Category Archives: In the news

“Next Steps” Defra consultation expires

Posted on by

Revised 27th April

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

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


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

The SSEFRA Minister’s statement of 27th January 2021

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

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

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

Recent communications on fair time for consideration.

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

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

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

Further key points

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

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

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

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

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

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

Preliminary view relating to available data 

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

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

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

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

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

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

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

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

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

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

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

Steps that Defra should take

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

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

Tom Langton 24th March 2021.

References:

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

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

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

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

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

https://ec.europa.eu/food/sites/food/files/safety/docs/cff_animal_vet-progs_2013_dec-2012-761-ec_bovine-tuberculosis_gbr.pdf  – No longer available online.

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

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

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

Area 32 Cumbria

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

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

European (EU) undertakings

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

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

  • January 2010:

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

  • January 2013

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

  • 2014:

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

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

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

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

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

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

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

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

Introduced an enhanced approach for dealing with persistent bTB breakdowns.

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

2015

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

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

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

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

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

2016

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

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

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

2017

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

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

Is the Badger Cull Consultation unlawful?

Posted on by
Revised 27th April 2021

George Eustice’s Badger Cull consultation misrepresents reality. Tony Juniper should prevent Natural England processing further licences based on the flawed Ministerial claim.

On the 18th March, the Badger Crowd was pleased to see a solicitor’s letter being sent to the Government Legal Department and Natural England raising serious concerns over Defra’s “Next Steps” (March 2020) Policy consultation that ended on 24th March 2021. This relates to attempts to deliver the government’s strategy for achieving bovine tuberculosis (bTB) free status for England.

Fundamentally misleading and erroneous…

The main concern is a fundamentally misleading and erroneous statement by the Secretary of State on 27th January 2021 which underpins the consultation proposals. It  states that badger culling “…has played a critical role in helping to start turn the tide on this terrible disease.” This is an extremely serious matter in many regards. Up to a further 150,000 badgers may be culled under these proposals over the next six years. This will be as many or more as have been killed to-date, involving huge use of public funds, police time and other government resources.

The legal letter asks that the consultation is postponed until mistakes have been corrected, to ensure  a fair and lawful consultation, based on a proper understanding and articulation of the evidence.

In recent years both the Chief Scientific Advisor (CSA) and Natural England have expressed concerns over the scale of badger culling (see here) and the ability to link any changes in bTB levels in cattle to badger culling. Prior to his retirement  CSA  Prof. Ian Boyd described the problem as badger culling ‘often not working as predicted’ and needing an operational control approach based upon face value outcomes.

Natural England’s internal deliberations on the uncertainties of evidence when licensing culling were shown in Dr Tim Hill’s note to Natural England Board meeting of 6 November 2019, as released under Freedom of information, see here.

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

The 2021 statement and consultation

The statement that badger culling has played a critical role in helping to start turn the tide on bovine tuberculosis has been widely repeated in the media in recent months, including by the chief veterinary officer and by government officials. It underpins and hugely influences the current consultation.

Data on bTB herd breakdown for the High Risk Area (HRA) has become available online in recent months, both in the APHA bTB monitoring reports and bTB statistical data for Great Britain.  That data has not been properly presented in the consultation. It contradicts the public statements surrounding the consultation and the terms of the consultation document itself. On proper scrutiny, the data is telling a different story. We are analysing the latest data at the moment, and will be publishing an analysis of the ‘real world’ results of the bTB policy soon.

Cattle measures beginning to have an influence, well before badger culling started

Results  are suggesting that any changes in bTB incidence in the HRA have been brought about by cattle measures beginning to have an influence, well before any mass badger culling started. For the government to use the average figure for herd breakdowns for the four years prior to culling commencing is wholly misleading. All the signs are that the previous modelling has been inaccurate in reflecting what can now be shown to have actually happened.

For these reasons, there is grave concern not just that past theoretical modelling simply has not  reflected reality and the face-value evidence of outcomes, but that the real time data on the period 2013-2019 has been repeatedly misrepresented to the public by the Secretary of State, both in public statements and in the current consultation process.

The demand now is for proper correction of the misleading information within the consultation in relation to the effectiveness of culling from the evidence held to date. The Secretary of State George Eustice must correct his public statement accordingly. Any further consultation must take the real situation into account and not articulate false information to influence stakeholders in a misleading way.

