Is the Badger Cull Consultation unlawful?

Revised 27th April 2021

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

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

Fundamentally misleading and erroneous…

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

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

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

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

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

The 2021 statement and consultation

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

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

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

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

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

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

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

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

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

 

 

 

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

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.

Source:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/944414/bovinetb-statsnotice-Q3-quarterly-16dec20.pdf

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.

 

High Court says Minister George Eustice may reject science advice and choose the science he needs, as a ‘political’ decision.

Case CO/2062/2020, Wednesday, 14th October, 2020

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.

 

Does Natural England care for Badgers, Hen Harriers and other wildlife?

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.

 

Freedom of (some) Information – recent release by Natural England in full

Here are the recent FOI releases from Natural England, provided in 4 Zip files, responding to a query regarding the following Twitter post by Tony Juniper. We asked what the mentioned Natural England ‘advice’ regarding the badger cull was.

In their reply, NE said:

“You asked for:

  1. Please make available to me a copy of advice given by Natural England and Tony Juniper to Ministers, Defra and others, relating to Tony Juniper’s response to a tweet (copied below) by Badgergate, regarding a ‘shift in policy towards vaccination’ Specifically this should include a copy of all communications, memos, notes, comments, reports and formal and incidental advice regarding ‘the shift in policy’ and Natural England’s role in its development, including but not limited to badger culling, supplementary badger culling, Edge Area badger culling, reactive culling, badger & cattle vaccination and cull efficacy.

You appear to have misinterpreted Mr Juniper’s tweet, which was making two separate points. The first sentence was a general comment relating to the relationship between Natural England as the Government’s Nature Conservation adviser and its sponsoring department. The second sentence queried whether “Badgergate” was happy with DEFRA’s shift in policy toward a greater role for vaccination. Mr Juniper was not, in his second sentence, making any claim that Natural England was responsible for, or had provided advice giving rise to, a shift in DEFRA’s policy.

  1. Please include any other material that relates to the Defra response to the Godfray Review of 05 March.

Please find in the attached zip file (here, here, here and here). Please note that in the email of 25 September 2019 there is a statement regarding ‘…our response to the Godfray review’. This statement is incorrect as no such response was provided.

We have withheld, under regulation 12(4)(d), an email exchange between DEFRA and Natural England in which Natural England was provided with advance sight of a draft of DEFRA’s response to the Godfray Review and provided a number of comments on that draft.”

We are not allowed to see NE’s comments. Wonder what they said?

 

Fundraising Target Reached, Thank You

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.

Renewal required for “Next Steps” High Court challenge

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.

 

Update on Fundraiser Progress

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.

Badger Trust Statement, 9th July 2020

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

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

 

Wild Justice legal challenge

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

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

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

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

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

Tom Langton Legal Challenge

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

Supplementary culling and a failure to expand vaccination

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

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

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

Low Risk Area culling

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

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

Environmental Impact Assessment

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

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

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

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

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

Badger Trust

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

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

Wild Justice

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

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

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

Further Information:

The Badger Crowd

Crowdfunder link and information on case here:

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

Blogpost here:

https://thebadgercrowd.org/blog

Wild Justice

Extract of Wild Justice pre-action letter to Natural England

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

New Legal Challenge Against Badger Culling

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.

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Wild Justice Joins Badger Cull Legal Fight

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.

What have we learnt from the Supreme Court’s refusal of permission to revisit Judge Cranston’s High Court ruling in 2018?

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.

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