The Badger Crowd is a support and fundraising coalition including Badger Groups and Trusts around the UK. Ecologist Tom Langton has fronted recent challenges with support from ‘The Badger Crowd’. The legal team is Richard Turney and Ben Fullbrook from Landmark Chambers, London & solicitor Lisa Foster and paralegal Hannah Norman of Richard Buxton Environmental and Public Law, Cambridge.
Dominic Woodfield of the ecological consultancy Bioscan UK is working extensively on aspects of the case is a national authority on ecological impact assessment and has provided expert witness evidence on ecological assessment including impacts on SSSI’s. Many other scientists, researchers and legal commentators assist in the background.
The Badger Crowd believes that legal challenges are an important fight, not just for the badger but also for the future of our countryside and the farming industry. The badger cull policy is failing farmers, tax payers and our precious wildlife and will make the bTB epidemic worse.
On 9th June 2020 the Supreme Court turned down a permission request to look again at the long term killing of English badgers by government subsidised cull companies. The application related to a ruling in 2018 on the lawfulness of the 2017 government policy to carry out ‘supplementary’ badger culling (SBC). This is the maintaining of badger culling for periods of five years at a time in places where badger numbers have already been reduced by 70% or more over four years. Recent scrutiny at the Supreme Court by Lords Kerr and Hamblen with Lady Arden in 2020 found that the application did not ‘raise a point of law worth considering at this time.’, thereby closing the matter.
In 2019, the Court of Appeal (CA) had upheld Judge Cranston’s 2018 High Court ruling that, in introducing SBC, the government had satisfied the purpose of Section 10. of the Protection of Badgers Act 1992, that otherwise protects badgers from needless persecution. Cranston had decided that “there was a logical and defensible rationale for the licensing of supplementary culling”. But what exactly was that rationale and what does the decision tell us?
In August 2018, Judge Cranston had found that the government’s approach was not unlawful due to “a policy of maintaining a reduced badger population through supplementary culling coupled with the commitment to change tack as evidence became available”. The decision was therefore conditional on the ongoing learning and adapting to results during the process. Seems reasonable.
The decision was controversial however, firstly because the consultation wording over SBC had been ‘unimpressive’ and had been wrong to say to the Minister and the general public that adopting SBC was ‘necessary’, when the approach was clearly both risky, ‘experimental’ and subject to published warnings that it might not help, might hinder and even make the spread of the disease worse.
What seemed to sway the ruling, as revealed to the court in disclosed email exchanges and meeting notes from Defra in 2016, was the fact that it had been conceived by civil servants and the then Chief Vet Nigel Gibbens and Chief Scientific Advisor (CSA) Ian Boyd. Their advice was based partly upon models and modelling, and court disclosures indicate that they didn’t think they or the modelers around them instilled confidence. The advice was to depart from tentative findings from the study sites of the main reference project (The RBCT 1998-2005) and to keep on culling rather than to stop in the manner that claimed (modelled) benefit in that study. Somewhat sinister importance and weight was given to shooting syndicates preferring to keep on badger culling. Also the non-consultation of wildlife and welfare charities as the plans were decided was noticeable.
The legal challenges were framed around the RBCT reference project by necessity, as challenging decision making has to be done within the context of the original science that Defra and the NFU chose to follow. This constraint does not allow doubt subsequent to the decision making to be brought to the court room.
In court, SSEFRA argued that the requirements of the PBA are met if the SSEFRA’s subjective intent was to reduce the spread of TB. However, the CA did not seem to wholly endorse this finding of Cranston. It re-framed the requirement to require the SSEFRA to reach a decision which was lawful on public law terms – i.e. a rational one. But the CA did also accept that a licence could be granted for the purposes of an experiment where the SSEFRA was advised that it was a logical approach to disease control.
In effect, Cranston’s ruling said the SBC approach was lawful. The Secretary of State is entitled to follow the advice of Government advisors (including departing from the published warnings of science), even when public consultation misinforms about the needs and necessities.
In this case, the decision found that any cessation of culling after a four year cull is expendable, but without evidence. The argument provided was informed by an unpublished ‘confidential’ report based upon adjusted, un-peer reviewed modelling, suggesting that after badger culling stops, bTB may return to previous levels over time.
On the face of it, it is possible to see how the judiciary might give the government the benefit of the doubt: difficult decisions and experts doing their best in an information void. Yet as with everything, hindsight is a wonderful thing. Because after the initial ruling, retiring SBC architect Ian Boyd made an important concession in relation to checking any direct measure of badger culling value, over the long term.
He suggested any learning (Cranston’s ‘change of tack’ as evidence became available) could only be the result of regional scale trends, once national depletion of badgers is achieved, at some point in the 2030’s. Some modelling once data from six cull areas over four years might or might not reflect direction of trend, but that there would never be direct or categoric evidence to go on. Even at the end. Whether bTB is eradicated or not you will never know the contribution from badger culling.
So what do we make of this? Cranston did not ask about timing and perhaps killing all the badgers for decades on the off chance seemed acceptable? Even when it might encourage the spread of disease, something that no one could detect? However the fact that in truth, there is a lack of any ability to ‘change tack’ is telling in the practical outcome of this case, which seems to be for badger culling to be accelerated.
All we can say is, in finding with the government, as is often the natural tendency of Judges, that in the vital area of disease control, trust was placed in the governments pleadings being full and honest. Government is allowed to take risks with badgers, outwith the confines of legislation controlling the normal boundaries and excesses of experimentation and scientific procedure.
This is a worrying position for wildlife protectors and disease professionals. Governments can take risks if their expert says it is worth trying. Even if they go wrong for decades. Unmeasurable risks it later appears, when outcomes are hard or impossible to monitor. The implications of Cranston’s ruling, albeit in hindsight, are as disturbing as they are dangerous.
Can anything more be done? Well, that is now being looked into. This is rough justice and a worrying and disappointing outcome for all of us seeking to defend badgers and to control cattle disease. Badgers can be killed in ways that might increase or decrease the spread of disease or that might actually have no effect at all. That is surely not what the legislation allows or common sense advises. This is not the end, but a new beginning, as the legal action exposes what is really going on behind closed doors.
The last ten days in the fight to protect badgers from culling in England have been tumultuous.
We have the hugely disappointing news that the Supreme Court will not examine the 2018 rulings by Judge Cranston and those of the Appeal court. In 2019, the Court of Appeal had previously upheld Judge Cranston’s 2018 ruling that the government had satisfied the purpose of the Protection of Badgers Act 1992 and that “there was a logical and defensible rationale for the licensing of supplementary culling”. Judge Cranston had found that the government’s approach was not unlawful due to “a policy of maintaining a reduced badger population through supplementary culling coupled with the commitment to change tack as evidence became available.”
However, in a final twist, information was received as the result of legal enquiries in 2019, showing that ‘changing tack as evidence becomes available’ is not something that can be done according to government advice, which suggests that it is not possible to determine directly, the extent to which any individual intervention (of which badger culling is one) has worked or not or made things worse. Equally, Defra’s strange approach to modelling falsely suggests sweeping success in the first two pilot cull areas. They have used this as a basis to justify new culling policy in 2020. Ridiculous if the implications were not so truly horrible. So the battle moves on to new ground as the excuses and dead badgers pile up. The legal fight opens a new chapter.
Further, a fresh legal claim against aspects of the 5th March 2020 policy guidance on badger culling has recently been lodged by Tom Langton, supported by The Badger Trust, against the Secretary of State for EFRA and with Natural England (NE) as an Interested Party. This follows the refusal of the request that Defra should follow the key Godfray Review report recommendation and tell NE not to issue new Supplementary Badger Culling (SBC) licences in 2020. Also to stop badger culling after four-year culls for a two-year period to enable more badger vaccination.
Raised concern also follows NE holding secret for two years a publicly funded report by the British Trust for Ornithology charity on aspects of potential ecological damage to Sites of Special Scientific Interest (SSSIs). This report was used by NE in 2018 and 2019; they now say it is obsolete. So what exactly are NE and British Trust for Ornithology (BTO) hiding? Ecological issues will also be pursued in the new claim.
