High Court, concerned a challenge to the decision of the Secretary of State dated 27 August 2018 to ban the use of hand-held remote-controlled electronic collars (“e-collars”) for cats and dogs in England, in which Mr Justice Morris dismissed the claim.

The first claimant, the Electronic Collar Manufacturers Association, was an unincorporated trade association representing manufacturers and suppliers of e-collars in the UK. The second claimant, Petsafe Limited, was a manufacturer and supplier of e-collars based in Chorley. The claimants contended that the decision followed a materially flawed and unlawful consultation process and was substantively irrational and disproportionate. They advanced as an alternative to an outright ban the regulation (rather than prohibition) of the use of e-collars. The Secretary of State’s case was that the challenge was to the merits of a high-level policy decision that followed a lawful consultation exercise in which more than 7000 responses were made, responses that were carefully considered before a decision was taken by the Secretary of State based on promotion of animal welfare.

E-collars are remote-controlled devices operated by an owner or handler by which an electronic pulse (varying in strength) or noxious spray is triggered when applied to a dog, used to stop unwanted behaviour such as chasing livestock. They are distinct from containment systems (which automatically trigger a pulse or spray when the animal approaches a boundary) and bark-control collars (activated automatically when the dog barks). Defra-funded research by the University of Lincoln published in 2013 (referred to as Lincoln 1 and Lincoln 2) had examined the welfare effects of e-collars. Lincoln 1 concluded that the use of e-collars was associated with behavioural and physiological responses consistent with negative emotional states in at least a proportion of dogs trained using the technique. Lincoln 2 focused on best practice and found that even when used by professional trainers in accordance with industry-recommended training protocols, there were behavioural differences consistent with more negative emotional states in some dogs trained with e-collars, and that there was no statistically significant difference in the efficacy of e-collar training protocols compared with reward-based programmes that did not use e-collars. A 2012 report by the Companion Animal Welfare Council concluded that there were sound animal welfare arguments both for and against the use of e-collars but that a substantial lack of relevant research meant that published studies did not allow general conclusions to be drawn on the impact of e-collars on long-term welfare when used appropriately.

From 2013 until early February 2018, Defra’s position was that the evidence provided by the Lincoln research was not sufficient to justify a ban but that the matter should be addressed by advice in the statutory Code of Practice for the Welfare of Dogs made under the Animal Welfare Act 2006. By a letter dated 5 February 2018 to a member of the public, Defra stated that before introducing a blanket ban the Government would need to be satisfied that such a ban was in the public interest and could be supported from an animal welfare point of view, but that the evidence from the Lincoln studies was not strong enough to support a ban under the 2006 Act. Shortly thereafter, between 21 and 27 February 2018, Ministers decided to consult on a proposal to ban the use of all e-collars. On 11 March 2018 Defra published a consultation document proposing to make it an offence to use an e-collar or to put one on a cat or dog or to be in charge of a cat or dog wearing one. The consultation document ran to five pages of substance. It described the types of devices, referred to the Defra-funded research published in 2014 (the Lincoln 2 report) as showing that e-collars could have a detrimental welfare effect on dogs and could cause harm and suffering, noted that many animal welfare organisations and veterinary groups were opposed to the use of e-collars, stated that Defra had concluded that the time was right to adopt a legal ban, and invited comments on all aspects of the proposals including the expected impacts. The consultation period ran for six and a half weeks, closing on 27 April 2018.

On 26 April 2018, the day before the close of the consultation period, the Secretary of State gave an answer to a Parliamentary question in which he stated that April would not be a month in which cruelty towards any living thing would be tolerated and that the Government wanted to introduce legislation to ensure that the use of shock collars as a means of restraining animals in a way that caused them pain was adequately dealt with, although he added that several submissions had been made to the consultation on containment fences and that he and others had made representations that were being reflected on carefully. The Times reported the following day that the Secretary of State was preparing to drop plans for a total ban on e-collars, allowing them to be used to prevent pets straying onto roads. Between May and July 2018, Defra held further meetings with interested parties including the RSPCA, the Kennel Club, the Countryside Alliance and the claimants. The claimants had submitted a detailed consultation response on 26 April 2018 comprising 36 pages of argument and 23 pages of annexed material, setting out their grounds for opposing the proposed ban and advocating instead a system of increased regulation, licensing or statutory controls on quality, pointing to regulatory models in other jurisdictions such as the Netherlands and the State of Victoria.

