Badgers back in court in July

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A forerunner of this paper was an unpublished report using BTO volunteer data, that was used in decision making, yet labelled by Defra agency Natural England (NE) as ‘secret’.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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Badger cull ecological impacts case –

Did Defra breach its ‘duty of candour’ to the courts ?

On Wednesday 13th April, the Rt. Hon. Lady Justice Simler granted permission for the High Court decision in Langton v Defra (case ref: CO/2062/2020) to be challenged in the Court of Appeal. The High Court case had been dismissed on 9 August 2021 by the Honourable Justice Griffiths. The case concerned an alleged failure of the Secretary of State for the Environment Food and Rural Affairs (S/S) to have regard to the implications for biodiversity of ecosystem disruption following  badger culling, in accordance with the duty imposed on ministers and public bodies under Section 40(1) of the NERC Act (2006), before making his decision to continue badger culling under the ‘Next Steps’ policy.

It should be noted that previous challenges brought by Langton in 2017 and 2018 repeatedly found government and government agencies in breach of duties related to the assessment of badger culling impacts on designated nature conservation sites and associated protected species.  In the present case, it is argued that the NERC Act obligations require that the impact of badger culling across the wider countryside and on the broader and larger biodiversity resource within it must also be assessed, including by the Secretary of State, but simply hadn’t been. The Government argued in the first instance that the Secretary of State wasn’t subject to the duty at all, or that the duty was in any event covered by the assessments carried out by Natural England in the course of issuing badger licences (the same ones the earlier cases had previously convinced the courts were defective), notwithstanding that these only claimed to consider impacts on designated nature conservation sites and related land.

Last Thursday 28th April, Justice Simler confirmed that the appeal case had been expedited to June or July 2022, giving notice of a hearing in the coming weeks. This appeared to precipitate a rapid pre-prepared action from Defra that same day. They sent Mr Langton’s legal team a suite of new documents (including a mass of heavily redacted emails) showing that in October 2021 Defra had placed in front of the then Secretary of State George Eustice a brief paper exercise, summarizing their opinion on the wider biodiversity effects from badger culling, and that he had been asked to reconsider his decision to adopt ‘Next Steps’ in the light of that information.

It is very difficult to read this other than as recognition by Government that the NERC Act S40 duty:

a) did (and does) apply to the Secretary of State (despite their arguing in front of Justice Griffiths that it didn’t),

b) that it hadn’t been considered or discharged by the Secretary of State prior to the adoption of Next Steps (as argued by Langton and his team) and,

c) that the Government was concerned that it may not be possible to defend this position upon further review by the Court of Appeal.

The real matter of concern here is not so much that the Government and its agencies exercised a volte-face and sought to remedy the legal error, but that they did so in secret, without informing the court, and in a situation where the case was still ‘live’. Our legal team has raised this issue with the GLD in correspondence copied to the Court as a breach of a basic tenet of legal protocol – the ‘duty of candour’ – which requires that the courts be informed when circumstances have changed or decisions have been taken (or re-taken) that have a bearing on a live case. Both the court and the claimants legal team should have been informed of the fact of the Secretary of State’s reconsideration when it happened in December 2021. The fact that this secret Ministerial briefing was only revealed after the Court granted permission for the appeal is extremely concerning and begs the question whether it would ever have come to light at all had that permission not been granted?

It’s all there in black and white…. Secretary of State shows the court details of his Ministerial sign-off.

While it is not possible to comment of the quality and coverage of the new Defra material presently for legal reasons, it is sufficient to say that nothing has changed regarding the absence of any proper research by the Government into the collateral effects on biodiversity of badger culling. There remains an overarching need for extensive baseline research and data on the likely effects of predator removal, increases and perturbation in wildlife communities following ecological disruption on nature conservation interests. The research the Government seeks to rely on, to advance the premise that there are no meaningful side effects on biodiversity, remains scant to the point of being meaningless.

Where does this leave us?  Plainly the Government is scratching around to avoid the embarrassment of having the 2020  “Next Steps” policy quashed.

And it will no doubt seek to rely on what is called a ‘no difference’ defence it has sprung as a ‘get out of jail free’ card whenever procedural deficiencies and oversights have been exposed in previous eco-impact claims. Defra’s argument in essence, is that even if the Secretary of State had complied with the duty, he would have come to the same decision. There must come a point where the elasticity in that defence and its ability to cover and excuse all failures at departmental and ministerial level becomes fatigued. But legally speaking, whether what Defra has done behind closed doors may be sufficient for the quashing of the policy will be determined by the Court when it hears the case.  In our view, allowing badger culling to carry on in 2022 without revising the policy to address these very serious and wide-ranging biodiversity impact concerns is simply not tenable.

From a wider UK nature conservation perspective, it is very important that the case should continue, to ensure that ignoring of the NERC Act 2006 in decision making by government bodies is not allowed to become an accepted standard, and to get that confirmed by a Court judgment if Defra are not willing to concede it right away. In other words, the prospect that we could overturn the (we say perverse) ruling of Justice Griffiths in July last year that environment ministers are exempt from considering that part of the environment called ‘biodiversity’ when making decisions, is worth pursuing for many reasons.

If successful, the case could also have the effect of forcing Natural England to reconsider whether they are similarly failing to comply with what the duty demands in artificially restricting their considerations just to designated sites. It would bring into sharp focus the fact that the level of information they rely upon for impact assessment and to inform basic provisions for protection, is inadequate. Impacts are guessed or assumed because there is no background information to inform them beyond speculation, meaningless analyses of borrowed, coarse-grained datasets and a near total absence of monitoring, the lifeblood of real understanding.

These developments merely serve to reinforce the determination to halt badger culling. In recent days legal letters have been sent to Defra and Natural England asking them to stop badger culling in 2022 because of the current peer-reviewed scientific evidence that it has not worked.

So please consider supporting the Crowd Fund linked below. If everyone chips in we can spread the load and gain access to justice for badgers and all our wildlife and countryside.

Thanks you for your support. We are the Badger Crowd. We stand up for badgers.

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Permission Granted!

