Waiting for the Appeal Hearing outcome…….

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It’s been a month now since our High Court Appeal hearing, and the important matter of ‘what happens next’ still hangs in the balance.  The understanding is that the Courts and Judiciary are largely closed down over August, so having not received results thus far it is quite likely that we might not hear anything for several more weeks. This means of course that we may be into September before we find out more, and September is the month when we fear confirmation of  yet more areas for badgers to be shot, and for the badger cull carnage to be imposed over a much larger area. We could hear at any time, however.

As well as the Appeal outcomes, there should be news of the government’s response to the ‘Godfray Group’s’ review of the current bovine TB policy, and presumably Defra’s newly massaged ‘results’ of the pilot badger cull, (Downs et al. 2019) as an update to Brunton (2017). Raw data shows that supplementary culling has been followed by a massive bTB spike in Gloucestershire. ‘Downs’ has been used in the decision making process to try to help justify Supplementary Culling, but has been kept secret thus far. Rather like the British Trust for Ornithology (BTO) report on effects of culling on the wider environment, which was held back from public scrutiny by Natural England for no good reason; the motives for withholding both are highly suspect. As ‘Downs’ has not yet been made available, we are guessing that it will be a much caveated piece of selective modelling, which will say that badger culling may be helping reduce bTB in cattle, but many more years of data will be required to be slightly more confident that it is a possibility or a likely  failure.

This is ‘the cull until 2038’ approach. The same old fudge that shames the government and the reputations of all those involved, whether they are actively enabling it or just keeping quiet for their own personal convenience/advancement. Government has said to us in writing that there is no way to identify the cause of any change in bTB breakdown rates in cull areas, and in any case, in some areas it might be expected not to work. Nobody is fooled about what is being done and aimed for; a corrupted version of the 30 years of failed badger culling in Republic of Ireland.

Perhaps those at Defra and Natural England hope to continue to hide behind the ensuing Brexit furore, hoping that badgers will not be most people’s priority at this time of national crisis? The bTB crisis in the national herd will not disappear though, but will spread, whatever happens with Brexit. At some point, those in charge will have to acknowledge that equivocal interventions are pointless, a complete waste of time and money without first addressing the major causes of disease in cattle; failed testing and hopeless movement restriction. This in fact was Natural England’s position during the original cull policy consultations – so what happened?

The solutions to bTB are available and have been used successfully in the past, and they don’t involve culling wildlife. Killing badgers may be damaging other wildlife species and habitats, in addition to all-but exterminating a persecuted apex species for spurious reasons. There are new cattle testing technologies becoming available, being stifled by vested interests that will make control easier and cheaper. The sooner the government’s policy advisors stop following failed veterinary and cattle lobby rhetoric and start listening to informed scientists (without vested interests), the faster will be the progress against this terrible disease. Whatever the outcome of the Court of Appeal, the Badger Crowd will continue to work to defeat this horrible policy using common sense, science and the law.

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Court of Appeal Hearing, London 2nd July

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On July 2nd, the Court of Appeal heard the challenge to the decisions of Sir Ross Cranston in the High Court in July 2018 (Langton -v- The Secretary of State for the Environment Food and Rural Affairs and Natural England). The Court sat between 10.30am and 4.10pm, with much of the proceedings (the morning and part of the afternoon) televised and now available on Youtube:

Links https://www.youtube.com/watch?v=cF4Qc7a8p3U and (pm)  https://www.youtube.com/watch?v=SwwNRwj0cMQ

Unfortunately the sound quality from parts of the room was not too good at times, which is a shame for those wanting to listen and analyse the detail. The afternoon coverage cuts out at about 2.45pm; we do not know why. Unfortunately this means that the summing up is not recorded.

In this instance, two grounds of the case that the High Court decision of 2018 was incorrect were fully examined following some opening discussion over the scope of the Grounds (reasons for challenge).

