Over the last three years, the science base for badger culling has shrivelled away from ‘not very much’, to nothing. It has regressed from speculation that it might enable a modest annual reduction of bTB in cattle, to the reality that after 7 years of study, there is no measurable benefitwhencomparing herd breakdown rates in culled and unculled parts of the High Risk Area. It doesn’t work. This is one reason the government refuses to talk about it. Not only did the 2018 spike in bTB breakdowns in Gloucestershire show how unlikely it is that the killing of badgers is linked to the epidemiology of cattle breakdowns. It showed how cautiously the model-based claims of the Animal Plant and Health Agency (APHA) after 2 and then 4 years of culling should be considered. Subsequent detailed examination of all the government data this year in a peer reviewed paper (Langton et al) showed the badger culls to have failed.
Following a ridiculous three months of trying and failing to block and then rubbish the new scientific paper, Defra stopped communicating with the authors and enquiring journalists, leaving Natural England (NE) with the difficult decision of whether to continue issuing licences. The government response was to re-deploy Andrew Robertson from the government’s TB HUB information service in Exeter to Natural England in May of this year “because of a lack of expertise” inside the NE organisation. The outcome was that Natural England supported Defra’s position and issued yet more badger culling licences. Initially more Supplementary culling licences were approved by NE in May, this despite the fact that there was no benefit after 4 years to maintain for a further 5 years. Then in August, NE were somehow prepared to extend their belief in the killing of badgers and to continue culling badgers based on their own unpublished ‘secret’ science.
Instead of stopping culling as they should have done, NE have taken a nebulous stance on the science. It has refused to provide any written justification for its position, perpetuating its belief in the use of secrecy to prevent public scrutiny of their competence and decision making. The public have a right to see the rationale for their decisions, but this has been withheld. It is clear that NE have worked very very hard this year to facilitate continued issue of licences. They do this for a combination of reasons. They are likely fearful of contradicting Defra and APHA. Perhaps it would be too difficult to admit to failure on such a sensitive area.
Over the summer, NE Chairman Tony Juniper chose not to reply to communications, preferring to talk vaguely on public panels about NE not wanting culling and preferring vaccination. This summer he had a big chance to stop badger culling. He didn’t. He has now been in charge during the culling of most of the approximately 200,000 badgers. He and George Eustice have carried out what some call the near eradication of badgers over large parts of England.
NE eventually responded this week following a legal pre-action letter, sent in early October. They claimed that the death of the Queen and changes in government had prevented the licensing paperwork from being shared with those asking for it. These are embarrassing excuses for the lack of provision of legally required documents, on such a controversial subject of high public interest, and they reflect poorly on those responsible.
Information released late on Friday 28th October, showed 11 new cull areas, and the potential for tens of thousands more badgers to be killed. Over 30,000 or so could have already been shot over the last 8 weeks in a further sickening Natural England licenced ‘bloodfest’ of largely healthy badgers. One thing is certain, this is Natural England’s work. Natural England carry the torch for badger culling even if they say they are only following orders. As they have since 2012, when someone thought it would be a good idea for NE to carry it out and control it. They certainly have. It is the legacy of those involved with NE past and present, as much as anyone.
Another chance to read an important guest article entiled; ‘Breeding Bird Survey (BBS) data, badger culls, Natural England and the British Trust for Ornithology: New paper, same old.’ by Dominic Woodfield that first appeared on Mark Avery’s blog on 23rd September
Dominic Woodfield is a highly experienced practitioner in Environmental Impact Assessment and Habitats Regulations Assessment. Most of his work is for the development sector, but he has also undertaken commissions for Natural England, the RSPB, Wildlife Trusts and campaign groups. He once mounted a succesful independent legal challenge in defence of an important site for butterflies in Bicester, Oxfordshire.
Most readers would, I imagine, concur that an increase in fox populations in places where there are vulnerable ground nesting waders and waterfowl might be a matter worthy of conservation concern and attention. Especially where such increases are substantial (as much as a doubling of numbers), and arise as a consequence of a specific controllable human intervention, such as culling up to 95% of badgers across large swathes of English countryside.
Natural England (NE), which issues the licences to cull badgers, is obliged by statute to assess the potential side effects of badger culling on other species. When it comes to designated sites – SACs, SPAs, Ramsar Sites and SSSIs – NE do (now) acknowledge that a ‘predator release’ effect (where foxes and other mammalian predators increase in number via backfilling the ecological niche vacated by culled badgers) is an impact risk. Under pressure from legal challenges since 2017, NE has developed detailed guidelines for such assessments, amended their assessment procedures and added restrictions onto licences to better take this risk into account and/or mitigate potential effects on such sites. But outside these sites and across the larger part of the countryside in cull zones, the same birds, as far as NE are concerned, are on their own. There are no procedures for assessment or protection.