Court of Appeal confirm new hearing regarding the ecological impacts of badger culling (NERC Act 2006). Judicial Review Case: CO/2062/2020

The Badger Crowd is pleased to confirm that an Application to the Court of Appeal has been successful, reopening the judgements in the High Court of Mr Justice Griffiths in 2021. The appeal has taken a very long time to come through and we now hope the case will be heard before any new licences are issued by Defra and Natural England, and used this year.

Justice Griffiths in his ‘to everything there is a season’ ruling (1) had intimated that there was no need for the Minister to take steps to have regard for biodiversity protection for NERC Act listed priority species and habitats in England. The case relates to Minister George Eustice and Defra publishing a “Next Steps” policy in March 2020, prolonging the slaughter of tens of thousands of mostly healthy badgers each year in existing and new places with, according to current peer-reviewed science, no recordable benefit (2).

Defra claimed that it had decided not to protect NERC Act protected biodiversity interest from potential culling side-effects when culling began in 2013, and again in 2020, despite the 2018 Godfray review (3) flagging-up continuing professional concerns about impacts and the need for research to enable management of the risk, as determined by government funded pilot studies.

Oystercatcher; now you see them, now you don’t ? One of a number of medium sized waders (such as redshank, snipe and lapwing) at risk from changing predator patterns, but only afforded protective consideration by conditions on culling licences, when nesting on protected sites.
 

Removal of badgers from the countryside is known to bring about a range of changes to natural communities but the extent of these is unclear and determined only by careful monitoring. However, when identifying risks of such change, research undertaken over 10 years ago was limited to just a few species and habitats. Previous cases in 2017 and 2018 showed that Natural England were in breach of their duty in not properly considering the same kind of impacts to SSSI’s, leading to criticisms of government by the High Court and radical changes to Natural England’s operations. Impacts expert Dominic Woodfield from Bioscan continues to provide specialist advice on the case.

The current case challenges the continuing and long-term neglect of potential impacts on a wide range of potentially impacted habitats and species. The case also highlights Natural England’s pitiful contribution to the monitoring of nature, the unacceptably poor condition of many nature reserves and protected areas in England, and to the biodiversity depleted countryside in general.

This case will also resonate in Northern Ireland where the government department’s (DAERA) proposals to carry out ‘preliminary ecological assessment’ to form a baseline to monitor badger culling that it wants to undertake, has been widely derided and possibly now withdrawn. It is unclear how ecological impacts will be considered in NI and the case in England will certainly inform that consideration and potentially a legal challenge by the Northern Ireland Badger Group (4).

Details of the timing of the Court of Appeal hearing are currently undecided, but as last year’s case was expedited in front of the issue of badger culling licences, this is likely to happen again this year. So far, this case has been generously funded by the Badger Crowd network of Badger Trusts and Groups, notably the Badger Trust, Badger Trust Sussex, & Wild Justice, together with well-wishers and the public who are thanked again for perseverance, generosity, and determination.

Reference

(1) https://www.bailii.org/ew/cases/EWHC/Admin/2021/2199.html

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

(3) Godfray Review 2018

(4) Northern Ireland Badger Group challenge, with others: http://www.badgersni.org.uk/pressrelease.html

 

Ecological Impacts (NERC Act 2006) Judicial Review: Application to the Court of Appeal.

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The Badger Crowd is pleased to  confirm that an Application to the Court of Appeal has been made and that further legal papers are to follow shortly. The case concerns whether the High Court Mr Justice Griffiths was correct to rule that there was no need for the Minister to take steps to have regard for  biodiversity protection for NERC Act listed priority species and habitats. This relates to Minister George Eustice and Defra publishing its “Next Steps” policy in March 2020, prolonging the slaughter of tens of thousands of badgers each year in existing and new places. Government claimed it decided not to protect NERC Act biodiversity interest from potential culling side-effects when culling began in 2013, and again in 2020, despite the 2018 Godfray review flagging-up continuing professional concerns about impacts and the need for research to enable management of risks.

The removal of badgers from the countryside is known to bring about a range of changes to natural communities. However, when identifying risks of such change, research undertaken over 10 years ago was limited to just a few species and habitats. Claimant Tom Langton’s previous cases in 2017 and 2018 showed that Natural England were in breach of their duty in not properly considering the same kind of  impacts to SSSI’s, leading to criticisms by the High Court. The current case challenges the continuing and long-term neglect of potential impacts on a wide range of habitats and species. These impacts may alter habitat condition and species survival as a result of  badger culling changing mammal diversity, including change to smaller predators numbers.

The case also highlights Natural England’s pitiful contribution to the monitoring of nature, the unacceptably poor condition of many nature reserves and protected areas, and to biodiversity depleted countryside in general. It draws attention to the lack of research into England’s habitats and species, and to the continued decline of many widespread and rare species and threatened habitats. It brings into focus the potential for badger culling to contribute to these declines, that despite recognition of this threat-type, government think too difficult or expensive to address.

 

Application to Appeal underway for dismissed ecological impacts Judicial Review

Mr Justice Griffiths’s judgement on the recent Judicial Review of the ecological impacts of badger culling in England is now to be challenged. Claims against the Secretary of State George Eustice concerning the government’s biodiversity duty, under the Natural Environment and Rural Communities Act 2006 (NERCA) were dismissed recently, after the July 2021 hearing. Following legal and technical advice over the last week, an application for permission at the Court of Appeal is now being prepared. This needs to be submitted within 21 days of the handing down of the judgement and determination of the application will be later this year.

Sincere thanks again are due 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 action in 2020, Badger Trust Sussex 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 a number of generous individuals. Hundreds of badger workers and the general public have also chipped in to spread the load. Others have helped with administration, publicity and coordination to enable a solid challenge. Sufficient funds are available at present and if permission is granted, a further fundraiser will be launched. We are the Badger Crowd. We stand up and fight for Badgers.

High Court judge decides that Defra 2020 badger cull policy does not trigger protection of biodiversity under the 2006 NERC Act

Today, Mr Justice Griffiths handed down a High Court judgement on the most recent Judicial Review on the ecological impacts of badger culling in England. He dismissed the claims made against the Secretary of State George Eustice, concerning the need for consideration of measures to protect species and habitats in the wider countryside, under the Natural Environment and Rural Communities Act 2006 (NERCA). This follows the decision to keep on culling badgers with changes in culling methods, including the wider introduction of reactive culling.