Tony Juniper at Natural England should instruct his staff to allow no further badger cull licence applications to be processed. A new position should be  set out by the Secretary of State based upon the effectiveness of such licensing, as is required by the Protection of Badgers Act 1992 and other legislation and Natural England’s wider duties to protected species, habitats and designated nature conservation sites.

We ask that the costly, cruel, failed and pointless badger culls are brought to an end right now. Emphasis should be switched towards more comprehensive cattle measures that are known to be effective. These could make deep inroads in disease control in four years if carried out properly. This is in line with aspects of the Godfray review and the current government’s stated wish to tilt the policy away from badger culling. Hopefully for good.

We are the Badger Crowd and our fight is to seek justice for badgers, cows and for sustainable farming & wildlife management.

 

 

 

Supplementary Culling in retreat, but the war against English badgers continues

Posted on by

On 27th January 2021, Defra published a new consultation on parts of its March 2020 “Next Steps” Bovine TB eradication policy for England. This aims to continue to mass kill badgers in the last 30% or so of badger strongholds in the High Risk Area of the West of England and across parts of the Edge and Low Risk Areas for the foreseeable future.

Defra intends to make small changes over the next six years as it moves towards ramping up more localised badger culling and apparently some badger vaccination, once populations have been freshly decimated. The final twenty, up to 4-year intensive culls starting in 2021 and 2022 may, with existing kills, shoot up to around a further 150,000 badgers between this Autumn and February 2026. A sickening ‘keep to plan’ commitment with ‘killing as usual’.

The new consultation does not address the policy expansion of ‘reactive’ (localised) culling of 100% of badgers taking place in the Low Risk Area (as e.g. already in parts of Cumbria & Lincs) and potentially across the entire English countryside from the mid-2020’s. Like the March 2020 policy, the recent consultation was unfathomably branded in the media as a major ‘shift in policy’ and ‘badger culling coming to an end’ or ‘banned’.

However, the 6-year phasing out of Supplementary badger culling (SBC), both as a long term sustained killing policy and as a post-intensive cull option, is one of the more notable decisions. As the method for keeping badger numbers low in High Risk bTB Areas, its overdue departure is more than welcome.

This is a victory for those who have funded and supported the Badger Crowd coalition of Badger Groups, Trusts and charities plus many individuals, who enabled legal action against SBC when it was introduced in 2017, based on secret un-reviewed modelling.  The High Court challenges unearthed internal government rationales and they unpeeled the policy decisions. Finally High Court judges only just found favour in government using the Protection of Badgers Act 1992 to introduce SBC, despite the exposure of it as a risk-laden experiment.

Government has spent up to £2 Million over the last 5 years responding, defending and reacting to Judicial Reviews brought by the Badger Crowd and has now made huge concessions in the two cases that went to trial. So a moment of thanks, to all those challenging the policy in a wide variety of ways and to the legal team and experts who have combined so ably to help bring about these significant shifts. It is not unusual for government policy documents, considerations and briefings to now make reference to legal constraints and challenges.

Government giving up on Supplementary culling is a logical reaction to what is being seen on the ground by vets and farmers – no tangible benefits in bTB reduction after huge effort and expenditure killing badgers.  At time of writing, two further Badger Crowd Judicial Review applications are still extant, seeking change to the government’s badger culling policy, including the 2020 policy for which this consultation applies.

The inevitable reduction and plateauing of the rate of increase of bTB breakdowns in the English HRA is not unlike the pattern in the Republic of Ireland. (Figure 1), where the futile killing of badgers now sees bTB herd incidence levels that are similar to those of ten years ago, with cattle testing and movement controls still very poorly addressed.

Figure 1. Bovine TB herd incidence in the Republic of Ireland.

Source: most recent DAFM stats (NI Badger Group)

Likewise, the rate of spread of bTB in the Welsh and English countryside starts to level off (England), with a clear downward trend in Wales since 2012. But it offers no evidence that badger culling plays any part.  Defra can see that Wales is out-performing England, without culling badgers (Figure 2.)

Figure 2. New herd incidents per 100 herd years at risk of infection during the year, GB, per quarter.

Link to data source

Defra also know that the former chief scientist supporting the culls has said in legal exchanges that a first look at cull efficacy would require six cull areas to be studied for four years, plus the following year as an observation period. This might give enough data for a tentative indication of efficacy to be seen, but even then not a very strong one. So the results might not be that reliable and any true contribution (from badger culling) to bTB eradication will always remain obscure. 

