Badger cull ecological impacts case –

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Did Defra breach its ‘duty of candour’ to the courts ?

On Wednesday 13th April, the Rt. Hon. Lady Justice Simler granted permission for the High Court decision in Langton v Defra (case ref: CO/2062/2020) to be challenged in the Court of Appeal. The High Court case had been dismissed on 9 August 2021 by the Honourable Justice Griffiths. The case concerned an alleged failure of the Secretary of State for the Environment Food and Rural Affairs (S/S) to have regard to the implications for biodiversity of ecosystem disruption following  badger culling, in accordance with the duty imposed on ministers and public bodies under Section 40(1) of the NERC Act (2006), before making his decision to continue badger culling under the ‘Next Steps’ policy.

It should be noted that previous challenges brought by Langton in 2017 and 2018 repeatedly found government and government agencies in breach of duties related to the assessment of badger culling impacts on designated nature conservation sites and associated protected species.  In the present case, it is argued that the NERC Act obligations require that the impact of badger culling across the wider countryside and on the broader and larger biodiversity resource within it must also be assessed, including by the Secretary of State, but simply hadn’t been. The Government argued in the first instance that the Secretary of State wasn’t subject to the duty at all, or that the duty was in any event covered by the assessments carried out by Natural England in the course of issuing badger licences (the same ones the earlier cases had previously convinced the courts were defective), notwithstanding that these only claimed to consider impacts on designated nature conservation sites and related land.

Last Thursday 28th April, Justice Simler confirmed that the appeal case had been expedited to June or July 2022, giving notice of a hearing in the coming weeks. This appeared to precipitate a rapid pre-prepared action from Defra that same day. They sent Mr Langton’s legal team a suite of new documents (including a mass of heavily redacted emails) showing that in October 2021 Defra had placed in front of the then Secretary of State George Eustice a brief paper exercise, summarizing their opinion on the wider biodiversity effects from badger culling, and that he had been asked to reconsider his decision to adopt ‘Next Steps’ in the light of that information.

It is very difficult to read this other than as recognition by Government that the NERC Act S40 duty:

a) did (and does) apply to the Secretary of State (despite their arguing in front of Justice Griffiths that it didn’t),

b) that it hadn’t been considered or discharged by the Secretary of State prior to the adoption of Next Steps (as argued by Langton and his team) and,

c) that the Government was concerned that it may not be possible to defend this position upon further review by the Court of Appeal.

The real matter of concern here is not so much that the Government and its agencies exercised a volte-face and sought to remedy the legal error, but that they did so in secret, without informing the court, and in a situation where the case was still ‘live’. Our legal team has raised this issue with the GLD in correspondence copied to the Court as a breach of a basic tenet of legal protocol – the ‘duty of candour’ – which requires that the courts be informed when circumstances have changed or decisions have been taken (or re-taken) that have a bearing on a live case. Both the court and the claimants legal team should have been informed of the fact of the Secretary of State’s reconsideration when it happened in December 2021. The fact that this secret Ministerial briefing was only revealed after the Court granted permission for the appeal is extremely concerning and begs the question whether it would ever have come to light at all had that permission not been granted?

It’s all there in black and white…. Secretary of State shows the court details of his Ministerial sign-off.

While it is not possible to comment of the quality and coverage of the new Defra material presently for legal reasons, it is sufficient to say that nothing has changed regarding the absence of any proper research by the Government into the collateral effects on biodiversity of badger culling. There remains an overarching need for extensive baseline research and data on the likely effects of predator removal, increases and perturbation in wildlife communities following ecological disruption on nature conservation interests. The research the Government seeks to rely on, to advance the premise that there are no meaningful side effects on biodiversity, remains scant to the point of being meaningless.

Where does this leave us?  Plainly the Government is scratching around to avoid the embarrassment of having the 2020  “Next Steps” policy quashed.