The claim had been brought in early 2020 by conservation ecologist Tom Langton, with support from the Badger Crowd, the broad affiliation of badger trusts, groups, and wildlife charities fighting poor science and decision making surrounding the badger culls in England. The ruling today for Judicial Review CO/2062/2020 suggests that despite the lack of evidence of the defendant recording any considerations, the Minister did not need to do anything “to have regard… to the purpose of conserving biodiversity” when the “Next Steps” policy was published in March 2020.

The judge indicated that so far, badger culling had been done “…with the benefit of all the evidence available about ecological impact and biodiversity. There was no new evidence that might even potentially have caused Next Steps to take a different turn.”

A ‘do-nothing’ approach was lawful?

However, Tom Langton’s earlier cases in 2017 and 2018 had exposed Natural England as being in breach of its duty for lack of protective measures for habitat and species features protected by Sites of Special Scientific Interest. Measures needed, which NE then hurriedly put in place via a new set of guidelines, requiring a wide range of practical precautions.

The recent case addressed species and habitats across an average of 90% of badger cull areas; on land beyond SSSI boundaries and protected by the NERC Act 2006.  In a statement provided to the court, Natural England, who license badger culling, stated that protection imposed on badger culling licences “…are not necessary outside protected sites in order to comply with the purpose of conserving biodiversity.”

The 2018 Godfray Review conclusion to continue culling had stated that ecological studies of the consequences of reducing badger densities on other species should be undertaken. The Godfray review recommendation on ‘periodic culling’ involved a five-year badger cull cessation period with associated badger vaccination, and was considered the most ‘promising’ future approach. But this was not adopted by the government in March 2020.

An application to the Court of Appeal is now under active consideration.

A Badger Crowd representative comments:

“This is obviously a disappointment and blow to all those concerned with the biodiversity crisis in nature-depleted England, and who wish to see the potential cost, and damage to our environment from badger culling properly addressed. Ecological impact and potential impact from badger culling are accepted processes that are under-researched and not properly monitored. The need to address them was established by legal action in 2017 and 2018.  If addressing these problems outside SSSIs is too difficult, as has been suggested, or perhaps too time consuming and expensive, then badger culling should stop.   Freshly extracted evidence shows how government has improperly withheld information, that now needs to be fully examined. But, except for a few SSSIs, by his own admission, the Secretary of State has decided not to protect 90% of the countryside from scrutiny of the potential ecological effects of badger culling. England’s wildlife and the public deserve better. Thanks are extended again to the legal team and experts, and to the 700 individuals and organisations who have donated so generously and given support over the last 18 months to try to bring government to account.”

The Judgement may be read in full here.

Badgers back in in Court

Did the government forget about Biodiversity?

On Thursday 22 July, in Court no. 2 of the Royal Courts of Justice, London, the latest Judicial Review surrounding badger culling was heard: The Queen on the application of Thomas Langton vs The Secretary of State for the Environment, Food and Rural Affairs and Natural England: Case C0/2062/2020.

The hearing was held ‘in person’ but, due to covid-19 restrictions, with few attendees, and with the Honourable Mr Justice Griffiths presiding. Outside the Court, a number of badger-suited campaigners were drawing attention to the ongoing badger cull travesty of England, including stalwart Betty Badger with her friend Mary Barton, Chris Wood and members of the Herts and Middlesex Badger Group and others from Buckinghamshire. They were making the public aware of the hearing going on  inside, giving out leaflets and polite explanations to passers-by, as well as getting a lot of social media attention.  Sadly the court was closed to the public, but online coverage was available to limited number of viewers from both sides of the case.

The government had a number of lawyers and advisors present, with spoken representations made by barrister Hannif Mussa of Blackstone Chambers. Mr Langton had spoken representations by barrister Richard Turney from Landmark Chambers. The case before the court was less complex than the previous ecological impact cases brought in 2017 and 2018. In those, inadequate provisions by Natural England (NE) with respect to European Designated Sites and in respect of Section 28 of the Wildlife and Countryside Act 1981 protection of Sites of Scientific Interest (SSSI’s) had been successfully exposed. This had caused NE extensive work to remedy failings, having been found in breach of their statutory duty.  This time, the case before the court was simply that there was no evidence at all that the Secretary of State had ‘had regard’ to conserving biodiversity, and specifically the species and habitats listed by  and protected under the Natural Environment and Rural Communities Act 2006. SSSI’s might typically cover a small proportion of badger cull areas, but what about the wildlife interests on the other 80% or more of land? Where is the evidence of monitoring of and safeguard from changes to mammal populations and predatory influences, upon threatened and vulnerable species and habitats in the countryside?

NERC Section 40 and 41

Section 40 of the NERC Act places a duty to conserve biodiversity on public authorities in England. It requires local authorities and government departments to have regard to the purposes of conserving biodiversity and to do so, in a manner that is consistent with the exercise of their normal functions, such as policy and decision-making. ‘Conserving biodiversity’ may include enhancing, restoring, or protecting a population or a habitat.  Section 41 requires the Secretary of State to publish and maintain lists of species and types of habitats which are regarded by NE to be of “principal importance” for the purposes of conserving biodiversity in England. These 56 priority habitats and 943 species are drawn from carefully considered lists of United Kingdom Biodiversity Action Plan Priority Species and Habitats and therefore take forward the UK’s response to its international commitments under the Convention on Biological Diversity (the Rio Treaty). The Section 41 lists are needed by decision-makers in local and regional authorities when carrying out their duties under Section 40 of the Act, and in addition to lists of species and habitats in other legislation. The case looked at whether they had been completely overlooked in respect of the potential impacts of badger culling and the ecosystem changes that may occur, or not?

Biodiversity Impact expert Dominic Woodfield had provided a witness statement to support Mr Langton’s statement on inadequate approaches by Defra, showing the court a comprehensive list of overlooked species and offering examples of the way in which disruption of ecological systems can bring about potential changes to NERCA species and habitats through change in  predation type and extent and via vegetation change, for example in lowland calcareous grasslands.