Richard Turney opened with his arguments over why allowing supplementary badger culling (SBC) for 5 years after the completion of intensive culling is ‘ultra vires’, that is, beyond the provisions allowed for under Section 10 of the Protection of Badgers Act 1992 (PBA)

One aspect of the issue relates to the fact that the effects of SBC are unknown and cannot be separated from other bTB control measures. They may, according to published science (Jenkins et al. 2010) make things worse. The inability to be able to tell whether SBC works or not was reinforced  in the reference material and in a recent letter from Defra to the claimant.

In front of Sir Ross Cranston in the High Court in 2018, Defra and the SSEFRA had used the claim that they would learn from the SBC results and adapt their policy accordingly to support their case. The arguments yesterday included whether the PBA allows ‘experimentation’, although SBC cannot even be regarded  as an experiment, since there can be no learning resulting from it. 

The judges have a fine line to tread in that under the current approval, SBC might only be claimed to have helped, and cease, if bTB goes down and is eradicated. However if it does not, (and the government scientist’s position is that it could take a very long time for success or failure to be indicated), it is not possible to be sure whether SBC is helping or holding things back. Under an experimental approach, if SBC is actually worsening the spread of the disease, you may not find out for decades or even ever.

We remember that in the 1960’s bTB was reduced by 80% in four years with thorough cattle measures. What we know of SBC from results in Gloucestershire in its first year is that there has been an increase in confirmed new herd breakdowns by 80%. Government claims that it is too early to be able to interpret the results of SBC and longer periods of implementation are needed; this is  not correct as there can never be certainty on causation with the current policy.

In approving the policy, the Minister may have overreached the powers of the PBA; there is a clear argument that this should only have been attempted under different legislation. Defra/SSEFRA argued that licensing doesn’t have to be definite in terms of outcome. But that didn’t seem to address the capacity of SBC to increase the spread of bTB disease on a country-wide basis, in a manner that it is impossible to detect.

The other part of the case argued yesterday concerned the way in which Natural England approaches its legal duties of assessment in terms of the negative impacts of badger culling on non-target species in internationally protected sites. Much of the evidence relied upon in this challenge arises out of forensic analyses of the detail of Natural England’s impact assessments by our Habitats Regulations expert Dominic Woodfield, who continues to work pro bono on the case.

The argument centres on the implications of a suite of recent European and domestic court cases, in particular an Irish case known as ‘People Over Wind’. In this case the European Courts ruled that mitigation measures, taken specifically to avoid or mitigate adverse effects that would otherwise be likely to occur to sites protected under the EC habitats and Birds Directives, cannot be taken into account by a decision maker when screening proposals for ‘likely significant effects’ – the first stage of what is called a ‘Habitats Regulations Assessment’.

In the challenge in the High Court in 2018, Sir Ross Cranston accepted NE’s argument that measures imposed as conditions on badger licences, in order to try and avoid impacts on sensitive species and sites, were not ‘mitigation measures’ because NE had invited applicants to incorporate them into their application and they were thus integral parts of the project.  This is an approach that contradicts the methodology NE requires to be followed in all other aspects of its duties under the Habitats and Birds Directives and it is telling that NE has very recently overhauled all of its Habitats Regulations Assessments for badger culling to try to correct this error.

The Court of Appeal’s decision on this aspect of the case has huge implications. If the Court of Appeal finds that Sir Ross Cranston’s decision was correct, it will put UK case law squarely at odds with that of all other EU countries bound by the Directive and will mean that Natural England’s approach to marking its own homework when it comes to badger licensing is open for wider adoption by developers and others as a means of avoiding the more stringent requirements of the Appropriate Assessment stage of Habitats Regulations Assessment. This will result in reduced protection to internationally important sites and have knock on implications for wildlife protection generally. On the other hand, if the Court of Appeal finds that Sir Ross Cranston’s decision to accept NE’s unusual definition of mitigation was wrong, it will confirm that NE’s authorisations for badger culling over vast areas of south-western and western England were unlawful, in both 2017 and 2018. 

