The Crowd Justice fundraiser for Badger Crowd’s legal action has seen a flurry of donations over the last few days. And so it is very pleasing to be able to tell you that, together with a number of offline donations, we have now reached the £18,000 target necessary to enable our lawyers to complete the required work. A huge thank you to all have donated.
If permission is granted for Judicial Review, we will launch a further appeal according to the stages and procedures.
We must hold Defra and Natural England to account for the cruel, unscientific, damaging and wasteful badger cull. With your help we will try to do that.
Killing badgers is a scandal. It can do nothing to address inadequate cattle testing and movement control, and the regular spread of bTB by cattle, between farms and into the far corners of England.
There has been a flurry of activity in recent days. Following notice from the High Court and detailed considerations by the legal team this week, representatives will today apply for a ‘renewal’ hearing. This is in order fulfil the aim of progressing to a full Judicial Review hearing as soon as possible. Other aspects of the case, against culling outside the High Risk Area – in the Edge and Low Risk Areas – are being worked on too.
There is a little over a week to go on the Crowd Justice crowd funder, which is ticking along quite nicely. We have had some very generous online and offline donations, including several from Badger Groups around England and Wales, and Born Free. Lots of individual members have given generous personal donations. Several Badger Group members continue to help with the backroom work and Badger Trust support has been essential too. Many people have phoned, texted and emailed with support and it is fantastic to find that despite all the pressures of the lockdown, there is still a very strong and powerful mood within the badger and wildlife conservation world that the cruel, unscientific and failing government policy must be fought.
A huge thank you again to all of you making this possible. We get the sense that the public at large are overwhelmingly outraged against a bovine TB and badgers policy that is effectively out of control and counter-productive. Many people are shocked to learn that the government spin implying that culling has ended or will end any time soon is false. We are united to try to improve the situation for badgers, our wildlife, countryside and rural economy. I sincerely hope that we can help to bring about change and an end to badger culling as soon as possible.
Thank you so much for all your kind messages of support and generous donations over the first few days of the appeal. In addition to the Badger Trust’s generous donation to get the challenge started, we have had several ‘offline’ pledges, so we are now over half way to our preliminary target. The Badger Trust has issued a statement about the two new legal cases, the humaneness challenge from Wild Justice (now fully funded) and the policy challenge from Tom Langton, and emailed it out to its supporters. Hopefully this will reach the attention of more people who care for badgers and wish to support the essential legal work. However it is really important to also get the appeal out to the public at large. You can help by alerting your friends and contacts to Badger Crowd’s donation page, and by letting any suitable social media networks know too. If you are a member of a nature conservation organisation, you may consider writing to them suggesting they draw the fundraiser to the attention of their members.
Earlier this week we had a lot of ‘Freedom of Information’ material sent to us by Natural England regarding their consideration of the future of badger culling and their reaction to the ‘Godfray Report’ and ‘Next Steps’ policy guidance. It has been sent to our lawyers as it clearly shows the terrible disarray surrounding the governments approach. There is much uncertainty, and there are many gaps in the evidence regarding this horrible policy.
A team of volunteers is working hard to make these legal challenges possible, as are the lawyers. It is an uphill battle, but we will do all we can to pass the milestones ahead and make our case for a court hearing.
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.
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” .
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’
First of all, a huge congratulations to Wild Justice for reaching the funding target for their latest legal challenge on the humaneness of the free shooting of badgers as licensed by Natural England. Follow @WildJustice_org on Twitter, or sign up to their newsletter on the Wild Justice web site to receive email updates with the latest news about the case. It is fantastic to see widening support for the fight against badger culling and we will be in regular contact with Wild Justice as the cases develop.
There is no doubt about the intensely cruel aspects of the culls, but they are also flawed for a range of technical and legal reasons. With support from The Badger Trust, Tom Langton is now launching an appeal for a new legal case challenging aspects of failed, incomplete or irrational consideration in Defra’s ‘Next Steps’ 5th March policy guidance. Problems include the ignoring of key recommendations of the 2018 ‘Godfray report’, and the confining to a minor role of badger vaccination, both now and in the future. Additional grounds relate to unaddressed consideration of ecological impacts of wildlife disturbance upon designated nature reserves.
It is important also to challenge the more recently and newly-invented approaches to badger culling in the Low Risk Area (LRA) of the north and east of England. In Cumbria, cattle brought over from Northern Ireland a few years ago with the bovine TB 17z strain have infected badgers locally. Here there is no restraint to the number of badgers killed. The approach shows the frightening sign of badger massacres to come, as alluded to in the 2020 policy if this approach cannot be stopped.
The poor epidemiology and the speculative ‘risk pathways’ approach of the Animal Plant and Health Agency add up to a policy out of control that must be halted. The licenses issued this June should be revoked and no new licenses issued this year, including for Derbyshire where culling was prevented last year. The policies should be withdrawn and rethought over a minimum two-year cessation period with advice from stakeholders who have been overlooked.
Otherwise badgers face an unprecedented slaughter over the next two years and beyond, with the door to prolonged mass killing (as in R. o. Ireland since 2004) opening up and no mechanism in place to bring it to an end. These terrible policies must be challenged. Please help us try to help the badgers and promote effective approaches to bovine TB control with a donation if you can. Thank You.