The 2020 supplementary licences started on 1st June 2020 in seven cull areas where the four-year intensive culls have ended; in Cornwall (2), Devon (2), Dorset, Gloucestershire and Herefordshire. The Godfray report suggested a two-year no-cull period and then badger vaccination in half of them. Defra have now responded saying that they have rejected this Godfray recommendation, having consulted the NFU and cull companies. The May 2020 Defra consultation on culling and badger vaccination ending 26 June shows that prospects for badger vaccination are being heavily suppressed with reactive cull style culling being floated for the future. The Edge area of England is now fully at risk of culling for spurious reasons using evidence that the Derbyshire Wildlife Trust have recently shown is incompetent, something Defra seem to partly recognise..
It will not have escaped the attention of many that the new 5 March “Next Steps” policy not only rows back on the new government’s commitment, described in court recently by Sir James Eadie QC to ‘tilt’ bTB control away from culling and towards badger vaccination but has now come up with a half-baked options on methods for trapping and shooting badgers right up to the edge of vaccination areas. This is a betrayal of past commitments, an affront to those who work hard in the countryside for badgers, and it constrains and threatens the current and future prospects of the promised expansion of badger vaccination. The new legal challenge attacks not only the decision to reject specific Godfray report recommendations, but also Defra’s further highly selective use of modelled data since 2017, including data and maps that unfairly, only it controls. Such sickening misrepresentation of science has become a familiar pattern. Counter arguments have been made in Veterinary Record but have yet to receive a positive response or change of direction. There is no excuse for this animal abuse and events in recent months renew our determination to fight on, no matter how difficult during the Covid 19 crisis, for the sake of badgers and our diminishing wildlife.
A number of related cases were stayed on the back of the Supreme Court decision. These will now be reviewed and regular updates will be made. Please support with whatever you can to help reach the full target in the current Just Giving crowd fund, and to meet funding obligations. Other cases are being developed, so your help is much appreciated and a little from everyone can help make the difference. Thank you again for all your hard work and donations in support. We are The Badger Crowd. Standing up for Badgers. As and when a new appeal for a new case is launched, we will let you know and direct you to the crowd fund page.
A more detailed analysis of what we have learned from the Supreme Court’s refusal of permission to revisit Judge Cranston’s High Court ruling is given in a separate blog here.
British Debates over Bovine Tuberculosis and Badgers
by Angela Cassidy
Hardcover – 2 Oct 2019, Palgrave Macmillan, 366 pp. Free download at Wiley Online Library
Book Review by Tom Langton
Writing the history of complex things is challenging. The word Vermin is eye-catching, enticing the reader into what is billed as a history of the controversy over whether to cull wild badgers to control the spread of bovine tuberculosis (bTB) in British cattle.
Angela Cassidy is a Lecturer in the Department of Sociology, Philosophy and Anthropology at the University of Exeter. Stated up front and then restated is that the book is not comprehensive, but merely ‘scratching the surface’. Also, anticipation that it is should be challenged. At the start as a cautionary note there is reference to Prof. John Krebs at Oxford University observing that the subject of badgers and bovine TB is ‘sticky’. Anyone interested in understanding the subject gets drawn in, making it more sticky. Stuck to the heart of it, Krebs should know.
Ambitiously, the author has tried to understand and explain “all sides of the debate, explaining positions for and against badger culling as well as everything in between.” A very high bar indeed. But does it deliver?
This reference book is crammed with citations and examines a few confined areas of a range of the various issues and time periods in depth. It is a history contribution not a whole history and not all of the surface has been scratched. The struggle to gain access to historic records of organisations was, as others who have tried will know, more than difficult in itself. This is an initial caveat on content. It seems many have a limited ability or wish to look back on bTB and badgers. Equally much information is held by individuals who need to be interviewed. Chapters are divided into three Parts.
The first section ‘Contexts’ is background material, and states the intent to look at ‘knowledge controversies’: “everyday scientific practices involve the continued negotiation of uncertainty, personal rivalries and a deep inter-weaving with other social and political processes” powers the text, heightening the readers sense of anticipation:
Chapter 2 starts in the late 1960s, sumarising events around the finding of a bTB infected badger in 1971. It shows how the 1973 the Badgers Act was constructed as much to enable a legal context for government badger management as to put and end to the traditional depravity of badger digging & baiting with dogs.
The second Part ‘Reframing Bovine TB 1960-1995’ begins with a brief mention of the 1975 badger-cattle transmission experiment (the ‘Little’ experiment) that is described in Richard Meyers (reprinted 2016) book, The Fate of The Badger. This is the study upon which the controversial cause and effect of bTB spread by badgers was incorrectly surmised and the core controversy from which others have grown. It was around this time, Cassidy finds, that the State Veterinary Service (SVS) began to follow approaches that would later gain the title of ‘policy led evidence’. Not that it was absent in the ‘behind closed doors’ governments of the past. The SVS considered that their internal reporting systems and the advice of their own experts were an adequate standard of evidence on which to impose government policy. The rot was setting in.
Ch 2. also records the hardships of Lord Solly Zuckerman, then President of the Zoological Society of London who in 1979 took on a review of bovine TB and badgers, including badger gassing for the new Thatcher government. Zuckerman, born in South Africa to Jewish Russian emigrants was a primatologist and WW2 government scientist. He worked on nuclear non-proliferation and was also an early environmental science protagonist. A driving force behind establishment of the Institute of Zoology laboratories in 1961 he championed (not surprisingly for a zoo) lab experimentation over applied field study and reported as antagonistic towards field studies and natural history.
Zuckerman was caught out by what might be described, looking back as a couple of bad decisions in the early application of UK wildlife disease epidemiology. Ending in the extraordinary position of his advocacy for gassing of badgers in their setts, which did not find favour & was not implemented. He received opposition from animal welfare and nature conservation science professionals, badger protectionists with whom he rather unwisely publicly clashed and was sent anti-Semitic hate mail. With new evidence from Porton Down that gassing was largely ineffective and cruel, sett gassing was abandoned.
History-wise, the book now skips time and events. Briefly touching on the 1986 Dunnett report, but not the developments in the Republic of Ireland, (from which many British cows and cull policy (in-part) originate), that shed further light on the British Isles badger & bTB controversies. The book makes only slight reference to Northern Ireland, Scotland and Wales which is a shame as they all add important elements to the British story being told.
Chapter 4 provides brief notes on elements of the development of pest control in Britain and some new insight on Ernest Neal, a school teacher & co-founder of the Mammal Society, and his role in the development of badgers and bovine TB policy from the 1960s.
Continuing from the early 1990s, the origin of the Randomised Badger Control Trials (RBCT 1998-2005) is put down to lobbying of government by both government and non-government ecologists. This, was largely zoologists taking advantage of civil servant preference to engage in more research rather become embroiled (and exposed in a career damaging way) in constraining the powerful livestock industry with more frequent testing and movement controls. There was equally strong opposition to a ‘big un-blinded experiment’ from leading scientists and much of the farming lobby was ambivalent, but the civil servants got their way.
Chapter 5 ‘Protecting the badger’ embraces a broad range of subjects. It tries to capture the ‘nature state’ origins of nature conservation in the UK and gives brief coverage to interactions between conservation and animal welfare bodies from the 1970s. It does this without mentioning the sub-committee activities of Wildlife Link and many of the unilateral actions of its members. It doesn’t explore or engage in this interesting subject. Nor the root causes of damaging competition, confusion and duplication that has hampered, even crippled animal charity NGO activity over the last four decades. Another book for this big topic.
There is a useful but not comprehensive description of some of the early stalwarts in badger protection and political lobbying in the early days. Important contribution of badger advocates Ruth Murray, Jane Ratcliffe and Eunice Overend amongst others is duly recognised.
One interesting point is Eunice Overend’s early proposal that gassing badgers made them sick and prone to disperse more, raising the potential for them to spread bTB in the countryside. The perturbation effect hypothesis was thus invented by her. Oxford university had a growing interest in badger control by the early 1990s (Swinton et al. 1997) with heavy use of modelling. The hypothesis was an idea that the RBCT would be set up to try to demonstrate, also via modelling.