The question now remains what relief could occur if the cases are successful. With SBC it will be all or nothing; supplementary culling will either be stopped or considered acceptable. With the Natural England licences, judgment in  favour of Mr Langton could see a number of licences quashed. This would both show the validity of the original challenges and  focus a  spotlight on how NE approached the 2019 licence applications.

We hope that judgment will be handed down before the end of July, but it is possible that it will be towards the end of August or even later. The courts were fair and open yesterday and we can only wait to see the verdicts. Huge thanks again to all those supporting the legal challenges and sending in messages of good wishes this week. It really is appreciated. Please keep encouraging donations as we are still short of funds. Huge thanks to the legal team and the contributing experts, advisors and researchers too.

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BADGERS BACK IN COURT

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C1/2018/2332 The Queen on the application of Langton -v- The Secretary of State for the Environment Food and Rural Affairs & Anr. Appeal of Claimant from the order of Sir Ross Cranston, dated 15th August 2018.

Before

  • THE LORD CHIEF JUSTICE OF ENGLAND & WALES and
  • LORD JUSTICE SINGH and
  • LADY JUSTICE NICOLA DAVIES

Tuesday, 2nd July, 2019

At half-past 10

Tomorrow, Tuesday 2nd July, the Court of Appeal will consider whether the decision a year ago by a High Court judge to dismiss challenges to major elements of Defra and Natural England’s approach to badger culling in 2017 was right. Defra’s controversial policy that year to kill more badgers for longer, to prevent the English Bovine TB cattle disease crisis will come under fresh legal scrutiny, as will impacts on the ecological interest of nature sites of international significance.

The Court of Appeal will consider whether Sir Ross Cranston, sitting as a High Court judge in July 2018, wrongly dismissed the legal challenges brought by claimant ecologist Tom Langton against two elements of badger culling. These were namely, the decision of the Secretary of State for the Environment Food and Rural Affairs (SSEFRA) to pursue a policy of ‘supplementary culling’ of badgers, and the decisions of Natural England (NE) to issue licences in 2017 for badger culling affecting internationally important nature conservation sites in Devon, Dorset, Somerset, Cheshire and Wiltshire.

Breach of Protection of Badgers Act 1992

Mr Langton’s challenge against the SSEFRA’s pursuit of supplementary culling exposes that government has cut both costs and corners in considering the scientific evidence for its new approach to shooting badgers, introduced by Defra in 2017.

The claim is that the Government has approved a method that has no scientific basis and that has been advised against by published studies suggesting that the approach might even be counter-productive in the fight against bovine TB. This was also pointed out by the Zoological Society of London experts after the suggested method was made public.

The Protection of Badgers Act 1992 may be breached if culling is done merely on an experimental basis to stop spread of disease when there is no robust scientific evidence or certainty that this will work. The Government’s actions were found to be lawful by Sir Ross Cranston on the basis that the government argued it was able to adapt to and learn from any findings once the method is adopted. In recent weeks the Chief Scientific Advisor and Chief Veterinary Officer and a Natural England scientist have denied that a spike in bTB in the Gloucestershire pilot study and a slight rise in the Somerset pilot area in 2018 indicate that the method may be making things worse.

Important Nature Sites at Risk

On the second Ground of Appeal, Mr Langton’s challenge against Natural England centres around the duty on NE under UK and European law to ascertain that internationally important nature conservation sites are not adversely affected by badger culling operations. In the case before Sir Ross Cranston, Mr Langton had claimed that NE’s assessments pursuant to this duty were cursory and inadequate and as a consequence the decisions to sanction badger culling made on the back of them were unlawful.

In the High Court in July 2018, Justice Cranston agreed with Mr Langton that NE had breached certain of its duties under the Habitats Regulations. However, he accepted NE’s case that correction of the errors in their assessments would make ‘no difference’ to their conclusions and consequently he did not quash the badger culling licences.