And it will no doubt seek to rely on what is called a ‘no difference’ defence it has sprung as a ‘get out of jail free’ card whenever procedural deficiencies and oversights have been exposed in previous eco-impact claims. Defra’s argument in essence, is that even if the Secretary of State had complied with the duty, he would have come to the same decision. There must come a point where the elasticity in that defence and its ability to cover and excuse all failures at departmental and ministerial level becomes fatigued. But legally speaking, whether what Defra has done behind closed doors may be sufficient for the quashing of the policy will be determined by the Court when it hears the case.  In our view, allowing badger culling to carry on in 2022 without revising the policy to address these very serious and wide-ranging biodiversity impact concerns is simply not tenable.

From a wider UK nature conservation perspective, it is very important that the case should continue, to ensure that ignoring of the NERC Act 2006 in decision making by government bodies is not allowed to become an accepted standard, and to get that confirmed by a Court judgment if Defra are not willing to concede it right away. In other words, the prospect that we could overturn the (we say perverse) ruling of Justice Griffiths in July last year that environment ministers are exempt from considering that part of the environment called ‘biodiversity’ when making decisions, is worth pursuing for many reasons.

If successful, the case could also have the effect of forcing Natural England to reconsider whether they are similarly failing to comply with what the duty demands in artificially restricting their considerations just to designated sites. It would bring into sharp focus the fact that the level of information they rely upon for impact assessment and to inform basic provisions for protection, is inadequate. Impacts are guessed or assumed because there is no background information to inform them beyond speculation, meaningless analyses of borrowed, coarse-grained datasets and a near total absence of monitoring, the lifeblood of real understanding.

These developments merely serve to reinforce the determination to halt badger culling. In recent days legal letters have been sent to Defra and Natural England asking them to stop badger culling in 2022 because of the current peer-reviewed scientific evidence that it has not worked.

So please consider supporting the Crowd Fund linked below. If everyone chips in we can spread the load and gain access to justice for badgers and all our wildlife and countryside.

Thanks you for your support. We are the Badger Crowd. We stand up for badgers.

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Defra ‘tribalism’ tries to undermine bTB study?

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A recent scientific paper in Veterinary Record (1) by independent researchers Tom Langton, Mark Jones and Iain McGill, showing the effects of badger culls on bovine TB herd breakdowns over the last decade, has been met by criticism from officials at the top of Defra. There are accusations that it is ‘flawed’, and in the Daily Telegraph, even of data ‘rigging’ . You can view a 3 minute video of the main findings here.

This image has an empty alt attribute; its file name is Off-The-Leash.jpgFurther details on the origin and contents of the paper are discussed in a 40-minute Off the Leash interview by Charlie Moores with two of the authors Tom Langton and Mark Jones, here. 

Many badger campaigners will know Mary Barton, aka Betty Badger, who stands up for badgers outside Defra offices each Thursday, and has done for many years. On Thursday 17th March, she was granted a meeting in person with Environment Secretary George Eustice. He told Mary that he thought the study was ‘flawed’. Then on 18th March, Defra put out a dramatic press statement, criticizing the content & motivation of those involved in writing, reviewing, and publishing the paper (2) :

“This paper has been produced to fit a clear campaign agenda and manipulates data in a way that makes it impossible to see the actual effects of badger culling on reducing TB rates. It is disappointing to see it published in a scientific journal.”

and

“Experienced scientists from the Government’s Animal and Plant Health Agency have reviewed the report and found its analysis is scientifically flawed. It has manipulated the data in a way that makes it hard to understand the actual effects of badger culling and therefore its conclusions are wrong. Today, the Chief Veterinary Officer, Christine Middlemiss, and Chief Scientific Adviser, Gideon Henderson, have also published a letter in Vet Record, which rebuts the report’s claims. The CVO has also written a blog about this.”

 Which stated (3):

“We do not believe the scientific methodology used is credible as the analysis has been carried out in an unusual manner ”

These are confident words from the chief vet, informed no doubt by James McCormack (Head of Science Advice to Defra TB policy) and Eleanor Brown (Defra’s Veterinary Head for TB Policy Advice) to try to prevent acceptance of what are the plain and simple findings from Defra’s own data. The new analysis has been extensively checked using appropriate models, peer-reviewed by 4 reviewers, and accepted as a solid piece of research. In truth the 2021 badger culls should have been put on hold in June of that year because the basic findings were clear then and Defra knew about them. 

