About The Badger Crowd

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.

Licensing Question: whose job to monitor the Predators and Prey?

An article in the Farmers Guardian here (17.05.19) reports on certain conditions which Natural England are attaching to this year’s badger cull licenses as a result of legal challenges. The action in 2018 relating to 2017 licences was against Natural England’s omission of  proper process in scrutiny of potential ecological impacts and did not particularise the method or manner of scrutiny or gathering of essential information beyond the normal accepted confines of the licensing system.

Although dispute resolution talks have being held with Natural England over the last few months, the detail and nature of the new licensing requests on predators and prey to cull companies have not been discussed. They are nevertheless consistent with the Natural England internal guidance developed last autumn.  It would seem that the cull companies have been contacted regarding the normal requirements  necessary to ensure that the Carnivore Release Effect (CRE)  resulting from the 70%+ removal of badger populations can be recorded, with emphasis on, but by no means limited to both breeding bird and fox numbers.

Referring to a condition requiring the monitoring of fox numbers, Tom Rabbetts, head of TB delivery at the NFU is quoted as saying “When the cull companies were set up, this was certainly not a requirement. They have not recorded this data and they do not have access to every person controlling foxes in the area.”

He also questioned why cull companies were being forced to carry out the work when fox control was not part of their remit and NE has responsibility for collating data on wild bird populations. Normally in activities that cause or may cause impacts to SSSIs and European sites and species, the applicant is responsible as standard, both for provision of baseline information and for carrying out avoidance, mitigation or compensation activity.

This would include the monitoring of the effects of badger culling on breeding birds, roosting birds, butterflies, small mammals, other invertebrates and habitats that could be influenced by sudden reduction in higher trophic species, either immediately, or over a period of time for more subtle changes. The Badger Crowd believes that the ecological consequences of the removal of badgers could potentially be enormous, and thus far have not been measured.

New Natural England ‘Guidance on evaluating the ecological consequences of badger culling on European Sites’ here, issued within weeks of the judgement on the Judicial Review in 2018, suggests that the ‘trophic cascade’ effect from badger culling may potentially result in a requirement to control the number of other carnivorous species, including stoats, weasels and even hedgehogs. The Badger Crowd believes this is correct recognition of the huge potential impact of badger culling on wildlife sites of national and international importance and the countryside in general. Such impacts need investigating as a requirement of statute and must be taken as seriously as any other threat, such as road building.

Badger Crowd is seeking solutions to bovine tuberculosis for farmers and wildlife. We believe that badger culling is not an acceptable or effective solution and that impacts upon the environment are just one of the major issues that act against the interest of the countryside, taxpayers and farmers. It distracts from the real needs for better cattle testing regimes (including a halt to the misuse of and over-reliance upon the SICCT test) and the stopping of daily transportation of diseased stock around England. Immediate reform of poor veterinary advice and a compensation culture resting on public funds that further accentuates the problem is urgently needed.

Natural England ‘don’t have a clue’ as NFU rejects data gathering.

In an article by Rachel Salvidge, published by the ENDs Report on 13 May here,  Sir Geoffrey Clifton-Brown, MP for the Cotswolds is reported to have said the idea that the badger cull increases fox numbers is “flawed” . Cull companies were being asked for data that they “don’t have because they hadn’t been asked to collect it”. He is quoted as saying that for the badger cullers: “it’s an absolute nightmare… the hoops they have to go through,” and that the demand is “another example of Natural England not having a clue about what goes on on the ground”.

In a statement, the NFU said: “We feel that any area that accepts a licence condition to undertake the control of foxes would not be in a position to do so. As a limited company they are not set up to undertake these actions and are not technically in a position to enforce it.”

Clifton-Brown describe the side effects of badger culling as a “ploy by conservationists to stop the cull”, adding that “people’s livelihoods are at stake.”

 

Badger Crowd’s thoughts on Michael Gove’s letter to Sir Geoffrey Clifton-Brown MP

Michael Gove’s recent letter to Geoffrey Clifton-Brown here, resulted in the Sunday Telegraph story here. We’ve put together some thoughts on the contents of this letter.

