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.

Reactions to George Eustice avoiding fair legal scrutiny

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The deeply disappointing news is that the legal Appeal, granted by the Court of Appeal in April and reopening the judgements in the High Court of Mr Justice Griffiths in 2021, has at the last minute been refused. It would have examined the claim of judicial error over potential ecological impacts of badger culling, and the NERC Act 2006, that the government has worked hard to deny. The case has been blocked, and the impugned decision has been protected by those who brought about the legal problem in the first place and then covered it up.

Having been given a date for the hearing, and arrived in court on Tuesday 26th July in expectation of the case being heard, the legal team were turned away after 90 minutes following representations relating to Defra’s last minute actions. Permission for a full hearing was denied due to legal tricks, prepared in secret over the previous nine months, crafted by Defra and Natural England to prevent matters proceeding.This is rough justice and shows that the government is more interested in ‘playing dirty’ than having an open and honest consideration of the essential duties that it carries out on behalf of the general public for the benefit of the environment.

Be very aware that this is the government that has presided over the worsening biodiversity catastrophe in nature-depleted England over the last decade, manoeuvring to prevent the natural course of justice over an issue of huge importance and uncertainty and ensuring that their ‘do-nothing’ approach is sustained.

A full account of events is being prepared and will be placed on this site in the next few days. But for an immediate reaction, please read Charlie Moores blog post here. Charlie, who many of you will know, runs ‘Off the Leash’ podcasts. He has kindly helped publicise the case, and provided an opportunity for the claimant Tom Langton and his expert witness Dominic Woodfield to discuss the important issues at stake in this latest of legal challenges in a podcast here. He attended the Court on Tuesday to listen to proceedings, met with many of the badger protection folk who turned up outside the court to give support, and his blog gives a heartfelt insight into his experience of the judicial system in action.

We will post more about this case shortly.

Badger Culls, Biodiversity, Birds, and the High Court

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For an in-depth preview of the upcoming Court of Appeal hearing (Tuesday July 26th) on aspects of the ecological impacts of badger culling, have a listen to this ‘Off the Leash’ podcast of Charlie Moores talking to Tom Langton & Dominic Woodfield. 

It’s a sobering story of how difficult it is to get justice for badgers and their wild communities  in the Courts. The Courts can accept (and have done in previous cases) the arguments made by claimants. But  government may still evade taking sensible and necessary precautions to avoid the side-effects of removing 70-95% of badgers. They do this via vague promises and superficial actions to monitor, assuming ‘absence of evidence’ to be ‘evidence of absence’, and by using the ‘no difference’ argument. In this way, they enable culling to continue and avoid undertaking proper research and subsequent avoidance and safeguards.

The interview is long and involved but  gives an insight into the really important principles behind this Appeal, and the problem of holding a slippery government to act properly within the detail & spirit of the law.

A letter to the Prime Minister

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A letter signed by 30 veterinary and environmental professionals has today been sent to the outgoing Prime Minster Boris Johnson and other members of the government calling for an immediate moratorium on badger culling in England. Those signing the letter include the three authors of a recently published peer-reviewed paper (read here) on the efficacy of the badger cull using government data.  

A moratorium would allow time for independent scrutiny to establish the veracity of the independent scientific evidence as well as Defra’s claims, and to consider whether culling should be permanently ended as a result. It would also allow for a re-evaluation of the bovine TB eradication policy based on the latest scientific evidence rather than received wisdom that is decades out of date.

Green Party MP Caroline Lucas said:

“It couldn’t be clearer – badger culling simply doesn’t stop the spread of TB in cattle. Yet even when presented with this evidence, DEFRA has its fingers in its ears, and continues to kill at will. We need to see a moratorium to allow time for independent scrutiny of the evidence – which I have no doubt will reinforce the message that this cruel and counterproductive badger cull must come to an end.”