However, the Defra Chief Scientific Advisor and CVO claimed in a letter to Vet Record on the day of publication (4) that “This analysis has been carried out in a manner that masks the effect of culling by incorrectly grouping data.”

 

Defra’s alternative analysis, shown above, has done something strange to diminish ‘unculled’ area data, that is not explained, yet which appears to undo their own argument. The letter states that the ‘impact of culling on cattle outbreaks takes some time to appear’ while showing steep decline in bTB in the first two years of culling. Oops!

All scientific studies have limitations and none are 100% correct. What Defra are doing in their letter is adopting a pro-cull narrative to promote their policy publicly, with an un-peer reviewed analysis. They are avoiding the sharp reality of what their data is really telling them, and George Eustice and the government should be very concerned about this.

Defra have defended their pro-cull policy in Parliament and in the High Court using a government study from 2019 that uses very small amounts of data (Downs et al. 2019 (5)), wrongly, as ‘proof’ that badger culling ‘works’. That paper in fact admits that there are enormous limitations to its conclusions. The position that ‘culling works’, however, has been widely adopted by the Minister, MPs, the NFU and farming stakeholders.

It’s in the herd: cattle measures are the answer

Cow undergoing SICCT test

Defra have dismissed in a short soundbite, one of the most interesting findings of the published paper: the disease slowing, peaking and declining between 2011 and 2016 across the HRA counties, and before badger culling began in all but one area.  Defra want to adjust the data for confounding variables. Such adjustment is something that only Defra can do, as they alone have access to this ‘secret’ data. But adjustments are hardly likely to substantially change the conclusions, when such a huge dataset has been used in the analysis (over 20,000 herd a year).  Mention has been made of changes in badger cull buffer areas and badger population numbers, but the strength and validity of that data is questionable and presently obscure.

The Defra letter is particularly disappointing, given that Defra/APHA should have been using data to closely monitor and inform the public on the effects of bTB interventions and to ‘adapt and learn’ from their analysis. As they intimated would be the case in a Judicial Review of culling in the High Court in 2018, and as the judgement anticipated. And to encourage and inform those involved in the grueling cattle testing effort. Shouldn’t the public, who are after all paying for all of this, demand that too? Ask a simple question: why didn’t Defra do an analysis with the large data set they had available in 2019 and show the results? Was it because it showed that bTB was peaking and falling in both culled and unculled areas, well before badger culling was rolled out?

But that would mean admitting that cattle measures are the key ‘tool in the box’ to bTB control and need to be extended. BTB  decline since 2015 has averaged around 5% per year in the HRA, very similar to the picture in Wales where badgers are not culled and also in Republic of Ireland (RoI). Badger culling is now being phased out in RoI, with long term use of annual SICCT and gamma testing, and with bTB OTFW incidence no lower than around 4%, due to the limitations of the SICCT test. International evidence points to cattle measures alone being the solution, as predicted by experts for over 20 years.

The answers are all here. BTB should keep coming down in the English HRA if it follows the RoI trend over the next 3-5 years. If modern PCR testing is applied, it could be dealt with well before 2030. If the will is there. The Edge area crisis is another matter, but could be turned around too with correct thinking and the right interventions.

Other specialist comment:

Prof Paul Torgerson from the Section of Veterinary Epidemiology at the Vetsuisse Faculty of the University of Zurich wrote an opinion editorial for Vet Record on 19th March (6) offering insights on why badger culling doesn’t work, as predicted by the government researchers conducting the Randomised Badger Culling Trial back in 2007.

The Defra and the Middlemiss/Henderson arguments have been more than dented.The authors of the new analysis have responded in the Veterinary Record (2nd April) letters pages (7), saying that Defra’s criticism of the paper is baseless, and their attempt to show alternative science lacks explanation in the way they have handled the data. Defra have discounted around half of the data and the figures they use do not match figures from the reference material. There is also a dead end Link. This could be interpreted as ‘data manipulation’ to try to defend existing policy-based science. Defra’s refusal to accept the Langton et al. analysis using all of the cull data over the whole period of culling, is effectively limiting consideration of one of the most important debates of farming and veterinary concern of the last 50 years.