The Court of Appeal will decide whether he was right not to do so. The Court will also decide whether he was correct to accept various measures to limit the possibility of impacts on international sites. One example was that culling stand-off zones near known high tide roosts for wading birds (which were imposed as conditions on the culling licences) were not ‘mitigation’ and could therefore be relied upon to ‘screen out’ sites from more detailed consideration. This is an approach that has since been found to be unlawful under European law.

Government has cut both costs and corners

Campaigners state that government has failed completely on the scientific monitoring that is required for any safe and proper assessment of new methods to shoot badgers, introduced in 2017.

Corners have been cut because;

  1. Badger numbers are crudely guess-estimated and not properly assessed as is essential in determining population sizes; a vital consideration.
  2. Natural England backtracked  on requiring data from cull companies on fox and other predator control numbers in and around cull areas.
  3. Natural England claimed to the court that their staff would know if any negative effects were happening on protected sites while at the same time stating in public that their ability to monitor SSSIs was seriously diminished.

ClaimantTom Langton said:

 ‘’ The understanding that badger culling may now be making things worse rather than better or having no effect at all is quite sobering and I hope the government will take time to reflect. What they should have realised in 2017 when they went ahead, was that they had no ability at all to learn from what was being proposed. It was and remains a huge mistake.

Our wildlife sites have been threatened by Natural England whose job it is to protect them. We think that Natural England’s defence is wrong and a damning indictment of their capacity and abilities. The court has found that they have breached their duties and now they are trying to justify, with dismissive language, feeble safeguards that neglect responsible protection of nature.

More badgers have been killed and injured during the year since the first hearing. The Minister should now intervene and take urgent steps, beginning with cancelling this year’s supplementary badger culls in order to rethink the policy. Claims by senior politicians that culls are working are founded upon briefings by Defra officials, based on mistaken or overstated understanding of the scientific evidence.’’

Habitat Regulations expert Dominic Woodfield said:

“Natural England earnestly reassured Justice Cranston last year that they will instantly respond to any emerging evidence of impacts on sensitive bird populations and other features, including those underpinning internationally important wildlife sites. These reassurances have been shown to be baseless platitudes.

One cannot respond to evidence of a negative effect that one is not looking for. The reality is that Natural England has conducted next to no routine monitoring of species populations on the European Sites threatened by badger culling, and is therefore not in any position to use any such monitoring as a miner’s canary to signal when protective steps ought to be taken.

It is telling that in the time they bought by reassuring the High Court last year, Natural England has sought to overhaul its impact assessments in a manner that precisely vindicates Mr Langton’s original claims, and as a consequence they now claim that quashing any 2017 decisions would be academic.

It will be for the Court of Appeal to decide whether this really is an academic matter having regard to all the changes to procedure and conditions that have been forced by Mr Langton’s challenges and whether those changes, welcome as they are, go far enough to protect vulnerable wildlife and fulfill our international obligations.”

Badger Culling – just 5 days to Court of Appeal Hearing

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Next Tuesday July 2nd at last sees  aspects of Supplementary Badger Culling and Habitat Regulations Assessment  of badger culling under review by the Court of Appeal, nearly a year since the cases were first heard in the High Court. We are hopeful that further scrutiny will finally show the full merits of our arguments.

This time there are three Judges. There are parts of last year’s submissions to work through and  new supporting submissions.  So far the case is listed for one day but the exact timing, court number and judges are yet to be revealed.

The Hearing will be televised:

https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/

From submissions made by Defra and Natural England for these appeals, and from other exchanges of correspondence it is clear that the intention is to continue to increase badger culling this year and beyond. Yet despite monitoring the general trend in bTB in each cull area, senior  government sources also confirm this week that there will be no absolute indication of whether badger culling is contributing to bTB control or not.

The arguments put forward by government show intent to continue badger culling long into the future. This despite the fact that bTB was tackled effectively, with a 80% decline over four years in the 1960s. Shockingly, their justification still references badger killing in the Republic of Ireland, where no relationship between badger removals and bTB change has ever been established. The claims from government scientists are frankly astonishing.