It is likely that an analysis of the outcomes of four years of culling using the ‘new in 2016’ badger cull cohort data, plus one observation period (to Sept 2020) has now been completed but not disclosed.

Government scientists following policy science (the RBCT and RBCT-derived work) might say the lack of any substantial change in bTB prevalence is either because the conditions of the RBCT don’t apply to real-time control effort, or/and that cattle measures are inadequate. Or it could be that Supplementary Culling is removing any putative bovine TB benefits. This was predicted as a distinct possibility within peer-reviewed science a few years before badger culling started.

Defra should know its modelling projections are more than dubious. In addition to George Eustice’s usual reading-out of the government position script, the Chief Veterinary Officer Christine Middlemiss has also disgracefully again promoted on BBC Farming Today, the fantasy of badger culling working, to try to mislead farmers and the public. Why the government bare-faced lies?

The new consultation: details on badger measures

Table 1. Summary of what the new consultation is proposing in relation to intensive and supplementary culling only.

The new Consultation includes (proposal 6.) restriction of Supplementary Badger Culling (SBC) licenses for those four year intensive culls commencing on and after 2017, to two years duration (rather than five) and to cease the re-issuing of SBC licenses for the first three areas in Gloucestershire, Somerset and Dorset after completion of 5 years of SBC.  This is a phasing out of Supplementary Culling over six years and by the end of January 2026.

The general effect of the proposals is to reduce current culling durations from 9 to 6 years and new intensive four year culls to possibly a 2-yr duration, according to  decisions by the Chief Veterinary Officer. There is some rather tortured Defra speculation (rehearsed in court in 2018/19) on why theoretical bTB breakdown reduction can be achieved from just two years of Intensive Culling. As usual this guesswork rests heavily upon multiple uncertainties.

Badger Crowd supporters have helped  take-on the government for three years now, to some good effect and the work is far from over. Thanks to all who have contributed generously so far. We will not rest until we have justice for badgers and proper science-based solutions for farming and wildlife that are not simply a ruinous waste of public funds and wild animal lives.

 

Badger Trust Statement, 9th July 2020

Posted on by

Government faces two new legal challenges as it seeks to expand controversial badger cull policy

Permission for two Judicial Review legal cases is being sought against the government as it seeks to expand its highly controversial badger cull policy in 2020.

 

Wild Justice legal challenge

The first case is being taken by Wild Justice, the non-profit organisation formed in 2018 run by wildlife experts Chris Packham, Mark Avery and Ruth Tingay to ‘fight for wildlife’. The case against Natural England (with Defra as an interested party) concerns the manner in which badgers die from ‘controlled shooting’, whereby individuals are licensed to shoot badgers following a single, short training course.

In 2014, the government’s own Independent Expert Panel advised that badgers should not take more than five minutes to die in more than 5% of cases. Natural England has been observing levels above this yet has taken no action, despite the level of suffering caused. Shooting into the small heart of a badger from a distance can be difficult and the British Veterinary Association has also previously concluded that the method is inhumane.

Funds for this legal challenge have been donated in record time in an outpouring of public disgust and concern over the rapidly expanding badger cull policy. The challenge comes in advance of a further increase in culling with up to ten more licences to be issued by Natural England in September

Wild Justice opposes the entire badger cull policy, but its legal challenge aims to force the government to stop the use of controlled shooting as a culling method on humaneness grounds.

An end to the use of controlled shooting, could also force the government and the farming industry to recognise that now is the time to move towards badger vaccination – a non lethal means of lowering bTB in badgers, on both cost and humaneness grounds.

Tom Langton Legal Challenge

The second case by conservation ecologist Tom Langton, challenges parts of the Next Steps Policy, a response to the government’s bTB policy review in 2018, carried out by Sir Charles Godfray. The key grounds for the legal challenge are as follows :

Supplementary culling and a failure to expand vaccination

‘Supplementary culling’ follows a four year cull licence for a cull area and is usually carried out by ‘controlled shooting’ methods. This means that culling in any area can continue, with little to no monitoring for up to nine years. The grounds for this new legal challenge fall into five areas, including:

The case seeks to show that continuing the supplementary cull policy (which is not supported by the available evidence) is not rational and should be phased out by gradual replacement with vaccination as the government’s own review detailed.

