The Badger Cull Habitat Regulations Assessments Legal  Challenges

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Photos courtesy of Richard Bowler

Overview of why the challenges are not being pursued to the Supreme Court

The badger culls are not just hugely controversial because of the large question marks over the validity of the science used by Government to justify them. Concern has also mounted over their potential impacts upon protected species and nature reserves. Complaints to the Bern Convention and early legal challenges in 2014 focused on Natural England’s (NE) duties to prevent such impacts. It emerged that there had been all but complete disregard of the potential impact of the disruption of carnivore communities (Carnivore Release Effects (CRE)) in the west of England following removal of badgers across large areas.

The Badger Crowd has since been at the forefront of efforts to see this and other vital omissions exposed. If NE are going to licence badger culling, they are required by statute to do so in a way that ensures collateral damage to other wildlife is avoided. However the legal challenges since 2014 and particularly since 2017 have exposed countless critical failures of assessment by NE, in clear dereliction of its statutory duties. These are failures that have undoubtedly put sensitive species and protected wildlife sites at genuine risk.

Disappointingly the Courts – while acknowledging that NE has failed in its statutory duties – have repeatedly declined to quash licences. In large part this is because NE have repeatedly moved to try and patch up their procedures under the duress of imminent court hearings, and have been equally quick to promise that they will tackle further flaws that have been exposed in front of judges. In other words, it is the pressure brought to bear by the legal challenges that has forced NE down the road of doing the very assessments they should have been doing in the first place.

This is why the recent decision, not to take this matter to the Supreme Court is the right one and why the application to the Supreme Court regarding Supplementary Culling policy is now the main focus (see previous blog). But while the current challenge to NE’s assessment procedures has run its course, no-one should confuse the lack of an outright legal victory with failure. The Badger Crowd and other donating charities can and should be extremely proud of how far the challenges it has helped fund have dragged NE towards due and proper compliance with its duties towards wildlife protection. The agency responsible for nature conservation was clearly giving little or no thought to this prior to the harsh light of legal proceedings being shone on them. By the same token it has to be a matter of acute shame and embarrassment for NE that its failures have been so great, that their magnitude is on permanent record and that it is only the duress of legal challenge that has forced it to make concerted efforts towards doing its job properly.

Further detail

On the basis of the earliest assessments that have been seen, the impact of, for example doubling fox numbers (as prior studies indicated could happen) on birds, roosting or nesting on or close to the ground, seemed hardly to matter to NE. Other un-researched disturbances were also quite likely to occur but remained unaddressed by them or those to whom they granted licences. Under legal scrutiny, NE brought out a range of excuses. Firstly it didn’t think it happened much, then OK perhaps it could inside cull areas, but we will have it covered next year with a new approach. Then came denial that cullers could harm reserves by driving over habitats: digging in traps and shooting with lamps and shotguns. Then, OK it could do harm; we will check and stop that on some SSSI’s.

Over the last five years, NE have repeatedly retracted their position regarding Habitat Regulations Assessments, following detailed legal challenge and engagement by ecological experts Dominic Woodfield and Tom Langton. Then, in July 2018, after Sir Ross Cranston formally found NE in breach of their statutory duty on certain aspects in the High Court hearing, NE caved-in. As a result, vast areas of England outside cull zones became immediately subject to scrutiny and protective analysis, exactly as the legal challenge had said they must, and indeed should have been since 2013. 

Within weeks of the 2018 ruling, which was also appealed for not going further and quashing cull licences, a set of guidelines on how to address CRE  issues were produced by NE, borrowing heavily from the claimant’s witness evidence. Basically NE’s formal recognition of the potential problems was fully established for the first time.

Guidelines to address the problems had been forced out of NE, enabling regional NE staff to express concerns that evidence suggests had previously been ignored, dismissed or overruled. However on the one hand guidelines were saying safeguards from disrupted ecosystems were mostly  ‘ultra-precautionary’, while on the other hand they said that they needed detailed consideration and monitoring.