Defra’s position was that (despite the lack of evidence)  it had ‘had regard’, and that in any case NE considers such matters when issuing badger cull licences. Dr Eleanor Brown, a qualified vet who manages the Bovine TB policy for Defra and the Animal Plant and Health Agency, had made a witness statement mentioning a report on ecological consequences of badger culling, prepared by the Food and Environment Research Agency (FERA) in advance of badger culling in 2011, and that refers to the section 40 NERC Act duty. There were some references to legal necessities in the original 2011 badger culling policy, including those regarding the protection of European Designated Sites, but nothing specific on the NERCA species and habitats, with respect to licensing conditions.

The government also sought to claim that “Next Steps” was a policy where intensive and supplementary badger culling was being ‘phased out’ in favour of badger vaccination. But the fact is that intensive & supplementary culling was to continue for five or more years, and ‘epidemiological’ culling, a type of localised intensive (reactive) culling, along the lines of the Cumbria cull is being ‘phased-in’ to replace it. Further, any use of badger vaccination was conditional upon the results of yet more vaccination trials. More badgers are likely to be killed under the new policy than have already died.

The ‘withheld’ 2018 British Trust for Ornithology report

Dr Brown had also mentioned some research commissioned by NE from the British Trust of Ornithology in 2019 to compare  bird recording records made by volunteers inside and around the edge of badger culling areas, before and after badger culling. The study had compared these with bird records from unculled areas. This had given rise to a published paper in 2021, but that was after the policy had been confirmed in March 2020. In the days leading up to the case however, the earlier report completed in 2018 by BTO for NE and used for the policy, was released.

Oystercatcher; now you see them, now you don’t ? One of a number of medium sized waders (such as redshank, snipe and lapwing) at risk from changing predation patterns, but only afforded protective consideration by conditions on culling licences, when nesting on protected sites.

Natural England, an interested party in the case, was not represented in court. However, a witness statement had been provided by Dr Matthew Heydon, who works on ‘Species Protection and Wildlife Management’ for Natural England.  His statement opined that protected species and habitats should be considered on a ‘case by case’ basis, but that looking at the whole list of NERCA species was considered too much of a burden. A note that he helped to prepare at the start of badger culling referred to the Protection of Badgers Act 1992 and the Wildlife and Countryside Act 1981, but only to NERCA in the sense of it being the instrument by which NE could license badger culling for the Secretary of State. There was no mention of biodiversity duties. Natural England had drawn up some new advice “Guidance for the assessment of fox control practices around designated sites” dated April 2021, showing that NE agree that credible risks are present for which precautions are necessary.

How wide does the challenge reach and when might the ruling be?

The government put a lot of effort into saying the case only related to supplementary badger culling, but Mr Turney refuted this, pointing to the simple wording of the grounds of challenge. Any problem with the approach taken by Defra would ‘infect’ all forms of culling and not just supplementary badger culling, in any case.

The hearing had been expedited and the judge indicated that he would be making his decisions in due course. An exact date is not clear, but within six weeks seems likely and probably before the end of August.

 

Biodiversity Catastrophe

Badger cull case will test UK commitment to wildlife legislation

A High Court Judicial Review in London this Thursday 22 July is a timely test of the extent to which DEFRA has ‘had regard’ to biodiversity protection. The claim is that Secretary of State George Eustice failed to protect wildlife, as is required by the Natural Environment & Rural Communities (NERC) Act 2006, when causing ecological disturbance to the wider countryside by mass badger culling in England.

The biodiversity commitment was made in 2006 in response to the UK signing the United Nations Convention on Biological Diversity, established in 1992. Minister George Eustice in a speech recently however admitted that the UK is “one of the most biodiversity depleted countries in the world.”

The case is particularly important as a New Environment Bill is passing through parliament and amidst claims that proposed targets for addressing the biodiversity crisis may be treated as non-binding, following worries that public bodies have not implemented the NERC Act 2006 adequately.

Concerns have existed since a House of Lords Select Committee in 2018 found the nature conservation agency for England, Natural England, to be run down, ‘hollowed out’, and unable to discharge aspects of its statutory function properly, including when advising Defra.

The case seeks to quash the Government’s 2020 (“Next Steps”) Bovine Tuberculosis policy covering the continuation of badger culling. It is being brought by ecologist Tom Langton supported by a large ‘Badger Crowd’ of Wildlife Trusts, charitable organisations, and the public, including The Badger Trust who helped get the case running and the new wildlife law group Wild Justice.

 

Two bits of news………..

Permission  granted for Judicial Review of aspects of  the 2020 “Next Steps” bTB eradication policy


On 9th May, the Court of Appeal granted permission for a Judicial Review, with a ruling by Rt. Hon. Lord Justice Bean. The Ground of challenge approved for scrutiny concerns a decision made by the Secretary of State George Eustice in February 2020, just after he took over from Theresa Villiers. In March of that year he signed off a “Next Steps”  policy to continue culling badgers.

The legal challenge maintains that the new policy was formed without adequate regard to conserving biodiversity, as is required by duties under section 40(1) of the Natural Environment and Rural Communities (NERC) Act 2006. These duties are far ranging and relate to protection and recovery of biodiversity in England. Not just specific duties to internationally protected species and sites. The case has been brought to the courts by ecologist Tom Langton, following a grant last year from the Badger Trust to help instigate challenges against the new policy.

Very many people have been concerned about how removing badgers from county wildlife sites and fields, woodlands and quiet corners in the landscape influences nature on a local level, especially as the policy has moved towards 100% eradication of badgers locally. The  new proposals promote the further phasing in of ‘reactive-style’ culling as a full replacement towards the end of the decade to the current intensive and supplementary culling approach.

A legal letter sent to Natural England (NE) has made it clear that they should not issue any badger culling licences this year as a result of this ongoing oversight. It is an omission  that has been persistent since 2013 and it is now part of a complaint accepted at the Council of Europe’s Bern Convention.  An urgent  Court hearing is being sought for this June.