Tom Langton, the lead author of the independent study said:

“Defra have painted themselves into a ridiculous scientific corner and now simply refuse to discuss it. This is the sign of a government that has lost its grip and cannot accept that its own data now shows badger culling to be a cruel and ineffective failure. It’s Defra’s version of ‘Don’t look up!’.”

Veterinarian Dr Mark Jones, Head of Policy at Born Free and one of the co-authors of the scientific analysis, said:

“Huge numbers of badgers have been killed across vast swathes of the west of England over the past decade, ostensibly to control the spread of TB in cattle. However, in spite of Government claims, evidence that the culls are working is lacking. No further badgers should suffer and die for the sake of this failed policy. It’s time that badger culling was ended.”

The letter can be viewed here. The letter is featured in an article in The Guardian here. More from Mark Jones, Head of Policy at Born Free, and an author of the scientific analysis which led to the letter can be found here.

Badger cull eco-impacts to be heard next week:

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Court of Appeal hearing date has been set for Tuesday July 26th

Next week: Tuesday 26th July, the Court of Appeal in London will reconsider the 2021 Judicial Review finding, in respect of the judgement of Justice Griffiths in the High Court. This is relates to the Secretary of State’s (George Eustice) alleged failure to have regard under the Natural Environment and Rural Communities (NERC) Act 2006 when approving the 2020 ‘Next Steps’ policy to allow badger culling in England to expand.

The original claim, brought by ecologist Tom Langton, and supported by the Badger Crowd Network, was that of a failure of government to adequately consider the potential ecological impacts of mass badger removal upon priority species and habitats across the wider countryside. It argued that there was a deficiency in the government for not taking adequate steps to deal with potential impacts.

Earlier hearings in 2017 and 2018 brought similar claims in respect of ecological impacts upon statutory designated sites of national and international importance. It resulted in the initiation of measures to more properly address potential impacts. Such safeguards are missing away from designated sites.

The Appeal is marked for a one-day hearing with an outcome likely before the commencement of continued intensive badger culling in September 2022.

About that BTO report……

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British Trust for Ornithology (BTO) opens up about its ‘secret’ work for Natural England.

Gavin Siriwardena, a BTO ecologist, has been writing online about his experience of working with Natural England (NE). Please see the third comment below the guest piece by Dominic Woodfield on Mark Avery’s blog here. He writes regarding the prolonged suppression of the release of a BTO scientific report, paid for with public funds, that contained a flawed analysis. He helped prepare this report in 2018, with others, for Natural England. A published version was not released until 2021 when the 2018 version was suddenly labelled as a draft, despite not being cited as such before in official documents used for decision making. This report was a promised outcome of a legal case pointing out lack of attention to ecological protection from the effects of mass-killing badgers on sensitive nature reserves.

Why was the initial 2018 report suppressed? Turns out that yet again, government funded work surrounding bovine TB eradication and badger culling has been cloaked in secrecy and hampered by error. In this case the mistakes were rendered inconsequential, but only because the design of the study was so scant and unconvincing that it made the results ‘low inference’, and the exercise not fit for purpose anyway. Perhaps NE did not want to expose the mistakes, how poor an effort it was, and that they were using it to justify decision making to meet the expectations of a High Court judge. It was, after all, one of their main defences from legal challenge, having promised the court to look carefully at badger cull impacts. However, in exposing these problems the BTO employee has revealed a lot about the situation regarding a further, similar legal case on biodiversity protection that goes to court this month. Here are some of his remarks and some thoughts on those remarks:

“Badgers are a top predator in the UK today and are also ecosystem engineers to some extent. Changes in their numbers are certain to have some effect on some other animals and plants, some of which may be biologically significant. “

Natural England’s previous defence in court was that effects are uncertain, and avoidance or mitigation is in general “ultra-precautionary”.  Not the case now it seems.