In fact screening of SSSI damage went from minimal effort to large spreadsheets containing ‘screening matrices’, and eventually all European Sites (e.g. SPA, SAC, RAMSAR) within range of effects were required to have what is called an Appropriate Assessment. This extensive exercise includes wider undertakings to examine what happens if predatory  mammal numbers shift in response to  long-term forced change to wild mammals.

As a result of these more detailed assessments, some sites had badger culling withdrawn (e.g. where Stone Curlew nest on Salisbury Plain) and some smaller SSSIs were excluded. But underlying NE’s case that culling should be allowed within or adjacent to other sensitive sites was an untruth pledged by NE that its operational capacity is able to monitor and address carnivore release effects or other negative implications arising from badger culling.

However, monitoring CRE for just a single site would take an extensive and time-consuming research project to identify and quantify any effects and isolate them from other sources; something NE has no capacity to implement at all yet seemed unwilling to place as a duty upon the cull licensees. Further NE kept and still keeps cull areas secret, and SSSI’s under threat secret too. So any precautionary approach to checking sensitive species numbers before during and after culling was deliberately and unfairly frustrated as exposed by the Information Commissioners at a tribunal in 2017.

Some have pointed out that the lack of seriousness with which the government considered the issue from the start  parallels what we see with the annual mass release of millions game birds in the countryside on and next to SSSI’s, that also bolsters carnivore numbers artificially. Also all but ignored, until recently. 

NE’s new chairman Tony Juniper tried to achieve a sleight of hand by on the one hand complaining NE was so hollowed out as to be unable to monitor most SSSI’s, yet on the other pretending it was on top of monitoring of species and habitats at risk from change brought about by badger culling. How? Through a range of fanciful NE positions. These days, game bird release is commonplace near nature reserves and wildlife sites of all kinds. Local gamekeepers armed with expensive night-vision rifle scopes (that suddenly NE thinks they all had or would have) would spot any increase in foxes (stoats, weasels and even hedgehogs) and deal with them instinctively to restore some kind of notional ‘balance’.

Not necessary to do anything then? Not quite. This year NE wrote to cull companies saying there was now, in effect, a legal obligation on cull companies to provide baseline fox control information (read more here and here) and asking them to make and keep a note of past and present fox control effort. But this was resisted. So is that it?  So much for NE ensuring monitoring is in place to capture changes to sensitive bird numbers.  A  shocking proxy approach to monitoring potential impacts. So poor is the data on changing bird numbers in badger cull areas that NE and British Trust for Ornithology have kept secret the single monitoring exercise undertaken. This attempt to mask the truth reflects badly on NE and BTO. 

Frankly this is all as farcical as it is damning. Nature conservation is being handled with contempt by the agency we help, pay and expect to look after it with the care it requires. It has taken The Badger Crowd many tens of thousands of pounds to help the claimant force the government to take this seriously and they still haven’t. They don’t actually seem to want to recognise the issue and research likely impacts. They have delayed, squirmed and argued denial all the way through the courts. They have just managed to get away with preventing the quashing of cull licences by delay, secrecy and by changing the licences every time they are challenged.  To cap it all, NE even claimed they had lost highly sensitive information and evidence just when it was getting difficult, and they got away with it.

All this shows just how deeply standards have slipped in Natural England over the last ten years.  Yet now the legal advice is that no matter how incisive the challenge, NE have got to a position where it is unlikely that legal action will prevent the issuing  of any badger cull licence. All that can be done is to continue to chase them to protect nature properly as they should have done from the start. 

What remains at stake is the unknown, unmeasured level of potential disruption to declining species and nature reserves from the known primary and secondary effects of badger culling, something everyone should still be very concerned about.  As the government technical reports warned back in 2007 and when Wales decided CRE risks were real and threatening before deciding not to cull.

Badger protectionists don’t just care about badgers but also the places where they live. Over the last five years, one of the largest legal actions ever to defend badgers has, and still is being conducted through the courts. The legal challenges also draw awareness to threats to internationally protected birds and other wildlife on SSSIs. This has been done so as to highlight the shortfalls of government policy in relation to the side effects of the cruel unnecessary killing of badgers.