Defra is also failing to apply a two year break in culling or a move to vaccination in 50% of the post intensive cull areas, despite recommendations to do so in the Sir Charles Godfray TB Policy Review and public statements claiming the government is phasing out badger culling in favour of vaccination.

Low Risk Area culling

Low Risk areas form all areas of the country that are not considered to be high risk or edge areas (between the two). The Next Steps policy seeks to cull in these areas, wherever ‘epidemiological evidence’ suggests that there may be a reservoir of the disease in the area. In practice*, this means wherever badgers are present and the source of repeated breakdowns has not been identified. The Godfray Review made clear that poor tests are missing large reservoirs of disease in the cattle herds themselves.

Despite this, evidence from Cumbria suggests that Defra is carrying out proactive type culling in the low risk area that does not even conform to the evidenced approach of the Randomised Badger Culling Trial (RBCT) and has no basis in veterinary science. A widespread adoption of this type of culling in low risk areas might result in permanent collapse of the badger population across many areas of England.

Environmental Impact Assessment

Defra is failing to carry out an appropriate assessment of the impact of badger culling under the Habitat and Species Regulations 2017.

Over the last three years, Tom Langton has led two legal challenges against the government, supported by The Badger Trust and the Badger Crowd.

His first challenge in 2017 against Defra exposed the fact that supplementary culling may hold no value at all in the fight against bovine TB (bTB) in cattle potentially making eradication of the disease more difficult, with no way of directly measuring whether it works or not. The second case required Natural England to concede a national breach of duty, regarding monitoring the potential impacts of culling on internationally important nature areas where culling has been allowed.

Although failing to bring an end to supplementary culling, the two legal challenges have enabled a deep insight into secretive government planning and have exposed areas of deficiency including the experimental and poorly monitored nature of the government’s interpretation of legislation, protecting badgers and natural communities.

The latest legal challenge in 2020 is again supported by the Badger Trust and the Badger Crowd.

Badger Trust

Dominic Dyer, CEO Badger Trust said: “ In the past, The Badger Trust has taken legal action preventing badger culling in Wales and has fought a number of legal actions in the High Court since 2013 seeking to stop or limit the cruel, destructive and unnecessary killing of our iconic badgers in England.

We welcome the involvement of Wild Justice to the cause of badger welfare and support their efforts. The legal case we have helped to fund this year with Tom Langton is equally important and we hope that they both get permission in the weeks to come so that non-lethal bTB control methods in badgers prevail, as the Sir Charles Godfray bTB policy review expert panel has recommended” .

Wild Justice

Dr Mark Avery from Wild Justice said: “We’re very grateful to over 1100 individual donors who have funded our legal challenge. We wish Tom Langton and the Badger Trust all the best with their separate legal challenge. Badgers are wonderful creatures and they need all the friends they can get these days.

We believe Gandhi was right to say you can judge the greatness of a nation by the way it treats its animals, and by that measure Defra and Natural England are doing a very poor job.”

* Critical evaluation of the Animal and Plant Health Agency report: ‘Year End Descriptive Epidemiology Report: Bovine TB Epidemic in the England Edge Area – Derbyshire 2018’

Further Information:

The Badger Crowd

Crowdfunder link and information on case here:

https://www.crowdjustice.com/case/help-stop-defra-plans-to-extend-badger-culling/

Blogpost here:

https://thebadgercrowd.org/blog

Wild Justice

Extract of Wild Justice pre-action letter to Natural England

https://wildjustice.org.uk/general/extracts-from-our-pre-action-protocol-letter-to-natural-england/

Wild Justice Joins Badger Cull Legal Fight

Posted on by

It is excellent and very welcome news that the formidable force of Wild Justice is today announcing a legal challenge to welfare aspects of the highly controversial English badger culls. The challenge against Natural England and Defra is that the badger cull does not meet acceptable animal welfare standards.

Despite the long term failure of Defra’s Bovine tuberculosis policies to bring about any significant decline in the disease, badger culling has accelerated over the last twelve months. Recently Defra Minister George Eustice confirmed the government’s wish to spend the next two years killing record numbers of our iconic protected species.

The planned Appeal for the new case/s being brought by Tom Langton against the new (March 5th 2020) bTb policy is poised to launch shortly. We encourage everyone in the Badger Crowd to get behind both appeals to ensure they are fully funded and successful.

You can get details of the Wild Justice Appeal here.

Supplementary Badger Culling (SBC). Adapting and learning is impossible. It’s official.

