Category Archives: Explaining the legals

Badger Culling – just 5 days to Court of Appeal Hearing

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

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

The Hearing will be televised:

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

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

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

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

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

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

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

Update on fundraising & supplementary culling

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

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

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

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

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

 

Natural England keep supplementary culling, despite Gloucestershire bTB spike

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

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

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

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

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

 

Supplementary culling licences – update

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

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

What is going on at Natural England?  

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

Supplentary culling licences

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

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

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

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Does the badger cull spell trouble for ground-nesting birds?

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The Ends Report has put out a further piece by James Fairs here, on Natural England’s licensing of the badger cull and the risk that ‘carnivore release effects’ from removing badgers could have a clear-cut or subtle, yet profound damaging impact on our countryside. Last year during a Judicial Review hearing into whether adequate assessments had been done into the ecological impacts of badger culling, Natural England made repeated assurances to a High Court Judge that their ‘routine monitoring’ would detect any effects of badger culling on important protected ecosystems, and that they would respond to any changes identified. There remains no clarity surrounding what is being monitored,  nor how the integrity of any monitoring can be guaranteed. 

Culling has been underway for six years in the pilot cull areas and data released by the Government last summer indicated that in fact 47% of Sites of Special Scientific Interest have not been examined by NE in accordance with their own monitoring protocols within the last six years. This is the reality of the ‘routine monitoring’ referred to. A report commissioned by Natural England last year which compares coarse datasets of breeding bird records collected by volunteers continues to be suppressed.  

This last ditch scrabble to cover the legal loopholes while keeping an awkward public funded report secret is surely a stark humiliation for our statutory agency.

We despair at the weak and woolly response of Natural England in merely trying to find fox control data, rather than implement full and proper monitoring of at-risk rural ecosystems in their entirety. This is what is essential  to ensure the protection of our best wildlife sites, given such a drastic and large-scale intervention as badger culling. We call on the government to halt all badger culling immediately and to launch an inquiry into the oversights.

Full text is available on our ‘Press Cuttings’ page.

Press Release

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A new pre-action letter has been sent to Defra and Natural England over ‘supplementary’ badger culling


Key Points

  • A pre-action protocol letter has been sent to the S/S for Food, Environment & Rural Affairs and Natural England over the governments refusal to stop supplementary badger culling.
  • ‘Confirmed’ bovine TB cattle herd breakdowns have risen in Gloucestershire and Somerset after one year of supplementary culling.

  • New calls for a halt to supplementary culling in Gloucestershire and Somerset, and for Dorset not to start this year.

  • Four weeks to go until the Court of Appeal re-examines a previous (2018) case challenging supplementary culling policy.  

There is mounting public scepticism over the science and justifications behind mass culling of badgers in England. Badger culling has increased steadily since 2013 as a part of the Government’s attempt to control the livestock disease bovine tuberculosis (bTB).

Supplementary culling is the killing of badgers for a further five years or more once four years of intensive culling have been completed.

Recent correspondence with the government and Natural England follows release of data on 8 April showing that ‘confirmed New Herd Breakdowns’ (NHBs) have risen since the 2017 implementation of Supplementary Culling in the Gloucestershire and Somerset cull areas. Confirmed NHB’s in Gloucestershire jumped from 10 to 23 cases.

Following release of the data, the claimant is taking further action against the government to stop the issue of supplementary cull licences and has written to DEFRA and Natural England to formally request that DEFRA withdraw the Supplementary Culling Guidance and NE revoke licenses issued under the supplementary cull policy. A response is expected in a week. Further legal proceedings may follow.

In any event, the Court of Appeal will hear a case brought by Tom Langton in 2018 scheduled for 2/3 July  which asks the Court to quash the supplementary cull policy guidance, issued in 2017. The hearing will also address other questions which have emerged over safeguards on protected nature sites from culling. The principal argument in the guidance case is that government lacked the necessary evidence and safeguards to justify the supplementary cull policy. The recent data on NHB confirms that supplementary culling is not associated with any bTB decline benefits and could well be contributing to policy and licensing failure.