Over £100 million of public money per year is paid to farmers each year to support bovine TB control, and over £90 Million has been spent killing around 180,000 badgers since 2013; £500 per badger.

Defra’s position is that it wants yet more ‘thinking time’ to privately consider data and internal reports. Meanwhile, concerned observers can only watch while the decision on the course of the badger cull, where Defra aim to kill a further c.110,000 badgers from this June through to January 2026, hangs in the balance. The matter of efficacy needs settling. But Defra want to begin culling again this June and September with the issue of further licences.

‘Scepticism, science & statistics’, by Ian Boyd

There is an irony here in as much as the attitude of Defra employees towards the new study appears to have formed a classic exemplar of what the retired Defra Chief scientific advisor (2012-2018)  Prof. Iain Boyd has described recently as departmental ‘tribalism’ in his article in the Royal Society of Statistic journal Significance  entitled ‘Scepticism, science and  statistics’. Staff behaviour includes hostile over-reaction to anyone questioning government policy.

We can only hope that those involved will now resist that ‘unjustified tribal confidence’ and the ‘traditions embedded within their professional tribe’ and find the ‘social licence to break out’. For the sake of badgers, cows, farmers, the countryside  and the public, they need to do it now.

Northern Ireland

DAERA  (NI Department of Agriculture Environment and Rural Affairs) have been pressing for a badger cull in NI for some time and have rushed a consultation through recently to try to copy ‘English-style’ badger culling.

For many years Mike Rendle and the Northern Ireland Badger Group (NIBG) have been working with legal and scientific support from the Badger Trust and Eurobadger. Working and meeting with government at Stormont to discuss the issue.

Developments since 2020 have been very disappointing and many who have been watching closely feel the DAERA process of considering interventions has been bungled and that it should have followed the Welsh model. For example, on the government’s own data there is a distinct lack of association (see below) between high badger density areas and high bovine TB incidence areas. The matter of DAERA’s concealed ‘business case’ for badger culling and why the badger intervention with highest environmental impact has been chosen remains unexplained. DAERA even dropped their ecological impact assessments (SEA/HRA) in favour of an earlier ‘dumbed down’ version. This  followed an extensive critique, submitted by NIBG describing multiple failures in the proposals and with useful input from eco-regulations expert Dominic Woodfield.

 

Illustration from the Bovine Tuberculosis Eradication Strategy for Northern Ireland.

Now Wild Justice (8)  (Chris Packham, Ruth Dingle and Mark Avery) have come to the fore and with NIBG are Judicially Reviewing the decision to shoot badgers on the basis of improper consultation regarding the business plan and cost-benefit analysis. This includes reference to the new paper on badger culling efficacy in Vet Record. Cattle movements in NI are less controlled than in England, and cattle measures alone should control bTB if a higher level of herd management discipline and more accurate testing could be introduced to cattle controls. But if Defra have been coaching DAERA, the road to ruin may have been laid.

References

(1) Langton TES, Jones MW, McGill I. Analysis of the impact of badger culling on bovine tuberculosis in cattle in the high-risk area of England, 2009–2020. Vet Rec. 2022;e1384.

(2) Defra media statement 18 March 2022.

(3) Christine Middlemiss blog 21 March 2022.

(4) Christine Middlemiss and Gideon Henderson letter to Vet record 19th March 2022.

(5)  Downs S HProsser AAshton AAshfield SBrunton L ABrouwer A, et al. Assessing effects from four years of industry-led badger culling in England on the incidence of bovine tuberculosis in cattle, 2013–2017. 

(6) Paul R Torgerson, P. R. Editorial in Vet Record, 19th March 2022.What is the role of badger culling as a control measure for bovine TB?

(7) Badger culling to control bovine TB, letter to Vet record, Thomas ES Langton, Mark W Jones & Iain McGill. 2nd April 2022.

(8) Wild Justice Judicial Review

(9) Interview with Tom Langton & James Wood, Head of Department of Veterinary Medicine at the University of Cambridge, BBC Radio 4 Farming Today, 19th March 2022. Clickable button below.