There were 7334 responses to the consultation, of which over 6000 were from members of the public. Overall, 64 per cent of respondents were opposed to a ban and 36 per cent were in favour. Many of those opposed considered it important that e-collars should be used properly in line with manufacturers’ instructions and that users should receive professional training. A small percentage of respondents wanted to see a regulatory scheme. Most of those against a ban questioned why the Government’s stance had changed given that no new major evidence to support a ban had emerged recently. Most of those in favour of a ban considered that the devices were by their nature cruel and that there were long-term negative effects from e-collars. Officials collated and analysed the responses over a period of four months and on 3 August 2018 put forward a Ministerial Submission enclosing a draft of the Government Response document. The Submission recommended a more proportionate approach, banning hand-held devices but, in respect of containment systems, updating statutory welfare codes to say that they should be installed and set up by professionals. The Submission set out four options: (1) ban on use of all e-collars; (2) ban the use of hand-held remote-controlled e-collars only; (3) do not ban the use of e-collars and just tighten the current wording in the statutory welfare codes; and (4) introduce a regulatory system for using e-collars. As regards option 2, the only “pro” for the ban on e-collars itself was that it was supported by findings of the Defra-funded Lincoln research which showed that such devices compromise the welfare of some dogs. The “cons” included that it removed a way of controlling dogs, including potentially being less able to prevent livestock attacks. As regards option 4, regulation, the Submission stated that this would require further development and could include licensing of e-collar providers and possibly requiring users to hold a licence, that it aimed to tackle the identified problem that some owners did not use e-collars correctly whilst providing for the continued use of e-collars to tackle wayward dogs, but that a new regulatory system might be burdensome and hard to apply and it would be unclear how a licensing regime would be enforced and operate in practice. The Submission stated that there was an animal welfare justification for banning hand-held remote-controlled e-collar training devices because there was sufficient evidence that these devices could generate avoidable pain and suffering especially when not used properly and that there were other, more positive, means of training pets. It also stated that there were ethical reasons to ban e-collars in the sense that it was wrong in principle to use pain or the threat of pain to steer behaviours, although a legislative ban under the 2006 Act would need to be based solely on animal welfare grounds. The Submission went on to say that if the Secretary of State decided to proceed with option 2, the Government would frame the decision as the Secretary of State had done when he was questioned in the House, demonstrating that the Government had listened carefully to stakeholders’ concerns on invisible fences but remained committed to banning the remote-control devices which could be abused.

On 27 August 2018 the Secretary of State announced his decision that e-collars were to be banned. The published Government Response, which comprised an analysis of consultees’ responses followed by a statement of the Government’s response and position, stated that the Government had decided that it would proceed towards a ban on the use of remote-controlled hand-held e-collar devices for dogs and cats in England but that invisible fencing containment systems would not be subject to the prohibition at that stage. The decision was based on the concern that hand-held remote-controlled devices could be all too easily open to abuse and could be harmful for animal welfare. In addition to information received as part of the consultation exercise, the Lincoln research published in 2014 showed that many users of the hand-held devices were not using them properly in compliance with the manufacturers’ instructions, leading to welfare problems for the dogs. In many cases alternative positive reward training could be used to encourage and to correct a dog’s behaviour.

The claimants advanced five grounds of challenge. Ground 1 contended that the consultation process was flawed and unlawful. Ground 2 alleged that the decision was vitiated by the appearance of pre-determination. Ground 3 contended that the decision was taken in breach of the duty of inquiry established in Secretary of State for Education and Science v Tameside MBC. Ground 4 alleged that the decision was irrational in that it was Wednesbury unreasonable. Ground 5 contended that the decision was disproportionate and breached the rights of the claimants under Article 1 of Protocol 1 of the European Convention on Human Rights and Article 34 of the Treaty on the Functioning of the European Union.

