Badgers Back In (Belfast) Court

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With the use of the farming industry press, the farming sector is being hoodwinked into thinking that badger culling could somehow help them. Or is badger culling perhaps, as in England, being used as a delaying tactic and distraction from real epidemiological solutions that would prevent both disease and help end dependence on constant public subsidy?

In 2021, the Northern Ireland Department of Agriculture, Environment and Rural Affairs (DAERA) announced proposals to copy English-style badger culling in Northern Ireland. As a result, a legal challenge to this will take place on Monday 21 November next week,  with a one-day judicial hearing by the Department of Justice at the Royal Courts of Justice in Belfast.

It will be the most important day for NI badgers for decades, although the outcome may take months to be announced. The hearing is open to the public to observe in person, and it is listed to start at 10.00 am.

Year-on-year failure

It is barely possible to believe, after year-on-year failure in England and the Republic of Ireland, that DAERA wish to draw a veil over their inadequate cattle controls and cull around 10,000 badgers over the next 10 years across Northern Ireland. With an estimated 2,400-3,200 badger adults and cubs to be killed within the first four-year period, and then supplementary culling for perhaps a further 5 or more years, adopting the unsuccessful 70-96% kill technique attempted in England.

Also proposed is an element of experimental badger vaccination after the mass slaughter, a policy that government appointed experts in England say is an unproven approach to the control bTB in cattle. The ongoing badger culls in England and the Republic of Ireland (RoI) suggest that the DAERA estimates and timescales could prove to be over-optimistic. Twenty years on, the RoI is still culling badgers and still failing to eradicate bTB from its national herd. It hasn’t worked, and since the free movement of diseased cattle continues, it is not a surprise.

The NI legal challenge made earlier this year by Wild Justice and NI Badger Group, is that the consultation by DAERA on options to control the badger population to tackle bovine tuberculosis (bTB) did not meet the requirements for a lawful consultation. The DAERA consultation referenced a ‘business case’ for the cull but failed to make the document available for scrutiny, and for some mysterious reason it has been withheld. Perhaps that is because it doesn’t stack up and is little more than guesswork?

Therefore, the resulting decision to choose to greatly diminish the badger population by allowing farmer-led groups to shoot at free-roaming badgers at night is also, it is argued, unlawful.  On 9th September, a presiding judge at Belfast’s High Court, The Honourable Mr Justice Scoffield, agreed that the challenges were arguable and hence the hearing date was set.

Wild Justice, with others, also argue that DAERA Minister Edwin Poots’ decision, announced in March 2022, to allow farmer-led companies to shoot an average of 1,000 badgers a year, is unlawful because he issued the Article 13 (power to destroy wildlife) order under the Diseases of Animals (Northern Ireland) 1981 Order.  Controversial climate-change denier Poots, did this without making sure that there is no reasonably practicable alternative way of dealing with bovine TB across Northern Ireland.  In September, Mr Justice Scoffield ‘stayed’ a decision on this challenge for consideration later, perhaps when the first two grounds are decided.

Competence of veterinary bodies and advisors

As in England, the competence of veterinary bodies and advisors within government is under close scrutiny, with advice from the ‘cattle vet’ contingent on maintaining intensive beef and dairy production being called into question. They disregard the fact that bTB is changing at similar rates in Wales and England, with Wales not culling badgers.

Now DAERA are busy promoting badger culling with ‘roadshows’ which make exaggerated claims, disseminate misinformation and use other propaganda tricks to force their proposed wishes on the public. See for example:

https://www.daera-ni.gov.uk/news/tbep-host-btb-eradication-strategy-information-roadshows

https://www.farmersjournal.ie/daera-set-out-aims-of-targeted-badger-cull-730904

https://www.farminglife.com/business/farmer-levy-to-fund-btb-badger-cull-3897714

https://www.impartialreporter.com/news/23083437.fermanagh-farmers-hear-tb-eradication-measures-begin-2023/

TB Eradication Partnership (TBEP) Chair Sean Hogan promoting badger shooting on BBC Radio Ulster (from 21.20): 
https://www.bbc.co.uk/programmes/m001d4rx

There is evidence that all the bully-boy tactics used in England will be used in NI.  At a recent roadshow in Armagh, farmers were apparently told that DAERA would, if necessary, invoke the Diseases of Animals Order to cull badgers on lands where the owner refuses permission.

If the JR case is won, DAERA’s credibility would be seriously damaged and the policy would be required to go back out to consultation, perhaps even without an Assembly.  An Assembly could reconvene before fresh elections are announced. But a fresh decision on the outcome would probably need Ministerial authorisation if significant changes were made to the proposals.

The assessment of ecological-impacts question also remains unaddressed

This case may also remind DAERA of another ‘ticking time bomb’ within its proposals only to carry out ‘preliminary ecological assessment’ to form a baseline to monitor badger culling impacts on designated sites and species. Proposals are completely insufficient and don’t even reach the almost non-existent care taken by Natural England in England. Legal challenges in England since 2017 imply that any NI action licensing the culls would be subject to JR, due to inadequate assessment and monitoring of culling impacts in the way described within the various English High Court legal proceedings. Failure to form an adequate baseline and credible monitoring methods could bring any badger cull decision to a grinding halt even if a go ahead was given.

“Insanity is doing the same thing over and over and expecting different results.”

DAERA has created an almighty mess in trying to copy the failed English culls and is heading for a fall. We can only hope that justice is done and this cruel, unscientific and useless killing of protected wild mammals is confined to the history books marked ‘fail’, where it belongs.

Revision to eco-impacts science journal abstract draws attention to government impact-deniers

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The Abstract of a paper on the potential harmful impacts of badger culling on other species and habitats in the Journal of Zoology (1) this year has been amended to better reflect the contents of the paper.

The original Abstract of the paper, whose authors include two Natural England employees working alongside researchers from the British Trust for Ornithology on licensing the culling of badgers, contained a sentence saying that badger removal ‘..has not affected bird populations..’. However, the important main conclusion from the work, and one better supported by the findings of the analyses, was rather different – that ‘A landscape scale, quasi-experimental approach is strongly recommended to provide stronger inference about the complex potential ecological effects of culling predators such as the badger.’

The changes reflect and highlight the paucity of effort that government has taken to investigate ecological impacts since mass badger culling began in 2013. Defra and Natural England escaped full judicial scrutiny earlier this year by a ‘smoke and mirrors’ approach to remaking an impugned decision to disregard side-effects on wildlife outside designated sites. Behind the backs of the claimant, and of the court (see here) they made just enough of a procedural correction to satisfy the judiciary. They kept their ’do nothing’ approach alive, at least until new powers arrive under the new Environment Act once that is enacted.

In recent weeks, Natural England have been approached via lawyers to address the issue of the ‘strong recommendation’ in the August 2022 paper. They have been asked how they have responded to the published finding that a different, larger scale approach is needed before the potential damage from badger culling can be properly assessed, when granting licences to mass-kill badgers over the wider countryside. Government’s entrenched position in 2021 was that ecological studies were too expensive, and it was ‘too late’ for meaningful research as badger culling is being phased out by 2025.

Such impacts are important when considering the fate of European Protected Species and those priority species and habitats afforded protection under the 2006 NERC Act. There are legal duties to fulfil.

Dominic Woodfield has provided expert advice and witness statements relating to challenges to Natural England’s defective approach to protecting nature in England when organising badger culling over the last five years, including High Court rulings where judges found that NE had been in breach of its statutory duty by neglecting nature conservation protection. He said:

“The abstract of a paper is the most public-facing element and often the only bit that gets read by busy people looking to gain a rapid insight into current science and issues. It is therefore very important that it is an accurate summary of the conclusions reached.

We don’t know whether the original authors or the Journal editors were responsible for the error of representation in the abstract in this case, but it is evident that the publisher now accepts and agrees that it was misleading and that it did not reflect the actual results and conclusions of the study. Perhaps incidentally, or perhaps not, it had the further effect of masking the inadequacy of the effort made by Natural England to investigate insidious but potentially significant side-effects on sensitive bird species arising from the Government’s badger culling policy – side-effects that remain a mystery after an unknown amount of money wasted on meaningless desk-top analyses.

