The Badger Crowd is pleased to confirm that an Application to the Court of Appeal has been made and that further legal papers are to follow shortly. The case concerns whether the High Court Mr Justice Griffiths was correct to rule that there was no need for the Minister to take steps to have regard for biodiversity protection for NERC Act listed priority species and habitats. This relates to Minister George Eustice and Defra publishing its “Next Steps” policy in March 2020, prolonging the slaughter of tens of thousands of badgers each year in existing and new places. Government claimed it decided not to protect NERC Act biodiversity interest from potential culling side-effects when culling began in 2013, and again in 2020, despite the 2018 Godfray review flagging-up continuing professional concerns about impacts and the need for research to enable management of risks.
The removal of badgers from the countryside is known to bring about a range of changes to natural communities. However, when identifying risks of such change, research undertaken over 10 years ago was limited to just a few species and habitats. Claimant Tom Langton’s previous cases in 2017 and 2018 showed that Natural England were in breach of their duty in not properly considering the same kind of impacts to SSSI’s, leading to criticisms by the High Court. The current case challenges the continuing and long-term neglect of potential impacts on a wide range of habitats and species. These impacts may alter habitat condition and species survival as a result of badger culling changing mammal diversity, including change to smaller predators numbers.
The case also highlights Natural England’s pitiful contribution to the monitoring of nature, the unacceptably poor condition of many nature reserves and protected areas, and to biodiversity depleted countryside in general. It draws attention to the lack of research into England’s habitats and species, and to the continued decline of many widespread and rare species and threatened habitats. It brings into focus the potential for badger culling to contribute to these declines, that despite recognition of this threat-type, government think too difficult or expensive to address.
Mr Justice Griffiths’s judgement on the recent Judicial Review of the ecological impacts of badger culling in England is now to be challenged. Claims against the Secretary of State George Eustice concerning the government’s biodiversity duty, under the Natural Environment and Rural Communities Act 2006 (NERCA) were dismissed recently, after the July 2021 hearing. Following legal and technical advice over the last week, an application for permission at the Court of Appeal is now being prepared. This needs to be submitted within 21 days of the handing down of the judgement and determination of the application will be later this year.
Sincere thanks again are due to all those funding and supporting the legal work as a part of the Badger Crowd. This includes The Badger Trust who helped instigate the action in 2020, Badger Trust Sussex for managing offline donations, Wild Justice, very many of the badger groups and organisations around the UK, many other animal welfare and conservation bodies and a number of generous individuals. Hundreds of badger workers and the general public have also chipped in to spread the load. Others have helped with administration, publicity and coordination to enable a solid challenge. Sufficient funds are available at present and if permission is granted, a further fundraiser will be launched. We are the Badger Crowd. We stand up and fight for Badgers.
Today, Mr Justice Griffiths handed down a High Court judgement on the most recent Judicial Review on the ecological impacts of badger culling in England. He dismissed the claims made against the Secretary of State George Eustice, concerning the need for consideration of measures to protect species and habitats in the wider countryside, under the Natural Environment and Rural Communities Act 2006 (NERCA). This follows the decision to keep on culling badgers with changes in culling methods, including the wider introduction of reactive culling.
The claim had been brought in early 2020 by conservation ecologist Tom Langton, with support from the Badger Crowd, the broad affiliation of badger trusts, groups, and wildlife charities fighting poor science and decision making surrounding the badger culls in England. The ruling today for Judicial Review CO/2062/2020 suggests that despite the lack of evidence of the defendant recording any considerations, the Minister did not need to do anything “to have regard… to the purpose of conserving biodiversity” when the “Next Steps” policy was published in March 2020.
The judge indicated that so far, badger culling had been done “…with the benefit of all the evidence available about ecological impact and biodiversity. There was no new evidencethat might even potentially have caused Next Steps to take a different turn.”
A ‘do-nothing’ approach was lawful?