“The analyses were limited by scale and context: this was not an experiment and cull areas are likely to have differed systematically in land-use from non-cull areas, added to which sample sizes were small. “

But NE relied on the BTO 2018 report in court. Gavin S acknowledges it is fraught with limitations, yet it remains the only action NE are taking. Disgraceful?

“However, there was a misunderstanding within the project team and a filter for inclusion of species was set at 30 square-year combinations, as opposed to 30 unique squares, and this was reported incorrectly in the report.”

Although NE used this non-peer-reviewed (at the time of use) analysis in their legal case, it contained mistakes that changed conclusions regarding many species.

“I sympathise with the view that policy should not be made on the basis of reports before they have been improved by peer-review, but I also sympathise with policymakers who may not have time to wait for the process to be completed. “

So BTO feels sympathy for policy rested on inconclusive work – not such a good idea to say this really?

“We could only analyse the species for which we had enough data, which inevitable biased the work towards more common species. “

Limitations to the data make the analyses worthless for many of the cohorts of scarcer species for which impacts are most likely to be significant in conservation terms.

“Monitoring therefore remains critical and we will continue to investigate the cull’s effects on birds where we can. “

We are in agreement that a proper monitoring scheme to look specifically at this issue is needed. Despite this, it appears the BTO is planning to repeat their previous dubious exercise with another year’s data, even though it is inherently non-conclusive/low inference by design. Is this just because they are being asked to do so by Natural England and the (taxpayers) money is just too good to refuse?

So, what do we make of all this? A BTO scientist appear to agree with us that there is/was a need to monitor the ecological impacts of badger culling properly. They say they did what they could with low-powered subsets of volunteer data. They admit that they made mistakes in the analyses of these data . Natural England used the error-infected study as evidence in a Judicial Review. A later process of peer review found the mistakes. NE and BTO declined to release the original report to their supporters and interested parties, or to confirm what they were doing with the BTO data. The report was submitted for publication as a peer reviewed paper but rejected on the grounds that the science was weak. They submit the report to BTO’s own journal. It is accepted for publication but conveniently not published until it is too late for it to be subject to legal scrutiny.  Pretty stinky?

As others have said, this is not a good look for BTO and is damaging to its reputation for independence, scientific integrity and impartiality.  Do NE, on the other hand, care that much?  What has been said by a BTO scientist in the Mark Avery online comment is useful. Very useful in showing the world how Defra and Natural England find ways to sidestep the necessary ‘due regard’ of the impacts of Government policy on the natural world. To deliver what their political masters want and to pick up the rewards for doing so.

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Badgers back in court in July

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Who tampered with the data when examining potential ecosystem impacts?

In the last week of July 2022, the Court of Appeal in London will reconsider the 2021 Judicial Review findings of Defra’s alleged failures, under their NERC Act (2006) duty in relation to badger culling. The original claim was that of a failure of government to adequately consider the potential ecological impacts of mass badger removal upon priority species and habitats in badger cull areas under the Act, and to take adequate steps to deal with them.

Now is an appropriate time to report on one important aspect of the case. It relates to a scientific paper published in February 2021 in the journal Bird Study, published by the British Trust for Ornithology, entitled “A comparison of breeding bird populations inside and outside of European Badger (Meles meles) control areas”.

A forerunner of this paper was an unpublished report using BTO volunteer data, that was used in decision making, yet labelled by Defra agency Natural England (NE) as ‘secret’. It had been referred to in NE ecological impacts guidelines, having been cobbled together to try to show the judiciary that Natural England had not completely overlooked the subject after all, and were treating it seriously. NE needed to show something, having been found by a High Court judge as being in breach of duty in respect of SSSI protection.

Why then was this earlier report, prepared in 2018 and cited in government advice, not available publicly until 2021 and despite multiple requests for access to it, as is normal?  It is now a story that is worthy of close scrutiny. It is a story that the main expert witness in the case, Dominic Woodfield, a professional in ecological impact assessment, has devoted much time and energy to in support of the legal challenges. He tells clearly and concisely the story of what has happened in his new guest blog for Mark Avery.