The small group within NE that processes and issues cull licences describes the ecological risks associated with ‘predator release effect’ as a consequence of badger culling as “theoretical”. This is despite their being flagged as a risk worthy of further investigation in the wake of the Randomised Badger Culling Trial (RBCT) in 2007 (Defra 2007) and again in 2011 (Fera 2011). This loose end did not trouble the masterminds behind the current badger cull, which commenced in 2013, nor those responsible for cull licensing within NE. At least it didn’t until relatively recently. Ultimately, it took the pressure of tribunals and legal challenge and the scrutiny of the courts in 2018, five years after the cull had started and with tens of thousands of badgers already removed, to force the agency charged with protecting our wildlife to finally promise a High Court judge they’d look more closely at this issue.
It’s conceivable that NE then asked the Government, through Defra, to fund a proper study and the Government refused. We don’t know. But in any event the outcome was that instead of a properly designed and controlled investigation, NE elected to go ‘cheap and cheerful’. Behind a wall of secrecy, they commissioned the British Trust for Ornithology (BTO) to conduct a simple desk study, extracting subsets of volunteer data from the Breeding Birds Survey (BBS) for cull and non-cull areas, and comparing them to see if there were any patterns to be found that might be attributable to badger removal. When, in 2018, the BTO unsurprisingly reported to NE that nothing conclusive could be gotten from such a coarse approach (Kettel and Siriwardena 2018), NE chose to interpret that as indicative that there was no issue to be concerned about, and advised Ministers and the Courts the same.
This is all old news of course, especially for readers of my previous guest blog, kindly published by Mark on 18th June (see here). In it I criticised the methodology and utility of these desk-top analyses of BBS data, the secrecy around them, and how NE’s chosen ‘absence of evidence is evidence of absence’ interpretation was used to inform badger culling policy decisions at Government level, without the benefit of such ‘science’ being through independent peer review or subject to any public scrutiny.
One of the BTO scientists involved was piqued into responding (his remarks can be found in the comments section under the blog, again (here). Amongst a somewhat prickly defence of the study’s approach and methodology, he conceded two of the central premises underpinning mine and others’ concerns. One: that the study did little to answer questions about the wider ecological side effects of removing as much as 95% of the population of an apex predator across large areas of English countryside. And two: that ecological side-effects from removing badgers from the ecosystem were, to use his word, “certain”. Notwithstanding what those two concessions, when read together, say about the worth of this form of study, he said that he stood by it and furthermore that the BTO had been commissioned to repeat it in 2022.
The results of this repeat exercise have just been published in the Journal of Zoology. The paper is titled Ward et al. 2022 “Breeding bird population trends during 2013-2019 inside and outside of European badger control areas in England”. The abstract can be accessed here (but the full paper is behind a paywall). I encourage interested minds to read the full thing. Does it represent a robust way of finding out whether localised predator increases as a consequence of removal of badgers are having any impact on local populations of sensitive ground nesting species, such as lapwing, redshank, snipe or curlew?
My own thoughts on this question are below. Ward et al. 2022 essentially repeats the exercise carried out in 2018 and modified in Kettel et al. 2021, albeit with a slightly bigger data input. For me, the biggest difference is a much-improved discussion. Indeed, anyone who read my previous blog will observe that despite neither myself or any of the other more vocal critics of the 2021 paper (and its suppressed 2018 predecessor) being part of the peer review process, the discussion within the new paper rather reads as if we were! It attempts, at least, to respond directly to some of the criticisms of the methodology of analysis, the utility of the results and the inherent problems of bias, that were levelled at both Kettel et al. 2021 and Kettel and Siriwardena 2018.
In consequence, the authors are now more openly cognisant of the fact that studies this coarse-grained, data-limited and with such little statistical power, are never likely to detect impacts anything short of catastrophic for any individual bird species. It now also appears to be recognised by the authors that this sort of high-level approach inherently militates against the prospect of arriving at any conclusive answers to the fundamental question – is badger culling having a collateral ecological effect of relevance in conservation terms on any individual bird species?