However, Tom Langton’s earlier cases in 2017 and 2018 had exposed Natural England as being in breach of its duty for lack of protective measures for habitat and species features protected by Sites of Special Scientific Interest. Measures needed, which NE then hurriedly put in place via a new set of guidelines, requiring a wide range of practical precautions.
The recent case addressed species and habitats across an average of 90% of badger cull areas; on land beyond SSSI boundaries and protected by the NERC Act 2006. In a statement provided to the court, Natural England, who license badger culling, stated that protection imposed on badger culling licences “…are not necessary outside protected sites in order to comply with the purpose of conserving biodiversity.”
The 2018 Godfray Review conclusion to continue culling had stated that ecological studies of the consequences of reducing badger densities on other species should be undertaken. The Godfray review recommendation on ‘periodic culling’ involved a five-year badger cull cessation period with associated badger vaccination, and was considered the most ‘promising’ future approach. But this was not adopted by the government in March 2020.
An application to the Court of Appeal is now under active consideration.
A Badger Crowd representative comments:
“This is obviously a disappointment and blow to all those concerned with the biodiversity crisis in nature-depleted England, and who wish to see the potential cost, and damage to our environment from badger culling properly addressed. Ecological impact and potential impact from badger culling are accepted processes that are under-researched and not properly monitored. The need to address them was established by legal action in 2017 and 2018. If addressing these problems outside SSSIs is too difficult, as has been suggested, or perhaps too time consuming and expensive, then badger culling should stop. Freshly extracted evidence shows how government has improperly withheld information, that now needs to be fully examined. But, except for a few SSSIs, by his own admission, the Secretary of State has decided not to protect 90% of the countryside from scrutiny of the potential ecological effects of badger culling. England’s wildlife and the public deserve better. Thanks are extended again to the legal team and experts, and to the 700 individuals and organisations who have donated so generously and given support over the last 18 months to try to bring government to account.”
On Thursday 22 July, in Court no. 2 of the Royal Courts of Justice, London, the latest Judicial Review surrounding badger culling was heard: The Queen on the application of Thomas Langton vs The Secretary of State for the Environment, Food and Rural Affairs and Natural England: Case C0/2062/2020.
The hearing was held ‘in person’ but, due to covid-19 restrictions, with few attendees, and with the Honourable Mr Justice Griffiths presiding. Outside the Court, a number of badger-suited campaigners were drawing attention to the ongoing badger cull travesty of England, including stalwart Betty Badger with her friend Mary Barton, Chris Wood and members of the Herts and Middlesex Badger Group and others from Buckinghamshire. They were making the public aware of the hearing going on inside, giving out leaflets and polite explanations to passers-by, as well as getting a lot of social media attention. Sadly the court was closed to the public, but online coverage was available to limited number of viewers from both sides of the case.
The government had a number of lawyers and advisors present, with spoken representations made by barrister Hannif Mussa of Blackstone Chambers. Mr Langton had spoken representations by barrister Richard Turney from Landmark Chambers. The case before the court was less complex than the previous ecological impact cases brought in 2017 and 2018. In those, inadequate provisions by Natural England (NE) with respect to European Designated Sites and in respect of Section 28 of the Wildlife and Countryside Act 1981 protection of Sites of Scientific Interest (SSSI’s) had been successfully exposed. This had caused NE extensive work to remedy failings, having been found in breach of their statutory duty. This time, the case before the court was simply that there was no evidence at all that the Secretary of State had ‘had regard’ to conserving biodiversity, and specifically the species and habitats listed by and protected under the Natural Environment and Rural Communities Act 2006. SSSI’s might typically cover a small proportion of badger cull areas, but what about the wildlife interests on the other 80% or more of land? Where is the evidence of monitoring of and safeguard from changes to mammal populations and predatory influences, upon threatened and vulnerable species and habitats in the countryside?