Posted on by

Last summer, following the spike of bTB in the first Gloucestershire pilot cull area, a pre-action letter was commented on by the governments chief scientific adviser, Ian L. Boyd.  His June note was sent shortly before his retirement and it offers a bit more insight.  The response related to how much information is needed before measurable benefits from bTB interventions can be seen.  Initially he seemed to believe that it would take four years of Supplementary Badger Culling (SBC) over a six year period to be able to try to examine any effect from new interventions. Thus as SBC began in 2017 with Gloucestershire and Somerset (Areas 1 & 2) , then  Dorset in 2019 (Area 3), and potentially seven more this year, it will be 2024 before theoretical modelling of change can be undertaken. However it is Point 6 that contradicts and startles. Here it states that  “It is not possible to examine any single measure such as supplementary badger culling alone as having a positive or negative effect.” The note goes on to say that only the whole set of interventions can be considered together; what happens from all interventions in a region i.e. the High Risk Area or Edge Area. In other words, the approach taken is to use everything that you think might work including culling badgers everywhere (to 2030 and beyond) and hope that bTB comes down, but whether it does or doesn’t, just carry on.

This reveals the dilemma, in that the unproven and risky SBC may neutralise any hypothetical benefit in terms of new herd bTB breakdowns or make breakdowns worse. This has been confirmed in court. Any ‘comfort’ that Defra could ‘adapt and learn’ as it went along, apparently does not exist. There is no learning and no control, only an end result. The same can presumably be said, therefore, of any tinkering with further small scale trials such as those proposed by the new Defra Policy relating to the Godfray Review. The facts are that this is not just policy out of control. It has no control. There is no way to find out if your interventions are useless or making things worse.

DEFRA RESPONSE TO GODFRAY REVIEW dated 05 March 2020

Posted on by

Many of you will have noticed the publicity surrounding the unexpected release of the above report entitled DEFRA (2020) Next steps for the strategy for achieving bovine tuberculosis free status for England. The government’s response to the strategy review, 2018.

Most of the newspapers ran dramatic stories, talking of a seismic shift and U-turn in government thinking on badger culling and bovine TB. There was also talk of a ‘shift in political emphasis’, a ‘rowing back’ and ‘viable exit strategy’. It was as if they had failed to read and digest properly the details in the 109 pages.

Unsurprisingly, some organisations and individuals stated that the report was to be welcomed and offered hope whilst others were rather more cautious or cynical. Let’s unpick what actually happened and what it might mean for badgers and the efforts to stop badger culling.

  • A shift away from badger culling and towards badger vaccination?

No, not really. Vaccination of badgers was always a part of the strategy, even if a neglected one. The 2018 Godfray review called for a move away from lethal control but only by way of conducting  a comparison between supplementary culling and vaccination. This is something that would be controversial and expensive to carry out, take many years and lead to more speculation and bickering over modelled results. Most would advocate vaccination over culling, but the level of vaccination, up to a few thousand badgers a year, does not make it an acceptable trade-off for continuation of mass culling for another decade. Especially when it will never be possible to attribute changes in bTB herd breakdown rates to badger vaccination, rather than any one of a number of other interventions. This is exactly the same as is happening now with badger culling.

  • But Badger Culling is coming to an end isn’t it?

No, it isn’t; many having been misled by what they were reading or have been told. Nothing could be further from the truth. Somehow the public have been conned into thinking it is because of the generality of the Godfray Group review. The facts are that we are now at ‘peak cull’; over 40 cull areas are in-hand and much of the High Risk Area is being culled. Last year this year and next year will each see around 40,000 or more badgers shot in more futile culls. After that, culling tails off, but only because they are running out of badgers to kill; 70% of badgers across English ‘cattle country’ will have been killed. Nevertheless, don’t expect killings to drop below 15,000 at any time before 2030 by which time up to 300,000 badgers will have died. It could be fewer, (but not much fewer),as culling starts up in the Edge area and potentially becomes more widespread in the Low Risk Area as the failed policy causes more spread eastwards. The fact is, it is business as usual with the government killing machine. This is DEFRA keeping to plan which as reported in Farmers Weekly on 11th March 2020 is to maintain the badger population to one badger/sq.km. or below to reduce the possibility of badger to cattle bTB  transmission.

  • But government accept that badger culling isn’t working, don’t they?