Mr Langton, an ecologist who has worked on studies of wild animal diseases, is challenging alleged breaches of the Protection of Badgers Act 1992 by the government. In particular, he is challenging claims made by the Chief Scientific Officer Prof Ian Boyd that badger culling with an experimental approach could be a learning process, despite senior scientists and expert organisations in 2017 advising that such an approach might be counterproductive. He said:

‘’The government has indicated that it can adapt its policy on badger culling as further evidence becomes available. However, it is well established that it is not possible to definitively identify the source of bTB in cattle herds breakdowns, except in cases where a new strain of bTB has been imported through cattle trading or neighbour contact.

In truth, the badger culling policy is a policy with no stop button, and where there is no possibility of learning, just a direction to continue killing badgers forever, even if measures are not working. This repeats the mistakes made in The Republic of Ireland where badger killing for decades cannot be linked to any changes in disease levels.

The English bTB emergency requires crisis management as the current cattle testing regimes and movement controls are clearly failing.  The Supplementary Culling policy is a road to no-where. Killing for the sake of killing. There is no potential for linking cause to effect, no scientific learning, and for that reason the policy is unlawful. It cannot show, as is required, that it is preventing the spread of disease.’’

FURTHER INFORMATION

In consultations held for the badger killing policy in 2011, Natural England appeared to indicate that badger culling was unlikely to contribute to disease reduction if other bTB control measures in cattle were not working. This consultation wording has since been redacted and is now kept secret.

Natural England’s new Chairman, environmentalist Tony Juniper is faced with a dilemma. Is he prepared to license the updated policy, that was initially introduced by former (2009-2013) NE Chairman and dairy farmer Poul Christensen?  He has to decide over the next few days and weeks whether to agree to support an acceleration of badger killing by around 25% to 40,000 badgers annually, starting this September. This would take place despite the lack of evidence of any contribution to reduction in disease spread and evidence that the policy could be worsening the crisis.

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Licensing Question: whose job to monitor the Predators and Prey?

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An article in the Farmers Guardian (17.05.19) reports on certain conditions which Natural England are attaching to this year’s badger cull licenses as a result of legal challenges. The action in 2018 relating to 2017 licences was against Natural England’s omission of  proper process in scrutiny of potential ecological impacts and did not particularise the method or manner of scrutiny or gathering of essential information beyond the normal accepted confines of the licensing system.

Although dispute resolution talks have being held with Natural England over the last few months, the detail and nature of the new licensing requests on predators and prey to cull companies have not been discussed. They are nevertheless consistent with the Natural England internal guidance developed last autumn.  It would seem that the cull companies have been contacted regarding the normal requirements  necessary to ensure that the Carnivore Release Effect (CRE)  resulting from the 70%+ removal of badger populations can be recorded, with emphasis on, but by no means limited to both breeding bird and fox numbers.

Referring to a condition requiring the monitoring of fox numbers, Tom Rabbetts, head of TB delivery at the NFU is quoted as saying “When the cull companies were set up, this was certainly not a requirement. They have not recorded this data and they do not have access to every person controlling foxes in the area.”

He also questioned why cull companies were being forced to carry out the work when fox control was not part of their remit and NE has responsibility for collating data on wild bird populations. Normally in activities that cause or may cause impacts to SSSIs and European sites and species, the applicant is responsible as standard, both for provision of baseline information and for carrying out avoidance, mitigation or compensation activity.

This would include the monitoring of the effects of badger culling on breeding birds, roosting birds, butterflies, small mammals, other invertebrates and habitats that could be influenced by sudden reduction in higher trophic species, either immediately, or over a period of time for more subtle changes. The Badger Crowd believes that the ecological consequences of the removal of badgers could potentially be enormous, and thus far have not been measured.