2021 – it’s been another bad year for badgers and cattle

This ‘end of year’ brings an opportunity to share collective thanks for everyone’s efforts to inform and support the legal action for badgers and their wild communities. Those actions that are being considered and planned, and those that are currently in progress. Take a moment to ponder how many of us continue to work on a regular basis, often many hours a week, to help expose the truth about badger culling, and to bring to bear justice against the government’s vandalism of nature. We still have sufficient funds to progress legal avenues for now, and the continued generosity and positive messages from you is hugely appreciated.

There is no doubt that this has been a busy and difficult year. There has been a great deal happening in England, Wales, Northern Ireland, and the Republic of Ireland. We have remained in close contact with and maintained multiple workstreams with all the individuals and organisations who are fighting to protect badgers and their natural communities.

The wait continues for the English Court of Appeal to determine the September 2021 application for permission to appeal (Claim No: CO/2062/2020) against Defra and Natural England. This case relates to the potential ecological impacts of intensive and supplementary badger culling under the March 2020 “Next Steps” policy and the way in which safeguards have been overlooked or inadequately addressed for ‘NERC Act’ habitats and species. Much information is bound up in the legal papers that cannot be shared freely yet, and in recent freedom of information disclosures. These hold revelations regarding how Natural England has conducted itself, with respect to its duty to protect the countryside and their behaviour when confronted with uncertainty.

Meanwhile, the government remains secretive and uncommunicative on its position on phasing-out intensive and supplementary badger culling. Rather suspiciously, it is refusing to explain its scientific rationale because it says it needs ‘space to think’. Referring only to its general and rather vague wish to ‘tilt’ cattle TB eradication policy towards non-lethal interventions, that is yet to be revealed in any tangible forward plan.

Government has also encouraged, and tried to promote its future vison on epidemiological or ‘epi’ culling. This put simply, is localised or reactive culling that failed during the RBCT, and that has failed in the Republic of Ireland, and for which APHA now bizarrely holds its failed Cumbria Low Risk Area culling since 2018 up as its exemplar [1]. DEFRA has also admitted that beyond a small Sussex experiment on engaging farmers in badger vaccination, it will only train ten vaccinators a year. Showing that this approach will remain a tiny side show to culling. I reviewed some of these aspects in the Hertfordshire and Middlesex Badger Group ‘Voices For Badgers’ Webinar on 23rd September 2021 [2]. This followed the announcement by DEFRA via their Exeter University TB hub that they would be ignoring the findings of the Godfray Review (2018), instead promoting badger vaccination on their ‘brand new’ view that it “should” influence cattle TB levels. This is a leap of faith for those expected to accept, implement, and pay for it. Badger vaccination of course comes with the heaviest of price tags; allowing badger culling alongside it, with continued inadequate cattle measures for as long as those in charge decide.

Several ‘Whole Genome Sequencing’ studies using badger and cattle dna samples were published as papers and reports this year. Results are full of limitations and uncertainties and argued this way and that. Much of it is speculation due to the uncertain timing of transmission events. This year also saw the results of the Edge Area ‘Badger Found Dead’ survey, showing that the bTB spoligotypes found in badgers and those in breakdown herds did not match other than in one or two places [3]. More evidence that the role of badgers is constantly being exaggerated by APHA.

Meanwhile, Wales decided to drop its expensive Test Vaccinate Remove (TVR) programme for chronic bTB herds, with its erratic DPP trap-side testing system. England has decided to throw £565,000 at a 3-year DIVA test for badgers to try to distinguish vaccinated from infected individuals [4].  Unfortunately, DIVA tests using the immune response are likely to share the same known uncertainties of the SICCT test. The approach ignores new technology that can directly identify bTB at low density in the blood (and milk) of animals (Phage testing ) and which is so valuable for detecting Johne’s disease.

2021 was a year with growing evidence to show that badgers are not significantly involved in causing or maintaining bovine tuberculosis transmission in cattle, and that badger culling holds no true meaning or value in attempts to control cattle TB.  This provides us with further motivation to push over this rotten mountain of misinformation that perpetuates a failed policy supported by vested interests. To call out the clouded judgment of those ‘in too deep’ to see and recognize the hole they are in and to stop digging. The Geronimo alpaca case, where vets could not find evidence of infection, yet government came out with a lame cover story, exposes just how sickly, government veterinary management has become.