The third and final Part: ‘Contesting animal health (1996-present)’ gives a rapid account of the RBCT and its findings in under eight pages which is quite an achievement. Beyond basic description it leaves alone the science history or the subsequent ‘use and abuse’ of the data generated and the central controversy of the way in which modelling was applied and then used in policy. It covers briefly the findings of the RBCT researchers/Independent Specialist Group in 2007 and the subsequent clashes between the ISG and the then Chief Scientific Adviser David King whose own group rejected key ISG interpretation.
Chapter 7. ‘Building a Public Controversy’ touches lightly on other politico-veterinary scandals-cum-controversies in countryside epidemiology;‘mad cow disease’ – Bovine Spongiform Encephalopathy (BSE), and the 2001 Foot and Mouth Disease crisis. It looks at the way these were handled (mistakes, controversies and cover ups) alongside Bovine TB by government and scientists. But overall there is relatively brief description of the governmental and political ups and downs of the period 1995-2010 when the bovine tuberculosis epidemic was allowed to return to much of Britain.
Nor does it look at the extent to which the badger/bTB policy failures and controversies have been driven by partisan self-interest and frailties of human nature in both individuals and stakeholder groups, including academics. There is little indication of, or guidance on how experts, politicians and policy makers should best work together to make sustainable policy as had been hoped. Nor a summary of lessons from abroad. The chapter also includes results from a collation of newspaper coverage on badgers and bTB between 1996-2017 showing the media frenzy around 2013 when mass badger culling was authorised.
There is some useful background information on the institutional approaches of bodies such as the RSPCA and The National Trust to the RBCT. But there is all but no detailed information on sabotage of the RBCT, direct action by Stop The Cull and others, actions of the Hunt Saboteurs Association and non-aligned cage spotting and smashing groups, nor the activities of Wounded Badger Patrols, all part of the public reaction to culling.
There is little regarding the several Information Commissioner Tribunals against the intense and unfounded secrecy under which the planning and post-2013 badger culling has been managed by Defra and Natural England (against the advice of the Krebs Group in 1997), frustrating and sometimes flouting access to information rights and disgracing Natural England.
There is little on farmers and farm representatives’ positions and those of the hunting and ‘blood-sport’ supporters, nor of cull companies, the police role, wildlife rescue centres or many other players sucked into the controversy. These may be largely reactive and symptomatic of the knowledge validation problems but there is a lack of examination of the policy matters behind culling and how these relate to what has unfolded in rural areas of much of England since 2013.
In the final Chapter 8 ‘The Badgers Have Moved the Goalposts’ Cassidy makes a decision that drops her into the controversy of whether the underlying science of the RBCT is reliable or not. Why this is done, albeit tentatively is unclear, moving the author from dispassionate observer to one side of the argument seems odd and unnecessary.
However it is arguably understandable as the large and extremely powerful Defra has increasingly engaged Exeter University as a part of its propaganda messaging outlet. Through a lucrative TB Hub contract https://tbhub.co.uk/ Exeter University sends out messages promoting government policy science. As Exeter’s role as Defra’s propaganda face grew in 2019 this book was being finalised.
At the same time, Exeter was not very quietly disseminating the headlines of a long delayed and rather manuscript-mauled paper on the genomics (whole genome sequencing) of bovine TB at and around the government study site at Woodchester in Gloucestershire. As a ‘get out of jail’ card to prop up government policy, its complexity backfired when yet another convoluted modelling approach was found to simply confuse ‘contact’ between species (badgers and cattle) as ‘transmission’.
This research is referred to obliquely (top of page 287) and shows the likely influence of the authors peers in separate yet proximate Exeter faculties. This is disappointing given Cassidy’s 2015 paper on the RBCT ‘Big science’ in the field: experimenting with badgers and bovine TB, where the frailties of un-blinded Randomised Control Trials were discussed and a more detached and dispassionate approach taken towards the ‘rhetoric of authoritative science’. Some of the material has been used in the book but it is worth reading separately.
So the author risks joining Krebs in his sticky trap alongside a small crowd of other academics, administrators and others by entering the core knowledge debate – between those who believe the RBCT is a sufficiently definitive piece of science and those who believe it is not. And those in the middle who say there is too much uncertainty to be sure about it and to justify mass badger killing with large scale public funds, to try to prop up intensive farming.
The questionable approach was also made at the start of the book with calling the Godfray Group review a “reasonably balanced overview”. This is blessing of a rather vague and generic internal government review that side-stepped key questions such as: is the lack of ability to distinguish the direct effects of badger culling from other interventions a problem? Dealing with the issue that Supplementary Badger Culling may in theory make bTB worse (see Jenkins et al. 2010) it sent vague messages on further research needs, resulting in new policy on 5th March 2020 heading towards another un-blinded field trial with even ‘longer grass’ to kick the policy into for a decade or so, and for another Parliament to worry about. Not very good at all. In what way was that balanced as opposed to cowering and weak?
In terms of its title, this is not a book of any depth about ‘vermin’ although there are some quite interesting aspects of ‘pest control’ history recorded. Nor is it about the disease process and all that goes with it including the main controversies on disease proliferation and spread. The beef and dairy industry and its change and processes are hardly mentioned. Nor is the process of bTB testing and breakdown, the stresses and strains on farming, commercial attitude and behavior of the veterinary industry and role of market forces. No mention on the moods and motivations of farm ‘Unions’, little documentation of the rise of coherent wildlife epidemiology from the late 1980s at the Institute of Zoology and elsewhere.
There is all but nothing on the large and involved aspects of legal challenge to badger culling since the 1970s and particularly the last fourteen years. It does not cover the incredible campaigning and legal challenge In Wales that led to badger culling being stopped there around ten years or so ago. No details on Ministers and Prime Ministers attitudes and party politics. Key names like Jim Paice and Roy Anderson are dropped in for completeness rather than as the key influencers that they were and where a little scratching might have helped to further unravel new controversies.
As the book ends, the author starts to ask questions that have been at the heart of the main controversy. If the primary controversy of whether the RBCT is reliable is put to one side, the secondary controversy over subsequent modelling is raised and that of whether when cattle disease control measures are not working well enough, are other measures a waste of time anyway?
This is where a book could and perhaps should have started, yet it is one upon which a deep understanding of disease control and the history of the veterinarians involved becomes essential. It is a larger surface to scratch and begin to expose motives and actions of those not mentioned in the book. There are other key players in, what is, after misuse of anti-biotics, one of Britain’s most notorious long running farm scandals.
Despite the lack of analysis that the book promised, this is a useful broad-brushed documentation of several aspects of badger culling and Bovine TB over the last 50 years or so. It is a corner stone that will help make the job possible for others. It contributes to the administrative history but does not capture the science history enough to enable basic understanding of why and how the controversy has flowed over time.
Much as the subject of bovine TB requires multiple disciplines to unfold its complexities, a history of badgers and bovine TB controversies needs that too. It is needed to get to grips with epistemic rivalry, because a history of knowledge validation requires insight into people doing molecular biology, statistics, pathology and epidemiology. Alongside understanding of livestock farming, legal, environmental and ecological issues that make up the deep well of sticky stuff.
A fuller account of how individuals, charities, academics, government officials, farm representatives and even the royal family play a part, lies beneath the surface that Angela Cassidy has very usefully scratched.
Jenkins, H.E., Woodroffe, R. and Donnelly, C.A. 2010. The duration of the effects of repeated widespread badger culling on cattle tuberculosis following the cessation of culling. PLoS One. 10;5(2):e9090. PubMed PMID:20161769.
Meyer, R. 2016. The Fate of The Badger Fore-raven
Swinton, J., Tuyttens, F., Macdonald, D., Nokes, D.J., Cheeseman, C.L. and Clifton-Hadley, R. 1997. Comparison of fertility control and lethal control of bovine tuberculosis in badgers: The impact of perturbation induced transmission. Philosophical transactions of the Royal Society of London, Series B-Biological Sciences, 352: 619-631.