NERC Section 40 and 41
Section 40 of the NERC Act places a duty to conserve biodiversity on public authorities in England. It requires local authorities and government departments to have regard to the purposes of conserving biodiversity and to do so, in a manner that is consistent with the exercise of their normal functions, such as policy and decision-making. ‘Conserving biodiversity’ may include enhancing, restoring, or protecting a population or a habitat. Section 41 requires the Secretary of State to publish and maintain lists of species and types of habitats which are regarded by NE to be of “principal importance” for the purposes of conserving biodiversity in England. These 56 priority habitats and 943 species are drawn from carefully considered lists of United Kingdom Biodiversity Action Plan Priority Species and Habitats and therefore take forward the UK’s response to its international commitments under the Convention on Biological Diversity (the Rio Treaty). The Section 41 lists are needed by decision-makers in local and regional authorities when carrying out their duties under Section 40 of the Act, and in addition to lists of species and habitats in other legislation. The case looked at whether they had been completely overlooked in respect of the potential impacts of badger culling and the ecosystem changes that may occur, or not?
Biodiversity Impact expert Dominic Woodfield had provided a witness statement to support Mr Langton’s statement on inadequate approaches by Defra, showing the court a comprehensive list of overlooked species and offering examples of the way in which disruption of ecological systems can bring about potential changes to NERCA species and habitats through change in predation type and extent and via vegetation change, for example in lowland calcareous grasslands.
Defra’s position was that (despite the lack of evidence) it had ‘had regard’, and that in any case NE considers such matters when issuing badger cull licences. Dr Eleanor Brown, a qualified vet who manages the Bovine TB policy for Defra and the Animal Plant and Health Agency, had made a witness statement mentioning a report on ecological consequences of badger culling, prepared by the Food and Environment Research Agency (FERA) in advance of badger culling in 2011, and that refers to the section 40 NERC Act duty. There were some references to legal necessities in the original 2011 badger culling policy, including those regarding the protection of European Designated Sites, but nothing specific on the NERCA species and habitats, with respect to licensing conditions.
The government also sought to claim that “Next Steps” was a policy where intensive and supplementary badger culling was being ‘phased out’ in favour of badger vaccination. But the fact is that intensive & supplementary culling was to continue for five or more years, and ‘epidemiological’ culling, a type of localised intensive (reactive) culling, along the lines of the Cumbria cull is being ‘phased-in’ to replace it. Further, any use of badger vaccination was conditional upon the results of yet more vaccination trials. More badgers are likely to be killed under the new policy than have already died.
The ‘withheld’ 2018 British Trust for Ornithology report
Dr Brown had also mentioned some research commissioned by NE from the British Trust of Ornithology in 2019 to compare bird recording records made by volunteers inside and around the edge of badger culling areas, before and after badger culling. The study had compared these with bird records from unculled areas. This had given rise to a published paper in 2021, but that was after the policy had been confirmed in March 2020. In the days leading up to the case however, the earlier report completed in 2018 by BTO for NE and used for the policy, was released.
Oystercatcher; now you see them, now you don’t ? One of a number of medium sized waders (such as redshank, snipe and lapwing) at risk from changing predation patterns, but only afforded protective consideration by conditions on culling licences, when nesting on protected sites.
Natural England, an interested party in the case, was not represented in court. However, a witness statement had been provided by Dr Matthew Heydon, who works on ‘Species Protection and Wildlife Management’ for Natural England. His statement opined that protected species and habitats should be considered on a ‘case by case’ basis, but that looking at the whole list of NERCA species was considered too much of a burden. A note that he helped to prepare at the start of badger culling referred to the Protection of Badgers Act 1992 and the Wildlife and Countryside Act 1981, but only to NERCA in the sense of it being the instrument by which NE could license badger culling for the Secretary of State. There was no mention of biodiversity duties. Natural England had drawn up some new advice “Guidance for the assessment of fox control practices around designated sites” dated April 2021, showing that NE agree that credible risks are present for which precautions are necessary.