No, quite the opposite.  All Defra offer is deception, cherry picked data and selective use of models. Supplementary Badger Culling (SBC) has been fought in court for three years and whatever you believe about the science, bovine TB went through the roof in Gloucestershire in 2018, the first year of SBC with a 130% increase and in 2019 it remained at the same levels as before culling started. Yet the Defra response repeats time after time only the equivocal study stating reduction in Gloucestershire of 66% by 2017, based on questionable modelling by a small number of government paid scientists. Why do they do this? Claiming success and progress is the Defra justification for continuing culling. This is despite the then Chief Scientific Advisor Ian Boyd confirming in legal papers in June 2019 that there is no way to determine the direct effects of badger culling from individual areas or areas combined after many years. The only stop button is if bTB falls away.

  • Why do Defra mislead us?

Defra are desperate to retain credibility on this issue, and are trapped within their own failed policy and bad epidemiology advice. They surely realise by now that badger culling with other actions is not delivering bTB control and that the problem remains with cattle testing and lax cattle movement controls. Responsibility for bTB policy within the government has changed hands over the last couple of years. Nobody wants to own it. The Defra response shows all the signs of a government refusing to deal with their past oversights and misjudgements. It is bereft of the will to take charge of the immediate measures needed including pre-movement testing with modern blood tests, the only measure that can drive infection rates down in the short term.

  • So the report just repackages old policy with no good outcome?

The sort of cattle measures being promoted are positive, but very long promised and overdue and they don’t go anywhere near far enough. A DIVA test trial to enable cattle vaccination would be welcome, but is it the right technology? Another five year wait to find out. 6 monthly SICCT testing is being expanded in the High Risk Area ‘over the next few years’ in addition to the Edge Area. This was a ‘no-brainer’ in 2012 but now can’t take place all at once because too many bTB positive cattle would be detected.  There is mention of increase in gamma test, introduction of IDEXX testing – this is good but there is no timetable. There is suggestion of compulsory post movement testing in the Low Risk Area and Edge Area only. This should have been mandatory everywhere; it is how Scotland eliminated bTB by 2009 to become TB-Free. There is a suggestion to incentivise biosecurity by a compensation penalty for those who don’t adhere to biosecurity recommendations.  This has been done in Wales for a while and must help. There is talk of improved slurry management – this is good, but large scale applied research is needed not just small scale investigations.

Most noticeable of all the above is a lack of detail as to the extent of any action and clear timetable for implementation.

  • Where does badger protection really stand after this report?

The wait continues regarding permission for the case against SBC in the Supreme Court. A hope for positive news remains. An end to this unscientific experiment has been signalled but it should never have started.

The recently released Defra report reflects more than anything, a stubborn entrenchment of its thinking, their lack of new ideas or acceptance of external criticisms and how badly they are ‘stuck’ in failing policy. There is desperation in them clinging to the 2019 APHA ‘Downs’ modelling paper when they know the conclusions are unreliable. What does this say about Defra’s competence?

Many Badger Groups have worked incredibly hard on badger vaccination which does provide clan immunity, but does not necessarily prevent these badgers being shot if they stray beyond an ownership boundary.  Unfortunately there is no evidence that badger vaccination assists in bTB control and mass vaccination gives life to the ‘finger of blame’ that points to badgers being heavily involved in the transmission of bTB to cows, which is uncertain at best.

Badgers are still being unscientifically blamed for a significant proportion of cattle bTB infection, leading to a nonsensical question on the potential benefit of culling versus vaccination.  Never in a million years will badger vaccination protect cattle from bTB, it can only protect badgers.   Cattle need their own vaccine. The recent suggestion by Defra that badgers should be snared to facilitate vaccination indicates quite clearly their lack of understanding of the physical injuries inflicted by snares. Snare restraints must be opposed at all cost.

I hope this summary is useful. Please let us know your thoughts. These are strange times and coronavirus now dominates our lives. The next few months will be a huge test for many of us and may even take some of us away. Whatever happens, the fight will go on and will not fade. That is a promise.

We are the Badger Crowd and we will continue to fight lies and deceptions relating to the mindless slaughter of badgers in England.

 

The Badger Cull Habitat Regulations Assessments Legal  Challenges

Posted on by
Photos courtesy of Richard Bowler

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

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

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

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

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

Further detail

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Supreme Effort Underway for Badgers

Posted on by

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

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

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

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

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

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

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

 

 

No Safety Yet for Battered Badgers

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

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

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

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

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

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

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

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

Claimant Tom Langton said:

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

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

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

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

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

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

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

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

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

Read the ruling here: Read 

 

 

Waiting for the Appeal Hearing outcome…….