Last summer, following the spike of bTB in the first Gloucestershire pilot cull area, a pre-action letter was commented on by the governments chief scientific adviser, Ian L. Boyd. His June note was sent shortly before his retirement and it offers a bit more insight. The response related to how much information is needed before measurable benefits from bTB interventions can be seen. Initially he seemed to believe that it would take four years of Supplementary Badger Culling (SBC) over a six year period to be able to try to examine any effect from new interventions. Thus as SBC began in 2017 with Gloucestershire and Somerset (Areas 1 & 2) , then Dorset in 2019 (Area 3), and potentially seven more this year, it will be 2024 before theoretical modelling of change can be undertaken. However it is Point 6 that contradicts and startles. Here it states that “It is not possible to examine any single measure such as supplementary badger culling alone as having a positive or negative effect.” The note goes on to say that only the whole set of interventions can be considered together; what happens from all interventions in a region i.e. the High Risk Area or Edge Area. In other words, the approach taken is to use everything that you think might work including culling badgers everywhere (to 2030 and beyond) and hope that bTB comes down, but whether it does or doesn’t, just carry on.
This reveals the dilemma, in that the unproven and risky SBC
may neutralise any hypothetical benefit in terms of new herd bTB breakdowns or
make breakdowns worse. This has been confirmed in court. Any ‘comfort’ that
Defra could ‘adapt and learn’ as it went along, apparently does not exist.
There is no learning and no control, only an end result. The same can
presumably be said, therefore, of any tinkering with further small scale trials
such as those proposed by the new Defra Policy relating to the Godfray Review.
The facts are that this is not just policy out of control. It has no control.
There is no way to find out if your interventions are useless or making things
Many of you will have noticed the publicity surrounding the unexpected release of the above report entitled DEFRA (2020) Next steps for the strategy for achieving bovine tuberculosis free status for England. The government’s response to the strategy review, 2018.
Most of the newspapers ran dramatic stories, talking of a seismic shift and U-turn in government thinking on badger culling and bovine TB. There was also talk of a ‘shift in political emphasis’, a ‘rowing back’ and ‘viable exit strategy’. It was as if they had failed to read and digest properly the details in the 109 pages.
Unsurprisingly, some organisations and individuals stated that the report was to be welcomed and offered hope whilst others were rather more cautious or cynical. Let’s unpick what actually happened and what it might mean for badgers and the efforts to stop badger culling.
A shift away from badger culling and towards badger vaccination?
No, not really. Vaccination of badgers was always a part of the strategy, even if a neglected one. The 2018 Godfray review called for a move away from lethal control but only by way of conducting a comparison between supplementary culling and vaccination. This is something that would be controversial and expensive to carry out, take many years and lead to more speculation and bickering over modelled results. Most would advocate vaccination over culling, but the level of vaccination, up to a few thousand badgers a year, does not make it an acceptable trade-off for continuation of mass culling for another decade. Especially when it will never be possible to attribute changes in bTB herd breakdown rates to badger vaccination, rather than any one of a number of other interventions. This is exactly the same as is happening now with badger culling.
But Badger Culling is coming to an end isn’t it?
No, it isn’t; many having been misled by what they were reading or have been told. Nothing could be further from the truth. Somehow the public have been conned into thinking it is because of the generality of the Godfray Group review. The facts are that we are now at ‘peak cull’; over 40 cull areas are in-hand and much of the High Risk Area is being culled. Last year this year and next year will each see around 40,000 or more badgers shot in more futile culls. After that, culling tails off, but only because they are running out of badgers to kill; 70% of badgers across English ‘cattle country’ will have been killed. Nevertheless, don’t expect killings to drop below 15,000 at any time before 2030 by which time up to 300,000 badgers will have died. It could be fewer, (but not much fewer),as culling starts up in the Edge area and potentially becomes more widespread in the Low Risk Area as the failed policy causes more spread eastwards. The fact is, it is business as usual with the government killing machine. This is DEFRA keeping to plan which as reported in Farmers Weekly on 11th March 2020 is to maintain the badger population to one badger/sq.km. or below to reduce the possibility of badger to cattle bTB transmission.
But government accept that badger culling isn’t working, don’t they?
No, quite the opposite. All Defra offer is deception, cherry picked data and selective use of models. Supplementary Badger Culling (SBC) has been fought in court for three years and whatever you believe about the science, bovine TB went through the roof in Gloucestershire in 2018, the first year of SBC with a 130% increase and in 2019 it remained at the same levels as before culling started. Yet the Defra response repeats time after time only the equivocal study stating reduction in Gloucestershire of 66% by 2017, based on questionable modelling by a small number of government paid scientists. Why do they do this? Claiming success and progress is the Defra justification for continuing culling. This is despite the then Chief Scientific Advisor Ian Boyd confirming in legal papers in June 2019 that there is no way to determine the direct effects of badger culling from individual areas or areas combined after many years. The only stop button is if bTB falls away.
Why do Defra mislead us?
Defra are desperate to retain credibility on this issue, and are trapped within their own failed policy and bad epidemiology advice. They surely realise by now that badger culling with other actions is not delivering bTB control and that the problem remains with cattle testing and lax cattle movement controls. Responsibility for bTB policy within the government has changed hands over the last couple of years. Nobody wants to own it. The Defra response shows all the signs of a government refusing to deal with their past oversights and misjudgements. It is bereft of the will to take charge of the immediate measures needed including pre-movement testing with modern blood tests, the only measure that can drive infection rates down in the short term.
So the report just repackages old policy with no good outcome?
The sort of cattle measures being promoted are positive, but very long promised and overdue and they don’t go anywhere near far enough. A DIVA test trial to enable cattle vaccination would be welcome, but is it the right technology? Another five year wait to find out. 6 monthly SICCT testing is being expanded in the High Risk Area ‘over the next few years’ in addition to the Edge Area. This was a ‘no-brainer’ in 2012 but now can’t take place all at once because too many bTB positive cattle would be detected. There is mention of increase in gamma test, introduction of IDEXX testing – this is good but there is no timetable. There is suggestion of compulsory post movement testing in the Low Risk Area and Edge Area only. This should have been mandatory everywhere; it is how Scotland eliminated bTB by 2009 to become TB-Free. There is a suggestion to incentivise biosecurity by a compensation penalty for those who don’t adhere to biosecurity recommendations. This has been done in Wales for a while and must help. There is talk of improved slurry management – this is good, but large scale applied research is needed not just small scale investigations.
Most noticeable of all the above is a lack of detail as to the extent of any action and clear timetable for implementation.
Where does badger protection really stand after this report?
The wait continues regarding permission for the case against SBC in the Supreme Court. A hope for positive news remains. An end to this unscientific experiment has been signalled but it should never have started.
The recently released Defra report reflects more than anything, a stubborn entrenchment of its thinking, their lack of new ideas or acceptance of external criticisms and how badly they are ‘stuck’ in failing policy. There is desperation in them clinging to the 2019 APHA ‘Downs’ modelling paper when they know the conclusions are unreliable. What does this say about Defra’s competence?
Many Badger Groups have worked incredibly hard on badger vaccination which does provide clan immunity, but does not necessarily prevent these badgers being shot if they stray beyond an ownership boundary. Unfortunately there is no evidence that badger vaccination assists in bTB control and mass vaccination gives life to the ‘finger of blame’ that points to badgers being heavily involved in the transmission of bTB to cows, which is uncertain at best.
Badgers are still being unscientifically blamed for a significant proportion of cattle bTB infection, leading to a nonsensical question on the potential benefit of culling versus vaccination. Never in a million years will badger vaccination protect cattle from bTB, it can only protect badgers. Cattle need their own vaccine. The recent suggestion by Defra that badgers should be snared to facilitate vaccination indicates quite clearly their lack of understanding of the physical injuries inflicted by snares. Snare restraints must be opposed at all cost.
I hope this summary is useful. Please let us know your thoughts. These are strange times and coronavirus now dominates our lives. The next few months will be a huge test for many of us and may even take some of us away. Whatever happens, the fight will go on and will not fade. That is a promise.