Legal action has in effect changed the requirements for badger cull licensing, although it was not successful in being awarded legal ‘relief‘ (quashing of cull licences) and getting the claimant’s money back.  Natural England were mauled but survived the legal challenge, but only by doing a complete volte-face with their advice, and by obstructing the release of information that would make initial analysis of the effects of badger culling possible.

There are plenty of new lines of enquiry into the Natural England position and these are being looked at now, so NE, that has always refused to communicate in any helpful way to concerned stakeholders on the subject, could soon be in receipt of more letters and perhaps another five years of legal action.

 

Supreme Effort Underway for Badgers

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After careful discussion with the legal team, and the appointment of Richard Drabble QC as leading counsel  (https://www.landmarkchambers.co.uk/people/richard-drabble-qc/), we are pleased to learn that Tom Langton has lodged a petition with the Supreme Court (Case Ref UKSC 2019/0205). This seeks permission to challenge the refusal by the Court of Appeal to overturn judgements made by Sir Ross Cranston in 2018. A decision on the permission application may not be determined until the New Year.

The claimant has taken this step because of a genuine belief that Sir Ross Cranston and the Court of Appeal have got it wrong and that there is, yet again, an inadequate level of certainty in the formulation of government policy in the environment. In this case with an iconic protected species and measures to address a virulent agricultural disease.

We will work with any successive government to seek to compel Defra to suspend and withdraw badger culling guidance, because the mounting evidence is that any benefit in the fight against bovine tuberculosis will never be measurable, and is highly unlikely either to exist or to make any meaningful contribution whatsoever to bovine TB control.

All that can be done is to put the legal wheels in motion and hope that if culling is not cancelled by other means, then this is a further opportunity to prevent continuation of the unwarranted, unscientific and damaging culling of badgers in England under the flawed ‘supplementary culling’ policy.

The generosity of contributors has been humbling and sincere gratitude is extended for their continued support. There are currently the additional costs of instructing Richard Drabble, one of the country’s top public law QCs, together with barrister Richard Turney at Landmark chambers. An application fee of £1,000 is required and the cost of further legal considerations and advice needed until the end of the year.

However, the decision has been made not to launch a new appeal for further funding pending the decision on whether permission is granted in the Supreme Court.  Having said that, the existing appeal remains open and all donations are greatly appreciated and much needed as our appeal passes the 75% mark this week. Should permission be granted for the Supreme Court then a new appeal will be launched to cover costs. This will involve going back to some of the larger charities, donors and organisations to ask again for help.

This is another big ask.  Many people and groups have already donated very generously and they may feel that there has been little return in terms of saving badgers. However, legal action has slowed and prevented badger culling in some areas, including the most sensitive nature reserves. But these are only tiny victories in the context of the current mass-expansion of badger cull areas. The Badger Crowd wants to see an end to the culling completely. We are not ready to give up on using all legal means to prevent badger culling in England. In fact we are galvanised to bring more and more scrutiny to bad decision-making. We aim to highlight poor leadership in veterinary, environmental and nature conservation administration in England. A note on the Habitats Regulations Assessment & ecological Impacts challenge and outstanding challenges  that are stayed or under development is to follow.

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No Safety Yet for Battered Badgers

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  • Court rules Protection of Badgers Act (1992) may be used for bTB disease control ‘experimentation’.
  • ‘Academic’ arguments let Natural England ‘off the hook’ on designated nature site safeguards despite admissions of errors in the original process of granting licences to cull badgers.

C1/2018/2332 The Queen on the application of Langton -v- The Secretary of State for the Environment Food and Rural Affairs & Natural England. Appeal of Claimant from the order of Sir Ross Cranston, dated 15th August 2018, filed 14th September 2018. Held on Tues, 2nd July, 2019.

Before The Lord Chief Justice of England and Wales (Lord Burnett of Maldon), Lord Justice Singh and Lady Justice Nicola Davies.

In Judgements today, the Court of Appeal has dismissed an appeal on two key rulings of Sir Ross Cranston in the High Court in August 2018.

On the two matters reaching the Court of Appeal, the judges found that the Secretary of State* in 2017 was entitled to rely upon government specialists opinion that prolonged (supplementary) badger culling should be allowed, in addition to a reference 4-year ‘cull and stop’ approach.