Legal wheels turning again with new pre-action letter

The second matter relates to a previous Badger Crowd blog introducing analysis of official data from 2010 to 2020. Figures released on 10th March of this year complete the data for four full years of culling over six areas. The data  shows no significant difference in bTB levels between areas culled and those unculled since culling began. Further data from each of the main High Risk Area counties is consistent with cattle measures gradually becoming effective before badger culling started.

Bovine TB breakdowns (herds bTB Free status withdrawn) peaked and was in  decline before badger culling became widespread. A detailed report on this data has been sent to Defra and NE as new findings. What more evidence could NE want that badger culling is unsafe under Section 10 of the Badgers Act 1992?

NE have released, under Freedom of Information request, documents showing how far badger culling has drifted from policy science (The Randomised Badger Culling Trials: RBCT). Culling rules now move closer to a free-for-all, with culling over wider areas for longer and with new speculative methods. Immediate concern relates to ten potential badger cull areas that could be licensed for intensive culling for four year culls, starting this September, with a further ten next year.

All of this legal work will require funding to pursue and coffers are nearly empty. There is need to gear up for some emergency fundraising over the next few weeks and reach out widely to gain support. Please look out for a crowd funding link and for information on where donations can be sent. It is hoped that supporters can once again rise to the challenge and give badgers a chance to roam undisturbed across the fields and woods of England.  We will continue to seek justice in the best interests of badgers, wildlife, farming and the public.  The bovine TB crisis must focus on the cause of the problem; the spread of disease amongst cattle.

“Next Steps” Defra consultation expires

Revised 27th April

Defra closed the 27th January consultation without allowing time to consider the implications of the 10th March data release. They have said they will respond to points raised by 6th April and the matter is now being considered by legal experts. Here are extracts from a consultation response by Tom Langton, based upon use of government data to show what has really been happening in the High Risk Area since 2010.

As further analysis is done, the results will be sent to Defra and Natural England and published. Meanwhile we expect the government to correct its mistaken view that badger cull is working and not to issue any further badger cull licences in 2021.


Bovine tuberculosis: consultation on proposals to help eradicate the disease in England. A consultation exercise contributing to the delivery of the government’s strategy for achieving bovine tuberculosis free status for England. “Next Steps” (March 2020) Policy Consultation.

The SSEFRA Minister’s statement of 27th January 2021

There is a fundamentally misleading and erroneous statement which features in, and indeed underpins, the consultation proposals. The Secretary of State’s Parliamentary statement of 27 January 20213 states that badger culling “…has played a critical role in helping to start turn the tide on this terrible disease.”

This is the justification for continued use of ‘intensive’ and ‘supplementary’ badger culling, as described in the current consultation. This statement has been widely repeated in the media in recent months and also by a range of government officials including the Chief Veterinary Officer. It underpins, and influences, the current consultation. The consultation itself asserts that “the current cull policy has been effective” (8.1) and refers in Figure 1. to Gloucestershire, Somerset and Dorset.

The consultation proposes that new rounds of badger cull licences will be issued authorising the culling of badgers for the next six years and beyond. It is estimated that a further 150,000 badgers may be culled under these proposals: as many or more, as have been killed to date. The risk of serious consequences to the farming & nature conservation stakeholders and to the public purse of getting the policy wrong and perpetuating the disease are obvious.

Recent communications on fair time for consideration.

Promptly after release of data on 10th march and while the consultation was still running, my representatives wrote to Defra and Natural England to ask that they postpone it and re-consult once the information and the Ministers view provided (as above)  have been corrected. This was both to ensure that a fair and lawful consultation is concluded and to ensure that the Secretary of State’s proposals are based on a proper understanding and articulation of the evidence. In light of the matters set out below, a decision to adopt badger culling policy without reviewing these matters would be liable to be quashed on an application for judicial review.

Specifically I refer to release of key information on bovine TB (bTB) statistics on 10th March 2021, just ten working days before the closure of the consultation that showed significant variance from the Ministers position. This is unreasonable, and an initial look at the data released in the time allowing shows it to be both extremely important and to lead to conclusions that contradict the wording of the Ministerial statement on 27th January.

More reasonably, a minimum of 6-8 weeks should be allowed in order to consider the data properly. It’s use, I believe would result in a very different conclusion to the Ministerial statement and one of sufficient substance that would otherwise make the consultation unfair and invalid, should the current basis for the consultation be retained.

Further key points

1. Whilst the proposal to cease supplementary badger culling  (SBC) is in principle welcomed, its continuance for a further five years, to February 2026, alongside intensive badger culling is completely unjustified and unacceptable given the new information.

2. Our letters to Natural England in relation to the licensing of SBC dated 8 March 2019 and 29 May 2019 refer to Prof. Boyd (CSA) describing the need for an ‘adaptive approach to policy development’. According to Prof. Boyd, badger culling will “often not work as predicted” and so an “operational control” method is needed, based upon “outcomes”.

3. Natural England, in its internal deliberations on the uncertainties of evidence when licensing culling, (Paper by Dr Tim Hill to Natural England Board meeting of 6 November 2019, released to Mr Langton under FoI in August 2020. RFI 5049) has noted:

“7.1. As implementation of the culling policy has progressed a series of evidence needs and gaps have emerged. Culling is taking place over an expanding area of England and, as we advised in 2010 and 2011, it means the Government is increasingly less able to rely on the evidence base provided by the RBCT. Implementation of the policy has also identified operational challenges for which the existing evidence base is proving unsatisfactory. Finally, intensive culling was never proposed as the long-term solution to controlling TB in badgers and – particularly in light of the Godfray Review – we need to revisit the available evidence to inform future strategies.”

4. Further, Natural England has identified in a letter dated 18 June 2019 the need for results from six badger cull areas, for at least four years in order to gain any initial insight into disease control trends. That requirement was achieved in respect of intensive culling, once the 2016 four-year intensive culls concluded in 2019, with a further year observation period of herd breakdowns to 2020. It was, in part upon the above clarifications, that the matters raised in my 2019 pre-action protocol letter were not pursued.

5. It follows that the real time outcomes in bTB control as measured in ‘cases per area, per year’ have become the definitive point of reference since the scale and nature of culling has moved well beyond that assessed in the RBCT. Such data tells farmers and vets in each cull area and across intervention areas what is actually happening, with an increase or decrease in bTB herd incidence and residual prevalence.