The study actually, and inevitably, concludes with a statement that vindicates mine and others’ view that the approach being reported on is a waste of public money and tantamount to kicking the can down the road for fear of getting an unwanted answer. As a body no longer even semi-autonomous from Government, one might expect Natural England to want to ‘spin’ the presentation of the results, but if that is indeed what happened here, it would be a matter of much more concern that the BTO would seem to have been complicit in such actions.“

The correction to the abstract of the paper is shown below.

Abstract
Since 2013, the Department for Environment, Food and Rural Affairs (Defra) has licenced culling of European badger (Meles meles) populations in several English regions. In the first 7 years, more than 100 000 badgers have been removed. It is critical to evaluate the ecological impact of severely depressing the population of a widespread predator from large areas of the country, such as effects on breeding bird populations. Citizen science survey data on the abundance of breeding birds supports the estimation of population trends, i.e. whether species are exhibiting population growth or declines, and the effects of potential environmental influences, such as badger removal, on these trends. Here, these survey data are used together with data on the presence and amount of culling in an area to explore whether removing badgers has an effect on breeding bird populations both inside and outside culling zones from 2013–2019. This is not equivalent to a controlled trial, but collects critical, landscape-scale evidence in real-world conditions. In analyses evaluating the effect of culling presence, 18 of 55 bird species showed significant or near-significant growth rate changes. Of these, four species had higher growth rates and 14 exhibited lower growth rates in cull areas, compared to areas outside of the culling zones. When using culling intensity data to assess the impact on growth rates, 10 of 55 species showed significant or near-significant results, with only one species exhibiting a higher population growth rate in the presence of more intensive culling. Predicted sensitivity to badger effects based on species’ ecologies did not predict whether the measured relationships were significant, or their directions, suggesting that other factors underlie the patterns seen. Hence, there was little evidence to indicate consistent, community-level effects of badger removal on bird populations. Reasons why this predator removal has not affected bird populations are discussed. A landscape scale, quasi-experimental approach is strongly recommended to provide stronger inference about the complex potential ecological effects of culling predators such as the badger.

This correction was added to the Journal paper on 4th November 2022.

(1) Ward, C.V., Heydon, M., Lakin, I., Sullivan, A.J., Siriwardena, G.M., Breeding bird population trends during 2013–2019 inside and outside of European badger control areas in England. Journal of Zoology, August 30 2022.

Will Government Secrecy on Key Bovine TB and Badger Cull Data Prevail?

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Tribunal sits to reconsider Information Commissioner’s decision.
Badger Cull Data Tribunal Hearing on 01 November 2022. EA/2022/0007

This week, Dr Brian Jones appealed to the first-tier tribunal of the General Regulatory Chamber (Information Rights) in an online hearing coordinated by the GRC Team in Leicester. It concerned a ruling by the Information Commissioner upholding the decision by the Animal Plant and Health Authority (APHA), not to supply the data to him on herd breakdown figures for culled and unculled areas in the High Risk Area. It had been decided that to supply the information would have been an unreasonable burden and contrary to the public interest.

Presiding over the tribunal was Judge Hazel Oliver with Messrs Taylor and Sivers making up the panel. Charles Streeten represented APHA with Dr Jessica Parry attending for APHA while Dr Jones represented himself with nature conservation consultant Tom Langton as expert witness.

Dr Jones was Senior Hospital Immunologist and Head of the Clinical Immunology Unit at Queen Mary Hospital, Hong Kong and Honorary Associate Professor of Immunology in the Medical Faculty at Hong Kong University, until his retirement in 2007. He has published over 100 peer-reviewed papers on human immunology in health and disease. He has taken a keen interest in the immunology of bovine TB, not least in the immune based and failing tuberculin skin (SICCT) test, that releases 15% of infected herds each year to go on to infect stock around the country, because it averages around 50% test sensitivity on individual cows; perpetuating the epidemic at massive public cost.

Dr Jones opening remarks stated that 23 months ago he had submitted his request  for data “APHA should have at their fingertips” and which could have enlightened the contentious issue of badger cull efficacy. He said that APHA would probably argue that this is not the point of issue for this tribunal, only that his request should be lawfully dismissed under the Environmental Information Regulations. 

Dr Jones said that the documents that have been submitted by him essentially argue that culling badgers is not a justifiable component of bovine tuberculosis control and that the evidence was obtained through peer reviewed statistical analysis of DEFRA’s own data. APHA have not succeeded in disproving that evidence, despite all efforts to influence publication of the Langton et al. paper (here) 2022 in Veterinary Record.  Dr Jones said that throughout his career in clinical laboratory immunology he had practiced scientific rigour, impartiality, transparency, and integrity. He would expect these qualities to be universal for all who practice science. He believed this tribunal should take these issues into consideration in interpreting the Environmental Information Regulation 12(4)(b) concerning unreasonable requests and the public interest as it applies to this case.

Charles Streeten of Francis Taylor Building argued that the request was not really an Environmental Information Regulations (EIR) matter (where there is a public interest test and presumption in favour of disclosure) but that it was more of a Freedom of Information Act matter, as he argued the data related only to one species, cattle, and not to biodiversity of human health. Under cross-examination, Dr Jones did not agree with him. He argued that the data, with other data, combined to be of importance to many other species affected due to loss of badgers – an apex predator, including humans, because the healthy natural world is so essential for human wellbeing.

It was clear to the tribunal that APHA had not provided answers to at least some of Dr Jones’s questions, which could have been answered within the defined limit of reasonable time (24 hours) or given options for what could be supplied within that time. Dr Parry for APHA said they had around 5 people who worked on the issue and other specialists were also available for input and to answer public requests, but it was not her who made the decisions on FOI workload. To supply the data in question for Dr Jones APHA would need to create a computer ‘code’ in order to place the electronic data into a file to send to Dr Jones.

Mr Langton indicated that to extract, for example, Defra’s ‘never culled’ data from ‘all unculled data’ used by Defra in rebuttal of his paper, it might have required an additional simple communication between Dr Jones and Defra to identify that data for analysis in a short and straightforward iterative process. APHA had considerable resources for what was one of the great livestock disease issues of our time. This was the data the Defra still refused to provide today. This witholding of data was suspicious becasue APHA had not produced any analysis of badger culling beyond the 2017 data . Despite the apology to him from the CSA and CVO that the figures in their rebuttal to the 18th March paper in Vet Record were wrong, Defra were still refusing to hold a meeting to discuss the science, (here). Mr Langton’s witness statement contained a copy of an email (from APHA’s Eleanor Brown to the Veterinary Record’s editor) from March 2022, showing an attempt to block publication of his March 2022 paper.

In his closing statement Dr Jones said that he only wanted to make a very simple point, and that is that the best science and the firmest conclusions are always arrived at through sharing of unbiased data, collected through transparent processes.  He said:

“The expertise of independent scientists like Mr Langton and his colleagues should be utilised in collegiality with APHA to arrive at consensus approaches to controlling bTB. He was particularly concerned that the opportunity for accurately determining the part played by badger culling in controlling bovine tuberculosis will be lost once the unculled parts of the HRA become vanishingly small. They haven’t yet, but Dr Birch’s abstract presented at ISVEE (here) is saying that they have. This denies the possibility that the incidence and prevalence of bTB in unculled areas is actually falling at the same rate as in culled areas.“

Dr Jones maintained that provision of the data he had requested would have allowed the conclusions in Langton et al. to have been reached at least a year earlier and would have saved the public purse several million pounds. It would have allowed APHA to concentrate on their other important projects;

“Farmers, vets and scientists could have been concentrating on the effective measures that will eventually wipe out this dreadful disease: better diagnostic screening, prevention of fraudulent cattle trading and movement, training farmers in biosecurity, enhancement of slurry management regulations, vaccination of cattle with improved BCG.” he added.

Judge Oliver indicated that there was some potential for the outcome to be decided within three weeks; in November 2022.

Reference

Langton, TES, Jones, MW, McGill, I. Analysis of the impact of badger culling on bovine tuberculosis in cattle in the high-risk area of England, 2009–2020. Vet Rec. 2022;e1384. https://doi.org/10.1002/vetr.1384

Natural England and the 2022 cull licences

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Over the last three years, the science base for badger culling has shrivelled away from ‘not very much’, to nothing. It has regressed from speculation that it might enable a modest annual reduction of bTB in cattle, to the reality that after 7 years of study, there is no measurable benefit when comparing herd breakdown rates in culled and unculled parts of the High Risk Area. It doesn’t work. This is one reason the government refuses to talk about it. Not only did the 2018 spike in bTB breakdowns in Gloucestershire show how unlikely it is that the killing of badgers is linked to the epidemiology of cattle breakdowns. It showed how cautiously the model-based claims of the Animal Plant and Health Agency (APHA) after 2 and then 4 years of culling should be considered. Subsequent detailed examination of all the government data this year in a peer reviewed paper (Langton et al) showed the badger culls to have failed.

