“Shock collar” consultation was flawed …but legal
Last week, the High Court released a judgment in the fascinating case of ECMA & Petsafe v Secretary of State for the Environment, Food and Rural Affairs (DEFRA).
Claimants were manufacturers of electronic collars for dogs and cats – hugely controversial and a target for Animal Welfare activists over many years. Wales has banned them and Scotland is in the process. In England, DEFRA’s long-standing position had been that there was insufficient evidence to justify outlawing the practice, but in February 2018, the Secretary of State, Michael Gove changed the policy and ordered a consultation on a proposed ban.
The document was effectively only three pages long; the consultation lasted only 6½ weeks and failed to explain alternative options such as regulation. There was also confusion between the use of the technology for dog training and for containment within specific boundaries.
The day before the consultation closing date, the Minister spoke about it in Parliament. It was a beautifully choreographed moment. A loyalist Government ex-Minister quoting TS Elliot and hoping that Gove would see his way to exempt ‘containment’ applications and help thousands of cat owners who put protective collars and fencing in place “to stop their much-loved pets joining the hundreds of thousands that are killed by cars on our roads each year.”
Sure enough, Gove obliged, and the following day, the Times leaked that the Government’s decision would be to ban e-collars but not ‘invisible fencing systems.’ Four months later, after an analysis of 7,000 consultation responses, such a decision was formally announced. It was this decision that was legally challenged.
There is much to occupy lawyers in this lengthy judgment, for it goes some way to try to disentangle the problematic consequence of the 2014 Supreme Court decision in the famous Moseley v Haringey case. We look forward to dissecting it in the forthcoming Law of Consultation Masterclass. At one point the Judge admits that ‘…there are aspects of the Secretary of State’s approach …which are justifiably open to criticism’ but he concludes that the mistakes did not, in the end, reach the oft-repeated definition per the 2007 Greenpeace case of a consultation having gone ‘clearly and radically wrong’.
For those of us giving advice and helping Institute members, there are some valuable take-aways from this case. As so often before, the subject-matter is incidental to the learning-points. It is not really about animal welfare – it is about the practicalities of policy-making and the common law requirement for fairness in that process. From DEFRA’s ill-chosen promotional tweets to the comparisons with parallel consultations in Scotland and Wales, this is one of those cases which will provide a bone to chew on for many years.