In Northern Ireland we are working on their consultation regarding badger interventions, and have warned DAERA of the potential for legal action should they cross red lines and engage in an ‘English-style’ badger cull in 2022.

At Westminster, Owen Paterson, the man who pushed the badger cull into life in 2013, has been exposed for his sleazy breaking of parliamentary rules. He has gone, and with him, his constituency seat. Maybe this is a sign that things are changing and that truth and accurate evidence will replace the bTB nonsense that we have perpetually been served since 2010.

So we will come out fighting again in 2022, with added resolve and determination. We are the Badger Crowd and we fight for badgers.

With thanks again for all the kind messages of support and with all good wishes for Christmas and the New Year to you and your families,

Tom Langton, for the Badger Crowd.

Is DIVA bovine TB test a breakthrough?

Is Defra serious about vaccinating cattle against bTB?  If they were, they would need a DIVA test to distinguish between infected & vaccinated animals.

Over £20 million has been invested in research to find an accurate DIVA test over the last 20 years. So is the latest Defra hype about their new specific peptide antigen in a skin-test (called DST) going be the solution to the elimination of bTb, or not? Read the new article by Tom Langton in The Ecologist to find out more.

 

No Safety Yet for Battered Badgers

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

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

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

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

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

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

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

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

Claimant Tom Langton said:

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

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

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

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

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

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

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

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

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

Read the ruling here: Read 

 

 

Court of Appeal Hearing, London 2nd July

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

BADGERS BACK IN COURT

C1/2018/2332 The Queen on the application of Langton -v- The Secretary of State for the Environment Food and Rural Affairs & Anr. Appeal of Claimant from the order of Sir Ross Cranston, dated 15th August 2018.

Before

  • THE LORD CHIEF JUSTICE OF ENGLAND & WALES and
  • LORD JUSTICE SINGH and
  • LADY JUSTICE NICOLA DAVIES

Tuesday, 2nd July, 2019

At half-past 10

Tomorrow, Tuesday 2nd July, the Court of Appeal will consider whether the decision a year ago by a High Court judge to dismiss challenges to major elements of Defra and Natural England’s approach to badger culling in 2017 was right. Defra’s controversial policy that year to kill more badgers for longer, to prevent the English Bovine TB cattle disease crisis will come under fresh legal scrutiny, as will impacts on the ecological interest of nature sites of international significance.

The Court of Appeal will consider whether Sir Ross Cranston, sitting as a High Court judge in July 2018, wrongly dismissed the legal challenges brought by claimant ecologist Tom Langton against two elements of badger culling. These were namely, the decision of the Secretary of State for the Environment Food and Rural Affairs (SSEFRA) to pursue a policy of ‘supplementary culling’ of badgers, and the decisions of Natural England (NE) to issue licences in 2017 for badger culling affecting internationally important nature conservation sites in Devon, Dorset, Somerset, Cheshire and Wiltshire.

Breach of Protection of Badgers Act 1992

Mr Langton’s challenge against the SSEFRA’s pursuit of supplementary culling exposes that government has cut both costs and corners in considering the scientific evidence for its new approach to shooting badgers, introduced by Defra in 2017.

The claim is that the Government has approved a method that has no scientific basis and that has been advised against by published studies suggesting that the approach might even be counter-productive in the fight against bovine TB. This was also pointed out by the Zoological Society of London experts after the suggested method was made public.

The Protection of Badgers Act 1992 may be breached if culling is done merely on an experimental basis to stop spread of disease when there is no robust scientific evidence or certainty that this will work. The Government’s actions were found to be lawful by Sir Ross Cranston on the basis that the government argued it was able to adapt to and learn from any findings once the method is adopted. In recent weeks the Chief Scientific Advisor and Chief Veterinary Officer and a Natural England scientist have denied that a spike in bTB in the Gloucestershire pilot study and a slight rise in the Somerset pilot area in 2018 indicate that the method may be making things worse.