Following a ridiculous three months of trying and failing to block and then rubbish the new scientific paper, Defra stopped communicating with the authors and enquiring journalists, leaving Natural England (NE) with the difficult decision of whether to continue issuing licences. The government response was to re-deploy Andrew Robertson from the government’s TB HUB information service in Exeter to Natural England in May of this year “because of a lack of expertise” inside the NE organisation. The outcome was that Natural England supported Defra’s position and issued yet more badger culling licences. Initially more Supplementary culling licences were approved by NE in May, this despite the fact that there was no benefit after 4 years to maintain for a further 5 years. Then in August, NE were somehow prepared to extend their belief in the killing of badgers and to continue culling badgers based on their own unpublished ‘secret’ science.

Instead of stopping culling as they should have done, NE have taken a nebulous stance on the science. It has refused to provide any written justification for its position, perpetuating its belief in the use of secrecy to prevent public scrutiny of their competence and decision making. The public have a right to see the rationale for their decisions, but this has been withheld. It is clear that NE have worked very very hard this year to facilitate continued issue of licences. They do this for a combination of reasons. They are likely fearful of contradicting Defra and APHA. Perhaps it would be too difficult to admit to failure on such a sensitive area.

Over the summer, NE Chairman Tony Juniper chose not to reply to communications, preferring to talk vaguely on public panels about NE not wanting culling and preferring vaccination. This summer he had a big chance to stop badger culling. He didn’t. He has now been in charge during the culling of most of the approximately 200,000 badgers. He and George Eustice have carried out what some call the near eradication of badgers over large parts of England.

NE eventually responded this week following a legal pre-action letter, sent in early October. They claimed that the death of the Queen and changes in government had prevented the licensing paperwork from being shared with those asking for it. These are embarrassing excuses for the lack of provision of legally required documents, on such a controversial subject of high public interest, and they reflect poorly on those responsible.

Information released late on Friday 28th October, showed 11 new cull areas, and the potential for tens of thousands more badgers to be killed. Over 30,000 or so could have already been shot over the last 8 weeks in a further sickening Natural England licenced ‘bloodfest’ of largely healthy badgers. One thing is certain, this is Natural England’s work. Natural England carry the torch for badger culling even if they say they are only following orders. As they have since 2012, when someone thought it would be a good idea for NE to carry it out and control it. They certainly have. It is the legacy of those involved with NE past and present, as much as anyone.

Did BTO help Natural England breach its High Court promises to monitor the ecological impacts of mass badger removal?

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Another chance to read an important guest article entiled; ‘Breeding Bird Survey (BBS) data, badger culls, Natural England and the British Trust for Ornithology: New paper, same old.’ by Dominic Woodfield that first appeared on Mark Avery’s blog on 23rd September 

Dominic Woodfield is  a highly experienced practitioner in Environmental Impact Assessment and Habitats Regulations Assessment. Most of his work is for the development sector, but he has also undertaken commissions for Natural England, the RSPB, Wildlife Trusts and campaign groups. He once mounted a succesful independent legal challenge in defence of an important site for butterflies in Bicester, Oxfordshire.

Most readers would, I imagine, concur that an increase in fox populations in places where there are vulnerable ground nesting waders and waterfowl might be a matter worthy of conservation concern and attention. Especially where such increases are substantial (as much as a doubling of numbers), and arise as a consequence of a specific controllable human intervention, such as culling up to 95% of badgers across large swathes of English countryside.

Natural England (NE), which issues the licences to cull badgers, is obliged by statute to assess the potential side effects of badger culling on other species. When it comes to designated sites – SACs, SPAs, Ramsar Sites and SSSIs – NE do (now) acknowledge that a ‘predator release’ effect (where foxes and other mammalian predators increase in number via backfilling the ecological niche vacated by culled badgers) is an impact risk. Under pressure from legal challenges since 2017, NE has developed detailed guidelines for such assessments, amended their assessment procedures and added restrictions onto licences to better take this risk into account and/or mitigate potential effects on such sites. But outside these sites and across the larger part of the countryside in cull zones, the same birds, as far as NE are concerned, are on their own. There are no procedures for assessment or protection.

The small group within NE that processes and issues cull licences describes the ecological risks associated with ‘predator release effect’ as a consequence of badger culling as “theoretical”. This is despite their being flagged as a risk worthy of further investigation in the wake of the Randomised Badger Culling Trial (RBCT) in 2007 (Defra 2007) and again in 2011 (Fera 2011). This loose end did not trouble the masterminds behind the current badger cull, which commenced in 2013, nor those responsible for cull licensing within NE. At least it didn’t until relatively recently. Ultimately, it took the pressure of tribunals and legal challenge and the scrutiny of the courts in 2018, five years after the cull had started and with tens of thousands of badgers already removed, to force the agency charged with protecting our wildlife to finally promise a High Court judge they’d look more closely at this issue.

It’s conceivable that NE then asked the Government, through Defra, to fund a proper study and the Government refused. We don’t know. But in any event the outcome was that instead of a properly designed and controlled investigation, NE elected to go ‘cheap and cheerful’. Behind a wall of secrecy, they commissioned the British Trust for Ornithology (BTO) to conduct a simple desk study, extracting subsets of volunteer data from the Breeding Birds Survey (BBS) for cull and non-cull areas, and comparing them to see if there were any patterns to be found that might be attributable to badger removal. When, in 2018, the BTO unsurprisingly reported to NE that nothing conclusive could be gotten from such a coarse approach (Kettel and Siriwardena 2018), NE chose to interpret that as indicative that there was no issue to be concerned about, and advised Ministers and the Courts the same.

This is all old news of course, especially for readers of my previous guest blog, kindly published by Mark on 18th June (see here). In it I criticised the methodology and utility of these desk-top analyses of BBS data, the secrecy around them, and how NE’s chosen ‘absence of evidence is evidence of absence’ interpretation was used to inform badger culling policy decisions at Government level, without the benefit of such ‘science’ being through independent peer review or subject to any public scrutiny.

One of the BTO scientists involved was piqued into responding (his remarks can be found in the comments section under the blog, again (here). Amongst a somewhat prickly defence of the study’s approach and methodology, he conceded two of the central premises underpinning mine and others’ concerns. One: that the study did little to answer questions about the wider ecological side effects of removing as much as 95% of the population of an apex predator across large areas of English countryside. And two:  that ecological side-effects from removing badgers from the ecosystem were, to use his word, “certain”. Notwithstanding what those two concessions, when read together, say about the worth of this form of study, he said that he stood by it and furthermore that the BTO had been commissioned to repeat it in 2022.

The results of this repeat exercise have just been published in the Journal of Zoology. The paper is titled Ward et al. 2022 “Breeding bird population trends during 2013-2019 inside and outside of European badger control areas in England”. The abstract can be accessed here (but the full paper is behind a paywall). I encourage interested minds to read the full thing. Does it represent a robust way of finding out whether localised predator increases as a consequence of removal of badgers are having any impact on local populations of sensitive ground nesting species, such as lapwing, redshank, snipe or curlew?

My own thoughts on this question are below. Ward et al. 2022 essentially repeats the exercise carried out in 2018 and modified in Kettel et al. 2021, albeit with a slightly bigger data input. For me, the biggest difference is a much-improved discussion. Indeed, anyone who read my previous blog will observe that despite neither myself or any of the other more vocal critics of the 2021 paper (and its suppressed 2018 predecessor) being part of the peer review process, the discussion within the new paper rather reads as if we were! It attempts, at least, to respond directly to some of the criticisms of the methodology of analysis, the utility of the results and the inherent problems of bias, that were levelled at both Kettel et al. 2021 and Kettel and Siriwardena 2018.

In consequence, the authors are now more openly cognisant of the fact that studies this coarse-grained, data-limited and with such little statistical power, are never likely to detect impacts anything short of catastrophic for any individual bird species. It now also appears to be recognised by the authors that this sort of high-level approach inherently militates against the prospect of arriving at any conclusive answers to the fundamental question – is badger culling having a collateral ecological effect of relevance in conservation terms on any individual bird species?