New Natural England ‘Guidance on evaluating the ecological consequences of badger culling on European Sites’ here, issued within weeks of the judgement on the Judicial Review in 2018, suggests that the ‘trophic cascade’ effect from badger culling may potentially result in a requirement to control the number of other carnivorous species, including stoats, weasels and even hedgehogs. The Badger Crowd believes this is correct recognition of the huge potential impact of badger culling on wildlife sites of national and international importance and the countryside in general. Such impacts need investigating as a requirement of statute and must be taken as seriously as any other threat, such as road building.

Badger Crowd is seeking solutions to bovine tuberculosis for farmers and wildlife. We believe that badger culling is not an acceptable or effective solution and that impacts upon the environment are just one of the major issues that act against the interest of the countryside, taxpayers and farmers. It distracts from the real needs for better cattle testing regimes (including a halt to the misuse of and over-reliance upon the SICCT test) and the stopping of daily transportation of diseased stock around England. Immediate reform of poor veterinary advice and a compensation culture resting on public funds that further accentuates the problem is urgently needed.

Natural England ‘don’t have a clue’ as NFU rejects data gathering.

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In an article by Rachel Salvidge, published by the ENDs Report on 13 May here,  Sir Geoffrey Clifton-Brown, MP for the Cotswolds is reported to have said the idea that the badger cull increases fox numbers is “flawed” . Cull companies were being asked for data that they “don’t have because they hadn’t been asked to collect it”. He is quoted as saying that for the badger cullers: “it’s an absolute nightmare… the hoops they have to go through,” and that the demand is “another example of Natural England not having a clue about what goes on on the ground”.

In a statement, the NFU said: “We feel that any area that accepts a licence condition to undertake the control of foxes would not be in a position to do so. As a limited company they are not set up to undertake these actions and are not technically in a position to enforce it.”

Clifton-Brown describe the side effects of badger culling as a “ploy by conservationists to stop the cull”, adding that “people’s livelihoods are at stake.”

 

Badger Crowd’s thoughts on Michael Gove’s letter to Sir Geoffrey Clifton-Brown MP

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Michael Gove’s recent letter to Geoffrey Clifton-Brown here, resulted in the Sunday Telegraph story here. We’ve put together some thoughts on the contents of this letter.

Mr Gove’s letter unfortunately mischaracterises a part of the case brought on behalf of the Badger Crowd against Natural England in respect of the badger cull, and it falls foul of a number of factual errors. It suggests that those responsible for drafting the letter have an incomplete understanding of the pleadings advanced by both sides in the Judicial Review hearing.

In the first instance, the legal challenge was and remains far broader in scope that the description afforded to it in the second paragraph of Mr Gove’s letter. That said, in so far as it characterises that part of the case that deals with Carnivore Release Effect (CRE) and the risk this poses to non-target species of wildlife, it is not too far off the mark.

However the following (third) paragraph of the letter seems to attempt to ‘spin’ Natural England’s case as put to the High Court in July 2018. Firstly, NE did not argue that culling would lead to a net reduction in predatory species. Nor could they do so on any sensible ecological basis. What NE did attempt to argue is that the increase in foxes from the removal of around 70% of badgers from local ecosystems would be either insignificant, would give rise to no discernible effects or would be counter-balanced by existing lethal local control of wildlife.

It is a very relevant matter to understanding the merits of the Badger Crowd challenge that NE have now changed their position to one where they accept that fox control and reduction of other predators is or might be a necessity to combat the effects of e.g. increased or more dynamic fox dispersal on certain sensitive birds and certain sensitive sites.  This is illustrated in the case of Salisbury Plain Special Protection Area. Here NE failed to undertake any assessment of the possible implications for protected stone curlew, of culling on immediately adjacent land prior to the challenge. Now NE’s response is to require both a physical stand off from the protected area boundary  on this species, and additional fox control to combat anticipated increases in numbers.  It is a complete about-turn.