How wide does the challenge reach andwhen might the ruling be?
The government put a lot of effort into saying the case only related to supplementary badger culling, but Mr Turney refuted this, pointing to the simple wording of the grounds of challenge. Any problem with the approach taken by Defra would ‘infect’ all forms of culling and not just supplementary badger culling, in any case.
The hearing had been expedited and the judge indicated that he would be making his decisions in due course. An exact date is not clear, but within six weeks seems likely and probably before the end of August.
Thanks are due to everyone – to those who supported the 2017 challenges and to those joining us afresh. To those who helped promote the CrowdJustice crowdfunder and those who donated to it. It seemed like a mountain to climb just a few weeks ago, but you all stepped up to make it happen and we reached our fundraising target. Behind the 670 donations is a majority of the public, disgusted by the cruel, useless badger culls and those who recklessly promote and protect them. There is enormous support for the fight against the badger cull, from a very wide range of people and organisations, and for so many legitimate reasons. Yet it is so hard to challenge the corrupted processes that are stage-managed by government officials and contractors behind the scenes. The voice of the public, including specialists speaking out in the interests of badger and biodiversity protection, and the interests of competent bovine tuberculosis control, have been left out of the decision-making process. Updates on the case, including the substantive hearing this Thursday 22 July at the Royal Courts of Justice in London, will be issued as things progress. But for now, thanks again for playing your part and for helping to make this possible. We are the Badger Crowd. We stand up for Badgers.
Permission granted for Judicial Review of aspects of the 2020 “Next Steps” bTB eradication policy
On 9th May, the Court of Appeal granted permission for a Judicial Review, with a ruling by Rt. Hon. Lord Justice Bean. The Ground of challenge approved for scrutiny concerns a decision made by the Secretary of State George Eustice in February 2020, just after he took over from Theresa Villiers. In March of that year he signed off a “Next Steps” policy to continue culling badgers.
The legal challenge maintains that the new policy was formed without adequate regard to conserving biodiversity, as is required by duties under section 40(1) of the Natural Environment and Rural Communities (NERC) Act 2006. These duties are far ranging and relate to protection and recovery of biodiversity in England. Not just specific duties to internationally protected species and sites. The case has been brought to the courts by ecologist Tom Langton, following a grant last year from the Badger Trust to help instigate challenges against the new policy.
Very many people have been concerned about how removing badgers from county wildlife sites and fields, woodlands and quiet corners in the landscape influences nature on a local level, especially as the policy has moved towards 100% eradication of badgers locally. The new proposals promote the further phasing in of ‘reactive-style’ culling as a full replacement towards the end of the decade to the current intensive and supplementary culling approach.
A legal letter sent to Natural England (NE) has made it clear that they should not issue any badger culling licences this year as a result of this ongoing oversight. It is an omission that has been persistent since 2013 and it is now part of a complaint accepted at the Council of Europe’s Bern Convention. An urgent Court hearing is being sought for this June.
Legal wheels turning again with new pre-action letter
The second matter relates to a previous Badger Crowd blog introducing analysis of official data from 2010 to 2020. Figures released on 10th March of this year complete the data for four full years of culling over six areas. The data shows no significant difference in bTB levels between areas culled and those unculled since culling began. Further data from each of the main High Risk Area counties is consistent with cattle measures gradually becoming effective before badger culling started.
Bovine TB breakdowns (herds bTB Free status withdrawn) peaked and was in decline before badger culling became widespread. A detailed report on this data has been sent to Defra and NE as new findings. What more evidence could NE want that badger culling is unsafe under Section 10 of the Badgers Act 1992?
NE have released, under Freedom of Information request, documents showing how far badger culling has drifted from policy science (The Randomised Badger Culling Trials: RBCT). Culling rules now move closer to a free-for-all, with culling over wider areas for longer and with new speculative methods. Immediate concern relates to ten potential badger cull areas that could be licensed for intensive culling for four year culls, starting this September, with a further ten next year.