All of which means NE have frittered away a further four years and paid the BTO an unknown quantity of public money to conclude, as Ward et al. 2022 does, that it’s not clear whether there is an effect or not and that answering the question would need better, more targeted investigation. The same conclusion reached fifteen years ago following the RBCT, again by Fera in 2011 and further reiterated by the Godfray Review of 2018 (Godfray et al. 2018). That a proper study is necessary and important. Not exactly revelatory – indeed it is no more than critics of NE’s lackadaisical approach to assessing the collateral ecological impacts from badger culling have been urging for years.

Although the authors’ discussion of the results in Ward et al. 2022 is an improvement on previous iterations, the continued application of a flawed methodological approach renders the study only marginally less worthless than its predecessors. The 2022 version remains, in particular, compromised by the decision to lump species at high risk of predation effects together with those at inherently lower risk, and by the inescapable fact that the BBS dataset is too coarse grained to provide a sufficient platform for sensible analysis for precisely the scarcer species – such as ground nesting waders – that should be a focus of concern. Instead, and in common with its 2018 and 2021 predecessors, the study contrives an ecologically nonsensical guild of “ground nesting” species on the basis of a single common parameter – that they construct nests generally within 0.5m of the ground. Thus, ecologically disparate species such as chiffchaff, herring gull and coot are homogenised into a single receptor with a standardised susceptibility to mammalian predation. The continued failure of the authors to properly explain, qualify or acknowledge the deficiencies of this approach is glaring. They either genuinely believe that vulnerable species such as lapwing, nesting on the ground, in open uncluttered environments such as arable fields, are at the same risk of predation from larger mammalian predators as a whitethroat in a bramble thicket, or they are wilfully building a massive source of obfuscation and bias into the methodology. Either way, it muddies the waters and fatally undermines the study.

Sadly, predetermined bias is not just restricted to the methodological design. It also infects the syntax of the discussion and conclusions of the paper. Most glaring perhaps is the abstract – the bit one can read for free – concluding with a wholly unsupported premise – that “this predator removal has not affected bird populations”. That might be the conclusion the authors from Natural England (and Defra) wish casual readers to take from the study, but for those who read the full paper, it’s not actually a conclusion supported by the analyses. I am surprised this statement survived the peer review process and that the BTO authors (at least) would allow such an unevidenced leap of logic. In contrast, the all-important last line of the conclusions calling for a landscape-scale quasi-experimental approach: “to provide stronger inference about the complex potential ecological effects of culling predators such as the badger” didn’t make it into the abstract. Strange that.

So, beyond the authors’ clearer acknowledgement of the fundamental limitations of the exercise, Ward et al. 2022 merely perpetuates the uncertainty that has presided over this question since the end of the Randomised Badger Control Trial, fifteen years ago. In other words, it does nothing to progress Defra’s, the Secretary of State’s, Natural England’s, conservationists or the wider public’s understanding of collateral ecological effects from badger culling any further forward from the position prior to the current cull starting in 2013. At all the junctures in time cited above, independent review has indicated that further investigation into the ecological side effects from badger culling was merited. All NE have actually done in the wake of their promise to a High Court judge in 2018 is commission a spectacularly coarse analysis which was never likely to deliver anything close to a useful answer, suppress the results for three years and now repeat it. A cynic might conclude that this is deliberate – a means to be seen to be doing something in the face of repeated legal challenges that exposed systemic failures by NE to properly assess impacts – whilst actually kicking the can down the road.

There is one paragraph worthy of note in the discussion of the results. Despite the continued determination of the authors to muddy the waters by casting the analytical net to include species of inherent low-vulnerability to predation by ground-based mammalian predators – such as nuthatch and green woodpecker (really, guys?), the authors do for the first time note and discuss separately the negative trends indicated for two of the species which actually ought to be the critical focus – lapwing and curlew. It is worthy of remark, at least, that such trends as there are for these species appear more or less consistently negative across all three iterations of BTO analysis. Finally, this has been remarked upon in Ward et al 2022. The problem of course is that this potential cause for concern should have triggered further targeted investigation – along the lines that the paper now suggests – much, much earlier. Not now, nearly ten years too late.

Repeating a near-pointless study again and again is, in my view, a poorly disguised exercise in obfuscation and delay. An excuse to do nothing more meaningful, just in case that gives you an awkward answer. But don’t listen to my cynicism and take my word for it. Read Ward et al. 2022 and ask yourself whether this is valuable and robust science being commissioned by Natural England and/or a good use of the time and resources of the BTO and of the data that it receives from volunteers. Do you think this type of data analysis exercise has any conceivable prospect of determining whether curlew in Somerset, redshank in Gloucestershire or stone curlew in Wiltshire are experiencing increased predation pressure as a consequence of badger removal? Do you agree with NE that ‘absence of evidence is evidence of absence’? Or alternatively, ‘if you can’t see the wood for the trees, it means there is no wood’.

If you would like to leave a comment about this blog you can do so at the end of the article on Mark Avery’s site here.

References:

Defra (2007) The ecological consequences of removing badgers from the ecosystem. Defra Project Report ZF0531. http://webarchive.nationalarchives.gov.uk/20071104143302/http://www.defra.gov.uk/animalh/tb/research/summary/zf0531.htm.

Food and Environment Research Agency (Fera) (2011). Evaluation of the Potential Consequences for Wildlife of a Badger Control Policy in England. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/182478/badger-control-consequences.pdf 

Professor Sir Charles Godfray FRS (Chair); Professor Christl Donnelly FRS; Professor Glyn Hewinson; Professor Michael winter OBE; Professor James Wood. (October 2018) Bovine TB strategy review. Report to Rt Hon Michael Gove MP, Secretary of State, Defra. 
https://www.gov.uk/government/news/review-of-governments-bovine-tb-strategy-published 

Esther F. Kettel, Ivan Lakin, Matthew J. Heydon & Gavin M. Siriwardena (2020) A comparison of breeding bird populations inside and outside of European Badger Meles meles control areas, Bird Study, 67:3, 279-291,  DOI: https://www.tandfonline.com/doi/full/10.1080/00063657.2021.1889460 

Kettel, E.F. and G. M. Siriwardena 2018. Comparisons of breeding bird population and abundance trends within and outside two specified areas located in SW England. Unpublished (confidential) Report to Natural England. British Trust for Ornithology, Thetford, Norfolk, UK. V. Ward, M. Heydon, I. Lakin, A. J. Sullivan, G. M. Siriwardena. (2022) Breeding bird population trends during 2013–2019 inside and outside of European badger control areas in England. Journal of Zoology 108. https://zslpublications.onlinelibrary.wiley.com/doi/10.1111/jzo.13010

Tony Juniper, a new King, and the ecological impact of killing badgers

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Dominic Dyer, chairing the State of the Earth evening session at Birdfair on 15th July this year, asked two of his assembled panel guests about badger culling. The first, Sir Iain Boyd, the former Chief Scientific Advisor (CSA) to Defra commented, beyond his usual emphasis that the problem is more with people than badgers, that he “suspected that the evidence is suggesting it doesn’t work”. And  “if badger culling isn’t working it shouldn’t be done, that’s absolutely clear.” Presumably, a reference to the most recent peer reviewed science (here).

The second guest, Tony Juniper, currently chairman of Natural England, freshly reappointed for another 3 years, was asked about the ecological impact of changing ecosystems by removing most of a dominant species.  His response was slightly less coherent. Knowing his staff had just issued more supplementary killing licences and were in the final stages of lining up licences for a further 40,000 mostly healthy badgers to be killed this and the following three autumns. He picked words carefully: “we did say that it wouldn’t be a good idea” and “Natural England’s advice was that it probably wouldn’t work and we should try other methods” and (not answering the question) “will it have an effect on protected sites and protected species?..  we are looking at that too.”

Not mentioned by him,  Juniper’s hands were tied due to a legal case that would play out a fortnight later in the High Court, that turned into a spectacular environmental travesty (here), remining us just how far government and the judiciary are now leaning towards unsound, politically expedient policies. Briefly, Defra remade its improper decision not to look at impacts from badger culling, supported by Natural England, without telling the court or the claimant. It rubber stamped its do-nothing approach in a way that meant Defra and Natural England could carry on doing little or nothing, escaping justice via the back door. It was ‘too late and too expensive’ now to study and deal with the problem anyway, was their best position, and that was their final decision. Looking at it was all they were doing.