We are the Badger Crowd and we will continue to fight lies and deceptions relating to the mindless slaughter of badgers in England.
With the turning of the year, Badger Crowd takes stock and looks to 2020. On the face of it, the outcome of the general election has grim implications for badgers; the likely outcome is a continuation of the failing English bTB policy. This brings an eighth year of increasing misery to farmers, the public and badgers. More premature death and suffering for thousands of cows and badgers in 2020 and more £ millions taxpayers money frittered away on poor policy decisions and flawed implementation. The aim of the work supportedby Badger Crowd, as always, is to focus actions in the right direction and to properly address the bTB disease epidemic.
Legal challenge applications against Supplementary Badger Culling in the Supreme Court and stayed cases brought by Tom Langton, sit in the slow judicial queue. These offer a chink of light in an otherwise dark landscape. But the work of the Badger Crowd extends beyond supporting legal challenges. Behind the scenes, there is a broad network of dozens of experienced, informed and dedicated volunteers, looking at and tackling the endless stream of misinformation and anti-badger propaganda. Science, messaging, data gathering, monitoring, fundraising and legal issues must all be addressed by the extended professional and volunteer network. The network is a force for badgers and the fight against bovine TB that never stops. Many established badger groups and trusts lend support in many ways too.
Another government funded study was published this year using modelling to incorrectly make claims of success for badger culling in the ‘Pilot’ areas, pushed by a government propaganda campaign. This is despite advice from the Defra Chief Scientist in June 2019 that it will never be possible to separate any effects of badger culling from other interventions. And last week, a genomics paper has been published making controversial claims about bTB transmission between badgers and cattle at Woodchester Park in Gloucestershire. Experts have been looking hard at this, and have already given insightful advice to challenge the claims. Expect more on this early in the New Year. Dedicated experts work together against a sea of officialdom, prejudice, poor science and poor journalism.
We would also like to remember at this time of year particularly, all those who are out in the field, attacking the illegal blocking of badger setts and unlawful hunting of wild mammals. Sabotaging crime. We salute you again for your dedication and perseverance.
If you have donated to the legal funds, you have contributed to assist important legal work, and we hope that there will be rewards next year. The Crowd fund has slowly moved to 80% and this is an immense achievement considering this gruelling, expensive and protracted battle. This seasonal message is a huge thank you to all making this work possible in every way.
Overview of why the challenges are not being pursued to the Supreme Court
The badger culls are not just hugely controversial because of the large question marks over the validity of the science used by Government to justify them. Concern has also mounted over their potential impacts upon protected species and nature reserves. Complaints to the Bern Convention and early legal challenges in 2014 focused on Natural England’s (NE) duties to prevent such impacts. It emerged that there had been all but complete disregard of the potential impact of the disruption of carnivore communities (Carnivore Release Effects (CRE)) in the west of England following removal of badgers across large areas.
The Badger Crowd has since been at the forefront of efforts to see this and other vital omissions exposed. If NE are going to licence badger culling, they are required by statute to do so in a way that ensures collateral damage to other wildlife is avoided. However the legal challenges since 2014 and particularly since 2017 have exposed countless critical failures of assessment by NE, in clear dereliction of its statutory duties. These are failures that have undoubtedly put sensitive species and protected wildlife sites at genuine risk.
Disappointingly the Courts – while acknowledging that NE has failed in its statutory duties – have repeatedly declined to quash licences. In large part this is because NE have repeatedly moved to try and patch up their procedures under the duress of imminent court hearings, and have been equally quick to promise that they will tackle further flaws that have been exposed in front of judges. In other words, it is the pressure brought to bear by the legal challenges that has forced NE down the road of doing the very assessments they should have been doing in the first place.
This is why the recent decision, not to take this matter to the Supreme Court is the right one and why the application to the Supreme Court regarding Supplementary Culling policy is now the main focus (see previous blog). But while the current challenge to NE’s assessment procedures has run its course, no-one should confuse the lack of an outright legal victory with failure. The Badger Crowd and other donating charities can and should be extremely proud of how far the challenges it has helped fund have dragged NE towards due and proper compliance with its duties towards wildlife protection. The agency responsible for nature conservation was clearly giving little or no thought to this prior to the harsh light of legal proceedings being shone on them. By the same token it has to be a matter of acute shame and embarrassment for NE that its failures have been so great, that their magnitude is on permanent record and that it is only the duress of legal challenge that has forced it to make concerted efforts towards doing its job properly.
On the basis of the earliest assessments that have been seen, the impact of, for example doubling fox numbers (as prior studies indicated could happen) on birds, roosting or nesting on or close to the ground, seemed hardly to matter to NE. Other un-researched disturbances were also quite likely to occur but remained unaddressed by them or those to whom they granted licences. Under legal scrutiny, NE brought out a range of excuses. Firstly it didn’t think it happened much, then OK perhaps it could inside cull areas, but we will have it covered next year with a new approach. Then came denial that cullers could harm reserves by driving over habitats: digging in traps and shooting with lamps and shotguns. Then, OK it could do harm; we will check and stop that on some SSSI’s.
Over the last five years, NE have repeatedly retracted their position regarding Habitat Regulations Assessments, following detailed legal challenge and engagement by ecological experts Dominic Woodfield and Tom Langton. Then, in July 2018, after Sir Ross Cranston formally found NE in breach of their statutory duty on certain aspects in the High Court hearing, NE caved-in. As a result, vast areas of England outside cull zones became immediately subject to scrutiny and protective analysis, exactly as the legal challenge had said they must, and indeed should have been since 2013.
Within weeks of the 2018 ruling, which was also appealed for not going further and quashing cull licences, a set of guidelines on how to address CRE issues were produced by NE, borrowing heavily from the claimant’s witness evidence. Basically NE’s formal recognition of the potential problems was fully established for the first time.
Guidelines to address the problems had been forced out of NE, enabling regional NE staff to express concerns that evidence suggests had previously been ignored, dismissed or overruled. However on the one hand guidelines were saying safeguards from disrupted ecosystems were mostly ‘ultra-precautionary’, while on the other hand they said that they needed detailed consideration and monitoring.
In fact screening of SSSI damage went from minimal effort to large spreadsheets containing ‘screening matrices’, and eventually all European Sites (e.g. SPA, SAC, RAMSAR) within range of effects were required to have what is called an Appropriate Assessment. This extensive exercise includes wider undertakings to examine what happens if predatory mammal numbers shift in response to long-term forced change to wild mammals.
As a result of these more detailed assessments, some sites had badger culling withdrawn (e.g. where Stone Curlew nest on Salisbury Plain) and some smaller SSSIs were excluded. But underlying NE’s case that culling should be allowed within or adjacent to other sensitive sites was an untruth pledged by NE that its operational capacity is able to monitor and address carnivore release effects or other negative implications arising from badger culling.
However, monitoring CRE for just a single site would take an extensive and time-consuming research project to identify and quantify any effects and isolate them from other sources; something NE has no capacity to implement at all yet seemed unwilling to place as a duty upon the cull licensees. Further NE kept and still keeps cull areas secret, and SSSI’s under threat secret too. So any precautionary approach to checking sensitive species numbers before during and after culling was deliberately and unfairly frustrated as exposed by the Information Commissioners at a tribunal in 2017.
Some have pointed out that the lack of seriousness with which the government considered the issue from the start parallels what we see with the annual mass release of millions game birds in the countryside on and next to SSSI’s, that also bolsters carnivore numbers artificially. Also all but ignored, until recently.
NE’s new chairman Tony Juniper tried to achieve a sleight of hand by on the one hand complaining NE was so hollowed out as to be unable to monitor most SSSI’s, yet on the other pretending it was on top of monitoring of species and habitats at risk from change brought about by badger culling. How? Through a range of fanciful NE positions. These days, game bird release is commonplace near nature reserves and wildlife sites of all kinds. Local gamekeepers armed with expensive night-vision rifle scopes (that suddenly NE thinks they all had or would have) would spot any increase in foxes (stoats, weasels and even hedgehogs) and deal with them instinctively to restore some kind of notional ‘balance’.