All of this legal work will require funding to pursue and coffers are nearly empty. There is need to gear up for some emergency fundraising over the next few weeks and reach out widely to gain support. Please look out for a crowd funding link and for information on where donations can be sent. It is hoped that supporters can once again rise to the challenge and give badgers a chance to roam undisturbed across the fields and woods of England. We will continue to seek justice in the best interests of badgers, wildlife, farming and the public. The bovine TB crisis must focus on the cause of the problem; the spread of disease amongst cattle.
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.
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.
The High Court held a Judicial Review permission hearing in Court 16 at the Royal Courts of Justice in London last week; The Queen on the application of Langton v Secretary Of State For Environment Food And Rural Affairs. The matter was before Mr Justice Cavanagh and the requirement was for parties to attend in person as opposed to via video conferencing.
The application for Judicial Review had been made earlier this year in response to the Defra policy guidance of 5th March 2020, signed off by Minister George Eustice “Next steps for the strategy for achieving bovine tuberculosis free status for England – The government’s response to the strategy review, 2018”. ‘Next Steps’ is the response to the expert review in 2018 by the Group chaired by Sir Charles Godfray. The claim was about Defra not taking up the main finding of the Godfray Report (GR) in respect of badger-related interventions. The report had very clearly identified a ‘more promising’ strategy of ‘periodic culling’; that is allowing for a two-year badger cull cessation period (to mirror conditions of the RBCT outcome) after four years of intensive badger culling and then applying a combination of badger vaccination and intensive culling, should bTB herd breakdowns persist.
The GR advice was also highlighted by the recent government position in another court case; a fresh decision to move away from badger culling in the essential actions to reduce bovine TB. This was something that FOI papers show both the Chief Vet and Natural England were anticipating last year, to begin in 2020.
During the hearing, and after both sides had outlined their points, Justice Cavanagh read out a lengthy judgement with just a few embellishments. His view mirrored the governments defence almost exactly. He said that the Secretary of State must ‘have regard’ to the GR, but was not obliged to accept its expert advice. He said that it would be wrong to characterise the GR as giving ‘recommendations’. This is quite extraordinary give the specific content of the text and the plain language of the overview summary at the start.
Referring specifically to paragraphs 6.51- 6.54 in the GR, he agreed with Defra that the difference between supplementary culling and periodic culling was merely one of ‘cost and convenience’. This is a misreading of paragraph 6.52 where the text implies periodic culling might bring about the same benefit as was seen in the RBCT, whereas Defra and the judge seemed to imply that the comparison was between periodic culling and supplementary culling, which it is not. Another extraordinary development.
A full hearing should have been granted but was rejected. The judge questioned whether a requirement to rework policy was worthwhile, as ‘relief’ (from a win for us) would not prevent the further use of supplementary culling licences. This rather missed the point that a continuation of the confused and unmeasurable approaches currently in place may do as much harm as good in the bTB fight; destroying the cattle industry.
It was also depressing to see Defra ‘s argument that cull area data needed to be analysed (modelled in comparison to non-intervention areas) for the value of badger culling to be appreciated. To Defra, raw data is no good, because it only tells you what is happening with disease levels in an area and not why, which is an absolute nonsense. Direct evidence of herd breakdown levels were said to be somehow insufficient, despite obvious face value performance of ‘all measures’ in cull zones, year-on-year being the rational measuring-stick for stakeholders and practitioners; not least farmers and vets.
What is the point of being told that badger culling is working when there is no change or an increase overall of herd breakdown incidence and prevalence in an area? Defra have created a policy where failure doesn’t exist. We maintain that it is dangerous and unlawful.