Mr Gove’s letter unfortunately mischaracterises a part of the case brought on behalf of the Badger Crowd against Natural England in respect of the badger cull, and it falls foul of a number of factual errors. It suggests that those responsible for drafting the letter have an incomplete understanding of the pleadings advanced by both sides in the Judicial Review hearing.

In the first instance, the legal challenge was and remains far broader in scope that the description afforded to it in the second paragraph of Mr Gove’s letter. That said, in so far as it characterises that part of the case that deals with Carnivore Release Effect (CRE) and the risk this poses to non-target species of wildlife, it is not too far off the mark.

However the following (third) paragraph of the letter seems to attempt to ‘spin’ Natural England’s case as put to the High Court in July 2018. Firstly, NE did not argue that culling would lead to a net reduction in predatory species. Nor could they do so on any sensible ecological basis. What NE did attempt to argue is that the increase in foxes from the removal of around 70% of badgers from local ecosystems would be either insignificant, would give rise to no discernible effects or would be counter-balanced by existing lethal local control of wildlife.

It is a very relevant matter to understanding the merits of the Badger Crowd challenge that NE have now changed their position to one where they accept that fox control and reduction of other predators is or might be a necessity to combat the effects of e.g. increased or more dynamic fox dispersal on certain sensitive birds and certain sensitive sites.  This is illustrated in the case of Salisbury Plain Special Protection Area. Here NE failed to undertake any assessment of the possible implications for protected stone curlew, of culling on immediately adjacent land prior to the challenge. Now NE’s response is to require both a physical stand off from the protected area boundary  on this species, and additional fox control to combat anticipated increases in numbers.  It is a complete about-turn.

With that matter clarified, we can turn to the substance of Mr Gove’s letter. This is a response to a complaint, voiced through Sir Geoffrey Clinton-Brown MP, that conditions NE are newly seeking to place on badger culling licences from 2019 (which require culling companies to supply information on fox killing in and around certain protected sites) are excessive and onerous. Mr Gove’s letter plainly seems to reassure cull companies through Sir Geoffrey that complying with these conditions is a simple measure: it is there merely to tick some boxes arising out of certain elements of the challenge, and complying with it need not be particularly burdensome.

This is both illuminating and alarming when framed in the context of a) the genuine risk to rare and sensitive species of wildlife and designated international sites brought to Natural England’s attention by the case (and now only latterly accepted by them as ecologically ‘credible’) and b) the commitments made by Natural England, in court proceedings, to reassure the judge that NE should not be sanctioned for not having previously considered these risks to any meaningful degree. What Mr Gove’s letter suggests is that Natural England’s enthusiasm for following through on their commitment to the judge to investigate this issue, is sorely lacking and perhaps that what is now proposed is no more than tokenistic.

As set out in Mr Gove’s letter, Natural England sought to reassure the High Court in 2018 “that if, contrary to expectations, evidence were to emerge of a legally relevant adverse effect on bird populations, they [NE] would introduce measures to reduce fox numbers within 2km of protected Sites of Special Scientific Interest (SSSIs)”. This is a commitment to monitor bird populations, not numbers of foxes killed. Fox and other predatory mammal numbers more properly, however, could also be monitored but it would require a concerted effort. There can be no argument that this large reassurance offered by Natural England played no small part in Sir Ross Cranston, sitting as the judge in those proceedings, feeling sufficiently “comforted” to refuse to grant relief notwithstanding that he found that NE had breached its duties under the Habitats Directive.

Judge Cranston did not consider whether NE had measures already in place or sufficient resources to detect any evidence of this ‘legally relevant adverse effect’. He took their pleadings in good faith and at face value. The subtext of Mr Gove’s letter is that NE now realises it committed to properly monitor bird populations in areas where CRE was a risk without thought to the resourcing implications of doing so. In an effort to get out of this situation it has sought to place this burden on cull operators by using a surrogate measure of CRE risk – fox numbers.