Not necessary to do anything then? Not quite. This year NE wrote to cull companies saying there was now, in effect, a legal obligation on cull companies to provide baseline fox control information (read more here and here) and asking them to make and keep a note of past and present fox control effort. But this was resisted. So is that it? So much for NE ensuring monitoring is in place to capture changes to sensitive bird numbers. A shocking proxy approach to monitoring potential impacts. So poor is the data on changing bird numbers in badger cull areas that NE and British Trust for Ornithology have kept secret the single monitoring exercise undertaken. This attempt to mask the truth reflects badly on NE and BTO.
Frankly this is all as farcical as it is damning. Nature conservation is being handled with contempt by the agency we help, pay and expect to look after it with the care it requires. It has taken The Badger Crowd many tens of thousands of pounds to help the claimant force the government to take this seriously and they still haven’t. They don’t actually seem to want to recognise the issue and research likely impacts. They have delayed, squirmed and argued denial all the way through the courts. They have just managed to get away with preventing the quashing of cull licences by delay, secrecy and by changing the licences every time they are challenged. To cap it all, NE even claimed they had lost highly sensitive information and evidence just when it was getting difficult, and they got away with it.
All this shows just how deeply standards have slipped in Natural England over the last ten years. Yet now the legal advice is that no matter how incisive the challenge, NE have got to a position where it is unlikely that legal action will prevent the issuing of any badger cull licence. All that can be done is to continue to chase them to protect nature properly as they should have done from the start.
What remains at stake is the unknown, unmeasured level of potential disruption to declining species and nature reserves from the known primary and secondary effects of badger culling, something everyone should still be very concerned about. As the government technical reports warned back in 2007 and when Wales decided CRE risks were real and threatening before deciding not to cull.
Badger protectionists don’t just care about badgers but also the places where they live. Over the last five years, one of the largest legal actions ever to defend badgers has, and still is being conducted through the courts. The legal challenges also draw awareness to threats to internationally protected birds and other wildlife on SSSIs. This has been done so as to highlight the shortfalls of government policy in relation to the side effects of the cruel unnecessary killing of badgers.
Legal action has in effect changed the requirements for badger cull licensing, although it was not successful in being awarded legal ‘relief‘ (quashing of cull licences) and getting the claimant’s money back. Natural England were mauled but survived the legal challenge, but only by doing a complete volte-face with their advice, and by obstructing the release of information that would make initial analysis of the effects of badger culling possible.
There are plenty of new lines of enquiry into the Natural England position and these are being looked at now, so NE, that has always refused to communicate in any helpful way to concerned stakeholders on the subject, could soon be in receipt of more letters and perhaps another five years of legal action.
After careful discussion with the legal team, and the appointment of Richard Drabble QC as leading counsel (https://www.landmarkchambers.co.uk/people/richard-drabble-qc/), we are pleased to learn that Tom Langton has lodged a petition with the Supreme Court (Case Ref UKSC 2019/0205). This seeks permission to challenge the refusal by the Court of Appeal to overturn judgements made by Sir Ross Cranston in 2018. A decision on the permission application may not be determined until the New Year.
The claimant has taken this step because of a genuine belief that Sir Ross Cranston and the Court of Appeal have got it wrong and that there is, yet again, an inadequate level of certainty in the formulation of government policy in the environment. In this case with an iconic protected species and measures to address a virulent agricultural disease.
We will work with any successive government to seek to compel Defra to suspend and withdraw badger culling guidance, because the mounting evidence is that any benefit in the fight against bovine tuberculosis will never be measurable, and is highly unlikely either to exist or to make any meaningful contribution whatsoever to bovine TB control.
All that can be done is to put the legal wheels in motion and hope that if culling is not cancelled by other means, then this is a further opportunity to prevent continuation of the unwarranted, unscientific and damaging culling of badgers in England under the flawed ‘supplementary culling’ policy.
The generosity of contributors has been humbling and sincere gratitude is extended for their continued support. There are currently the additional costs of instructing Richard Drabble, one of the country’s top public law QCs, together with barrister Richard Turney at Landmark chambers. An application fee of £1,000 is required and the cost of further legal considerations and advice needed until the end of the year.
However, the decision has been made not to launch a new appeal for further funding pending the decision on whether permission is granted in the Supreme Court. Having said that, the existing appeal remains open and all donations are greatly appreciated and much needed as our appeal passes the 75% mark this week. Should permission be granted for the Supreme Court then a new appeal will be launched to cover costs. This will involve going back to some of the larger charities, donors and organisations to ask again for help.
This is another big ask. Many people and groups have already donated very generously and they may feel that there has been little return in terms of saving badgers. However, legal action has slowed and prevented badger culling in some areas, including the most sensitive nature reserves. But these are only tiny victories in the context of the current mass-expansion of badger cull areas. The Badger Crowd wants to see an end to the culling completely. We are not ready to give up on using all legal means to prevent badger culling in England. In fact we are galvanised to bring more and more scrutiny to bad decision-making. We aim to highlight poor leadership in veterinary, environmental and nature conservation administration in England. A note on the Habitats Regulations Assessment & ecological Impacts challenge and outstanding challenges that are stayed or under development is to follow.
Court rules Protection of Badgers Act (1992) may be used for bTB disease control ‘experimentation’.
‘Academic’ arguments let Natural England ‘off the hook’ on designated nature site safeguards despite admissions of errors in the original process of granting licences to cull badgers.
C1/2018/2332 The Queen on the application of Langton -v- The Secretary of State for the Environment Food and Rural Affairs & Natural England. Appeal of Claimant from the order of Sir Ross Cranston, dated 15th August 2018, filed 14th September 2018. Held on Tues, 2nd July, 2019.
Before The Lord Chief Justice of England and Wales (Lord Burnett of Maldon), Lord Justice Singh and Lady Justice Nicola Davies.
In Judgements today, the Court of Appeal has dismissed an appeal on two key rulings of Sir Ross Cranston in the High Court in August 2018.
On the two matters reaching the Court of Appeal, the judges found that the Secretary of State* in 2017 was entitled to rely upon government specialists opinion that prolonged (supplementary) badger culling should be allowed, in addition to a reference 4-year ‘cull and stop’ approach.
This was despite the acceptance of the lack of scientific certainty that continuing culling after an intensive period of culling would reduce the spread of Bovine TB (bTB) control in English cattle herds. Expert warnings from government scientists, RBCT** studies and others had cautioned that supplementary culling might neutralise potential benefit or even increase Bovine TB and that the approach was not ‘necessary’, as had been suggested by Defra. The so-called ‘adapt and learn’ approach advocated by the Chief Scientific Advisor Ian Boyd and Chief Veterinary Officer Nigel Gibbens was found to be a lawful basis for government policy.
On the second issue before the Court, relating to the potential adverse ecological effects of removing badgers on the countryside, judges concluded that the issue of whether Natural England acted unlawfully is now ‘academic’ to the quashing of licences and need not be addressed. During the original hearing in 2018 Natural England was found in ‘Breach of Duty’ by the High Court, after which it moved rapidly to make extensive changes to its procedures.
Legal representatives for the Claimant have written to the Court of Appeal with an application for permission to appeal to the Supreme Court. Subject to this, his legal team may consider a petition for permission to the Supreme Court once matters have been fully considered.
Claimant Tom Langton said:
‘’Throughout the badger cull litigation in recent years there has been disagreement in the legal assessments regarding the standard of evidence required to allow the killing of vast numbers of a protected, iconic and sentient species over a huge proportion of the countryside.
The judgment today is disappointing in so far as Supplementary Culling is found to be acceptable government policy. This is unhelpful to the principle of quantifiable disease eradication effort. Recent monitoring data confirms that in Gloucestershire, Supplementary Culling was associated with a large increase in bovine TB.