Natural England had promised the courts in 2018 that they were on the case, with a research programme that was kept secret. Secret, it turns out because the BTO analysis used to justify continued culling had mistakes in it, and so had to be held back for two years while culling continued and Natural England staff worked with BTO to get the work through peer review. More recent events in the sorry saga have been exposed thanks to wildlife stalwart Mark Avery (here) and his guest blogs by the main expert witness for the three Judicial Reviews, Dominic Woodfield (here). Dominic has, in his blogs and comments, unzipped the whole matter from start to finish and dealt with the response from BTO during the sordid passage of the work over its last five years.  It is worth taking the time to read the new blog and those that went before, to get a firm understanding of how Natural England have obfuscated their statutory duty and worked hard at minimising effort to examine the problem, while at the same time helping badger cull companies with advice and support to find their cull targets.

Juniper is aware of this of course, and efforts to get funding from Defra to look at the issue may have been turned down. But he has another problem. He has a relationship with and has written a book with Prince Charles. Who is a known lobbiest for badger culling, with his ‘black spider’ letters urging Tony Blair to start culling, a notable royal intervention (here). There followed a concerted effort to neutralise badger culling opposition in mainstream wildlife ngos between 2008 and 2013. Now Prince is King, what will happen? The King faces the reality that the tenuous evidence of badger involvement in bTB in cattle fifteen years ago, then presented as strong evidence, remain tenuous. Critically, recently published research using all of the relevant government data suggests that badger culling since 2013 simply shows no sign at all of working. This is despite Defra’s attempt to use small selective amounts of data with over-elaborate variables to try to show that it does. Defra used their most senior staff CSA Gideon Henderson and Chief Vet Christine Middlemiss to try to rebut the new published research, but this has only made them look foolish. They published, then retracted flawed data (here) that showed huge benefits from badger culling in its first two years, while insisting in their rebuttal of the new analysis that there is little or no benefit to be had in the first 2 years. Leaving professional vets, scientists and commentators completely baffled. Juniper and Charles III now have a big opportunity to help put things right that have gone terribly wrong on their watch.

Most of all, with the BTO paper just published (behind a pay wall), there is a final piece of chicanery. There is no sign of the all-important last line of the conclusions in the papers introductory abstract. The latest BTO magazine simply says that a similar (to the new publication) minimal approach might be repeated. Yet in the BTO paper, the authors call for a landscape-scale quasi-experimental approach: “to provide stronger inference about the complex potential ecological effects of culling predators such as the badger” 

More and more journals are making sure that study limitations are placed in scientific papers and their abstracts, partly a response to the science reproducibility crisis. What this all means is that Natural England corner-cut to address important questions about the effects of the ecological impact of culling. It now admits that the minimal approach it employed is inadequate, and points to the kind of study it now agrees should have been done. This, in truth, is confession of guilt when there is little chance of a retrial before thousands more badgers are gunned down.

You can read Dominic Woodfields new blog ‘New paper same old same old’ here.

The Daily Mail, Defra and the bTB story that just keeps growing

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Has Defra had enough of experts? Its own experts that is?

Last week The Daily Mail published a story (here) around the release of a Freedom of Information request (here). This FOI showed that the Deputy Director of the bovine TB Programme at Defra wrote to the journal Veterinary Record (VR) trying to influence the peer-review process of a new scientific analysis of badger cull data, Langton, Jones and McGill, (here), and largely failed.

The Mail story was published on Tuesday 30th August and names Eleanor Brown as the senior official who wrote to VR Editor Susanne Jarvis on 2nd March 2022, just a few weeks before the paper appeared in print. It laid down extensive criticisms aimed at the manuscript that they had been sent ahead of publication, where they stated that it was the VR Editorial Board’s (Headed by Lord Trees) decision as to whether to publish it or not. Defra thought it should not be published and made that very clear to a journal that extensively publishes government science.

The original Mail article implied that VR had been ‘forced’ to seek changes to the manuscript. The VR Editorial Board had in fact called a special meeting to discuss challenges to the paper, that Defra’s email in early March claimed was full of errors and flaws. However, the VR Editorial Board found that there was nothing wrong with the statistical work, which was found to be robust. These senior national and international veterinarians, with the VR staff, resting on the detailed reviews of no less than four peer reviewers decided that Defra’s accusations held little substance, and published the paper largely unaltered. The paper showed badger culling lacked any signs of working. Badger culling has not affected bTB herd breakdown in the High Risk Area of England since 2013.

The Daily Mail then republished the article the next day (31st August), removing the claim that Defra had ‘forced’ the Veterinary Record to make changes to the paper. The truth was that  in order to proceed with publication, VR had required the authors to write-in Defra’s apparent intention to publish something in the future, using data it had kept secret, and describe it as a limitation to the study. Something that was dubious, but was made a condition of the paper not being blocked. So the Mail got it right in that there was an element of ‘watering down’ due to the Editorial Board meeting, but nothing that impacted the full force of the paper’s findings that showed that  Defra’s badger culling policy had been a total failure.

Defra’s view that the analysis was flawed was therefore roundly rejected by over a dozen leading experts in the field. However, Defra had been invited to comment on the new paper for a short news piece to accompany the publication of Langton et al in the same edition of the journal. But this ‘comment’ somehow morphed into a full-page critique, fronted by the Chief Scientific Adviser Gideon Henderson and Chief Veterinary Officer Christine Middlemiss. This  contained and expanded on the sentiments of Eleanor Brown’s email. It  persisted with the claims that the paper was ‘flawed’. This was published under the guise of a ‘letter’ in the very same issue.

These highly unusual events then became farcical when commentators immediately recognised errors in Defra’s alternative view.  But Defra then held out for six weeks before admitting that their letter was flawed. They then revised it. Saying it didn’t matter anyway because they were right and in effect, that the study, Vet Record editorial staff and the peer reviewers were all wrong (here).  In response to last weeks Mail story, Defra even put out a defiant blog on 30 August repeating their original nonsense and unchecked views using small amounts of data for the unculled area comparison (here).

The 30 Aug Defra  blog stated:

“As we had been invited to, we presented our findings to Vet Record to help inform its editorial decisions around publication of the paper, with the journal deciding to publish the study alongside a letter of response from the Chief Vet and Defra Chief Scientific Adviser. There was absolutely no attempt to make changes to the scientific research, as the Mail claims was the case.”

For some reason any comments made to this blog criticising Defra’s restatement of their flawed position were removed. Interesting.

So Defra now say that it never attempted to try to get changes made to the science. Yet it wanted to go over the head of the VR staff and peer-reviewers to the Editorial Board? And turned an invite for a news piece comment into a mini-paper that was wrong, dressed up as a letter.

Readers can be the judge of whether science was handled ethically in this instance. Defra say they made no attempt to make changes, yet they wrote to VR in very clear and emotive terms a few weeks before publication, and having been ignored, completed a hurried un-peer-reviewed missive that itself was full of error, ambiguity and secrecy. They were successful in getting the VR Editorial Board to require a smattering of changes stating that Defra had other ideas. Un peer-reviewed science of the future influencing peer-reviewed science of the present?

This actually all looks more than a bit dubious from the perspective of publishing ethics. It has to be asked, who is going to look into it? Having re-stated their views on their new blog, Defra have begun signing off new four-year intensive badger cull licences in 10 new cull areas this autumn, with 40,000 or so more badgers condemned. But Defra are wrong. They (wrongly) claim large benefits from badger culling in the first two years of culling, as they did in 2017, yet say this data cannot be used in the Langton et al analysis. And then they won’t talk about it and neither will Natural England’s statistical expert Peter Brotherton. Natural England as a whole have clammed up, presumably because Defra won’t explain their thinking to them either.

The Minister George Eustice owns the badger cull policy and is closely managing it. He must now be aware of what his staff have done. He may even be a part of it. They have painted themselves into a corner and gone to ground. Has he had enough of his experts yet? If he survives the reshuffle that is. If not, perhaps the dodgy legacy will be his, and a new Minister will get to grips with the ridiculous, unscientific yet defiant behaviour of Defra and its agencies on bovine TB and badger culling. As hundreds of badgers a day are shot for no good reason, the evidence clearly points to bad government and desperate measures. This policy of killing largely healthy, protected animals in a manner found cruel by the British Veterinary Association is out of control.

