Category Archives: Explaining the legals

Cracks appear at DEFRA

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Badger Cull Consultation extended by 3 weeks to 13 May

At around 5.00pm yesterday (19th April) Badger Crowd was sent Defra’s ‘stakeholder’ message that the badger cull consultation has been extended by 3 weeks. Due to end on Monday 22nd April, it will now finish on 13th May. One legal letter was sent to Defra on 19th March and then two on the 28th March this year, stating specifically that the 5 week consultation period was too short and that an 8 week period would be appropriate.  Defra consultations are often eight weeks long.

Although a three week time extension has been granted, the three week delay in responding to the letter and agreeing it means this still does not provide an adequate response time. Defra just doesn’t get it. 

One of the letters also pointed out the misinformation and lack of detail on aspects of the consultation document. Two long letters were also received from Defra yesterday (19th) and are now under the legal microscope.

Legal pressure from our friends at Badger Trust and Wild Justice, together with their ‘survey monkey’ poll of respondents, illustrates problems with interpretation of the consultation. Extra time will give Defra more time to reflect on how muddled their consultation truly is.

Other voluntary groups are still considering what advice to provide to individuals wanting to write to Defra about the consultation, and we will report further on this as it is made available.  It is still difficult to advise on the best way to complete the consultation, because of the lack of information provided, its limited scope, the misleading content including wrong use of science and the wording of the questions which does not allow adequately for views to be expressed.

Defra’s consultation is a mess and they know we know it’s a mess. They know it’s a big mess. Thanks again to the 700 of you who have joined the Badger Crowd and are supporting the fight for justice for badgers.

We are the Badger Crowd.  We stand up for Badgers.

Help Stop the Badger Cull U-turn

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Kamikaze bovine TB consultation – will it crash and burn?


On Thursday 28th March 2024 two solicitors’ letters were sent to the government. They express grave concerns over aspects of the Defra five-week badger culling consultation that began on 14th March, and attempts to bring about a policy u-turn on the phasing out of badger culling.

As readers may be aware from our recent blog, there is so much wrong with the proposal that it is hard to know where to start. Put simply, the Chief Veterinary Officer, currently Christine Middlemiss who is based at the Animal and Plant Health Agency (APHA) would be given sweeping powers to designate as many new cull areas as she and apparently a group of mostly farmers and cull companies think fit. This would be based upon currently obscure assumptions about how cattle herds have caught bovine TB in any area, yet with the finger wrongly always pointing at badgers.

Future decisions on initiating culls seem to rest around whether badgers share the same countryside areas (mostly they do because of the pasture landscapes) and whether they have the same bTB strain as the cows (mostly they don’t, according to the ‘Badgers Found Dead’ Edge and Low Risk Area surveys). Even if they do, an infected cattle herd may rapidly cause infection of the landscape, including many wild mammal species.

These decisions, to be made behind closed doors, will prevent the promised policy direction to ‘phase out’ badger culling. This phase-out  said that the last cull authorizations would be for 2025, other than in ‘exceptional’ circumstances (we continue to oppose these ongoing intensive culls). But the new consultations would permit an unlimited number of ‘cluster’ cull areas across the whole of England. There would be unlimited badger shootings, over an up to seven month period annually, each year decimating healthy badgers in the hope of killing a handful of infectious ones. Totally unacceptable.

‘Cluster’ culling looks very much like the failed Low Risk Area, so-called ‘epidemiological’ culling, which has killed so many badgers in the Cumbria pilot  without demonstrable effect (see ‘A bovine tuberculosis policy conundrum in 2023‘, chapter 5.). They are trying not to call cluster culling ‘epi-culling’ because of these failures.

What has become clear is that Defra are keen to muddle the effects of tighter cattle testing and movement control  by saying that badger culling has contributed to the well-known reduction in number of herds being withdrawn from trading. But there is no scientific evidence of this, only good evidence that badger culling has shown no effect. Yet Defra and their agency APHA remain in denial. They claim in the consultation that a peer-reviewed published academic study finding no disease benefit is flawed, yet cannot provide the data or any analysis to prove their point. After two years, their public outburst is as useless as it was in March 2022,  when their muddled attempts to undermine published science (the first attempt was withdrawn) came out.

Badger Crowd is in touch with Badger Trust and Wild Justice over a range of concerns over the lack of essential information for fair consultation. Responses from government so far have shed no light on questions asked.