Acceptance and normalisation of a policy that has no stop button, has always been the problem with supplementary culling, with no capacity to ‘adapt and learn’ of any direct value of badger culling. This was made clear by the Chief Scientific Advisor in 2019 following the 130% hike in herd breakdowns in Gloucestershire and legal pre-action at that time. It seems we are locked into a system that is failing, yet pays people to model data to say it is a huge success, when it isn’t or cannot be said to be so. While keeping the ability to check secret from the public. Defra and now the courts say this a lawful approach when protected badgers are being shot in ever-growing numbers.
Finally, within the judgement there was a moment that was deeply disturbing, distracting even from the above considerations. It was that the government is entitled to make the decision not to adopt the findings of an expert review, for political purposes. These are the same words used in the ruling earlier this year by Justice Andrews with respect to a case brought by the NFU against the Secretary of State. In that case, the government’s decision to hold back for a year on culling in Derbyshire in 2019 was because it wanted to find ways to help to ‘tilt’ the bTB eradication policy in favour of badger vaccination. Something that the 2020 bloodbath of tens of thousands of mostly healthy badgers over the last six weeks shows has not happened either.
The ecological impacts part of the case was dismissed with brevity, a matter that will need taking up again soon once BTO and Natural England’s secret reports are exposed.
The government approach to badger culling is not just ineffective, it is indiscriminate and unaccountable. It treats wild animals as worthless pests and the protected designated sites where they live and roam as disposable. This at a time when wider awareness of the way in which we treat wild animals and wild places defines our ability to manage our countryside and climate successfully and against wider environmental catastrophe. Aspects of the decision made in this case will be further appealed.
In recent days, Natural England has released its Habitat Regulations Assessments (HRA) for the disgusting and incompetent 2020 licensed badger culls, currently underway as a part of the wider failed bovine TB strategy. This follows release recently too, under FOI of the updated (July 2019) NE “Guidance on evaluating the ecological consequences of badger culling on European Sites.” Legal challenges since 2017 have forced NE’s to accept as real the potential impacts resulting from removing badgers from large parts of the English countryside and to try to develop a system that reflects just a few of the issues; those related to SSSIs and internationally designated sites. While HRAs improve in extent and detail, they remain reliant on conditions which are loaded with points of potential failure and which may not be effective in protecting the integrity of European Sites.
This matter has just become even more important as the Council of Europe’s Bern Convention in Strasbourg has formally adopted, at its Bureau meeting of 15 – 16 September, a complaint against the UK for its mass badger killing in England. This includes the extent of unknown ecological change and damage, and placed the compliant on ‘stand-by’ for future scrutiny. This requires, straight away, new communications and reporting by the UK government with a report next summer.
This is a huge international embarrassment for Westminster, as knowledge of the potential UK infraction becomes more widely recognised across Europe and the world. The UK claims there is no evidence of any ecosystem damage, yet, in accepting the possibility, have failed to undertake any credible measurement of this at all. Other than in a 2018 report that is (probably for legal reasons as it exposes them) being kept secret between NE and the British Trust for Ornithology. They think controlling information upon which public decision making has been done is acceptable behaviour. Would the UK ever consider breaking international law?
There is no evidence at all that shows that conditions to safeguard internationally important sites and their rare species have actually taken place. Where is the monitoring (annual monitoring reports?) promised to the High Court in 2017 and 2018? NE have a duty to establish the extent that the conditions imposed on these licences are actually adhered to on the ground. Are the conditions easily understandable and accessible to the shooter on the ground? Who has been checking? Might shooting contractors possibly overlook the conditions on these licences?
One example is the condition to protect Hen Harrier on Salisbury Plain. This states: “Before commencing licensed activities each season, operators must confirm with the owner/occupier the location of any communal roost locations supporting significant numbers of Hen harrier. Except on existing roads and tracks, there shall be no access within 500 metres of any such locations from 1st November to 30th April, inclusive“. Now the cull should normally be over by 1st November but what if an extension is allowed or in time supplementary culling extends into January? The workability of this condition assumes a) that the operator asks this question, b) that the owner/occupier answers it, c) that the owner/occupier is in a position of knowledge about hen harrier roosts on their land, d) that they convey this information to the shooting contractor fully (what if they want their badgers ‘gone’ ?), e) monitoring is good enough to be able to pinpoint roost sites and define a 500m radius from them and lastly f) if all of the aforementioned happens, shooters duly obey the 500m standoff restriction.