Posted on by

It’s been a month now since our High Court Appeal hearing, and the important matter of ‘what happens next’ still hangs in the balance.  The understanding is that the Courts and Judiciary are largely closed down over August, so having not received results thus far it is quite likely that we might not hear anything for several more weeks. This means of course that we may be into September before we find out more, and September is the month when we fear confirmation of  yet more areas for badgers to be shot, and for the badger cull carnage to be imposed over a much larger area. We could hear at any time, however.

As well as the Appeal outcomes, there should be news of the government’s response to the ‘Godfray Group’s’ review of the current bovine TB policy, and presumably Defra’s newly massaged ‘results’ of the pilot badger cull, (Downs et al. 2019) as an update to Brunton (2017). Raw data shows that supplementary culling has been followed by a massive bTB spike in Gloucestershire. ‘Downs’ has been used in the decision making process to try to help justify Supplementary Culling, but has been kept secret thus far. Rather like the British Trust for Ornithology (BTO) report on effects of culling on the wider environment, which was held back from public scrutiny by Natural England for no good reason; the motives for withholding both are highly suspect. As ‘Downs’ has not yet been made available, we are guessing that it will be a much caveated piece of selective modelling, which will say that badger culling may be helping reduce bTB in cattle, but many more years of data will be required to be slightly more confident that it is a possibility or a likely  failure.

This is ‘the cull until 2038’ approach. The same old fudge that shames the government and the reputations of all those involved, whether they are actively enabling it or just keeping quiet for their own personal convenience/advancement. Government has said to us in writing that there is no way to identify the cause of any change in bTB breakdown rates in cull areas, and in any case, in some areas it might be expected not to work. Nobody is fooled about what is being done and aimed for; a corrupted version of the 30 years of failed badger culling in Republic of Ireland.

Perhaps those at Defra and Natural England hope to continue to hide behind the ensuing Brexit furore, hoping that badgers will not be most people’s priority at this time of national crisis? The bTB crisis in the national herd will not disappear though, but will spread, whatever happens with Brexit. At some point, those in charge will have to acknowledge that equivocal interventions are pointless, a complete waste of time and money without first addressing the major causes of disease in cattle; failed testing and hopeless movement restriction. This in fact was Natural England’s position during the original cull policy consultations – so what happened?

The solutions to bTB are available and have been used successfully in the past, and they don’t involve culling wildlife. Killing badgers may be damaging other wildlife species and habitats, in addition to all-but exterminating a persecuted apex species for spurious reasons. There are new cattle testing technologies becoming available, being stifled by vested interests that will make control easier and cheaper. The sooner the government’s policy advisors stop following failed veterinary and cattle lobby rhetoric and start listening to informed scientists (without vested interests), the faster will be the progress against this terrible disease. Whatever the outcome of the Court of Appeal, the Badger Crowd will continue to work to defeat this horrible policy using common sense, science and the law.

 

Court of Appeal Hearing, London 2nd July

Posted on by

On July 2nd, the Court of Appeal heard the challenge to the decisions of Sir Ross Cranston in the High Court in July 2018 (Langton -v- The Secretary of State for the Environment Food and Rural Affairs and Natural England). The Court sat between 10.30am and 4.10pm, with much of the proceedings (the morning and part of the afternoon) televised and now available on Youtube:

Links https://www.youtube.com/watch?v=cF4Qc7a8p3U and (pm)  https://www.youtube.com/watch?v=SwwNRwj0cMQ

Unfortunately the sound quality from parts of the room was not too good at times, which is a shame for those wanting to listen and analyse the detail. The afternoon coverage cuts out at about 2.45pm; we do not know why. Unfortunately this means that the summing up is not recorded.

In this instance, two grounds of the case that the High Court decision of 2018 was incorrect were fully examined following some opening discussion over the scope of the Grounds (reasons for challenge).

Richard Turney opened with his arguments over why allowing supplementary badger culling (SBC) for 5 years after the completion of intensive culling is ‘ultra vires’, that is, beyond the provisions allowed for under Section 10 of the Protection of Badgers Act 1992 (PBA)

One aspect of the issue relates to the fact that the effects of SBC are unknown and cannot be separated from other bTB control measures. They may, according to published science (Jenkins et al. 2010) make things worse. The inability to be able to tell whether SBC works or not was reinforced  in the reference material and in a recent letter from Defra to the claimant.