Preliminary view relating to available data 

6. Difference between confirmed breakdowns of bTB in cattle herds,  within and outside of the badger cull areas over the badger cull duration: 2013-2019 in the HRA are consistent with relatively small background fluctuations. They do not support the public claims by the Minister of an “effective” cull policy, using theoretical modelling (consultation paras 8.1-8.3) relating to 2017 and before.

7. At the county level, breakdowns began to level off  after 2010 when the HRA was placed on annual bTB testing. Other measures were progressively introduced from 2012. Importantly, in 2016 the interpretation of the SICCT test was changed too, to detect more disease. A raft of other measures to slow the incidence of bovine TB in cattle were slowly introduced within the HRA and are also relevant.

8.  Changes to the rate of confirmed breakdowns in the HRA will have been brought about by cattle measures beginning to have an influence, commencing well before the badger culling roll-out started. For the government to use the average figure for herd breakdowns for the four years prior to culling commencing as a benchmark is wholly inappropriate. It fails to have regard to the relevance of factors other than culling, in the same period, affecting the chosen measure. Any realistic comparison should be from the point at which badger culling commenced. Using the four-year average prior to the start of culling is wholly misleading. The figures have been misused to present a positive view of the culling when effectiveness is clearly open to question when: (a) a comparison is made with unculled areas, and (b) the effect of other changes in bTB control have been contemplated.

9. This is further demonstrated by additional observations of how the trend in bTB herd incidence is almost exactly the same in places where herd measures have been applied and where they have been applied together with badger culling at the County scale. 

10. Other counties are being looked at carefully and hence the need for more time prior to consultation ending and the request in my letter of 18th March 2021 and subsequent clarifications.

11.The reality of these trends  is in stark contradiction to key findings of the now out of date modelling of badger cull efficacy: the publications Brunton et al. 2017 and Downs et al. 2019 (using data only up to 2017) . This is the basis upon which SSEFRA has previously relied to imply progress in 2017, albeit on heavily modelled results, with caveats as to the reliability of the findings.

12. For these reasons, there is grave concern not just that theoretical modelling has not reflected the subsequent long term face-value evidence, but that the real time data on the full period 2013-2020 has been misrepresented to the public by the Secretary of State, both in public statements and in the current consultation process.

13. This is of very significant concern because of the manner in which the consultation has been worded to imply that badger culling has had a substantial positive effect in real terms. The only fair analysis from the existing data is that it remains uncertain as to whether there has been any benefit from badger culling at all. The consultation fails to grapple with this uncertainty and the evidence that it has been of no value at all.

14. This finding  is consistent also with previous considerations of the CSA (in June 2019) that any contribution of badger culling to bTB new herd incidence will never be measurable in any event. That doubt, from the CSA, is also not alluded to in the consultation document.

15. The assumed effectiveness of culling as a means of bTB control is central to the consultation proposals. It is both put forward as an explanation of the Government’s proposed approach to licensing, and it purports to inform consultees of a factual basis upon which they should respond to the consultation. Once that proposition is put into doubt, it is apparent that the Government’s proposed approach is undermined and that the consultation process has been rendered unfair by the false claim.

16. Further, the present state of the evidence cannot conceivably support the grant of further intensive culling licences. Licences granted on the false assumption presented in the consultation paper would not be lawfully granted in accordance with Section 10 of the Protection of Badgers Act 1992.

Steps that Defra should take

In light of the above, the following steps should be taken:

  • Correction of the misleading information in Paras 8.1 – 8.3 and elsewhere of the consultation in relation to the effectiveness of culling from the evidence held to date. That correction should include an explanation of the comparison with non-culled areas, and an explanation of the factors other than lethal badger control which might have affected bTB incidence in the study periods;
  • The Secretary of State should extend the consultation period by sufficient time to correct the current information and to make public statements to reflect the position in (a) above;
  • That there is a further consultation period on such amended proposals as the Secretary of State makes having properly directed himself on the matters set out above;
  • That no further badger cull licence applications are processed until a public position is set out by the Secretary of State on the effectiveness of such licensing, having regard to the matters set out above.

Tom Langton 24th March 2021.

References:

https://questions-statements.parliament.uk/written-statements/detail/2021-01-27/hcws738

https://www.gov.uk/government/publications/bovine-tb-incidence-of-tb-in-cattle-in-licenced-badger-control-areas-in-2013-to-2019               

https://www.gov.uk/government/statistical-data-sets/tuberculosis-tb-in-cattle-in-great-britain;

https://www.tbknowledgeexchange.co.uk/        

Click to access bovinetb-statsnotice-Q3-quarterly-16dec20.pdf

https://ec.europa.eu/food/sites/food/files/safety/docs/cff_animal_vet-progs_2013_dec-2012-761-ec_bovine-tuberculosis_gbr.pdf     

Brunton LA, Donnelly CA, O’Connor H, Prosser A, Ashfield S, et al. (2017) Assessing the effects of the first 2 years of industry-led badger culling in England on the incidence of bovine tuberculosis in cattle in 2013-2015. Ecol Evol p. 1-18.

Downs, S.H., Prosser, A., Ashton, A. et al Assessing effects from four years of industry-led badger culling in England on the incidence of bovine tuberculosis in cattle, 2013–2017. Sci Rep 9, 14666 (2019). https://doi.org/10.1038/s41598-019-49957-6

Annex 1. Further information on relevant cattle measures responsible for changing leftes of new herd incidence.

Area 32 Cumbria

Recent published raw data shows encouraging trends of reduced incidence and prevalence across the first 32 cull areas compared with the years before culling began. Compared with the average of the four years before culling started, OTFW incidence has dropped by an average of 27% after 2 years, 51% after 4 years and 53% after 6 years in the first twenty-one, three and two areas respectively.

Area 32 Cumbria had achieved OTF status before the onset of culling 2018 and so Cumbria has been wrongly included in the above calculations. Furthermore, having removed almost the entire badger population from the extended Area 32, ibtb mapping shows there are currently 5 ongoing breakdowns in the area, all of which became restricted between 8/10/20 – 29/10/20. The epidemiology history of Area 32 does not provide support for wildlife being drivers of disease.