We think it sheds more than a little light on the way Natural England, and their handlers Defra, are managing information with the aim of providing the messaging that they are looking for, to facilitate the continuation of badger culling policy. Policy-lead evidence if ever you saw it?

You can find the full story here on Mark Avery’s blog..

See also: https://thebadgercrowd.org/badgers-back-in-in-court

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Defra in Denial?

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A new peer reviewed scientific analysis (Langton et al.) of the effects of the current badger cull was published in Veterinary Record on March 18th this year. Alongside the summary of the paper, Defra published a rebuttal of the science. There followed a conversation in Vet Record over the Langton et al. data versus the Defra data, and six weeks later Defra admitted that they’d got their data wrong. This is very worrying as it suggests that they have not been accurately monitoring the effects of culling as they should be, and as they assured  a High Court Judge that they would back in 2018. Importantly, however, Defra maintained that although they had got their calculations wrong, this didn’t change their overall conclusion that the Langton et al. paper was ‘wrong’.

So what have Defra said is ‘wrong’ about the Langton et al. analysis? Let’s take a look……

Their main argument seems to be that data has been ‘inappropriately grouped’ because the impact of culling on cattle takes some time to appear. They claim this because Langton et al. add culled areas into  the analysis in the years following commencement of culling. However, since Defra originally forecast an average annual 16% benefit from badger culling starting from year one, this is an appropriate approach. Indeed their own graph shows substantive declines in bTB herd breakdown incidence in year 1 and year 2. It is not clear how Defra’s argument can be valid on its own presentation. And even if there was some ‘dilution’ or ‘masking’ effect created by having early-year cull data in the analysis, if badger culling was, as claimed by Defra, ‘working’, it would still be possible to pick up a signal of any so-called ‘benefit’ from culling.  But there is no detectable effect. None. Twenty-six statistical models failed to find any effect. Four independent peer reviewers, including epidemiological statistician specialists agreed and found the analyses robust.

OK, so actually there is nothing ‘flawed’ or ‘inappropriate’ or ‘wrong’ about the methodology as used in the paper, but Defra seem to carry on in denial, not wanting a conversation about it. How about the data analysis that Defra’s Christine Middlemiss and Gideon Henderson present in Vet Record, and which is also presented by Chief Vet Middlemiss in her 18th March blog?

Well, their graph starts in September 2015, not 2013 when the current badger culling policy began. Why might they do this? bTB had been rising in the High Risk Area for years, with the same trend being observed in nearly all areas. By starting their graph in 2015, Defra is obscuring the fact that bTB had already peaked before badger culling was rolled out to any extent, and has subsequently been declining in all areas. The Defra approach is called ‘selective use of data’, and it conceals the bigger picture of what is more likely happening, as shown in the published paper.

Again, Defra selected a subset of ‘never culled’ badger cull areas to compare with ‘culled’ areas. Why have they done this? Because if you compare ‘all’ the unculled areas  with ‘all’ the culled areas, those 26 different statistical models used in Langton et al. fail to find any difference in levels of bTB between them. What is the difference between Defra’s ‘never culled’ data area & Langton et al.’s unculled data area? Well for a start Defra’s never culled area is very much smaller  than Langton et al’s unculled area (see figure), about 30% of it in fact. Defra are are comparing only the blue (unculled) and red (culled) area data, but none of the green unculled area data; all area data were used in the Langton et al. analysis. The weakness of Defra’s analysis is their use of a smaller dataset. This could potentially exaggerate any difference between the compared areas. Again, Defra is selectively using data and adding uncertainty to claim a benefit, when impartial analysis using all suitable and available data shows there to be none. Defra’s approach is arguably less appropriate than that of Langton et al.. And of course their analysis is not peer reviewed, i.e. properly checked by independent experts. It is disappointing to see it being published.