In front of Sir Ross Cranston in the High Court in 2018, Defra and the SSEFRA had used the claim that they would learn from the SBC results and adapt their policy accordingly to support their case. The arguments yesterday included whether the PBA allows ‘experimentation’, although SBC cannot even be regarded  as an experiment, since there can be no learning resulting from it. 

The judges have a fine line to tread in that under the current approval, SBC might only be claimed to have helped, and cease, if bTB goes down and is eradicated. However if it does not, (and the government scientist’s position is that it could take a very long time for success or failure to be indicated), it is not possible to be sure whether SBC is helping or holding things back. Under an experimental approach, if SBC is actually worsening the spread of the disease, you may not find out for decades or even ever.

We remember that in the 1960’s bTB was reduced by 80% in four years with thorough cattle measures. What we know of SBC from results in Gloucestershire in its first year is that there has been an increase in confirmed new herd breakdowns by 80%. Government claims that it is too early to be able to interpret the results of SBC and longer periods of implementation are needed; this is  not correct as there can never be certainty on causation with the current policy.

In approving the policy, the Minister may have overreached the powers of the PBA; there is a clear argument that this should only have been attempted under different legislation. Defra/SSEFRA argued that licensing doesn’t have to be definite in terms of outcome. But that didn’t seem to address the capacity of SBC to increase the spread of bTB disease on a country-wide basis, in a manner that it is impossible to detect.

The other part of the case argued yesterday concerned the way in which Natural England approaches its legal duties of assessment in terms of the negative impacts of badger culling on non-target species in internationally protected sites. Much of the evidence relied upon in this challenge arises out of forensic analyses of the detail of Natural England’s impact assessments by our Habitats Regulations expert Dominic Woodfield, who continues to work pro bono on the case.

The argument centres on the implications of a suite of recent European and domestic court cases, in particular an Irish case known as ‘People Over Wind’. In this case the European Courts ruled that mitigation measures, taken specifically to avoid or mitigate adverse effects that would otherwise be likely to occur to sites protected under the EC habitats and Birds Directives, cannot be taken into account by a decision maker when screening proposals for ‘likely significant effects’ – the first stage of what is called a ‘Habitats Regulations Assessment’.

In the challenge in the High Court in 2018, Sir Ross Cranston accepted NE’s argument that measures imposed as conditions on badger licences, in order to try and avoid impacts on sensitive species and sites, were not ‘mitigation measures’ because NE had invited applicants to incorporate them into their application and they were thus integral parts of the project.  This is an approach that contradicts the methodology NE requires to be followed in all other aspects of its duties under the Habitats and Birds Directives and it is telling that NE has very recently overhauled all of its Habitats Regulations Assessments for badger culling to try to correct this error.

The Court of Appeal’s decision on this aspect of the case has huge implications. If the Court of Appeal finds that Sir Ross Cranston’s decision was correct, it will put UK case law squarely at odds with that of all other EU countries bound by the Directive and will mean that Natural England’s approach to marking its own homework when it comes to badger licensing is open for wider adoption by developers and others as a means of avoiding the more stringent requirements of the Appropriate Assessment stage of Habitats Regulations Assessment. This will result in reduced protection to internationally important sites and have knock on implications for wildlife protection generally. On the other hand, if the Court of Appeal finds that Sir Ross Cranston’s decision to accept NE’s unusual definition of mitigation was wrong, it will confirm that NE’s authorisations for badger culling over vast areas of south-western and western England were unlawful, in both 2017 and 2018. 

The question now remains what relief could occur if the cases are successful. With SBC it will be all or nothing; supplementary culling will either be stopped or considered acceptable. With the Natural England licences, judgment in  favour of Mr Langton could see a number of licences quashed. This would both show the validity of the original challenges and  focus a  spotlight on how NE approached the 2019 licence applications.

We hope that judgment will be handed down before the end of July, but it is possible that it will be towards the end of August or even later. The courts were fair and open yesterday and we can only wait to see the verdicts. Huge thanks again to all those supporting the legal challenges and sending in messages of good wishes this week. It really is appreciated. Please keep encouraging donations as we are still short of funds. Huge thanks to the legal team and the contributing experts, advisors and researchers too.