With that matter clarified, we can turn to the substance of Mr Gove’s letter. This is a response to a complaint, voiced through Sir Geoffrey Clinton-Brown MP, that conditions NE are newly seeking to place on badger culling licences from 2019 (which require culling companies to supply information on fox killing in and around certain protected sites) are excessive and onerous. Mr Gove’s letter plainly seems to reassure cull companies through Sir Geoffrey that complying with these conditions is a simple measure: it is there merely to tick some boxes arising out of certain elements of the challenge, and complying with it need not be particularly burdensome.

This is both illuminating and alarming when framed in the context of a) the genuine risk to rare and sensitive species of wildlife and designated international sites brought to Natural England’s attention by the case (and now only latterly accepted by them as ecologically ‘credible’) and b) the commitments made by Natural England, in court proceedings, to reassure the judge that NE should not be sanctioned for not having previously considered these risks to any meaningful degree. What Mr Gove’s letter suggests is that Natural England’s enthusiasm for following through on their commitment to the judge to investigate this issue, is sorely lacking and perhaps that what is now proposed is no more than tokenistic.

As set out in Mr Gove’s letter, Natural England sought to reassure the High Court in 2018 “that if, contrary to expectations, evidence were to emerge of a legally relevant adverse effect on bird populations, they [NE] would introduce measures to reduce fox numbers within 2km of protected Sites of Special Scientific Interest (SSSIs)”. This is a commitment to monitor bird populations, not numbers of foxes killed. Fox and other predatory mammal numbers more properly, however, could also be monitored but it would require a concerted effort. There can be no argument that this large reassurance offered by Natural England played no small part in Sir Ross Cranston, sitting as the judge in those proceedings, feeling sufficiently “comforted” to refuse to grant relief notwithstanding that he found that NE had breached its duties under the Habitats Directive.

Judge Cranston did not consider whether NE had measures already in place or sufficient resources to detect any evidence of this ‘legally relevant adverse effect’. He took their pleadings in good faith and at face value. The subtext of Mr Gove’s letter is that NE now realises it committed to properly monitor bird populations in areas where CRE was a risk without thought to the resourcing implications of doing so. In an effort to get out of this situation it has sought to place this burden on cull operators by using a surrogate measure of CRE risk – fox numbers.

Even if cull operators had happily taken on this additional requirement on licences to provide data on “current fox control practices” as a proxy for fox numbers and change within specific areas, serious questions would arise as to the value of any such exercise in detecting population change among at-risk bird populations. How would such data be standardised? How would it be corrected for error, and how would bias be eliminated? Such an approach to data collection is tantamount to asking passersby to count sheep in fields in order to determine population changes in blackbirds. Mr Gove’s earnest platitudes that for cull companies ‘all is not as bad as it seems’ do not provide any suggestion that such problems with the quality and utility of any data collected by cull companies are of any concern to either NE or Defra. Rather they tend to suggest a ‘just get some numbers and the box is ticked’ approach to the task.

Compare this with the context within which this requirement came about. Under the duress of legal challenge Natural England committed directly to the judge to monitor sensitive bird populations at risk from the ecosystem changes arising from badger culling via existing and new exercises. Now faced with the magnitude of seeing through that task, NE is seeking to push the burden onto cull operators, and asking them to seek out and provide near-meaningless data, which is almost impossible for them to gather. It is an exercise in futility and what’s more it has backfired, as even the culling operators can see that it is both potentially onerous and utterly pointless in isolation.

The mess that Mr Gove has been called upon to try and sort out is not the fault of the claimant, but it is a direct consequence of Natural England’s knee-jerk responses to legitimate challenges and the scrutiny of the Court. NE’s habit of reacting to the spotlighting of procedural failures rather than seeking a sensible pre-emptive approach to risk management is unhelpful. A different approach that avoids such challenges would be in line with their statutory duty.