What Defra are doing is picking pieces of data from areas of their choosing, using data from years of their choosing, holding them up, and saying, ‘look, we can see a difference’. It’s simply not acceptable to try to criticize a  piece of peer-reviewed science like this, using hastily cobbled together snippets, to get your calculations wrong, and still claim that you are right.

What Middlemiss, Henderson and a few paid Defra contractors seem unable to accept, is that the analysis in Langton et al. points very convincingly to  cattle testing initiating a reduction in bTB in Englands High Risk Area. Of all the statistical models used in Langton et al., it is the the one in which the cull is excluded that gave the greatest support i.e. a model that did not include culling as a covariate. So without the cull as an effect in the decline in bTB rates, it is cattle measures that are likely to be the driver and this is the best scientific evidence of that to-date.

There is a Crowd Fund for the upcoming Judicial Review Appeal of the ‘ecological impacts of badger culling’ case. You can donate to help cover essential costs here:

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Christine Middlemiss, Gideon Henderson and the Defra bovine TB data fiasco

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In March 2022 the Chief Veterinary Officer (CVO) Christine Middlemiss & Chief Scientific Advisor (CSA) Gideon Henderson joined Defra Media Centre in attacking a peer-reviewed, freshly published scientific paper on bovine TB control (Langton et al.), stating that they thought it was flawed, and had ‘inappropriate’ analysis, see here.

The graph the CVO & CSA produced (top right) looked odd, and the authors of the original paper immediately suspected an error in the data, and wrote to Defra with an enquiry to this effect.  In addition, much of their written rebuttal seemed invalid. Further, the CVO wrote a personal blog highlighting her criticisms of the new paper. The blog then received a number of posted comments from external observers and academics which reiterated the papers’ authors’ concerns about potential errors in Defra’s analysis and incorrect conclusions. A response to the CVO & CSA from the authors of the paper was printed in Vet Record on 02 April, see here.

It took more than six weeks before Defra admitted that it had got it wrong and published a new graph of data (above, bottom right). But they maintained that this did not change their overall conclusions about the new paper; basically that it was ‘wrong’. They did not respond to the rebuttal arguments that the authors put forward in the 02 April issue of the journal Veterinary Record. On this there is still strange silence.

The authors of the paper had a further letter published in Vet Record on May 21st responding to Defra’s admission of data errors and their replacement graph. You can read this here. 

This week, CVO Christine Middlemiss made a small adjustment to her blog, but did not change her faulty graph. She added some wording to the following paragraph (in bold).

“Our analysis indicates a clear reduction in OTFw cattle breakdowns, relative to unculled areas, in culled areas from cull year 2 onwards (Fig 1). For example, TB incidence in the areas where culling started in 2016 has dropped from 17.2 OTFw breakdowns per 100 herd years at risk in 2016/17, to 8.7 in 2019/20.

Similarly in the areas where culling started in 2017 it has dropped from 15.3 in 2017/18 to 8.4 in 2019/20.

In contrast, in the parts of the high-risk area (HRA) where no culling took place, incidence has only fluctuated slightly from year to year, from 10.9 in 2015/16 rising to 12.8 in 2016/17 before returning to 10.9 in 2019/20.”


It is a shame that the CVO does not seem to have grasped that the first bar in the graph represents the first year data after culling and not pre-cull incidence. Incidence levels before culling began are missed off, and these better shows the pattern of change in the first two years that they focus on.

The CVO & CSA’s main criticism of the new paper is that (they imply) bTB does not come down enough in the first two years for those years to be grouped with later years of culling. Looking at their graph, this is clearly not the case and the CVO and CSA’s position is a paradox and nonsense. There is a drop in culled and unculled areas if you examine all the culled and unculled data, and not just a sample of unculled (never-culled) area. The steady decline in incidence, as shown in the Langton, Jones and McGill paper, is attributable to cattle testing and movement control measures. Defra’s attempt to show otherwise falls at the first hurdle. It is something Middlemiss and Henderson seem reluctant to address. It is understood that Defra intend to ignore their own faulty response, and endorse an APHA study at a disease conference in July in Canada as justification to carry on culling in September.