Even if cull operators had happily taken on this additional requirement on licences to provide data on “current fox control practices” as a proxy for fox numbers and change within specific areas, serious questions would arise as to the value of any such exercise in detecting population change among at-risk bird populations. How would such data be standardised? How would it be corrected for error, and how would bias be eliminated? Such an approach to data collection is tantamount to asking passersby to count sheep in fields in order to determine population changes in blackbirds. Mr Gove’s earnest platitudes that for cull companies ‘all is not as bad as it seems’ do not provide any suggestion that such problems with the quality and utility of any data collected by cull companies are of any concern to either NE or Defra. Rather they tend to suggest a ‘just get some numbers and the box is ticked’ approach to the task.

Compare this with the context within which this requirement came about. Under the duress of legal challenge Natural England committed directly to the judge to monitor sensitive bird populations at risk from the ecosystem changes arising from badger culling via existing and new exercises. Now faced with the magnitude of seeing through that task, NE is seeking to push the burden onto cull operators, and asking them to seek out and provide near-meaningless data, which is almost impossible for them to gather. It is an exercise in futility and what’s more it has backfired, as even the culling operators can see that it is both potentially onerous and utterly pointless in isolation.

The mess that Mr Gove has been called upon to try and sort out is not the fault of the claimant, but it is a direct consequence of Natural England’s knee-jerk responses to legitimate challenges and the scrutiny of the Court. NE’s habit of reacting to the spotlighting of procedural failures rather than seeking a sensible pre-emptive approach to risk management is unhelpful. A different approach that avoids such challenges would be in line with their statutory duty.

Badger Crowd seeks to resolve bovine tuberculosis in the interests of wildlife, farmers and cows. It believes scientific and veterinary practice and procedures have been corrupted and compromised and that the current approaches can only make matters worse for all.

 

 

 

Farmers are set ‘impossible task’ over risk to birds from badger cull

 See our comment below.

  • The Sunday Telegraph

  • 12 May 2019
  • By Helena Horton

NATURAL England has been accused of bowing to badgers’ rights campaigners after setting farmers the “impossible task” of proving the cull poses no risk to ground-nesting birds.

A High Court challenge by protester Tom Langton claimed that as badger culls increase numbers of foxes, rare ground-nesting birds preyed on by them are put at risk. The environment watchdog successfully argued that culling badgers can improve such bird totals but it agreed that people doing the culling would have to provide data.

Landowners said this is “impossible” as they were not asked to collect data before they culled the badgers, so they have no comparison for any new figures. One culling company in Gloucestershire has said it may have to stop operating because of the stipulations.

It comes after Natural England (NE) lost its power to issue bird shooting licences in a row with farmers who kill birds that attack livestock and crops, after legal action by BBC host Chris Packham and his campaign group Wild Justice. They argued the licences did not take into account welfare concerns.

Sir Geoffrey Clifton-Brown, MP for the Cotswolds and chairman of the parliamentary group on shooting, said: “I don’t believe that by culling badgers you are increasing the fox numbers, but if that is part of the undertaking that Natural England is taking to the judge, it was a stupid thing to do as it was an impossible thing. The worry is that no one will be able to cull badgers. To stop them on a minor technicality would be a nonsense.”

The MP asked Michael Gove to fix the situation and the Environment Secretary admitted the decision has caused “confusion and disruption”.

Mr Gove said: “I agree unnecessary bureaucracy should not be imposed on companies carrying out culls, and understand their frustration in having to adapt to new information. I am aware that a supplementary badger cull company in Gloucestershire … has raised significant concerns and have been assured by NE discussions are ongoing.”

He said his department and NE are working as quickly as possible to resolve the issue, “in a way that avoids any further confusion or disruption for landowners and other stakeholders”.

He added that if Natural England’s review finds “legally relevant adverse effect on bird populations, they would introduce measures to reduce fox numbers within 2km (1.2miles) of protected Sites of Special Scientific Interest”.

Farmers argue that they have to cull badgers to prevent the spread of bovine TB. Mr Langton, who runs The Badger Crowd, said he would press for further restrictions on culling. A Natural England spokesman said: “We will continue to review and improve our work to assess the impact of badger control operations on protected sites.”