This was despite the acceptance of the lack of scientific certainty that continuing culling after an intensive period of culling would reduce the spread of Bovine TB (bTB) control in English cattle herds. Expert warnings from government scientists, RBCT** studies and others had cautioned that supplementary culling might neutralise potential benefit or even increase Bovine TB and that the approach was not ‘necessary’, as had been suggested by Defra. The so-called ‘adapt and learn’ approach advocated by the Chief Scientific Advisor Ian Boyd and Chief Veterinary Officer Nigel Gibbens was found to be a lawful basis for government policy.

On the second issue before the Court, relating to the potential adverse ecological effects of removing badgers on the countryside, judges concluded that the issue of whether Natural England acted unlawfully is now ‘academic’ to the quashing of licences and need not be addressed. During the original hearing in 2018 Natural England was found in ‘Breach of Duty’ by the High Court, after which it moved rapidly to make extensive changes to its procedures.

Legal representatives for the Claimant have written to the Court of Appeal with an application for permission to appeal to the Supreme Court. Subject to this, his legal team may consider a petition for permission to the Supreme Court once matters have been fully considered.

Claimant Tom Langton said:

‘’Throughout the badger cull litigation in recent years there has been disagreement in the legal assessments regarding the standard of evidence required to allow the killing of vast numbers of a protected, iconic and sentient species over a huge proportion of the countryside.

The judgment today is disappointing in so far as Supplementary Culling is found to be acceptable government policy. This is unhelpful to the principle of quantifiable disease eradication effort. Recent monitoring data confirms that in Gloucestershire, Supplementary Culling was associated with a large increase in bovine TB.

Notably, in June of this year retiring Chief Scientific Advisor Ian Boyd wrote comments in response to a pre-action letter on the government’s ‘adapt and learn’ policy, following release of the recent bTB data from Gloucestershire. Boyd made an important point that supports the anti-badger cull case: that ‘it is not possible to examine any single measure such as supplementary badger culling, alone as having a positive or negative effect.’ [on Bovine TB incidence]

This contradicts the ‘adapt and learn’ argument that the 2018 High Court took comfort from and exposes the culling for what it is; a flawed experiment with no direct measure of benefit and from which there can be no learning. Modelled estimates from the Animal Plant and Health Agency (APHA) are equivocal theoretical exercises, given by Defra to politicians to try to justify the 2011 Badger cull policy. The government strategy emerges as a huge (up to 70-95%) suppression of badger numbers over very long periods (to 2038 and potentially beyond) in the hope that any benefit may add to other TB control efforts, irrespective of whether they are being done properly or not.

Regarding the ecological Habitat Regulations assessments, it is gratifying to see the extent to which Natural England has reformed, published and adapted its procedures, yet only in the face of legal challenge. Our case has held NE to account by calling-out their very poor handling of process on the detailed assessment of risk to our designated sites and ground nesting birds. Winning that argument yet not gaining relief due to the drawn out legal process shows how the judicial system favours a defending governments operations. It does not diminish our case that we were right and that the ecological assessments NE had been carrying out were legally flawed.

On both these matters effort must be made to expose the unknowns, uncertainties and deceptions that surround the process of badger culling and ecological assessment. It can only be hoped that an incoming government will put in place the enhanced bTB testing and movement control measures needed to halt the disease and suspend the current policy, preventing the squandering of public money on illogical, speculative and cruel approaches.

On behalf of all those working most closely with the legal challenges, I would like to thank the thousands of people who care for badgers who donate towards tribunals and High Court litigation or seek justice for badgers. I would also like to praise our legal team and supporting experts who continue to provide the sharp edge of our work to challenge bad procedure. We aim to stop divisive and unscientific Bovine TB control that has dominated the handling of a cattle disease since the 2011 badger culling policy.

There is no covering up the growing bovine TB emergency and scandal of the last six or more years. The systemic failure in environmental protection must be further investigated noting the failings that the court submissions and disclosures have exposed, thanks to our challenges.’’

* [Andrea Leadsom and Michael Gove]
** RBCT: Randomised Badger Culling Trial (1998-2005)

Read the ruling here: Read 

 

 

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.