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.
On 9th June 2020 the Supreme Court turned down a permission request to look again at the long term killing of English badgers by government subsidised cull companies. The application related to a ruling in 2018 on the lawfulness of the 2017 government policy to carry out ‘supplementary’ badger culling (SBC). This is the maintaining of badger culling for periods of five years at a time in places where badger numbers have already been reduced by 70% or more over four years. Recent scrutiny at the Supreme Court by Lords Kerr and Hamblen with Lady Arden in 2020 found that the application did not ‘raise a point of law worth considering at this time.’, thereby closing the matter.
In 2019, the Court of Appeal (CA) had upheld Judge Cranston’s 2018 High Court ruling that, in introducing SBC, the government had satisfied the purpose of Section 10. of the Protection of Badgers Act 1992, that otherwise protects badgers from needless persecution. Cranston had decided that “there was a logical and defensible rationale for the licensing of supplementary culling”. But what exactly was that rationale and what does the decision tell us?
In August 2018, 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”. The decision was therefore conditional on the ongoing learning and adapting to results during the process. Seems reasonable.
The decision was controversial however, firstly because the consultation wording over SBC had been ‘unimpressive’ and had been wrong to say to the Minister and the general public that adopting SBC was ‘necessary’, when the approach was clearly both risky, ‘experimental’ and subject to published warnings that it might not help, might hinder and even make the spread of the disease worse.
What seemed to sway the ruling, as revealed to the court in disclosed email exchanges and meeting notes from Defra in 2016, was the fact that it had been conceived by civil servants and the then Chief Vet Nigel Gibbens and Chief Scientific Advisor (CSA) Ian Boyd. Their advice was based partly upon models and modelling, and court disclosures indicate that they didn’t think they or the modelers around them instilled confidence. The advice was to depart from tentative findings from the study sites of the main reference project (The RBCT 1998-2005) and to keep on culling rather than to stop in the manner that claimed (modelled) benefit in that study. Somewhat sinister importance and weight was given to shooting syndicates preferring to keep on badger culling. Also the non-consultation of wildlife and welfare charities as the plans were decided was noticeable.
The legal challenges were framed around the RBCT reference project by necessity, as challenging decision making has to be done within the context of the original science that Defra and the NFU chose to follow. This constraint does not allow doubt subsequent to the decision making to be brought to the court room.
In court, SSEFRA argued that the requirements of the PBA are met if the SSEFRA’s subjective intent was to reduce the spread of TB. However, the CA did not seem to wholly endorse this finding of Cranston. It re-framed the requirement to require the SSEFRA to reach a decision which was lawful on public law terms – i.e. a rational one. But the CA did also accept that a licence could be granted for the purposes of an experiment where the SSEFRA was advised that it was a logical approach to disease control.
In effect, Cranston’s ruling said the SBC approach was lawful. The Secretary of State is entitled to follow the advice of Government advisors (including departing from the published warnings of science), even when public consultation misinforms about the needs and necessities.
In this case, the decision found that any cessation of culling after a four year cull is expendable, but without evidence. The argument provided was informed by an unpublished ‘confidential’ report based upon adjusted, un-peer reviewed modelling, suggesting that after badger culling stops, bTB may return to previous levels over time.
On the face of it, it is possible to see how the judiciary might give the government the benefit of the doubt: difficult decisions and experts doing their best in an information void. Yet as with everything, hindsight is a wonderful thing. Because after the initial ruling, retiring SBC architect Ian Boyd made an important concession in relation to checking any direct measure of badger culling value, over the long term.
He suggested any learning (Cranston’s ‘change of tack’ as evidence became available) could only be the result of regional scale trends, once national depletion of badgers is achieved, at some point in the 2030’s. Some modelling once data from six cull areas over four years might or might not reflect direction of trend, but that there would never be direct or categoric evidence to go on. Even at the end. Whether bTB is eradicated or not you will never know the contribution from badger culling.
So what do we make of this? Cranston did not ask about timing and perhaps killing all the badgers for decades on the off chance seemed acceptable? Even when it might encourage the spread of disease, something that no one could detect? However the fact that in truth, there is a lack of any ability to ‘change tack’ is telling in the practical outcome of this case, which seems to be for badger culling to be accelerated.
All we can say is, in finding with the government, as is often the natural tendency of Judges, that in the vital area of disease control, trust was placed in the governments pleadings being full and honest. Government is allowed to take risks with badgers, outwith the confines of legislation controlling the normal boundaries and excesses of experimentation and scientific procedure.
This is a worrying position for wildlife protectors and disease professionals. Governments can take risks if their expert says it is worth trying. Even if they go wrong for decades. Unmeasurable risks it later appears, when outcomes are hard or impossible to monitor. The implications of Cranston’s ruling, albeit in hindsight, are as disturbing as they are dangerous.
Can anything more be done? Well, that is now being looked into. This is rough justice and a worrying and disappointing outcome for all of us seeking to defend badgers and to control cattle disease. Badgers can be killed in ways that might increase or decrease the spread of disease or that might actually have no effect at all. That is surely not what the legislation allows or common sense advises. This is not the end, but a new beginning, as the legal action exposes what is really going on behind closed doors.
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.
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.
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.
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.
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.
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:
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.