Important Nature Sites at Risk

On the second Ground of Appeal, Mr Langton’s challenge against Natural England centres around the duty on NE under UK and European law to ascertain that internationally important nature conservation sites are not adversely affected by badger culling operations. In the case before Sir Ross Cranston, Mr Langton had claimed that NE’s assessments pursuant to this duty were cursory and inadequate and as a consequence the decisions to sanction badger culling made on the back of them were unlawful.

In the High Court in July 2018, Justice Cranston agreed with Mr Langton that NE had breached certain of its duties under the Habitats Regulations. However, he accepted NE’s case that correction of the errors in their assessments would make ‘no difference’ to their conclusions and consequently he did not quash the badger culling licences.

The Court of Appeal will decide whether he was right not to do so. The Court will also decide whether he was correct to accept various measures to limit the possibility of impacts on international sites. One example was that culling stand-off zones near known high tide roosts for wading birds (which were imposed as conditions on the culling licences) were not ‘mitigation’ and could therefore be relied upon to ‘screen out’ sites from more detailed consideration. This is an approach that has since been found to be unlawful under European law.

Government has cut both costs and corners

Campaigners state that government has failed completely on the scientific monitoring that is required for any safe and proper assessment of new methods to shoot badgers, introduced in 2017.

Corners have been cut because;

  1. Badger numbers are crudely guess-estimated and not properly assessed as is essential in determining population sizes; a vital consideration.
  2. Natural England backtracked  on requiring data from cull companies on fox and other predator control numbers in and around cull areas.
  3. Natural England claimed to the court that their staff would know if any negative effects were happening on protected sites while at the same time stating in public that their ability to monitor SSSIs was seriously diminished.

ClaimantTom Langton said:

 ‘’ The understanding that badger culling may now be making things worse rather than better or having no effect at all is quite sobering and I hope the government will take time to reflect. What they should have realised in 2017 when they went ahead, was that they had no ability at all to learn from what was being proposed. It was and remains a huge mistake.

Our wildlife sites have been threatened by Natural England whose job it is to protect them. We think that Natural England’s defence is wrong and a damning indictment of their capacity and abilities. The court has found that they have breached their duties and now they are trying to justify, with dismissive language, feeble safeguards that neglect responsible protection of nature.

More badgers have been killed and injured during the year since the first hearing. The Minister should now intervene and take urgent steps, beginning with cancelling this year’s supplementary badger culls in order to rethink the policy. Claims by senior politicians that culls are working are founded upon briefings by Defra officials, based on mistaken or overstated understanding of the scientific evidence.’’

Habitat Regulations expert Dominic Woodfield said:

“Natural England earnestly reassured Justice Cranston last year that they will instantly respond to any emerging evidence of impacts on sensitive bird populations and other features, including those underpinning internationally important wildlife sites. These reassurances have been shown to be baseless platitudes.

One cannot respond to evidence of a negative effect that one is not looking for. The reality is that Natural England has conducted next to no routine monitoring of species populations on the European Sites threatened by badger culling, and is therefore not in any position to use any such monitoring as a miner’s canary to signal when protective steps ought to be taken.

It is telling that in the time they bought by reassuring the High Court last year, Natural England has sought to overhaul its impact assessments in a manner that precisely vindicates Mr Langton’s original claims, and as a consequence they now claim that quashing any 2017 decisions would be academic.

It will be for the Court of Appeal to decide whether this really is an academic matter having regard to all the changes to procedure and conditions that have been forced by Mr Langton’s challenges and whether those changes, welcome as they are, go far enough to protect vulnerable wildlife and fulfill our international obligations.”

Badger Culling – just 5 days to Court of Appeal Hearing

Next Tuesday July 2nd at last sees  aspects of Supplementary Badger Culling and Habitat Regulations Assessment  of badger culling under review by the Court of Appeal, nearly a year since the cases were first heard in the High Court. We are hopeful that further scrutiny will finally show the full merits of our arguments.

This time there are three Judges. There are parts of last year’s submissions to work through and  new supporting submissions.  So far the case is listed for one day but the exact timing, court number and judges are yet to be revealed.