All of which means NE have frittered away a further four years and paid the BTO an unknown quantity of public money to conclude, as Ward et al. 2022 does, that it’s not clear whether there is an effect or not and that answering the question would need better, more targeted investigation. The same conclusion reached fifteen years ago following the RBCT, again by Fera in 2011 and further reiterated by the Godfray Review of 2018 (Godfray et al. 2018). That a proper study is necessary and important. Not exactly revelatory – indeed it is no more than critics of NE’s lackadaisical approach to assessing the collateral ecological impacts from badger culling have been urging for years.
Although the authors’ discussion of the results in Ward et al. 2022 is an improvement on previous iterations, the continued application of a flawed methodological approach renders the study only marginally less worthless than its predecessors. The 2022 version remains, in particular, compromised by the decision to lump species at high risk of predation effects together with those at inherently lower risk, and by the inescapable fact that the BBS dataset is too coarse grained to provide a sufficient platform for sensible analysis for precisely the scarcer species – such as ground nesting waders – that should be a focus of concern. Instead, and in common with its 2018 and 2021 predecessors, the study contrives an ecologically nonsensical guild of “ground nesting” species on the basis of a single common parameter – that they construct nests generally within 0.5m of the ground. Thus, ecologically disparate species such as chiffchaff, herring gull and coot are homogenised into a single receptor with a standardised susceptibility to mammalian predation. The continued failure of the authors to properly explain, qualify or acknowledge the deficiencies of this approach is glaring. They either genuinely believe that vulnerable species such as lapwing, nesting on the ground, in open uncluttered environments such as arable fields, are at the same risk of predation from larger mammalian predators as a whitethroat in a bramble thicket, or they are wilfully building a massive source of obfuscation and bias into the methodology. Either way, it muddies the waters and fatally undermines the study.
Sadly, predetermined bias is not just restricted to the methodological design. It also infects the syntax of the discussion and conclusions of the paper. Most glaring perhaps is the abstract – the bit one can read for free – concluding with a wholly unsupported premise – that “this predator removal has not affected bird populations”. That might be the conclusion the authors from Natural England (and Defra) wish casual readers to take from the study, but for those who read the full paper, it’s not actually a conclusion supported by the analyses. I am surprised this statement survived the peer review process and that the BTO authors (at least) would allow such an unevidenced leap of logic. In contrast, the all-important last line of the conclusions calling for a landscape-scale quasi-experimental approach: “to provide stronger inference about the complex potential ecological effects of culling predators such as the badger” didn’t make it into the abstract. Strange that.
So, beyond the authors’ clearer acknowledgement of the fundamental limitations of the exercise, Ward et al. 2022 merely perpetuates the uncertainty that has presided over this question since the end of the Randomised Badger Control Trial, fifteen years ago. In other words, it does nothing to progress Defra’s, the Secretary of State’s, Natural England’s, conservationists or the wider public’s understanding of collateral ecological effects from badger culling any further forward from the position prior to the current cull starting in 2013. At all the junctures in time cited above, independent review has indicated that further investigation into the ecological side effects from badger culling was merited. All NE have actually done in the wake of their promise to a High Court judge in 2018 is commission a spectacularly coarse analysis which was never likely to deliver anything close to a useful answer, suppress the results for three years and now repeat it. A cynic might conclude that this is deliberate – a means to be seen to be doing something in the face of repeated legal challenges that exposed systemic failures by NE to properly assess impacts – whilst actually kicking the can down the road.
There is one paragraph worthy of note in the discussion of the results. Despite the continued determination of the authors to muddy the waters by casting the analytical net to include species of inherent low-vulnerability to predation by ground-based mammalian predators – such as nuthatch and green woodpecker (really, guys?), the authors do for the first time note and discuss separately the negative trends indicated for two of the species which actually ought to be the critical focus – lapwing and curlew. It is worthy of remark, at least, that such trends as there are for these species appear more or less consistently negative across all three iterations of BTO analysis. Finally, this has been remarked upon in Ward et al 2022. The problem of course is that this potential cause for concern should have triggered further targeted investigation – along the lines that the paper now suggests – much, much earlier. Not now, nearly ten years too late.
Repeating a near-pointless study again and again is, in my view, a poorly disguised exercise in obfuscation and delay. An excuse to do nothing more meaningful, just in case that gives you an awkward answer. But don’t listen to my cynicism and take my word for it. Read Ward et al. 2022 and ask yourself whether this is valuable and robust science being commissioned by Natural England and/or a good use of the time and resources of the BTO and of the data that it receives from volunteers. Do you think this type of data analysis exercise has any conceivable prospect of determining whether curlew in Somerset, redshank in Gloucestershire or stone curlew in Wiltshire are experiencing increased predation pressure as a consequence of badger removal? Do you agree with NE that ‘absence of evidence is evidence of absence’? Or alternatively, ‘if you can’t see the wood for the trees, it means there is no wood’.