Further, this condition only bites in respect of “communal roost locations supporting significant numbers of Hen harrier” (emphasis added). What does this mean? Presumably a communal roost must be more than one hen harrier, but at what point does ‘significant’ bite? That this is a flawed approach is rendered obvious by two considerations: firstly, the wintering population of hen harrier at this site (five year peak mean =15.2 between 2010-2015) is so low that a single bird would represent >1% of the site population and would therefore be significant. Secondly, the SPA is cited as representing 1% of the UK population therefore any reduction from that 1% (which could be displacement of a single bird, or a single roost) would represent a significant effect on integrity.
It would be a huge undertaking to check what Natural England are sanctioning and is actually secretly happening in the countryside. There seems to be little or no intention by them to look at what might be happening beyond the secret studies of one or two sample areas. So nobody will ever know how many Hen Harriers or other sensitive animals have been disturbed by people killing badgers. That’s the way NE has handled it and the way that it wants it to remain.
The last ten days in the fight to protect badgers from culling in England have been tumultuous.
We have the hugely disappointing news that the Supreme Court will not examine the 2018 rulings by Judge Cranston and those of the Appeal court. In 2019, the Court of Appeal had previously upheld Judge Cranston’s 2018 ruling that the government had satisfied the purpose of the Protection of Badgers Act 1992 and that “there was a logical and defensible rationale for the licensing of supplementary culling”. Judge Cranston had found that the government’s approach was not unlawful due to “a policy of maintaining a reduced badger population through supplementary culling coupled with the commitment to change tack as evidence became available.”
However, in a final twist, information was received as the result of legal enquiries in 2019, showing that ‘changing tack as evidence becomes available’ is not something that can be done according to government advice, which suggests that it is not possible to determine directly, the extent to which any individual intervention (of which badger culling is one) has worked or not or made things worse. Equally, Defra’s strange approach to modelling falsely suggests sweeping success in the first two pilot cull areas. They have used this as a basis to justify new culling policy in 2020. Ridiculous if the implications were not so truly horrible. So the battle moves on to new ground as the excuses and dead badgers pile up. The legal fight opens a new chapter.
Further, a fresh legal claim against aspects of the 5th March 2020 policy guidance on badger culling has recently been lodged by Tom Langton, supported by The Badger Trust, against the Secretary of State for EFRA and with Natural England (NE) as an Interested Party. This follows the refusal of the request that Defra should follow the key Godfray Review report recommendation and tell NE not to issue new Supplementary Badger Culling (SBC) licences in 2020. Also to stop badger culling after four-year culls for a two-year period to enable more badger vaccination.
Raised concern also follows NE holding secret for two years a publicly funded report by the British Trust for Ornithology charity on aspects of potential ecological damage to Sites of Special Scientific Interest (SSSIs). This report was used by NE in 2018 and 2019; they now say it is obsolete. So what exactly are NE and British Trust for Ornithology (BTO) hiding? Ecological issues will also be pursued in the new claim.
The 2020 supplementary licences started on 1st June 2020 in seven cull areas where the four-year intensive culls have ended; in Cornwall (2), Devon (2), Dorset, Gloucestershire and Herefordshire. The Godfray report suggested a two-year no-cull period and then badger vaccination in half of them. Defra have now responded saying that they have rejected this Godfray recommendation, having consulted the NFU and cull companies. The May 2020 Defra consultation on culling and badger vaccination ending 26 June shows that prospects for badger vaccination are being heavily suppressed with reactive cull style culling being floated for the future. The Edge area of England is now fully at risk of culling for spurious reasons using evidence that the Derbyshire Wildlife Trust have recently shown is incompetent, something Defra seem to partly recognise..