 

Comment from the Badger Crowd

Yesterday evening (11 May) the Daily Telegraph, who recently leaked the story about the government’s unlawful licensing of the shooting of wild birds, was given early tip off  of a government announcement, apparently scheduled for a few days time. We were not contacted by the journalist.  The matter relates to a part of our twin Judicial Reviews in July 2018  that resulted in August 2018 in a Natural England Draft Internal Guidance on evaluating the ecological consequences of badger culling on European Sites.

Following our court representations, this guidance accepted much of our factual arguments on the potential disruption to numbers and distribution of predators, to animals in lower trophic levels and potentially to habitat structure due to changing grazing pressure, once a dominant species such as badger is heavily depleted. One possible effect is that food (including large amounts of road-killed and discarded shot game birds) and underground burrows are more available for foxes and other predatory species, with potential knock-on effects.

Any increased predation resulting from shooting may disturb roosting or breeding birds and increase the predation of eggs, young and adult birds to a greater extent where systems are in constant flux, as opposed to more settled countryside, including land on or near to nature reserves. Other more subtle changes may go unseen or take several years to appear, or even be undetectable.

Government should and may well require the establishment of a measure of predator numbers across the cull areas, at least where nature reserves of international importance (such as RAMSAR, SPA and SAC) are within or near to cull zones on an area by area basis. This should really have been done before culling started as a baseline and is likely to be required for any new cull area in 2019 as well as existing ones. Then, in order to assess impacts upon other species, the fox numbers require monitoring through the cull years to detect change, and the fate of local ‘at risk’ bird populations properly monitored too.

In 2018 Michael Gove ordered badgers not to be killed around three sections of Salisbury Plain in Wiltshire, where nesting Stone Curlew are holding on. He also required dozens of foxes to be shot in order to mitigate the influence of increasing or more mobile foxes moving in from further away. But it was unclear if natural England had sufficient resources to check if this was done, leading to confusion.

The new measures should better address the monitoring of rare bird numbers where natural communities are being disrupted.  Badger Crowd has battled to obtain a copy of the public-funded preliminary desk study of the Pilot cull areas, commissioned from the BTO* by Natural England last year. It has been strenuously withheld but is now likely to be released with any new announcement, probably concluding that it is impossible to detect change without actually doing the necessary fieldwork:

*Kettel, E & Siriwardena,  GM. 2018. Comparisons of breeding bird population and abundance trends within and outside two specified areas located in SW England. Report to Natural England. British Trust for Ornithology, Thetford, Norfolk, UK.

Badger Crowd awaits the report with interest and the new measures to be introduced. As the number of bovine TB confirmed herd breakdowns increased in response to Supplementary Badger Culling in both Somerset and Gloucestershire last year the pressure to suspend culling in these two pilot areas and not to start in Dorset seems more and more likely.

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Natural England censured by the High Court

The latest BBC Wildlife Magazine has a short feature on our recent gruelling court battles to seek justice for badgers and the places where they live.  Natural England threw detailed legal arguments at us last autumn in a bid to try to stop crucial evidence from designated sites expert Dominic Woodfield being submitted to the Judicial Review. This skirmish added a permission hearing, a process that cost us an extra £16,000, that we somehow found due to the generosity and determination of The Badger Crowd.

Over the judicial process last year, NE had already indicated that some SSSIs had been inadequately assessed during issue of the 2017 cull licences. A new judge then ordered a sample of 45 SSSIs to be checked and in the run up to the March 2019 hearing, Natural England agreed to prohibit badger trapping on SSSIs within 100m of all watercourses where otters are a protected feature. NE also agreed it would prevent the placing of cage traps in the marsh/riparian wet areas, and to disallow the digging-in of cage traps at dawn and dusk. Our pressure resulted in NE confirming that when it said ‘’avoid’’ it meant ‘’prohibit’’, removing the ambiguity that may lead to avoidable disturbance and potential damage to wildlife. 

Readers should also know that potential problems with 25 of the 45 SSSIs were ‘parked’ and not explored in detail, partly because the judge invoked something called the Senior Courts Act 1981 (duty to refuse relief where outcome not substantially different). This means that even if we were proved right in our claims that assessments of these SSSIs were not done correctly, the judge accepted NE’s defence that this would have made ‘no difference’ to the safeguards they would have required when licensing. However the ‘no difference’ defence does not cover up the primary failure of assessment, and this is one reason why we are appealing. 