Christine Middlesmiss doubled down on her position in an interview on Farming Today on 26th May (the focus of which was Defra’s badger vaccination licensing scheme), using very strong language and stating that in the Langton, Jones and McGill paper, “the whole methodology was wrong and so the conclusion was wrong.” Again, she claimed that the authors had “not used a robust methodology to examine and assess it and therefore the conclusions are wrong, they’re not scientifically valid.”

This is a bold claim about a rigorously peer reviewed paper in a leading scientific journal, and one that it could be said she should be able to clearly and concisely articulate in a debate, or at least to the authors. It is not good enough for the CVO to just claim, as she did in her interview, that “it is complex“.

Further she said “we believe that culling is effective“, apparently relying on faith rather than understanding of published science. She must be able to explain her reasoning for dismissal of peer reviewed science. She also said that “It’s not absolutely my decision to release it [the data]“, implying political interference? The authors are still waiting for a response to their April invitation to discuss the CVO’s criticism with her.

You can listen to the CVO’s interview on Farming Today, available here.

The CVO & the CSA must look again and accept the findings of the new robust peer-reviewed research. Prevailing science shows the current badger culling policy to have failed, with no detectable impact from it on the incidence of bovine TB in cattle herds in the High Risk Area. The 29 Supplementary Badger Culling licences authorised this Wednesday were issued on the back of a government veterinary service in denial.

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Why Defra’s Badger Vaccination Proposals Risk Perpetuating Further Culling

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Today, the Government has released its plans for a new and simplified licencing system to facilitate badger vaccination. While on the face of it these plans appear to be helpful for those who wish to see an end to the culling of badgers, wildlife campaigners are concerned that they will be used as a smokescreen, to perpetuate further ‘reactive’ culling, and to prevent those who wish to protect badgers from speaking out against the culls.

Indications are that the government aims to allow vaccination in 2 of around 60 areas where badgers will be killed in 2022, with any further areas covering but a small proportion of the designated High Risk Area for bovine TB in cattle in the west of England. There are concerns that there may be restrictions, such as vaccination being promoted only once badger numbers have been decimated, and ‘gagging orders’ placed upon those who sign up to government funding – including that badger protectors would no longer be able to speak out against the badger cull.

The Government’s announcement claims that its badger vaccination plans form part of its long-term strategy to eradicate bovine TB in England by 2038. However, the strategy relies on the assumption that badger culling is working to reduce bovine TB, when current peer-reviewed scientific evidence suggests otherwise.

Government also claims that badger culling is being phased out. The reality is that it continues to be expanded, with 29 supplementary culls authorised yesterday, 25th May. A further ten new intensive badger culling zones are expected to be announced later in the year. The expected kill figure over the next 4 years is up to another 100,000 badgers. The Government wishes to retain the option to continue killing badgers in perpetuity under its proposals for ‘epidemiological culling’ which has, as anticipated also so far failed to reduce bTB herd breakdowns.

There are several reasons why vaccinating badgers might be desirable – principally to prevent bovine TB spilling over from cattle into healthy badger populations and to protect individual badgers from disease. However, there is little evidence to suggest that vaccinating badgers will prevent or reduce bovine TB among cattle – just as with culling, the move to promote the vaccination of badgers is based on the false assumption that badgers are a significant source of TB for cattle, and that badger intervention is necessary to control cattle TB, when the evidence suggests tighter cattle measures are the answer.

There are also good reasons why vaccination of badger populations previously subjected to culling is unlikely to be successful. Badger culling will reduce a population, but there is some evidence that it may increase the prevalence of TB among surviving badgers. Also, surviving badgers may be trap shy making them much more difficult to trap and vaccinate.