European (EU) undertakings

In order to understand the effects and benefits of cattle controls newly introduced into the High Risk Area from 2012 to-date and there is need to examine a report submitted by Defra to the European Commission

The submitted Eradication Programme for Bovine Tb provided a whole raft of measures to improve the control of disease. The most notable of which was the introduction of annual testing in England from January 1st 2013.

  • January 2010:

In England, a core annual testing area was established, spanning entire counties in the South West and West Midlands (the ‘high risk area’) and surrounded by a ‘buffer’ of two- yearly testing parishes. Most of the rest of England remains on background four-year testing.

  • January 2013

Herd testing intervals are determined on a county basis and England is split into annual testing and four-yearly testing counties.

  • 2014:

Enhanced measures were introduced in 2014 to address the problem of persistent herd incidents. Mandatory IFN-γ tests are also used in persistent incidents where herds have been under restriction for more than 18 months.  

Published the joint government-industry Bovine TB Biosecurity Action Plan. https://www.gov.uk/government/publications/cattle-biosecurity-action-plan-for-improving-herd-resilience-to-bovine-tb

Stopped the practice of de-restricting parts of some TB-restricted (non-OTF) holdings.

https://www.gov.uk/government/publications/bovine-tb-information-note-ending-the-practice-of-de-restricting-parts-of-tb-restricted-holdings

Tightened pre-movement testing rules by removing remaining exemption for cattle moved between holdings that are part of the same Sole Occupancy Authority(SOA).

https://www.gov.uk/government/publications/bovine-tb-information-note-changes-to-tb-cattle-movement-controls-exemptions

Tightened pre-movement testing rules by removing exemption for movements to and from common land.

https://www.gov.uk/government/publications/bovine-tb-information-note-changes-to-tb-cattle-movement-controls

Introduced an enhanced approach for dealing with persistent bTB breakdowns.

 http://apha.defra.gov.uk/documents/ov/Briefing-Note-0214.pdf

2015

Further measures were adopted in the HRA during 2015 which sustained the reduction of incidents following the success of previous measures:

-Introduced improved IT data capture system for epidemiological investigation outcomes to support targeted enhancement of more sensitive testing regimes in the HRA.

-Promoted new guidance to cattle farmers (agreed with key industry groups) on how to protect their herd from bTB through implementing improved bio-security on farm – the Five Point Plan.

-Extended reduced CAP Scheme payments (cross-compliance penalties) for overdue bTB tests to include all types of TB tests with very few exceptions.

https://www.gov.uk/government/publications/bovine-tb-information-note-tb-testing-changes-for-cross-compliance-penalties-and-surveillance-tests

2016

Improved testing and cattle controls:  In the HRA: introduced requirement for two consecutive clear short interval tests at severe interpretation by default for all bTB breakdown herds before they can regain OTF status.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/506575/tbin-0216-breakdowns-high-risk-area.pdf

Phased out SOAs and Cattle Tracing System Links between summer 2016 and summer 2017 and reviewed controls on cattle movements within a 10-mile radius of home premises (‘CPH England’ project).

2017

Tighter controls on cattle movements were introduced, together with severe interpretation extended to cattle traced from breakdown herds.

  • Increased the sensitivity of skin testing of cattle traced from lesion/culture positive bTB breakdown herds by applying the severe interpretation of the SICCT test.
  • Tightened rules for licensed movements of cattle between two bTB breakdown herds.
  • Harmonised the timing of short interval skin tests in bTB breakdown herds, so that tests are scheduled at least 60 days from the date of reactor removal, rather than the date of detection.

High Court says Minister George Eustice may reject science advice and choose the science he needs, as a ‘political’ decision.

Case CO/2062/2020, Wednesday, 14th October, 2020

The High Court held a Judicial Review permission hearing in Court 16  at the Royal Courts of Justice in London last week; The Queen on the application of Langton v Secretary Of State For Environment Food And Rural Affairs. The matter was before Mr Justice Cavanagh and the requirement was for parties  to attend in person as opposed to via video conferencing.

The application for Judicial Review had been made earlier this year in response to the Defra policy guidance of 5th March 2020, signed off by Minister George Eustice  “Next steps for the strategy for achieving bovine tuberculosis free status for England – The government’s response to the strategy review, 2018”. ‘Next Steps’ is the response to the expert review in 2018 by the Group chaired by Sir Charles Godfray. The claim was about Defra not taking up the main finding of the Godfray  Report (GR) in respect of badger-related interventions. The report had very clearly identified a ‘more promising’ strategy of ‘periodic culling’;  that is allowing for a two-year badger cull cessation period (to mirror conditions of the RBCT outcome) after four years of intensive badger culling and then  applying a combination of badger vaccination and intensive culling, should bTB herd breakdowns persist. 

The GR advice was also highlighted by the recent government position in another court case; a fresh decision to move away from  badger culling in the essential actions to reduce bovine TB. This was something that FOI papers show both the Chief Vet and Natural England were anticipating last year, to begin in 2020.

During the hearing, and after both sides had outlined their points, Justice Cavanagh read out a lengthy judgement with just a few embellishments. His view mirrored the governments  defence almost exactly.  He said that the Secretary of State must ‘have regard’ to the GR, but was not obliged to accept its expert advice. He said that it would be wrong to characterise the GR as  giving ‘recommendations’. This is quite extraordinary give the specific content of the text and the plain language of the overview summary at the start.

Referring specifically to paragraphs 6.51- 6.54 in the GR, he agreed with Defra that the  difference between supplementary culling and periodic culling was merely one of ‘cost and convenience’. This is a misreading of paragraph 6.52 where the text implies periodic culling might bring about the same benefit as was seen in the RBCT, whereas Defra and the judge seemed to imply that the comparison was between periodic culling and  supplementary culling, which it is not. Another extraordinary development.

A full hearing should have been granted but was rejected. The judge questioned whether a requirement to rework policy was worthwhile, as ‘relief’ (from a win for us) would not prevent the further use of supplementary culling licences. This rather missed the point that a continuation of the confused and unmeasurable approaches currently in place may do as much harm as good in the bTB fight; destroying the cattle industry.