Badger Crowd seeks to resolve bovine tuberculosis in the interests of wildlife, farmers and cows. It believes scientific and veterinary practice and procedures have been corrupted and compromised and that the current approaches can only make matters worse for all.

 

 

 

Farmers are set ‘impossible task’ over risk to birds from badger cull

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 See our comment below.

  • The Sunday Telegraph

  • 12 May 2019
  • By Helena Horton

NATURAL England has been accused of bowing to badgers’ rights campaigners after setting farmers the “impossible task” of proving the cull poses no risk to ground-nesting birds.

A High Court challenge by protester Tom Langton claimed that as badger culls increase numbers of foxes, rare ground-nesting birds preyed on by them are put at risk. The environment watchdog successfully argued that culling badgers can improve such bird totals but it agreed that people doing the culling would have to provide data.

Landowners said this is “impossible” as they were not asked to collect data before they culled the badgers, so they have no comparison for any new figures. One culling company in Gloucestershire has said it may have to stop operating because of the stipulations.

It comes after Natural England (NE) lost its power to issue bird shooting licences in a row with farmers who kill birds that attack livestock and crops, after legal action by BBC host Chris Packham and his campaign group Wild Justice. They argued the licences did not take into account welfare concerns.

Sir Geoffrey Clifton-Brown, MP for the Cotswolds and chairman of the parliamentary group on shooting, said: “I don’t believe that by culling badgers you are increasing the fox numbers, but if that is part of the undertaking that Natural England is taking to the judge, it was a stupid thing to do as it was an impossible thing. The worry is that no one will be able to cull badgers. To stop them on a minor technicality would be a nonsense.”

The MP asked Michael Gove to fix the situation and the Environment Secretary admitted the decision has caused “confusion and disruption”.

Mr Gove said: “I agree unnecessary bureaucracy should not be imposed on companies carrying out culls, and understand their frustration in having to adapt to new information. I am aware that a supplementary badger cull company in Gloucestershire … has raised significant concerns and have been assured by NE discussions are ongoing.”

He said his department and NE are working as quickly as possible to resolve the issue, “in a way that avoids any further confusion or disruption for landowners and other stakeholders”.

He added that if Natural England’s review finds “legally relevant adverse effect on bird populations, they would introduce measures to reduce fox numbers within 2km (1.2miles) of protected Sites of Special Scientific Interest”.

Farmers argue that they have to cull badgers to prevent the spread of bovine TB. Mr Langton, who runs The Badger Crowd, said he would press for further restrictions on culling. A Natural England spokesman said: “We will continue to review and improve our work to assess the impact of badger control operations on protected sites.”

 

Comment from the Badger Crowd

Yesterday evening (11 May) the Daily Telegraph, who recently leaked the story about the government’s unlawful licensing of the shooting of wild birds, was given early tip off  of a government announcement, apparently scheduled for a few days time. We were not contacted by the journalist.  The matter relates to a part of our twin Judicial Reviews in July 2018  that resulted in August 2018 in a Natural England Draft Internal Guidance on evaluating the ecological consequences of badger culling on European Sites.

Following our court representations, this guidance accepted much of our factual arguments on the potential disruption to numbers and distribution of predators, to animals in lower trophic levels and potentially to habitat structure due to changing grazing pressure, once a dominant species such as badger is heavily depleted. One possible effect is that food (including large amounts of road-killed and discarded shot game birds) and underground burrows are more available for foxes and other predatory species, with potential knock-on effects.

Any increased predation resulting from shooting may disturb roosting or breeding birds and increase the predation of eggs, young and adult birds to a greater extent where systems are in constant flux, as opposed to more settled countryside, including land on or near to nature reserves. Other more subtle changes may go unseen or take several years to appear, or even be undetectable.