Ecologist Tom Langton, one of the authors of a new peer-reviewed study, With vets Mark Jones and Iain McGill has been closely monitoring & challenging government bTB strategy failures, said:

“It is depressing to see the smokescreen approach to Defra’s badger cull policy continuing. There is no evidence that vaccinating badgers, particularly after culling has massacred the population, can hold any benefit to bTB disease eradication in cattle and this was confirmed by the Godfray Review in 2018. Government is trying to normalise badger culling long-term, by initially claiming to the public that it is being phased out, when the plan is to perpetuate the so-called ‘epi-culling’ – the failed reactive culling of old. 

“Failed government tactics could see the killing of thousands of badgers per year to 2038 and beyond. It is a disgusting, unethical slaughter of wildlife. It circumnavigates the legal protection of badgers under The Protection of Badgers Act 1992 and does nothing for farmers or cattle. Badger vaccinators should not be induced to mislead farmers into thinking that badger vaccination is known or expected to help control bovine TB in cattle. This is particularly unwelcome as our recently published, extensively peer-reviewed paper using government data* shows how badger culling intervention has failed to influence bovine TB herd breakdowns during the last decade, with the Chief Vet and Scientific Advisor putting out botched data and flawed argument to try to cover their trail.”

Veterinary surgeon Dr Mark Jones, another author of the recent science paper, said:

“From the lockdowns we have all suffered since 2020, we are all only too aware of the movement restrictions, accurate testing and vaccination that were necessary to control Covid 19. These kinds of measures need to be rigorously applied to cattle if bovine TB is to be successfully brought under control. Our recent peer-reviewed research clearly demonstrates that culling badgers is not reducing bovine TB among cattle herds, and while there may be good reasons to vaccinate badgers, it’s highly unlikely that badger vaccination will help control TB in cattle, and the promotion of badger vaccination continues to frame badgers as the culprit. This badger blame game needs to end.”

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Thanks to Wild Justice

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We were delighted to receive a generous £1000 donation from the mighty Wild Justice last week. This was a contribution towards our badger cull ecological impacts appeal case, which has been expedited to be heard in June or July 2022. You can read more about this here.

Wild Justice, set up in 2019 and run by Mark Avery, Chris Packham & Ruth Tingay as a not-for-profit company, takes legal cases and advocates for a better deal for wildlife. And it has had much success. You can find out more about them on their website here.

We recommend that, if you haven’t already, you sign up for their free newsletter to keep up to date with their current campaigns here.

If you are in any doubt about the value of legal action for wildlife, we encourage you to watch Chris Packham in conversation with David Wolfe QC. Legal action forces a conversation where otherwise there would be none. It shines a light on issues that would otherwise be hidden in the dark, discussed and decided upon behind closed doors. In short, it gives a voice to wildlife, which otherwise would be missing.

Thanks again to Wild Justice.

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Badger culling and BTB data:

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Middlemiss and Henderson say sorry for getting it wrong

As previously blogged on 18th March here, the respected journal Veterinary Record published a new scientific appraisal of the effect of badger culling on bovine tuberculosis (bTB) in the High Risk Area of England using government data collected from farmers and vets for over a decade. This extensively peer reviewed paper is available open access online, in full here. The paper concluded that badger culling has not been associated with reductions in bovine TB (bTB) incidence or prevalence among cattle herds.

Alongside a one-page summary of the paper in the Vet Record print edition, the Chief Veterinary Officer (CVO) Christine Middlemiss and Chief Scientific Adviser (CSA) Gideon Henderson published an un peer-reviewed letter rebutting the paper’s main findings. They produced their ‘alternative analysis’ in the form of a graph, and claimed it showed that badger culling was ‘working’ in reducing bTB in cattle. The graph indicated very rapid declines in bTB in culled areas following the commencement of culling, with little change in unculled areas. The CVO Christine Middlemiss also posted a blog on the Defra website using the same graph.

