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.