More than 67,000 mostly healthy English badgers have been shot in England since 2013, and the threat of tens of thousands more being unnecessarily killed and injured later this year grows closer. Badgers are being blamed for the spread of bTB, but the reality is that they are suffering as a result of confusion over the science of bTB testing, lax cattle restrictions and cattle movement control.
A huge effort has already been expended by many to challenge the policy, and legal challenge has helped stop culling in Wales. But the emergency continues to escalate. A sustained legal effort is vital to continue the battle against the useless, often cruel and damaging badger cull, alongside development of policy reform.
Summary of our legal challenges
As we gear up and prepare again for court this July, here are brief descriptions of all the live action streams so you can see what is at stake, where our past work has taken us and why we are seeking to gain further funds and help from you to continue.
- Supplementary Badger Culling (Case 4848)
This is the highly controversial 5-year period of additional badger culling that was first sanctioned in Gloucestershire and Somerset in 2017 to take place once the initial 4-years of intensive culling (IC) are completed. The stated aim is to keep badger numbers at the artificially low level achieved by intensive culling in order to maintain theoretically reduced bTB infection. As a method it has no basis in science and may in fact risk worsening BTb transmission. The threat is that in September 2019 it will continue in the Pilot cull areas of Gloucestershire and Somerset and be started for the first time in Dorset (Area 3). It seems to have arisen in part because cull companies ‘had no appetite’ to wait and see if the theoretical benefit from the RBCT method of ‘cull and stop’ could be achieved – i.e. cessation of culling after four years when greatest benefit is expected. We are appealing the Judge’s dismissal of case 4848 in 2018 and in particular his acceptance that Defra’s rationale for pursuing supplementary culling is lawful, in a test of aspects of Section 10 of the Badgers Act 1992. The Hearing in the Court of Appeal will be held in London over 2nd/3rd July.
- Supplementary Badger Culling (First year of Supplementary Culling outcomes)
Related to the above, we have recently had a letter from the Government Legal Department (GLD) in response to concerns we have raised that bovine TB levels in the Gloucestershire and Somerset Pilot areas have risen after the first year of Supplementary culling in 2017, suggesting that not only is there no scientific basis for the technique, but also that it is not working. Data released by the GLD shows that ‘confirmed herd breakdowns’ rose in both areas in response to the first year of Supplementary Culling. (NE Chief Scientist’s advice on the outcome of Supplementary Badger Control 2019 (DEFRA March 2019) This is consistent both with the published expert statement of researchers (Jenkins et al. 2010*), statements made by expert bodies during government consultation on the new method, that such an approach might fail or make things worse, and indeed was the basis of our case in the High Court in 2018. The raw data show that Bovine TB incidence is rising (in Gloucestershire at an alarming rate) and we seek to expose that the government is using modelling of these data to suggest that it is not. The reality is that the results show that badger culling is not stopping the spread of bTB as measured by vets on the farm. Other more important sources of spread than badger-to-cattle transmission, such as poor biosecurity, ineffective cattle testing and lax movement controls are clearly implicated, as was pointed out in last year ‘Godfray’ review. We will take this matter forwards soon.
* Jenkins, H.E., Woodroffe, R. and Donnelly, C.A. (2010) The duration of the effects of repeated widespread badger culling on cattle tuberculosis following the cessation of culling. PLoS One. 10;5(2):e9090. PubMed PMID:20161769.
- Habitat Regulations Assessments (Case 5921)
This case, brought in 2018 is also a part of our permission to Appeal in the High Court this July. It challenges Natural England’s failure to adequately assess the impact of badger culling and associated disturbance on fauna and flora that are a part of internationally protected sites within and surrounding badger cull areas. As a result of our submissions and court action NE has amended its assessment processes. It has moved from a position of dismissing the threat of carnivore release effects that we took them to task on in 2017 and 2018 to one where this is identified as a potential impact that could resonate up to 20km from a culling area. It has recognized in many cases that monitoring for potential impacts on sensitive species such as hen harrier is wholly inadequate and has indicated cases where this must be addressed. These are all rear-guard actions taken by the statutory agency in recognition of the force of our points and as a means to try and convince the court that they will ‘adapt and learn’. In August 2018 NE finally issued new Guidance (the 2018 Guidance) using much of the material that we had put before the courts and it had previously resisted, and packaging this as new government advice. Their denial, then acceptance of our points under court scrutiny tells the story and the changes they have made will have helped minimize the collateral damage from badger culling that was evidently going unheeded prior to our challenges. Surprisingly the judge, despite finding that NE had breached its duties under the Habitats Directive, ruled in NE’s favour.
The Court of Appeal will look at a key aspect of the case relating to how mitigation measures may or may not be taken into account at the screening stage of HRA assessments. NE has said they can cope with any impacts when they get spotted as the culls progress. We say that is not good enough and there is still a long-way to go before NE’s duties to protect sensitive sites and species are properly fulfilled (see 4 and 8 below).