Defra’s efforts to pervert the course of science

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Today the Daily Mail lifts the lid on Defra’s attempts to interfere with scientific progress (here).

Defra were caught out by freedom of information (FOI) disclosures, leaning heavily on Veterinary Record journal staff, and using emotive language, over an  accepted academic manuscript. This  new scientific paper analysed the governments own bovine TB and badger culling data. It was published by independent researchers on 18th March (see here).

Defra lashed out in an extraordinary way at the authors, peer-reviewers and journal staff via a media blog and made half-baked attempts at manufacturing  graphs using selective bits of (incorrectly calculated) data pushing what they wanted to see. They reached a new low level in efforts to keep badger culling going to prop up the failed policy. Their science and statistics is all over the place and they then refused to communicate over their embarrassment.  Defra staff are now in bunker mentality with their advisers unable to help.

It should be all-over for badger culling – will the Defra, APHA and Natural England blinkers remain on,  or will we see the change that the new science demands?

Read the FOI’s here.

 

Human TB – Bovine TB. Lessons to be learnt and three simple questions for DEFRA

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While Defra hold on to a now disproven view that badger culling is needed for control of bTB in cattle, there remain important omissions, contradictions & unanswered questions in their approach to the current management policy.

For a start, the management of Bovine TB (bTB) is still plagued by the inaccuracies of currently used tests and testing systems. Importantly, none of the primary tests currently used can identify the presence of live Mycobacteria which is core to the central dogma of bacterial diagnosis developed by Robert Koch, one of the main founders of modern bacteriology.  He discovered the causative organisms of anthrax (1877), septicæmia, tuberculosis (1882) and cholera (1884). Koch’s dogma or principle, specifies that definitive diagnosis is dependent on the identification of the presence of the infectious organism.

There are major concerns about elements of the front-line bTB tuberculin skin-test. Firstly, it misses a substantial proportion of infected animals, thus allowing undetected infection to circulate in and between herds. Secondly, repeated injection with the tuberculin injection used for the skin test may potentially render an animal skin-test positive, despite there never having been any infection. Thirdly, the implementation of the skin-test is laborious and time-consuming, and requires multiple visits to the farm by a vet, hence while it creates work for vets, it is expensive.

In Human TB (hTB) the basic biology is similar. Recently, however,  the human TB clinical fraternity have become increasingly concerned about the TB skin-test. In fact the concern has been such that the Centres for Disease Control (CDC), based in the US, now recommends the use of the TB blood tests (IGRAs), such as QFT-Plus (similar to Bovigam) over the TB skin test (TST) for most risk groups.

To illustrate the importance of this change of approach, clinical studies on the phage-based test ‘Actiphage’ have shown for the first time that live bacteria can be detected in the blood of people with incipient TB infection, including contacts of infected patients. This success was mirrored by the data produced by vet Dick Sibley at Gatcombe who used Actiphage and Bovigam (gamma interferon) to effectively eradicate bTB from the farm on two occasions. Those studies showed clearly that the best way to identify infected animals was the combined use of Bovigam and Actiphage, and not skin-testing. They indicated very strongly that the biggest problem in the eradication of bTB is the inability of skin-testing to identify infected carriers which actually maintain the infectious burden within the herd. They also imply that there is no significant involvement of external non-bovine hosts in the propagation of the disease.

So, the questions we would like to put to  George Eustice and DEFRA are:

1) Why have you not implemented a controlled trial on the efficacy of different testing strategies for Bovine TB?

2) Why will you not take note of the human TB data? This  clearly shows that identification of the live bacteria is the critical key to controlling this disease.

3) When will you recognise that all the data from both bovine and human TB indicates that there is no justifiable scientific rationale for the involvement of an external host to maintain persistent infection in the herd?

 

DEFRA called out over flawed bovine TB claims at international vet conference

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The UK’s Animal and Plant Agency statistician Colin Birch was roundly criticized for his presentation yesterday (12/08/22) at the 16th International Symposium of Veterinary Epidemiology and Economics (ISVEE 16) held at Halifax Convention Centre, Halifax Nova Scotia, Canada.

Birch presented data from badger killing zones in England in recent years, with no proper explanation as to why he had not also used data from unculled areas to compare. He claimed  that a reported 50% reduction in bovine TB herd incidence in culled areas was due to badger culling.

The audience seemed less than convinced. At the end one question pointed out that it is not possible to attribute the reduction in bTB incidence to badger culling as the reduction in the unculled area had a similar trajectory. Cattle measures (Testing and movement controls) that were introduced prior to and over the same period (in both culled and unculled areas) would reduce incidence in the manner observed.

A further point was made from the audience that it looked like Birch and APHA were trying to make and promote ‘policy driven evidence’ to satisfy the ministry (Defra). Birch had no coherent response to this but said that he did not agree.

The unpublished manuscript by Birch and others is yet to be fully disclosed, but comes at a highly sensitive time for Defra and Minister George Eustice and Natural England Chairman, Tony Juniper and his scientific staff. They want to sign off the killing of another 40,000 largely healthy badgers from September of this year, despite the science suggesting that complete failure is the most likely outcome.

In March of this year, Defra issued flawed data (see here) in response to a detailed peer reviewed paper (see here) published in Veterinary Record which showed that badger culling in England since 2013 has failed. In a response to the paper, Defra produced a media outburst designed to undermine it, that claimed badger culling had little or no effect in the first two years, and therefore the analysis used was flawed. Observers have been left baffled and talking about government competence, since all the Defra data presented shows large drops in herd incidence over the first two years, suggesting that it is cattle measures that are responsible for these declines, and not culling.

Despite high public interest in this most controversial of policies, Defra have become tight-lipped on their home-made dilemma since March 2022, and defiantly issued more cull licences in June. But despite well and truly losing the science argument they still  appear desperate to try to show some reason to prop up their policy and to enable them to keep killing badgers. This fell flat at today’s conference as the science community strongly questioned Defra’s handling of data.

Environmental principles ‘usurped’ as Badger Cull ecological impacts case is hijacked

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On Tuesday 26th July 2022 at the Court of Appeal in London, case CA-2021-001918 was heard: The Queen on the Application of Langton v The Secretary of State for Environment, Food and Rural Affairs & Anr was heard in Court 71.  The presiding judges were Lady Justice Macur, Lord Justice Haddon-Cave and Lord Justice Dingemans.

It was not a good day for badgers, or for public interest concerned with how government policy impacts the UKs increasingly nature-depleted rural areas. It showed a sinister ploy by the Government to defeat a well constructed legal claim in what is plainly backroom conduct that only came to light in April 2022, after the Court of Appeal had granted permission for the appeal to be heard. Most of all it shows the level of thinking in government where winning and ‘doing it our way’, takes precedence over doing what is right and in the public interest.

The decisions, read with the House of Commons Environmental Audit Committee recommendations published just two days later, could not provide a  more stark contradiction. Government has created a new low bar, where not knowing enough, not being able to afford essential research and ignoring official reports pointing to evidence gaps, are all good reasons to do nothing. Biodiversity protection just entered a dangerous void, thanks to those in charge at Defra and Natural England.

Background

This case was an appeal from the High Court judgement of August 2021 [2021] EWHC 2199 (Admin), where Mr Justice Griffiths concluded that the Secretary of State for the Environment, George Eustice, was not required to ‘have regard’ to the potential impacts of badger culling policy on biodiversity under Section 40 of the NERC Act 2006, see here. This was in respect of listed priority species and habitats and the potential disruption of biodiversity by removal of badgers from the wider countryside.

The first stage of the Court of Appeal hearing was to consider whether the appeal had become “academic”, after permission to appeal had been granted by Justice Simler on 13th April, following late evidence from Defra in the form of the witness statement of Eleanor Brown dated 28 April 2022 and submitted by the Secretary of State.

Ms Brown’s witness statement showed that Defra took steps to remedy the same defect alleged in the High Court case regarding the all-important section 40 duty to consider biodiversity impacts. The Secretary of State had conceded before Justice Griffiths the assessment under section 40 had not been done when adopting Next Steps in 2020. It was a rearguard action that had significant implications for the case when it was finally before the Court of Appeal this July.