Government should and may well require the establishment of a measure of predator numbers across the cull areas, at least where nature reserves of international importance (such as RAMSAR, SPA and SAC) are within or near to cull zones on an area by area basis. This should really have been done before culling started as a baseline and is likely to be required for any new cull area in 2019 as well as existing ones. Then, in order to assess impacts upon other species, the fox numbers require monitoring through the cull years to detect change, and the fate of local ‘at risk’ bird populations properly monitored too.

In 2018 Michael Gove ordered badgers not to be killed around three sections of Salisbury Plain in Wiltshire, where nesting Stone Curlew are holding on. He also required dozens of foxes to be shot in order to mitigate the influence of increasing or more mobile foxes moving in from further away. But it was unclear if natural England had sufficient resources to check if this was done, leading to confusion.

The new measures should better address the monitoring of rare bird numbers where natural communities are being disrupted.  Badger Crowd has battled to obtain a copy of the public-funded preliminary desk study of the Pilot cull areas, commissioned from the BTO* by Natural England last year. It has been strenuously withheld but is now likely to be released with any new announcement, probably concluding that it is impossible to detect change without actually doing the necessary fieldwork:

*Kettel, E & Siriwardena,  GM. 2018. Comparisons of breeding bird population and abundance trends within and outside two specified areas located in SW England. Report to Natural England. British Trust for Ornithology, Thetford, Norfolk, UK.

Badger Crowd awaits the report with interest and the new measures to be introduced. As the number of bovine TB confirmed herd breakdowns increased in response to Supplementary Badger Culling in both Somerset and Gloucestershire last year the pressure to suspend culling in these two pilot areas and not to start in Dorset seems more and more likely.

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Natural England censured by the High Court

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The latest BBC Wildlife Magazine has a short feature on our recent gruelling court battles to seek justice for badgers and the places where they live.  Natural England threw detailed legal arguments at us last autumn in a bid to try to stop crucial evidence from designated sites expert Dominic Woodfield being submitted to the Judicial Review. This skirmish added a permission hearing, a process that cost us an extra £16,000, that we somehow found due to the generosity and determination of The Badger Crowd.

Over the judicial process last year, NE had already indicated that some SSSIs had been inadequately assessed during issue of the 2017 cull licences. A new judge then ordered a sample of 45 SSSIs to be checked and in the run up to the March 2019 hearing, Natural England agreed to prohibit badger trapping on SSSIs within 100m of all watercourses where otters are a protected feature. NE also agreed it would prevent the placing of cage traps in the marsh/riparian wet areas, and to disallow the digging-in of cage traps at dawn and dusk. Our pressure resulted in NE confirming that when it said ‘’avoid’’ it meant ‘’prohibit’’, removing the ambiguity that may lead to avoidable disturbance and potential damage to wildlife. 

Readers should also know that potential problems with 25 of the 45 SSSIs were ‘parked’ and not explored in detail, partly because the judge invoked something called the Senior Courts Act 1981 (duty to refuse relief where outcome not substantially different). This means that even if we were proved right in our claims that assessments of these SSSIs were not done correctly, the judge accepted NE’s defence that this would have made ‘no difference’ to the safeguards they would have required when licensing. However the ‘no difference’ defence does not cover up the primary failure of assessment, and this is one reason why we are appealing. 

Natural England conceded that their assessments were defective on three SSSIs before we got to court. They also made several adjustments and amendments to their licence conditions in response to our claims. The judge then found we were right on a further 3 of 45 SSSIs. He relied on the ‘no difference’ defence to avoid getting into the detail on a further 25. Put all these things together and the magnitude of Natural England’s failures could  involve well in excess of 10% of sites. Bearing in mind that this is a sample, and that over 1,000 SSSIs in and around the west of England may be influenced by the direct and indirect impacts of badger culling, dozens of sites may be subject to damaging impacts right now.

We can only hope that we are allowed to appeal this section of our challenge and that Natural England will be found to be wrong over their view of how weak SSSI protection is in law.

This part of the legal challenges has been led by expert work from  Dominic Woodfield, who has again put in an enormous effort and for whom huge credit and thanks are due.

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