Deadlines are coming up and further legal work is necessary, so an initial fundraiser was launched on Monday 1st April on the Crowd Justice website to fund the Badger Crowd legal work. Our fundraising target was reached by April 11th and the fundraiser has now been closed. Thank you very much to all who have supported. If we are advised by our legal team that we have good grounds to seek a Judicial Review, we will need to launch another fundraiser to cover the costs of this. Thank you for your support.

We are the Badger Crowd. We always stand up for Badgers.

Belfast Court Rules Northern Ireland Badger Cull Plans Were Flawed

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Mr Justice Scoffield has quashed the NI government attempt to introduce controversial  badger culling to Northern Ireland. Granting a judicial review brought by wildlife NGO’s funded by public donation, he said that  consultees were not told enough – and in sufficiently clear terms – to enable them to make an intelligent response in the consultation exercise. The ruling concludes:

“The court was unimpressed by the respondent’s argument that disclosure of the business case would be too complicated or distracting for would-be consultees,”

“The fact that consultees did their best to respond on the basis of the more limited set of information which had been disclosed to them does not alter the respondent’s obligation to act fairly.”

In September 2022 year Legal Campaigners Wild Justice with Northern Ireland Badger Group (NIBG)  were granted a High Court hearing at the Royal Courts of Justice in  Belfast to challenge a cull of badgers in Northern Ireland HERE and HERE.

This legal claim contested a decision announced in March 2022 by the Minister for Agriculture, Environment and Rural Affairs (DAERA), Edwin Poots, to allow killing of up to 4,000 badgers a year along the lines that DEFRA has been mass killing healthy badgers in England since 2013. The primary target was a decision of 24 March 2022 – set out in a statement made by the Minister that day and in a ‘Bovine Tuberculosis Strategy for Northern Ireland’ published by the Department shortly afterwards.

The claim brought was that consultation on the policy was incorrect and did not reach the requirements of lawful consultation. So, the decision to choose to control the badger population by allowing farmer-led groups to shoot free-roaming badgers was unlawful. The judge agreed.

The claim argued that Mr Poots’ decision is unlawful because he issued the Article 13 (power to destroy wildlife) order under the Diseases of Animals 1981 Order, but that he had not made sure that there was no reasonably practicable alternative way of dealing with bovine TB in Northern Ireland.

Finally, the consultation had proposed shooting badgers as a preferred option, based on a “business case” which was not disclosed as part of the consultation documents. Because of this the consultation was not a fair procedure as those consulted were prevented from having a properly informed response without seeing it. Comparisons with Test Vaccinate Remove (TVR) approaches had not been fairly made and an APHA position that firmly place TVR approaches “on a par with proactive culling with respect to impact on cattle herd breakdowns”  was not properly addressed.

As previously reported, with the help of the Northern Ireland farming industry press, the farming sector was being hoodwinked into thinking that badger culling could somehow help them. DAERA had been busy promoting badger culling with ‘roadshows’ making exaggerated claims, disseminating misinformation and use other propaganda tricks to try to garner cooperation.

All the lessons from England including the question marks over government badger culling science, going back to the 1990s are relevant too.  It was barely possible to believe, after year-on-year failure in England and the Republic of Ireland, that DAERA wished to ignore their inadequate cattle controls and cull badgers over the next 10 years across Northern Ireland.

Also proposed was an element of experimental badger vaccination after the mass slaughter, a policy that government appointed experts in England in 2018 said was an unproven approach to the control of bTB in cattle.

DAERA may decide to appeal the decision or more likely to reconsult with a business plan that they have held secret, and will no doubt need to rewrite. Will they now go down the TVR route or cull and TVR – this too would be a huge mistake? With the present absence of an Executive and sitting Assembly at Stormont, it is unlikely that authorisation could be given in any case, even with a new consulted plan. What DAERA should do is think again. Even more new science has emerged since the claim began, showing why badger culling policy science has gone so badly wrong and culling badgers in any way is unnecessary.

Huge congratulations to Northern Ireland Badger Group and Wild Justice for bringing the case and to all those supporting the case and opposing the flawed consultation process.

Badgers back in (Belfast) court

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

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

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

Year-on-year failure

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

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

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

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

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

Competence of veterinary bodies and advisors

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

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

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

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

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

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

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

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

The assessment of ecological-impacts question also remains unaddressed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reference

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

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

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

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

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

Background

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

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

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

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

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

The case for the claimant is made

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

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

The government responds

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

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

Court of Appeal decides not to hear the case.

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

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

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

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

Conclusions

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

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

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

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

House of Commons Environmental Audit Committee recommendations

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

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

• the principle of preventative action to avert environmental damage

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

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

• the polluter pays principle.

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

After the hearing Claimant Tom Langton commented:

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

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

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

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

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

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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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