Ms. Brown is DEFRA’s Veterinary Head for TB Policy Advice. She told the Court in her witness statement that following the judgment in the High Court in July 2021, that although Defra had “won” the case, in October 2021, Defra officials nevertheless took steps in case that decision was overturned, and to prepare papers for the Secretary of State, to be signed off in December 2021. This would include the missing s40 assessment of the effects of badger culling on biodiversity. Ms Brown explains that the Defra officials invited the Secretary of State to consider whether to continue with Next Steps badger control policy. A copy of the briefing note to the minister can be found here. Our view of the Minister’s briefing was that it was a wholly inadequate summary of previous information about the risk of badger culling and manifestly failed to fully assess the wider ecological risks.

Ms Brown’s evidence was challenged as being a breach of the duty of candor, given that Ms Brown, and the Government Legal Department who acts for the Secretary of State in legal proceedings, kept these October 2021- December 2021 activities secret both from parties to the case and from the Court, and only declared them once permission to Appeal had been granted in mid-April 2022.

The case for the claimant is made

The question of the Appeal being ‘academic’ (without legal means for ‘relief’: to quash the unlawful original policy, as challenged) was considered as the first stage in the court process. Mr Richard Turney (Landmark Chambers) for the claimant, argued that although relief in respect of the quashing of the badger cull 2020 ‘Next Steps’ policy was no longer available, due to the Secretary of State having latterly remedied any potential omission ‘to have regard’ in December 2021, (Ground 4), an important point of principle remained. This was in respect to the legal requirement to ‘have regard’ under the NERC Act 2006 when making decisions of this sort (Grounds 1 and 2). The claimant was nevertheless entitled to a hearing and if successful, ‘declaratory relief’, this being recognition of the legal error in respect of the generic approach to the issue and the judgement by Mr. Justice Griffiths in August 2021.

Mr. Turney emphasised the importance of the case, that badger culling is highly controversial and possibly the largest intervention ever for protected wild species in the UK. The same duty to ‘conserve biodiversity’ (a central component of obligations under the Convention on Biological Diversity 1992) is now to be taken forward in the 2021 Environment Act. Some parts have yet to come into force, but it is potentially weakened by the original 2021 Griffiths judgement by giving space for provisions to be avoided where uncertainty exisits.  Mr. Justice Griffiths judgement was said to be, in Mr. Turney’s view, ‘stark’:  if the biodiversity duty does not apply in these circumstances, would it apply in any circumstances?

The government responds

Mr. Hanif Mussa QC (Blackstone Chambers) for the government took the court to the government’s ‘no difference’ argument, that it would have done what it did (not take steps to consider, investigate, avoid, monitor, and take action to mitigate potential ecological impacts of badger culling) irrespective of its consideration of the biodiversity duty. He submitted that the claim had to be dismissed because the court no longer had authority to continue. He submitted that the 2021 Environment Act was sufficiently different for the decision not to be that relevant and that there were currently no outstanding cases where the outcome might rest on this case.

He referred to Dr Brown’s witness statement that research into potential impacts would take too long and there was no point studying them over the four years remaining of culling.

Court of Appeal decides not to hear the case.

Within two hours of consideration, the judges came to their conclusion that by reconsidering the matter in December 2021, Defra had corrected any possible error in the Secretary of State’s earlier procedure and therefore any consideration of relief in 2022 was therefore academic.

With respect to the matter being considered on Appeal as exceptional circumstances, the judges did not seem too interested in the issue over whether the subject of the case was part of an ‘ongoing relationship’ between Mr. Langton and Natural England (remedies in the 2017 and 2018 cases proved the long running dispute) although they were ‘aware’ of Natural England’s communications with the claimant.  

Whether the wording of the 2021 Environment Act is sufficiently different to that of the 2006 NERC Act in respect of the Section 40 duty and for there to be a significant concern over the decision affecting future decisions withthe new legislation did not appear to be appreciated as a compelling argument of much interest to the court.  This is where it might be argued most forcefully that the Court of Appeal let things down.

Finally, whether there were other cases waiting to be heard on the point, and to which this Appeal related seemed to be important, and because none were known this appeared to act against the argument for a full hearing so the three judges decided to close the hearing down.

Conclusions

It is disappointing that the Court of Appeal decided not permit the substantive merits of the case to be aired and allowed an important public interest case to be “played” by Defra through the submission of very late evidence that had the effect of rendering the claim ‘academic’, so that the merits were not decided.

For now, there remains doubt over the validity of the main ground in the case as to whether the s40 duty was engaged when Ministers considered Next Steps policy in 2020, and we continue to maintain that the Court of Appeal judges could and should have heard the case given the important legal issue before them.

Defra and Natural England’s conduct since 2013 and during this litigation is worthy of more extended analysis. Those who started off defending doing nothing, and who dug in further when badger culling was rolled out and fought not to take steps and then had to give in a little in 2017 and 2018 doing the minimum possible and in secret. All that behaviour is on the record. There is also a public discussion to be had on the utility of Senior Courts Act when it is used in this way – to remedy clear errors of law after the event, and only in the face of legal challenge, with a claim ‘no difference’ to avoid any consequence.

This repeated approach is against every principle of natural justice.  It also suggests that neglect of, or wilful failure to abide by legal duties and responsibilities is now open to Government departments to employ as a default. Employed on the basis that legal challenges exposing such failures will be precipitated in only a minority of instances, and in such situations, you just remedy the error, claim no difference and can be confident the courts will award no sanction or relief. This disgrace holds all the hallmarks a broken system that can and will be used to limit the expectations that might be had for the 2021 Environment Act.

House of Commons Environmental Audit Committee recommendations

Published just two days later, compare what is being promoted with what happened in this case. In the Environment Act 2021, Parliament agreed five environmental principles which are to guide Ministers and their officials in the formulation of policy. These principles are:

• the principle that environmental protection should be integrated into the making of policies

• the principle of preventative action to avert environmental damage

• the precautionary principle, so far as relating to the environment

• the principle that environmental damage should as a priority be rectified at source

• the polluter pays principle.

Environmental principles of this type are widely used to inform national governments in their approach to environmental policymaking. Reference to them is to be found in several multilateral treaties on the environment, and they are explicitly included in European Union treaties as a foundation of EU environmental law.

After the hearing Claimant Tom Langton commented:

“It is fair to say we have been outmaneuvered by a Ministry intent on culling badgers and ignoring its duty to properly protect the environment from the unmeasured, unmonitored changes that culling may bring about across the wider countryside. The decision not to examine the initial ruling means that our biodiversity crisis has just got deeper, with one of the few statutory requirements to hold back the influence of commercial exploitation on wild species and habitats shown to be both slight and expendable. Many of the basic principles of environmental safeguard have been avoided and this is a bad day both for badgers and biodiversity protection. We will fight on and expose the unscientific and undemocratic actions and attitudes that typify the destruction of our environment and fuel the biodiversity and climate catastrophe.

Environmental impacts expert witness Dominic Woodfield, from Bioscan UK said:

“I believe the refusal to hear the case represents a fundamental failure of jurisdiction, in an instance where any application of logic shows the first instance decision to have been flawed. That failure has been lapped up by Defra and the Government Legal Department, despite their actions since in re-making the decision, demonstrating that they have always known the first instance judgment to be wrong. We went to the court of appeal in the hope of seeing bad law corrected, and if the Court of Appeal are not interested in doing so, one wonders whether the hard work in getting the Environment Act 2021 onto the statute books has been fruitless, even before it has properly come into effect.”

See also here regarding the infamous BTO reports, part of a related ‘broken’ promise by Natural England to monitor badger cull impacts effectively.

Thanks for the huge effort since 2020, to try and bring justice for badgers and their wild communities.

Thanks are extended to the legal team acting for Mr. Langton: Richard Turney and Ben Fullbrook of Landmark Chambers and Lisa Foster and Hannah Norman of Richard Buxton Solicitors, expert witness Dominic Woodfield of Bioscan UK and to all those funding and supporting the legal work as a part of the Badger Crowd. This includes The Badger Trust who helped instigate the legal action against aspects of the ‘Next Steps’ policy in 2020, Badger Trust Sussex for administrative assistance and for managing offline donations, Wild Justice, very many of the badger groups and organisations around the UK, many other animal welfare and conservation bodies and several generous individuals. Hundreds of badger workers and the general public have also chipped in to spread the load. Others have helped with a wide range of supporting actions: research, advice, publicity and coordination. Thank you all.