- Protection of SSSIs and the meaning of Section 28 of the Wildlife and Countryside Act 1981
If the judge’s decision on case 5921 above was difficult to understand, our recent High Court hearing in March 2019 against Natural England had an even stranger outcome. The case was already extraordinary as we listened to NE arguing that the protection afforded to SSSIs – the backbone of site protection in the UK – should be interpreted in a more limited and weak way than it appeared. In effect they were arguing for a reduced level of protection to SSSIs. We were able to demonstrate that their arguments were inconsistent and at times nonsensical, and again won a moral victory, but were inexplicably refused relief by the court and told to pay costs. We have applied for permission to appeal following our exposure of NE’s position on what a Site of Special Scientific Interest statutory designation actually protects. There are 4000 SSSIs in England. If NE and the judge are correct then the level of protection that they enjoy is far lower than anyone (including most of NE) has previously thought, casting grave concern over this backbone of our nature protection law. This matter is linked to the 5921 case above and goes to the heart of that matter too as SSSI designations underpin SPA/SAC/RAMSAR and other international reserve designations. This is an important matter of wide national and international significance. We will fight this if we gain permission from the Court of Appeal in the coming weeks.
- The ‘Low Risk Area’ (LRA) Badger Culling Policy
The LRA extends to the north and east half of England beyond the High Risk and Edge Areas. We have put in considerable effort since the LRA consultation and consequential policy change published May 2018 to permit NE to issue cull licenses in the LRAs. A claim was lodged in August 2018 to challenge the publication of the Low Risk Area culling guidance. This matter is now stayed by Court Order (on hold) until the outcome of our July Court of Appeal Hearing on the Supplementary Culling Guidance. Depending on the outcome in the Court of Appeal case we will take advice on whether to progress this challenge to yet another form of ill-founded badger culling with no science basis.
Meanwhile in Cumbria, cattle herds are being declared TB Free when a significant proportion are likely to still be infected. Vets are being incorrectly trained to report breakdowns as being caused by badgers while understating environmental contamination and other obvious infection routes as alternative causes. We cannot let this situation proliferate.
- The ‘Low Risk Area’ Cumbria (Area 32) Badger Culling licence.
The first licence issued for the LRA (Area 32 in Cumbria, issued in 2018) allowed the culling of badgers over 190 sq. km which we say was unlawful. No maximum or minimum cull targets were set and inadequate investigation and incorrect epidemiological assumptions were made by the Animal Plant & Health Agency regarding the extent of environmental contamination by diseased cattle including infection of badgers. Natural England licensed badger culling in September 2018 despite there being no bTB cases in the areas since February 2018. Since the badger culling started, bTB breakdowns have restarted. The Penrith area is a major hub for cattle transit north and south. Although the bTB strain 17z was brought in by traders from Northern Ireland in recent years it has been identified in other areas of the UK. Tests of badgers shot in the Area 32 zone in 2018 identified around a 21% bTB infection in the cattle hotspot in the middle of Area 32. It is clear that the bTB epidemic is being spread by cattle far faster than government is prepared to recognise. The whole of the UK is at risk by flawed epidemiology, veterinary denial and industry confusion. We are greatly concerned about the consequences of further culling this autumn.
- The 2018 Badger cull licences
Because of the size of cull areas, Defra needs to include SSSI-designated land in the cull areas to make up the minimum geographic coverage required by the policy. Because SSSI land is included, NE has to carry out assessments of the potential impact on these sites in accordance with its statutory duties. NE used to withhold these but after a ruling from the Information Commissioner (which NE unsuccessfully appealed in December 2017) they are now supposed to provide them. Despite this we have had to hound NE for the 2018 ecological assessments (SSSI Screenings) for badger cull areas that underpinned badger cull licensing decisions in 2018. Initially NE only released one of these screenings (for Devon). NE did not want us to see the remainder and held on to them, claiming first that they were being updated and then announcing rather unconvincingly that the original documents, shared widely within NE in 2018, had been ‘lost’ or ‘overwritten’ by later amendments. Eventually, amended versions were provided in February 2019 – but these are not the originals upon which the 2018 licensing decisions were made.
The reasons behind NE’s manoeuvrings become understandable when the screening assessments are analysed. The assessments show that NE’s cursory approach to assessment of impacts on these sites has only partly improved as a result of the 2018 Guidance issued in response to our challenges (see 3 above). The assessments reveal that the illogical approach to interpretation of SSSI protection found to be flawed by the judge in the recent hearing continues, and seem to paint a picture of confusion within the organization with head office over-ruling local NE staff who raise concerns about site impacts during the screening process.
Challenges to the 2018 licences are stayed pending progress on ADR (see 9 below) and a soon-expected decision on whether we will get permission to take the related S28 challenge (see 4 above) to the Court of Appeal.
- The 2019 Badger cull licences
As with the 2018 licences, all eyes this year will be upon how ecological impacts from badger culling are assessed in 2019 and whether the outcome of our 2017 licence challenge appeals has any bearing on the legality of that process. NE continue to pursue assessment methods that we regard as unlawful.
- Alternative Dispute Resolution with Natural England
Towards the end of 2018 and with the number of Judicial Review cases increasing we agreed to enter into negotiations with Natural England over the 2018 badger cull licensing matters and approaches to the 2019 licensing. These are confidential and without prejudice and allow the exploring of matters in the hope that more open disclosure will save court time by avoiding legal action or at least narrowing its scope.
- Additional future actions
We have also kept under review and have done so over the last five years, the potential to take complaints or actions to the European Court of Justice and the Bern Convention and our situation may also be relevant to the Aarhus Convention.
As a force we depend upon the goodwill and support of wildlife groups, national charities and the wider public–whose backing to-date has been magnificent. Please help us with a donation if you can.
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