The Hearing will be televised:

https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/

From submissions made by Defra and Natural England for these appeals, and from other exchanges of correspondence it is clear that the intention is to continue to increase badger culling this year and beyond. Yet despite monitoring the general trend in bTB in each cull area, senior  government sources also confirm this week that there will be no absolute indication of whether badger culling is contributing to bTB control or not.

The arguments put forward by government show intent to continue badger culling long into the future. This despite the fact that bTB was tackled effectively, with a 80% decline over four years in the 1960s. Shockingly, their justification still references badger killing in the Republic of Ireland, where no relationship between badger removals and bTB change has ever been established. The claims from government scientists are frankly astonishing.

Government intends to continue culling badgers until bTB is eradicated from cattle, but even any theoretical benefit from badger culling cannot materialise until the disease is rigorously addressed in cattle. Put another way, even if badger cull could help reduce bTB slightly, it cannot while disease in cattle is inadequately addressed by failing testing.  This was actually known from the start. Killing badgers has always been pointless, with no meaningful contribution.

It is obvious from the ‘Godfray Review’ in 2018 that the scientists actually know that badger culling is not a significant component of the policy, and indeed has no little or no value in bTB control. This was one message at this week’s  meeting ‘Tackling Bovine TB’ at  the TB Advisory Service Conference in Cirencester, while others preferred sticking to the doomed government line. Effective cattle bTB testing, movement control and strict biosecurity are the measures that will deliver significant bTB disease control benefit.

We can only hope that the writing is on the wall now for the expensive, cruel, useless badger cull and that precious public resources will be directed to where they can be effective in the future.

Fundraising income to help fund legal costs for these appeals has been a steady trickle, and all who have so generously contributed cannot be thanked enough.  The need remains to continue to challenge bad badger culling policy and bTB control. Several decisions to be taken on the way forward are dependent on the outcome of the appeals, but it is not clear exactly how long any new judgement will take.

Update on fundraising & supplementary culling

The good news is that there has been another generous donation to the crowd fund which takes it to nearly 50% of the target. When the figure needed to pay for the Appeals and to progress new challenges was calculated, it seemed as if it was an impossible funding goal. But now the amount raised is all but half way there, with two weeks to go before the hearing. A huge thank you to everybody who has donated so far. Please keep it coming.

The bad news is that despite the Appeal to last year’s ruling on ‘Supplementary Culling’ coming up in the first week of July, and the recent pre-action protocol letter challenging such culling in 2019 (on the basis of escalating bTb herd breakdown figures in Gloucestershire), Natural England has now authorised the licenses for Somerset and Gloucestershire*. This means that badgers are again being shot, sometimes inhumanely, under supplementary culling licences. This may continue to  be the case until early 2020, and be repeated in further years unless the upcoming appeal is won, when it would be stopped.

As mentioned in previous posts, and most mysteriously, a letter from Defra saying that the licenses had been re-authorised was received within a day of receipt of a letter from Natural England saying they had not yet decided whether or not to re-authorise culling. The conclusion must be drawn that the claimed independence of Natural England from Defra deserves, and must receive closer scrutiny. This remains difficult with the continuing unwarranted blanket of secrecy that surrounds all matters relating to the cull. Despite three separate Information Commission Tribunals finding against Natural England’s refusal to hand over environmental information, Natural England still use the same old excuses that were ruled against previously. It is a disgraceful time for nature conservation and freedom of information. Nothing has changed.

The reasons given by Defra for the two 2019 licence authorisations are being considered by lawyers and the upcoming legal case will bring the issues into full focus. The battle goes on despite these setbacks, but it is only with the support of the badger groups, charitable trusts and generous, caring individuals that this work continues.

* Badger cull supplementary cull licences have also been authorised for Dorset Area 3 as of 20.06.19.

 

Supplementary culling licences – update

Hours after receiving this letter from Natural England, comes  a letter from Defra saying that the supplementary culling licences have been authorised in Gloucestershire and Somerset.

So it appears that the challenge to the supplementary culling licences was not premature after all?

What is going on at Natural England?  

Natural England’s new authorisations allow the killing of up to 540 badgers in Gloucestershire Pilot Area 1 and 578 in Somerset Pilot Area 2.