Government intends to continue culling badgers until bTB is eradicated from cattle, but even any theoretical benefit from badger culling cannot materialise until the disease is rigorously addressed in cattle. Put another way, even if badger cull could help reduce bTB slightly, it cannot while disease in cattle is inadequately addressed by failing testing.  This was actually known from the start. Killing badgers has always been pointless, with no meaningful contribution.

It is obvious from the ‘Godfray Review’ in 2018 that the scientists actually know that badger culling is not a significant component of the policy, and indeed has no little or no value in bTB control. This was one message at this week’s  meeting ‘Tackling Bovine TB’ at  the TB Advisory Service Conference in Cirencester, while others preferred sticking to the doomed government line. Effective cattle bTB testing, movement control and strict biosecurity are the measures that will deliver significant bTB disease control benefit.

We can only hope that the writing is on the wall now for the expensive, cruel, useless badger cull and that precious public resources will be directed to where they can be effective in the future.

Fundraising income to help fund legal costs for these appeals has been a steady trickle, and all who have so generously contributed cannot be thanked enough.  The need remains to continue to challenge bad badger culling policy and bTB control. Several decisions to be taken on the way forward are dependent on the outcome of the appeals, but it is not clear exactly how long any new judgement will take.

Lush podcast on badger cull law and science

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Listen in here to Charlie Moores talking to Tom Langton (43 minutes) about the upcoming badger cull legal appeals, badger cull law, and the science of badgers and bovine TB.

Many thanks to Charlie for giving this opportunity for frank discussion on the details of this complicated and controversial subject, which many established media outlets are not covering in any depth.

Supplementary culling goes full-steam ahead

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Yesterday in the House of Commons, Stephen Lloyd, Independent MP for  Eastbourne said the following: “Given the extended roll-out, it is estimated that about 150,000 badgers will have been culled by the end of 2020. This animal, which has been around since the ice age, faces extinction in various parts of the country.”

Given that 67,000 badgers have already been killed since 2013, presumably we  can expect around 83,000 more to be killed before the end of next year. And what is being used to justify all this culling? Well there’s the much quoted Brunton et al. 2017 paper, whose statistical modelling produced a theoretical benefit in Tb reduction, along with the less quoted caveat ‘’it would be unwise to use these findings to develop generalizable inferences about the effectiveness of the policy at present.”

And now apparently there is another computer modelling paper Downs et al, currently waiting for publication. This too, apparently, will show a theoretical benefit in Tb reduction in Gloucestershire and Somerset. This will come as a surprise to those looking at the actual number of new herd breakdowns, and seeing a huge spike in Gloucestershire in 2018.

Will  ‘Downs 2019’ heavily adjust too and caveat in the small print? These adjustments are made in an attempt to nullify factors other than badger culling which have not been ‘controlled’ for on the ground. How could they have been controlled? This is not a scientific experiment, it’s an industry led culling exercise, and no amount of adjustments will be able to give a conclusive ‘cause and effect’ result.

So how will  anyone be able to say badger culling has worked or not? Simple truth is they will not. The result is that there is no ‘off’ button – Plan A  is to cull forever. New herd breakdowns could go down, stay the same, or go up (as they have in Gloucestershire) and government could go on claiming a need for badger culling, which they will continue to endorse.

Please help up to fight badger culling with legal action. Without a change in government, we believe it is the only way to seek a change in this shocking policy.

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Update on fundraising & supplementary culling

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The good news is that there has been another generous donation to the crowd fund which takes it to nearly 50% of the target. When the figure needed to pay for the Appeals and to progress new challenges was calculated, it seemed as if it was an impossible funding goal. But now the amount raised is all but half way there, with two weeks to go before the hearing. A huge thank you to everybody who has donated so far. Please keep it coming.