The graph could not be reconciled with publicly available data. There followed repeated requests for Defra to supply the data and methodology, but these were not met. Then last week, six weeks after publication, Middlemiss and Henderson  sent an email to the authors of the original paper stating:

“Following your recent correspondence about how incidence in unculled area was calculated we have re-examined our analyses and discovered an error we wish to bring to your attention.  The incidence in the area unculled throughout the period was calculated incorrectly. The incidence in cull areas is unchanged. We attach a corrected graph, with the corresponding data and workings as previously requested. We apologise for this error..”

A new graph was provided (see below). After further requests and delay, we have data from Defra to allow us to reproduce their corrected graph but not to check its origination. Defra’s original published graph shows bTB herd incidence higher in unculled areas in four of the five years, while in the new one it sits at the same levels as in culled areas.

As previously, Defra are still disregarding huge areas of unculled land in their blue-bar ‘never culled’ areas, which is problematic. Notably, however, the error bars between ‘culled’ and ‘never culled’ overlap more extensively, so the difference between the two is unclear.  It seems that Defra’s corrected calculations corroborate the findings in the Langton et al., and that there has indeed been no significant impact from badger culling on bTB incidence among cattle herds.

Defra’s graphs from their 19th March letter and 5th May email:

19th March (withdrawn): Unculled incidence is higher than culled in 4 of the 5 years.
5th May: Now incidence levels in unculled areas are shown well within same levels as culled areas.

Defra’s “never culled” areas are likely to include significant land areas where bTB is less of an issue, with landowners having a lower incentive to coordinate a cull, whilst the “waiting to be culled” portion of the unculled area will have significant areas where bTB is a major problem. Defra is engineering a highly selective use of the available data. It adds up to a misleading picture that is bringing Defra into disrepute. Without access to their full data source, it is not possible to fully understand their rationale.

Further, when you don’t limit the data as Middlemiss and Henderson did, and add “all culled areas” bars (green), and include 2013/14 and 2014/15 (see below), it shows the true extent of decline of bTB incidence in unculled areas that mirrors culled areas.

Revised Defra data with Langton et al’s unculled green bars

The 5th May ‘apology’ email from Middlesmiss and Henderson maintains that “this does not change the overall argument in the letter”, yet over six weeks on, they have failed to address a response by the authors to this criticism (published in Vet Record on 2nd April). This response shows that their main argument on ‘incorrect grouping’ of data does not undermine the peer-reviewed statistical analysis.

Specifically, Middlemiss and Henderson claimed that using data from the first two years of culling ‘masks’ any overall effect from badger culling, making it ‘impossible to see’. But Defra’s counter argument rests upon a steep decline in herd incidence over those first two years! Defra’s argument falls and the answer is that taking all the data, herd breakdowns reduce in culled and unculled areas at similar rates, due to cattle measures both before and after badger culling is rolled out.

So, the senior Defra scientists have no answer, and continue to use delaying tactics, while still providing only limited access to the available data that might enable independent researchers to assess their new graph. This is shocking and does not serve the public interest. Cattle-based measures implemented from 2010, and particularly the introduction of the annual tuberculin skin (SICCT) test have been responsible for the slowing, levelling, peaking and decrease in bovine TB in cattle in the High Risk Area (HRA) of England during the study period, before badger culling was rolled out in 2016.

Last week, the authors of the badger culling paper, Tom Langton, Mark Jones and Iain McGill wrote to George Eustice (read here) about the continuing fiasco and asking for badger culling to be suspended and for additional clarification and dialogue.

This is what all stakeholders and the public deserve. Clear, open government responding to the facts in an honest and professional way.  No more delay, secrecy, and avoidance of the real issues. It is time things changed.

On Friday 20th May, the paper’s authors response to Defra’s apology and clarification was published in Vet Record. You can read this here:

Farming Today featured the debate around Defra’s data miscalculation on 20th May; you can listen here from 7:18 minutes in.

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