As regards Grounds 1 and 2, the court first addressed a preliminary issue concerning Parliamentary privilege under Article 9 of the Bill of Rights 1689. The claimants sought to rely on the Parliamentary Statement of 26 April 2018 to show that the consultation was not at a formative stage and that there was an appearance of pre-determination. The Office of the Speaker’s Counsel expressed the view that such reliance appeared to exceed the permissible bounds for the use of Parliamentary material since it relied on a statement made in Parliamentary proceedings as evidence of the position the Secretary of State had taken. The claimants submitted that they were not challenging or questioning what was said in Parliament but were challenging action of the executive taken outside Parliament, relying on Toussaint v Attorney General of Saint Vincent and the Grenadines, which held that evidence of what was said in Parliament is admissible to explain executive action taken outside Parliament even where the aim is to show conduct involving the improper exercise of power. The Secretary of State submitted that the claimants were seeking to rely on the Parliamentary Statement as evidence of what position the Secretary of State had taken and that the court would have to rule on the meaning and effect of what was said. Morris J held that if the meaning of the Parliamentary Statement was clear, reliance upon it for the purposes sought by the claimants would not fall within the scope of Parliamentary privilege, but if the meaning was not clear then reliance might fall within the privilege. The judge considered that the Parliamentary Statement was open to more than one interpretation. However, he concluded that it was not necessary to determine the difficult issues arising because the passage in the August Ministerial Submission referring back to the position stated in the Parliamentary Statement and suggesting that the Government “remains committed” to banning e-collars was admissible evidence not only that the Secretary of State was committed in August 2018 but also that he was committed in April 2018 at the time the Parliamentary Statement was made, a concession by the Secretary of State that that statement was admissible evidence of his position in April, albeit contending that it evidenced no more than a permissible pre-disposition towards a ban and not evidence of unlawful pre-determination.

Turning to Ground 1, Morris J set out the four requirements derived from R v North and East Devon Health Authority ex parte Coughlan: (1) consultation must be undertaken at a time when proposals are still at a formative stage (“Coughlan (1)”); (2) it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response (“Coughlan (2)”); (3) adequate time must be given for this purpose (“Coughlan (3)”); and (4) the product of consultation must be conscientiously taken into account when the ultimate decision is taken (“Coughlan (4)”). The duty of consultation is protean and highly fact-sensitive. Where the source of the duty is statutory, as here under section 12(6) of the 2006 Act, it is important to concentrate upon the particular statutory context and particular statutory purpose for which the consultation in question is carried out.

As regards Coughlan (1), the claimants contended that the Secretary of State had pre-determined the merits of the decision prior to consideration of, or even receipt of, consultation responses, rendering the consultation not at a formative stage. They relied upon the terms of the consultation document itself, the tweets, the Parliamentary Statement (as admissible by way of the Ministerial Submission) and the absence of consultation on alternative options. The Secretary of State submitted that it was entirely proper to consult on the basis of a preferred option, that the consultation document was framed sufficiently broadly to allow those who opposed the principle of the ban to make representations to that effect, and that there could not have been any failure to consult on the principle of a ban when the outcome of the consultation was a material change to the proposed policy (the exclusion of containment systems). Morris J held that the subject matter of the consultation required by section 12(6) was the proposed regulations and that the purpose of this consultation was to ensure procedural fairness for those who might be affected by the introduction of the regulations. The Secretary of State was entitled to have a pre-disposition in favour of his proposal to introduce a ban and to advance that preference in the consultation exercise. Whilst the consultation document could have been expressed more carefully, the judge was not satisfied that at any stage there was either any actual pre-determination or the appearance of pre-determination. The consultation document, considered as a whole, allowed opponents of a ban to make representations; the content of responses received (with large numbers opposing the ban) indicated that consultees understood they could make such representations; and the Secretary of State’s subsequent change of position in relation to containment systems demonstrated he did not have a closed mind. As regards Ground 2, Morris J held that, taking account of all of the circumstances, the fair-minded and informed observer would not consider that there was a real possibility that the Secretary of State had closed his mind to the merits of whether there should be a ban on e-collars. The Coughlan (1) requirement was satisfied and Ground 2 was not established.

As regards Coughlan (2), the claimants contended that the consultation document did not include sufficient reasons for the particular proposal to allow consult

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