Notably, in June of this year retiring Chief Scientific Advisor Ian Boyd wrote comments in response to a pre-action letter on the government’s ‘adapt and learn’ policy, following release of the recent bTB data from Gloucestershire. Boyd made an important point that supports the anti-badger cull case: that ‘it is not possible to examine any single measure such as supplementary badger culling, alone as having a positive or negative effect.’ [on Bovine TB incidence]
This contradicts the ‘adapt and learn’ argument that the 2018 High Court took comfort from and exposes the culling for what it is; a flawed experiment with no direct measure of benefit and from which there can be no learning. Modelled estimates from the Animal Plant and Health Agency (APHA) are equivocal theoretical exercises, given by Defra to politicians to try to justify the 2011 Badger cull policy. The government strategy emerges as a huge (up to 70-95%) suppression of badger numbers over very long periods (to 2038 and potentially beyond) in the hope that any benefit may add to other TB control efforts, irrespective of whether they are being done properly or not.
Regarding the ecological Habitat Regulations assessments, it is gratifying to see the extent to which Natural England has reformed, published and adapted its procedures, yet only in the face of legal challenge. Our case has held NE to account by calling-out their very poor handling of process on the detailed assessment of risk to our designated sites and ground nesting birds. Winning that argument yet not gaining relief due to the drawn out legal process shows how the judicial system favours a defending governments operations. It does not diminish our case that we were right and that the ecological assessments NE had been carrying out were legally flawed.
On both these matters effort must be made to expose the unknowns, uncertainties and deceptions that surround the process of badger culling and ecological assessment. It can only be hoped that an incoming government will put in place the enhanced bTB testing and movement control measures needed to halt the disease and suspend the current policy, preventing the squandering of public money on illogical, speculative and cruel approaches.
On behalf of all those working most closely with the legal challenges, I would like to thank the thousands of people who care for badgers who donate towards tribunals and High Court litigation or seek justice for badgers. I would also like to praise our legal team and supporting experts who continue to provide the sharp edge of our work to challenge bad procedure. We aim to stop divisive and unscientific Bovine TB control that has dominated the handling of a cattle disease since the 2011 badger culling policy.
There is no covering up the growing bovine TB emergency and scandal of the last six or more years. The systemic failure in environmental protection must be further investigated noting the failings that the court submissions and disclosures have exposed, thanks to our challenges.’’
* [Andrea Leadsom and Michael Gove] ** RBCT: Randomised Badger Culling Trial (1998-2005)
It’s been a month now since our High Court Appeal hearing, and the important matter of ‘what happens next’ still hangs in the balance. The understanding is that the Courts and Judiciary are largely closed down over August, so having not received results thus far it is quite likely that we might not hear anything for several more weeks. This means of course that we may be into September before we find out more, and September is the month when we fear confirmation of yet more areas for badgers to be shot, and for the badger cull carnage to be imposed over a much larger area. We could hear at any time, however.
As well as the Appeal outcomes, there should be news of the government’s response to the ‘Godfray Group’s’ review of the current bovine TB policy, and presumably Defra’s newly massaged ‘results’ of the pilot badger cull, (Downs et al. 2019) as an update to Brunton (2017). Raw data shows that supplementary culling has been followed by a massive bTB spike in Gloucestershire. ‘Downs’ has been used in the decision making process to try to help justify Supplementary Culling, but has been kept secret thus far. Rather like the British Trust for Ornithology (BTO) report on effects of culling on the wider environment, which was held back from public scrutiny by Natural England for no good reason; the motives for withholding both are highly suspect. As ‘Downs’ has not yet been made available, we are guessing that it will be a much caveated piece of selective modelling, which will say that badger culling may be helping reduce bTB in cattle, but many more years of data will be required to be slightly more confident that it is a possibility or a likely failure.
This is ‘the cull until 2038’ approach. The same old fudge that shames the government and the reputations of all those involved, whether they are actively enabling it or just keeping quiet for their own personal convenience/advancement. Government has said to us in writing that there is no way to identify the cause of any change in bTB breakdown rates in cull areas, and in any case, in some areas it might be expected not to work. Nobody is fooled about what is being done and aimed for; a corrupted version of the 30 years of failed badger culling in Republic of Ireland.
Perhaps those at Defra and Natural England hope to continue to hide behind the ensuing Brexit furore, hoping that badgers will not be most people’s priority at this time of national crisis? The bTB crisis in the national herd will not disappear though, but will spread, whatever happens with Brexit. At some point, those in charge will have to acknowledge that equivocal interventions are pointless, a complete waste of time and money without first addressing the major causes of disease in cattle; failed testing and hopeless movement restriction. This in fact was Natural England’s position during the original cull policy consultations – so what happened?
The solutions to bTB are available and have been used successfully in the past, and they don’t involve culling wildlife. Killing badgers may be damaging other wildlife species and habitats, in addition to all-but exterminating a persecuted apex species for spurious reasons. There are new cattle testing technologies becoming available, being stifled by vested interests that will make control easier and cheaper. The sooner the government’s policy advisors stop following failed veterinary and cattle lobby rhetoric and start listening to informed scientists (without vested interests), the faster will be the progress against this terrible disease. Whatever the outcome of the Court of Appeal, the Badger Crowd will continue to work to defeat this horrible policy using common sense, science and the law.
On July 2nd, the Court of Appeal heard the challenge to the decisions of Sir Ross Cranston in the High Court in July 2018 (Langton -v- The Secretary of State for the Environment Food and Rural Affairs and Natural England). The Court sat between 10.30am and 4.10pm, with much of the proceedings (the morning and part of the afternoon) televised and now available on Youtube:
Unfortunately the sound quality from parts of the room was not too good at times, which is a shame for those wanting to listen and analyse the detail. The afternoon coverage cuts out at about 2.45pm; we do not know why. Unfortunately this means that the summing up is not recorded.
In this instance, two grounds of the case that the High Court decision of 2018 was incorrect were fully examined following some opening discussion over the scope of the Grounds (reasons for challenge).
Richard Turney opened with his arguments over why allowing supplementary badger culling (SBC) for 5 years after the completion of intensive culling is ‘ultra vires’, that is, beyond the provisions allowed for under Section 10 of the Protection of Badgers Act 1992 (PBA)
One aspect of the issue relates to the fact that the effects of SBC are unknown and cannot be separated from other bTB control measures. They may, according to published science (Jenkins et al. 2010) make things worse. The inability to be able to tell whether SBC works or not was reinforced in the reference material and in a recent letter from Defra to the claimant.
In front of Sir Ross Cranston in the High Court in 2018, Defra and the SSEFRA had used the claim that they would learn from the SBC results and adapt their policy accordingly to support their case. The arguments yesterday included whether the PBA allows ‘experimentation’, although SBC cannot even be regarded as an experiment, since there can be no learning resulting from it.
The judges have a fine line to tread in that under the current approval, SBC might only be claimed to have helped, and cease, if bTB goes down and is eradicated. However if it does not, (and the government scientist’s position is that it could take a very long time for success or failure to be indicated), it is not possible to be sure whether SBC is helping or holding things back. Under an experimental approach, if SBC is actually worsening the spread of the disease, you may not find out for decades or even ever.
We remember that in the 1960’s bTB was reduced by 80% in four years with thorough cattle measures. What we know of SBC from results in Gloucestershire in its first year is that there has been an increase in confirmed new herd breakdowns by 80%. Government claims that it is too early to be able to interpret the results of SBC and longer periods of implementation are needed; this is not correct as there can never be certainty on causation with the current policy.
In approving the policy, the Minister may have overreached the powers of the PBA; there is a clear argument that this should only have been attempted under different legislation. Defra/SSEFRA argued that licensing doesn’t have to be definite in terms of outcome. But that didn’t seem to address the capacity of SBC to increase the spread of bTB disease on a country-wide basis, in a manner that it is impossible to detect.
The other part of the case argued yesterday concerned the way in which Natural England approaches its legal duties of assessment in terms of the negative impacts of badger culling on non-target species in internationally protected sites. Much of the evidence relied upon in this challenge arises out of forensic analyses of the detail of Natural England’s impact assessments by our Habitats Regulations expert Dominic Woodfield, who continues to work pro bono on the case.