Natural England conceded that their assessments were defective on three SSSIs before we got to court. They also made several adjustments and amendments to their licence conditions in response to our claims. The judge then found we were right on a further 3 of 45 SSSIs. He relied on the ‘no difference’ defence to avoid getting into the detail on a further 25. Put all these things together and the magnitude of Natural England’s failures could  involve well in excess of 10% of sites. Bearing in mind that this is a sample, and that over 1,000 SSSIs in and around the west of England may be influenced by the direct and indirect impacts of badger culling, dozens of sites may be subject to damaging impacts right now.

We can only hope that we are allowed to appeal this section of our challenge and that Natural England will be found to be wrong over their view of how weak SSSI protection is in law.

This part of the legal challenges has been led by expert work from  Dominic Woodfield, who has again put in an enormous effort and for whom huge credit and thanks are due.

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Short piece in April edition of British Wildlife

This short piece picks up on the recent approval by the Court of Appeal for our hearing to look again at (amongst other things) the alleged failure of Natural England to address the potential negative impacts of badger culling on birds within designated sites of international importance (SPA, SAC, RAMSAR). It also mentions how our High court Judicial Review case in March 2019 showed that NE failed to give adequate consideration to the protection of birds and butterflies on SSSIs in Dorset and Gloucestershire.

Another generous donation….

The Badger Crowd had a major fundraising boost  this morning with a generous £5000 donation from a past donor. Now with permission to appeal aspects of last year’s cases, and Court dates of 2/3 July, we have a vital (and possibly last) opportunity to oppose the Secretary of State’s approval of Supplementary Badger Culling and Natural England’s dubious approach to eco-impact assessment. Find out more about other our other current and potential challenges by reading ‘Our Legal Cases’. Please take action and donate now if you can. Tell your neighbours, friends and family. We must make every effort to stem the tide of blood that is the unethical, unscientific failed English badger cull, based on flawed epidemiology.

THANK YOU TO ALL THE GENEROUS DONORS IN RECENT WEEKS. YOU ARE PART OF THE BADGER ARMY.

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What we’ve been doing……

Last year we brought a High Court Judicial Review claim, that to keep culling badgers after a four-year cull was an unlawful, unproven approach to bTB control. In addition, we claimed that safeguards to nature reserves from ecological damage following badger removal were inadequate. Defra and Natural England continue badger culling in England on an increasing scale, killing 67,000+ badgers to date, based on what we say is wrong advice, decision making and procedure. We ended on the wrong side of the finely based decisions, but with advice that applying to appeal would be worthwhile.

Back in Court in March 2019, we successfully showed how Natural England had  breached their duty under Section 28 of the Wildlife and Countryside Act 1981 with many inadequate assessments prior to licensing culls. We showed how Natural England’s systems were at fault and how they have extensively changed their procedures since our challenges began in 2017.

We now have leave to appeal aspects of the 2018 judgments and need to raise £28,000 by July 2019 for this. We are also seeking permission to appeal the March judgment, where the Judge agreed that we were correct in some aspects, but ruled in favour of Natural England..

In addition, we are at various stages of challenge on several other issues including the 2018 Low Risk Area (LRA) badger culling policy, the Cumbria LRA 2018 Licence specifically, other 2018 badger cull licences and regarding Supplementary Culling in Gloucestershire and Somerset pilot areas where bTB rates are increasing. Several thousand pounds for each of these is required to establish feasibility and to determine potential outcomes even before applying to the court. 

Against very difficult odds, sufficient progress has been achieved for this work to continue. Our intention is to seek legal justice for wildlife and people by having all our arguments clearly heard in Court. Financial support has already generously been given by badger groups, trusts, charities and members of the public and together we are a major force for change. We hope that people not already part of The Badger Crowd will read this appeal and spread the effort by joining us and asking others to do so too. Every donation, no matter how modest, contributes to the total required. Thank you for caring and please help us if you can.