It was also depressing to see Defra ‘s argument that  cull area data needed to be analysed (modelled in comparison to non-intervention areas) for the value of badger culling to be appreciated. To Defra, raw data is no good, because it only tells you what is happening with disease levels in an area and not why, which is an absolute nonsense. Direct evidence of herd breakdown levels were said to be somehow insufficient, despite obvious face value performance of ‘all measures’ in cull zones, year-on-year being the rational measuring-stick for stakeholders and practitioners; not least farmers and vets.

What is the point of being told that badger culling is working when there is no change or an increase overall of herd breakdown incidence and prevalence in an area? Defra have created a policy where failure doesn’t exist. We maintain that it is dangerous and unlawful.

Acceptance and normalisation of a policy that has no stop button, has always been the problem with supplementary culling,  with no capacity to ‘adapt and learn’ of any direct value of badger culling. This was made clear by the Chief Scientific Advisor in 2019 following the 130% hike in herd breakdowns in Gloucestershire and legal pre-action at that time. It seems we are locked into a system  that is failing, yet pays people to model data to say it is a huge success, when it isn’t or cannot be said to be so. While keeping the ability to check secret from the public. Defra and now the courts say this a lawful approach when protected badgers are being shot in ever-growing numbers.

Finally, within the judgement there was a moment that was deeply disturbing, distracting even from the above considerations. It was that the government is entitled to make the decision not to adopt the findings of an expert review, for political purposes. These are the same words used in the ruling earlier this year by Justice Andrews with respect to a case brought by the NFU against the Secretary of State. In that case, the government’s decision to hold back for a year on culling in Derbyshire in  2019 was because it wanted to find ways to help to ‘tilt’ the bTB eradication policy in favour of badger vaccination. Something that the 2020 bloodbath of tens of thousands of mostly healthy badgers over the last six weeks shows has not happened either.

The ecological impacts part of the case was dismissed with brevity, a matter that will need taking up again soon once BTO and Natural England’s secret reports are exposed.

The government approach to badger culling is not just ineffective, it is  indiscriminate and  unaccountable. It treats wild animals as worthless pests and the protected designated  sites where they live and roam as disposable.  This at a time when wider awareness of  the way in which we treat wild animals and wild places defines our ability to manage our countryside and climate successfully and against wider environmental catastrophe. Aspects of the decision made  in this case will be further appealed.

 

Does Natural England care for Badgers, Hen Harriers and other wildlife?

In recent days, Natural England has released its Habitat Regulations Assessments (HRA) for the disgusting and incompetent 2020 licensed badger culls, currently underway as a part of the wider  failed bovine TB strategy. This follows release recently too, under FOI of the updated (July 2019) NE “Guidance on evaluating the ecological consequences of badger culling on European Sites.” Legal challenges since 2017 have forced NE’s to accept as real the potential impacts resulting from removing badgers from large parts of the English countryside and to try to develop a system that reflects just a few of the issues; those related to SSSIs and internationally designated sites. While HRAs improve in extent and detail, they remain reliant on conditions which are loaded with points of potential failure and which may not be effective in protecting the integrity of European Sites.

This matter has just become even more important as the Council of Europe’s Bern Convention in Strasbourg has formally adopted, at its Bureau meeting of 15 – 16 September, a complaint against the UK for its mass badger killing in England. This includes the extent of unknown ecological change and damage, and placed the compliant on ‘stand-by’ for future scrutiny. This requires, straight away, new communications and reporting by the UK government with a report next summer.

This is a huge international embarrassment for Westminster, as knowledge of the potential UK infraction becomes more widely recognised across Europe and the world. The UK claims there is no evidence of any ecosystem damage, yet, in accepting the possibility, have failed to undertake any credible measurement of this at all. Other than in a 2018 report that is (probably for legal reasons as it exposes them) being kept secret between NE and the British Trust  for Ornithology. They think controlling information upon which public decision making has been done is acceptable behaviour. Would the UK ever consider breaking international law?

There is no evidence at all that shows that conditions to safeguard internationally important sites and their rare species have actually taken place.  Where is the monitoring (annual monitoring reports?) promised to the High Court in 2017 and 2018? NE have a duty to establish the extent that the conditions imposed on these licences are actually adhered to on the ground. Are the conditions easily understandable and accessible to the shooter on the ground? Who has been checking? Might shooting contractors possibly overlook the conditions on these licences?

One  example is the condition to protect Hen Harrier on Salisbury Plain. This states:  Before commencing licensed activities each season, operators must confirm with the owner/occupier the location of any communal roost locations supporting significant numbers of Hen harrier. Except on existing roads and tracks, there shall be no access within 500 metres of any such locations from 1st November to 30th April, inclusive“. Now the cull should normally be over by 1st November but what if an extension is allowed or in time supplementary culling extends into January? The workability of this condition assumes a) that the operator asks this question, b) that the owner/occupier answers it, c) that the owner/occupier is in a position of knowledge about hen harrier roosts on their land, d) that they convey this information to the shooting contractor fully (what if they want their badgers ‘gone’ ?), e) monitoring is good enough to be able to pinpoint roost sites and define a 500m radius from them and lastly f) if all of the aforementioned happens, shooters duly obey the 500m standoff restriction.

Further, this condition only bites in respect of “communal roost locations supporting significant numbers of Hen harrier” (emphasis added). What does this mean? Presumably a communal roost must be more than one hen harrier, but at what point does ‘significant’ bite? That this is a flawed approach is rendered obvious by two considerations: firstly, the wintering population of hen harrier at this site (five year peak mean =15.2 between 2010-2015) is so low that a single bird would represent >1% of the site population and would therefore be significant. Secondly, the SPA is cited as representing 1% of the UK population therefore any reduction from that 1% (which could be displacement of a single bird, or a single roost) would represent a significant effect on integrity.

It would be a huge undertaking to check what Natural England are sanctioning and is actually secretly happening in the countryside. There seems to be little or no intention by them to look at what might be happening beyond the secret studies of one or two sample areas. So nobody will ever know how many Hen Harriers or other sensitive animals have been disturbed by people killing badgers. That’s the way NE has handled it and the way that it wants it to remain.