The bad news is that despite the Appeal to last year’s ruling on ‘Supplementary Culling’ coming up in the first week of July, and the recent pre-action protocol letter challenging such culling in 2019 (on the basis of escalating bTb herd breakdown figures in Gloucestershire), Natural England has now authorised the licenses for Somerset and Gloucestershire*. This means that badgers are again being shot, sometimes inhumanely, under supplementary culling licences. This may continue to  be the case until early 2020, and be repeated in further years unless the upcoming appeal is won, when it would be stopped.

As mentioned in previous posts, and most mysteriously, a letter from Defra saying that the licenses had been re-authorised was received within a day of receipt of a letter from Natural England saying they had not yet decided whether or not to re-authorise culling. The conclusion must be drawn that the claimed independence of Natural England from Defra deserves, and must receive closer scrutiny. This remains difficult with the continuing unwarranted blanket of secrecy that surrounds all matters relating to the cull. Despite three separate Information Commission Tribunals finding against Natural England’s refusal to hand over environmental information, Natural England still use the same old excuses that were ruled against previously. It is a disgraceful time for nature conservation and freedom of information. Nothing has changed.

The reasons given by Defra for the two 2019 licence authorisations are being considered by lawyers and the upcoming legal case will bring the issues into full focus. The battle goes on despite these setbacks, but it is only with the support of the badger groups, charitable trusts and generous, caring individuals that this work continues.

* Badger cull supplementary cull licences have also been authorised for Dorset Area 3 as of 20.06.19.

 

Natural England keep supplementary culling, despite Gloucestershire bTB spike

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Yesterday was a surprising day. In the morning lawyers for the claimant received a letter from Natural England, here, saying they had not yet decided whether to re-authorise the supplementary badger cull licenses in 2019. They claimed that “the representations made in your letter regarding the effectiveness of supplementary culling may be considered by the decision maker in the context of the re-authorisation decision.” They said that “ judicial review is therefore premature and we invite you to await our further correspondence on this issue.”

We didn’t have long to wait. Just a few hours later, we received a letter from Defra with news that the cull licenses had been authorised, coming into effect immediately with letters of authorisation from Natural England placed on the Defra web pages dated 12th June. Word from the field comes that pre-cull activities started earlier in the week so when was the decision to issue actually made?

At the bottom of their letter Natural England said “…Natural England does not accept the allegation in your letter that it acts “under dictation” from DEFRA.”

Events suggest that the first letter was written at the same time the decision to issue the licences was made. What should we make of these two letters? Does it look like two separate hands on the wheel?

This morning a response was made by the Government Legal Department to the claimant’s pre-action letter regarding a request for supplementary badger culling to be suspended. More on this later.

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Supplementary culling licences – update

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Hours after receiving this letter from Natural England, comes  a letter from Defra saying that the supplementary culling licences have been authorised in Gloucestershire and Somerset.

So it appears that the challenge to the supplementary culling licences was not premature after all?

What is going on at Natural England?  

Natural England’s new authorisations allow the killing of up to 540 badgers in Gloucestershire Pilot Area 1 and 578 in Somerset Pilot Area 2.

Supplentary culling licences

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Yesterday the claimants legal team received an email from Natural England’s solicitor in response to the pre-action letter. The letter says that Natural England have not yet made a decision on whether to re-authorise the supplementary badger cull licences for Areas 1 and 2  (Gloucs and Somerset) in 2019. Presumably the same applies to Area 3. (Dorset) which has had 4 years of culling and is now a candidate for supplementary culling. NE says that ‘’representations made in your letter regarding the effectiveness of supplementary culling may be considered by the decision maker in the context of the re-authorisation decision.”

This doesn’t sound like much of a concession yet, but at least Natural England are actively considering new information and evidence. NE know that their licensing decisions are being carefully scrutinised, and they know that the science is uncertain.

Please help to continue the calls for more openness on environmental information, data and the decision-making processes of badger cull licensing, and to highlight the lack of evidence for the policy as a whole.

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