The argument centres on the implications of a suite of recent European and domestic court cases, in particular an Irish case known as ‘People Over Wind’. In this case the European Courts ruled that mitigation measures, taken specifically to avoid or mitigate adverse effects that would otherwise be likely to occur to sites protected under the EC habitats and Birds Directives, cannot be taken into account by a decision maker when screening proposals for ‘likely significant effects’ – the first stage of what is called a ‘Habitats Regulations Assessment’.
In the challenge in the High Court in 2018, Sir Ross Cranston accepted NE’s argument that measures imposed as conditions on badger licences, in order to try and avoid impacts on sensitive species and sites, were not ‘mitigation measures’ because NE had invited applicants to incorporate them into their application and they were thus integral parts of the project. This is an approach that contradicts the methodology NE requires to be followed in all other aspects of its duties under the Habitats and Birds Directives and it is telling that NE has very recently overhauled all of its Habitats Regulations Assessments for badger culling to try to correct this error.
The Court of Appeal’s decision on this aspect of the case has huge implications. If the Court of Appeal finds that Sir Ross Cranston’s decision was correct, it will put UK case law squarely at odds with that of all other EU countries bound by the Directive and will mean that Natural England’s approach to marking its own homework when it comes to badger licensing is open for wider adoption by developers and others as a means of avoiding the more stringent requirements of the Appropriate Assessment stage of Habitats Regulations Assessment. This will result in reduced protection to internationally important sites and have knock on implications for wildlife protection generally. On the other hand, if the Court of Appeal finds that Sir Ross Cranston’s decision to accept NE’s unusual definition of mitigation was wrong, it will confirm that NE’s authorisations for badger culling over vast areas of south-western and western England were unlawful, in both 2017 and 2018.
The question now remains what relief could occur if the cases are successful. With SBC it will be all or nothing; supplementary culling will either be stopped or considered acceptable. With the Natural England licences, judgment in favour of Mr Langton could see a number of licences quashed. This would both show the validity of the original challenges and focus a spotlight on how NE approached the 2019 licence applications.
We hope that judgment will be handed down before the end of July, but it is possible that it will be towards the end of August or even later. The courts were fair and open yesterday and we can only wait to see the verdicts. Huge thanks again to all those supporting the legal challenges and sending in messages of good wishes this week. It really is appreciated. Please keep encouraging donations as we are still short of funds. Huge thanks to the legal team and the contributing experts, advisors and researchers too.
C1/2018/2332 The Queen on the application of Langton -v- The Secretary of State for the Environment Food and Rural Affairs & Anr. Appeal of Claimant from the order of Sir Ross Cranston, dated 15th August 2018.
THE LORD CHIEF JUSTICE OF ENGLAND & WALES and
LORD JUSTICE SINGH and
LADY JUSTICE NICOLA DAVIES
Tuesday, 2nd July, 2019
At half-past 10
Tomorrow, Tuesday 2nd July, the Court of Appeal will consider whether the decision a year ago by a High Court judge to dismiss challenges to major elements of Defra and Natural England’s approach to badger culling in 2017 was right. Defra’s controversial policy that year to kill more badgers for longer, to prevent the English Bovine TB cattle disease crisis will come under fresh legal scrutiny, as will impacts on the ecological interest of nature sites of international significance.
The Court of Appeal will consider whether Sir Ross Cranston, sitting as a High Court judge in July 2018, wrongly dismissed the legal challenges brought by claimant ecologist Tom Langton against two elements of badger culling. These were namely, the decision of the Secretary of State for the Environment Food and Rural Affairs (SSEFRA) to pursue a policy of ‘supplementary culling’ of badgers, and the decisions of Natural England (NE) to issue licences in 2017 for badger culling affecting internationally important nature conservation sites in Devon, Dorset, Somerset, Cheshire and Wiltshire.
Breach of Protection of Badgers Act 1992
Mr Langton’s challenge against the SSEFRA’s pursuit of supplementary culling exposes that government has cut both costs and corners in considering the scientific evidence for its new approach to shooting badgers, introduced by Defra in 2017.
The claim is that the Government has approved a method that has no scientific basis and that has been advised against by published studies suggesting that the approach might even be counter-productive in the fight against bovine TB. This was also pointed out by the Zoological Society of London experts after the suggested method was made public.
The Protection of Badgers Act 1992 may be breached if culling is done merely on an experimental basis to stop spread of disease when there is no robust scientific evidence or certainty that this will work. The Government’s actions were found to be lawful by Sir Ross Cranston on the basis that the government argued it was able to adapt to and learn from any findings once the method is adopted. In recent weeks the Chief Scientific Advisor and Chief Veterinary Officer and a Natural England scientist have denied that a spike in bTB in the Gloucestershire pilot study and a slight rise in the Somerset pilot area in 2018 indicate that the method may be making things worse.
Important Nature Sites at Risk
On the second Ground of Appeal, Mr Langton’s challenge against Natural England centres around the duty on NE under UK and European law to ascertain that internationally important nature conservation sites are not adversely affected by badger culling operations. In the case before Sir Ross Cranston, Mr Langton had claimed that NE’s assessments pursuant to this duty were cursory and inadequate and as a consequence the decisions to sanction badger culling made on the back of them were unlawful.
In the High Court in July 2018, Justice Cranston agreed with Mr Langton that NE had breached certain of its duties under the Habitats Regulations. However, he accepted NE’s case that correction of the errors in their assessments would make ‘no difference’ to their conclusions and consequently he did not quash the badger culling licences.
The Court of Appeal will decide whether he was right not to do so. The Court will also decide whether he was correct to accept various measures to limit the possibility of impacts on international sites. One example was that culling stand-off zones near known high tide roosts for wading birds (which were imposed as conditions on the culling licences) were not ‘mitigation’ and could therefore be relied upon to ‘screen out’ sites from more detailed consideration. This is an approach that has since been found to be unlawful under European law.
Government has cut both costs and corners
Campaigners state that government has failed completely on the scientific monitoring that is required for any safe and proper assessment of new methods to shoot badgers, introduced in 2017.
Corners have been cut because;
Badger numbers are crudely guess-estimated and not properly assessed as is essential in determining population sizes; a vital consideration.
Natural England backtracked on requiring data from cull companies on fox and other predator control numbers in and around cull areas.
Natural England claimed to the court that their staff would know if any negative effects were happening on protected sites while at the same time stating in public that their ability to monitor SSSIs was seriously diminished.
ClaimantTom Langton said:
‘’ The understanding that badger culling may now be making things worse rather than better or having no effect at all is quite sobering and I hope the government will take time to reflect. What they should have realised in 2017 when they went ahead, was that they had no ability at all to learn from what was being proposed. It was and remains a huge mistake.
Our wildlife sites have been threatened by Natural England whose job it is to protect them. We think that Natural England’s defence is wrong and a damning indictment of their capacity and abilities. The court has found that they have breached their duties and now they are trying to justify, with dismissive language, feeble safeguards that neglect responsible protection of nature.
More badgers have been killed and injured during the year since the first hearing. The Minister should now intervene and take urgent steps, beginning with cancelling this year’s supplementary badger culls in order to rethink the policy. Claims by senior politicians that culls are working are founded upon briefings by Defra officials, based on mistaken or overstated understanding of the scientific evidence.’’
“Natural England earnestly reassured Justice Cranston last year that they will instantly respond to any emerging evidence of impacts on sensitive bird populations and other features, including those underpinning internationally important wildlife sites. These reassurances have been shown to be baseless platitudes.
One cannot respond to evidence of a negative effect that one is not looking for. The reality is that Natural England has conducted next to no routine monitoring of species populations on the European Sites threatened by badger culling, and is therefore not in any position to use any such monitoring as a miner’s canary to signal when protective steps ought to be taken.
It is telling that in the time they bought by reassuring the High Court last year, Natural England has sought to overhaul its impact assessments in a manner that precisely vindicates Mr Langton’s original claims, and as a consequence they now claim that quashing any 2017 decisions would be academic.
It will be for the Court of Appeal to decide whether this really is an academic matter having regard to all the changes to procedure and conditions that have been forced by Mr Langton’s challenges and whether those changes, welcome as they are, go far enough to protect vulnerable wildlife and fulfill our international obligations.”