It will not have escaped the attention of many that the new 5 March “Next Steps” policy not only rows back on the new government’s commitment, described in court recently by Sir James Eadie QC to ‘tilt’ bTB control away from culling and towards badger vaccination but has now come up with a half-baked options on methods for trapping and shooting badgers right up to the edge of vaccination areas. This is a betrayal of past commitments, an affront to those who work hard in the countryside for badgers, and it constrains and threatens the current and future prospects of the promised expansion of badger vaccination. The new legal challenge attacks not only the decision to reject specific Godfray report recommendations, but also Defra’s further highly selective use of modelled data since 2017, including data and maps that unfairly, only it controls. Such sickening misrepresentation of science has become a familiar pattern. Counter arguments have been made in Veterinary Record but have yet to receive a positive response or change of direction. There is no excuse for this animal abuse and events in recent months renew our determination to fight on, no matter how difficult during the Covid 19 crisis, for the sake of badgers and our diminishing wildlife.
A number of related cases were stayed on the back of the Supreme Court decision. These will now be reviewed and regular updates will be made. Please support with whatever you can to help reach the full target in the current Just Giving crowd fund, and to meet funding obligations. Other cases are being developed, so your help is much appreciated and a little from everyone can help make the difference. Thank you again for all your hard work and donations in support. We are The Badger Crowd. Standing up for Badgers. As and when a new appeal for a new case is launched, we will let you know and direct you to the crowd fund page.
A more detailed analysis of what we have learned from the Supreme Court’s refusal of permission to revisit Judge Cranston’s High Court ruling is given in a separate blog here.
With the turning of the year, Badger Crowd takes stock and looks to 2020. On the face of it, the outcome of the general election has grim implications for badgers; the likely outcome is a continuation of the failing English bTB policy. This brings an eighth year of increasing misery to farmers, the public and badgers. More premature death and suffering for thousands of cows and badgers in 2020 and more £ millions taxpayers money frittered away on poor policy decisions and flawed implementation. The aim of the work supportedby Badger Crowd, as always, is to focus actions in the right direction and to properly address the bTB disease epidemic.
Legal challenge applications against Supplementary Badger Culling in the Supreme Court and stayed cases brought by Tom Langton, sit in the slow judicial queue. These offer a chink of light in an otherwise dark landscape. But the work of the Badger Crowd extends beyond supporting legal challenges. Behind the scenes, there is a broad network of dozens of experienced, informed and dedicated volunteers, looking at and tackling the endless stream of misinformation and anti-badger propaganda. Science, messaging, data gathering, monitoring, fundraising and legal issues must all be addressed by the extended professional and volunteer network. The network is a force for badgers and the fight against bovine TB that never stops. Many established badger groups and trusts lend support in many ways too.
Another government funded study was published this year using modelling to incorrectly make claims of success for badger culling in the ‘Pilot’ areas, pushed by a government propaganda campaign. This is despite advice from the Defra Chief Scientist in June 2019 that it will never be possible to separate any effects of badger culling from other interventions. And last week, a genomics paper has been published making controversial claims about bTB transmission between badgers and cattle at Woodchester Park in Gloucestershire. Experts have been looking hard at this, and have already given insightful advice to challenge the claims. Expect more on this early in the New Year. Dedicated experts work together against a sea of officialdom, prejudice, poor science and poor journalism.
We would also like to remember at this time of year particularly, all those who are out in the field, attacking the illegal blocking of badger setts and unlawful hunting of wild mammals. Sabotaging crime. We salute you again for your dedication and perseverance.
If you have donated to the legal funds, you have contributed to assist important legal work, and we hope that there will be rewards next year. The Crowd fund has slowly moved to 80% and this is an immense achievement considering this gruelling, expensive and protracted battle. This seasonal message is a huge thank you to all making this work possible in every way.