References

House of Commons 2022. Environmental Audit Committee recommendations on the Government’s draft environmental principles policy statement Third Report of Session 2022–23.

https://committees.parliament.uk/publications/23278/documents/169773/default/       

Record of hearing: Court of Appeal video archive. Search for:  Langton (claimant/appellant) v The Secretary of State for Environment, Food and Rural Affairs (defendant/respondent)

Outcome of the ecological impacts legal case at the Court of Appeal on 26 July

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A detailed account of the legal aspects of what happened last Tuesday 26th is currently being prepared with the help of legal advisors. This is an initial summary of what happened, what it means and where we go from here. The investment of many people in this legal case has been considerable, with a large number of organisations and individuals giving time and resources generously over the last two years. Learning from the outcomes when you don’t win is important and can be valuable, and we will make sure we use the experience to best advantage.

As you may know, the previous cases concerning ecological impacts on designated sites in the High Risk Area in 2017 and 2018 managed to move Natural England to create a system whereby they assessed each designated site for possible outcomes caused by removing badgers and changing the wild community dynamics of species and habitats of international importance. In many cases NE started to impose conditions intended to protect the most strictly biodiversity interests where there had previously been none.  Despite this, and as with other large-scale actions such as the release of huge numbers of game birds for people to shoot, there is a view within Natural England that the impacts of badger culling are low, even if factual evidence for that position is lacking and chronically under-researched. No matter how uncertain the data is in relation to negative effects, the commercial interest in the damaging activity takes precedent. And while the judge in the previous cases chided Natural England for being in breach of their statutory duty, the resulting actions in response have been largely a tick box exercise involving game keeping in shooting areas near nature reserves and a flimsy exercise using volunteer bird watching data held by the British Trust for Ornithology that leaves a lot to be desired (see here). There has been no actual monitoring of change over time in the designated sites, no detailed research (it would cost a lot and is too late now, says government). Basically, Natural England have maintained their position on the back of no proper evidence, that effects are small, and their view is that precautions are barely necessary. They just ride along happily with inadequate resources to do their job thoroughly, and obediently back up their master Defra when questions are asked. The legal challenges have forced them to improve assessments and protective provisions somewhat, but only in relation to protected sites. The latest challenge that began in 2020 and ended in the Court of Appeal on Tuesday, sought to expose and address the illogicality of Defra and NE’s position that there was an agreed need for assessments and protective provisions in and around designated sites, but no such provision in the wider countryside, even dealing with precisely the same species.

So, what went wrong on Tuesday? Well, it started last year when we had the main Judicial Review hearing in July 2021, having waited for over a year to get into court following the 2020 ‘Next Steps’ policy. In August, Mr. Justice Griffiths decided that it was okay for the Secretary of State not to have regard for protection of NERC Act (2006) species and habitats when making the policy. We thought this was plainly wrong and so did many others. Natural England and Defra evidently also thought Mr Justice Griffiths’ decision was vulnerable to being overturned on appeal, and decided on a clandestine plan to cover their backs with some ‘after-the-event’ actions. So, whilst the appeal claim  was being lodged in August 2021, Defra and Natural England were quietly cobbling together a briefing for the Secretary of State (comprised of not very much) to rectify his failure to ‘have regard’ to biodiversity when making the decision to adopt ‘Next Steps’.

This briefing to the Secretary of State on the biodiversity implications of the badger cull (pursuant to the NERC Act 2006 duty) was kept secret, possibly because it was a clear admission that the Government itself also believed that Mr Justice Griffiths had erred when ruling that the biodiversity duty didn’t apply to the impugned Next Steps decision. Not withstanding the recommendations in 2018 (Godfray Review) that further research of biodiversity effects was needed, the duty was thus discharged after the event and in the most cursory manner. Without anyone knowing, without anyone being consulted and without anyone being give the chance to say, hang on, your do-nothing approach is flawed.

Secretary of State George Eustice signed this off behind everyone’s back in December 2021 and the Government then sat on it. They didn’t tell the claimant or the Court of Appeal what they had done. Why not? Because Defra have always liked to play for time and keeping people in the dark is a way of minimising the public interest right to monitor potential government bad practice. In April of this year, the Court of Appeal granted permission for the Appeal case to be heard. Defra then played the card that they had kept up their sleeve. They announced to the court what they had done via a witness statement from Vet Eleanor Brown, deputy head of bovine TB policy at Defra, resting on the Natural England re-hash of the little that is known about ecological impacts of mass-killing healthy badgers. By remaking the decision, Eustice was in effect saying that even if  judge Griffiths did get it wrong, I have considered it now and so I can go ahead and cull this year – you can’t stop me. Your appeal is now of academic interest only because the Appeal judges cannot quash the 2020 policy in front of the 2022 cull season. Defra wrote to the courts wanting the Appeal dismissed before the hearing date that had already been expedited to the end of July.

Of course, this pulled much of the rug from under the legal challenge, and more legal advice was needed. The advice was that there was a chance that the Court of Appeal would still appreciate the trickery that had gone on, and want to correct the legal mistake of Mr. Justice Griffiths and hear the appeal accordingly.  The Court of Appeal admitted the new Defra evidence describing what Defra had done behind everyone’s back on 4th July, set the hearing for 26th July and appointed the three judges.

At the start of the Appeal hearing,  the legitimacy of the request to obtain what is called ‘declaratory relief’  (recognition of the incorrect judgement) would become the first part of the session – simplified to the legal arguments as to whether the case was ‘academic’ or not, i.e. the Griffiths  judgement being determined as wrong, even if the defendant (Defra) isn’t obliged to do anything other than lose and pay costs to the claimant. The judges decided after 90 minutes that they would shut down the case straight away and not hear it. They seemed initially a bit conflicted. We might ask what the point was in holding an Appeal only to shut it down before it happened? This was because the judges decided to take the position on there being no need for the Minister to give relief (remake the policy) because of what he had done behind backs and because of a provision in something called the Senior Courts Act – specifically Section 31(2A). This clause can be used by a defendant (and has been by Defra in the past) to get around legal sanction by claiming that even if an action (decision, policy etc) was done in the wrong way, ‘had I done it in the right way I would still have made the same decision’. This is a sort of ‘get out of jail free’ card, but this is no game. It is governments way of getting away with malpractice and is another part of the story as to how badger culling will continue as government out-manoeuvres public good by throwing time and money (at public expense) at ways to avoid doing things openly and correctly. They might think they have been clever. But they haven’t, they have been somewhere between devious and deceitful, and it does not make for open government or fairness. It is a will to win, only to win and to back up the government policy at all costs. It is a will not to address legitimate concerns about the erosion of the countryside.

As for the badgers and our wildlife in rural areas – they will continue to be subject to the subtle, unmonitored and unresearched stochastic forces that apply to our fragmented landscapes. They will be buffeted by the unpredictable activities of many land managers whose view of British wildlife is that they are pests to commercial land use, to be constantly depleted to low numbers, even if this displaces and disperses them to greater distance and into unfamiliar areas where they seek to feed and compete with resident animals.

We therefore did not get justice, we were strung out by a combination of a government keen to ‘win dirty’ and a Court of Appeal apparently disinterested in a bad legal decision, the biodiversity crisis and the strength of legislation in the 2006 or 2021 Acts, where duties to biodiversity are enshrined. How easy will it be now where there is uncertainty, a lack of research and need for precautions for someone to say, ‘well, these duties don’t really add up to much, do they?’  So it was a bad day for badgers, a bad day for wildlife and a bad day for public interest.

We must try not to be too downhearted and take the fight back to government in every way possible to stop the failed, pointless, damaging , unscientific, cruel and wasteful badger culls. Huge thanks are extended to our legal team, Richard Turney and Ben Fullbrook of Landmark Chambers and Lisa Foster and Hannah Norman of Richard Buxton solicitors, expert witness Dominic Woodfield and to all those funding and supporting the legal work as a part of the Badger Crowd. This includes The Badger Trust who helped instigate the legal action against aspects of the ‘Next Steps’ policy in 2020, Badger Trust Sussex for administrative assistance and for managing offline donations, Wild Justice, very many of the badger groups and organisations around the UK, many other animal welfare and conservation bodies and several generous individuals. Hundreds of badger workers and the public have also chipped in to spread the load. Others have helped with a wide range of supporting actions: research, advice, publicity, and coordination. Thanks to all turning up in London over the last two weeks to show support for the badger culls to be ended.

What has happened is bad governance at the highest level, but we are used to that these days. We will take the learning and redouble our efforts.

Thank you for your part in this. Further information will follow over the next few days and weeks.