If you would like to leave a comment about this blog you can do so at the end of the article on Mark Avery’s site here.
Kettel, E.F. and G. M. Siriwardena 2018. Comparisons of breeding bird population and abundance trends within and outside two specified areas located in SW England. Unpublished (confidential) Report to Natural England. British Trust for Ornithology, Thetford, Norfolk, UK. V. Ward, M. Heydon, I. Lakin, A. J. Sullivan, G. M. Siriwardena. (2022) Breeding bird population trends during 2013–2019 inside and outside of European badger control areas in England. Journal of Zoology 108. https://zslpublications.onlinelibrary.wiley.com/doi/10.1111/jzo.13010
Has Defra had enough of experts? Its own experts that is?
Last week The Daily Mail published a story (here) around the release of a Freedom of Information request (here). This FOI showed that the Deputy Director of the bovine TB Programme at Defra wrote to the journal Veterinary Record (VR) trying to influence the peer-review process of a new scientific analysis of badger cull data, Langton, Jones and McGill, (here), and largely failed.
The Mail story was published on Tuesday 30th August and names Eleanor Brown as the senior official who wrote to VR Editor Susanne Jarvis on 2nd March 2022, just a few weeks before the paper appeared in print. It laid down extensive criticisms aimed at the manuscript that they had been sent ahead of publication, where they stated that it was the VR Editorial Board’s (Headed by Lord Trees) decision as to whether to publish it or not. Defra thought it should not be published and made that very clear to a journal that extensively publishes government science.
The original Mail article implied that VR had been ‘forced’ to seek changes to the manuscript. The VR Editorial Board had in fact called a special meeting to discuss challenges to the paper, that Defra’s email in early March claimed was full of errors and flaws. However, the VR Editorial Board found that there was nothing wrong with the statistical work, which was found to be robust. These senior national and international veterinarians, with the VR staff, resting on the detailed reviews of no less than four peer reviewers decided that Defra’s accusations held little substance, and published the paper largely unaltered. The paper showed badger culling lacked any signs of working. Badger culling has not affected bTB herd breakdown in the High Risk Area of England since 2013.
The Daily Mail then republished the article the next day (31st August), removing the claim that Defra had ‘forced’ the Veterinary Record to make changes to the paper. The truth was that in order to proceed with publication, VR had required the authors to write-in Defra’s apparent intention to publish something in the future, using data it had kept secret, and describe it as a limitation to the study. Something that was dubious, but was made a condition of the paper not being blocked. So the Mail got it right in that there was an element of ‘watering down’ due to the Editorial Board meeting, but nothing that impacted the full force of the paper’s findings that showed that Defra’s badger culling policy had been a total failure.
Defra’s view that the analysis was flawed was therefore roundly rejected by over a dozen leading experts in the field. However, Defra had been invited to comment on the new paper for a short news piece to accompany the publication of Langton et al in the same edition of the journal. But this ‘comment’ somehow morphed into a full-page critique, fronted by the Chief Scientific Adviser Gideon Henderson and Chief Veterinary Officer Christine Middlemiss. This contained and expanded on the sentiments of Eleanor Brown’s email. It persisted with the claims that the paper was ‘flawed’. This was published under the guise of a ‘letter’ in the very same issue.
These highly unusual events then became farcical when commentators immediately recognised errors in Defra’s alternative view. But Defra then held out for six weeks before admitting that their letter was flawed. They then revised it. Saying it didn’t matter anyway because they were right and in effect, that the study, Vet Record editorial staff and the peer reviewers were all wrong (here). In response to last weeks Mail story, Defra even put out a defiant blog on 30 August repeating their original nonsense and unchecked views using small amounts of data for the unculled area comparison (here).
The 30 Aug Defra blog stated:
“As we had been invited to, we presented our findings to Vet Record to help inform its editorial decisions around publication of the paper, with the journal deciding to publish the study alongside a letter of response from the Chief Vet and Defra Chief Scientific Adviser. There was absolutely no attempt to make changes to the scientific research, as the Mail claims was the case.”
For some reason any comments made to this blog criticising Defra’s restatement of their flawed position were removed. Interesting.
So Defra now say that it never attempted to try to get changes made to the science. Yet it wanted to go over the head of the VR staff and peer-reviewers to the Editorial Board? And turned an invite for a news piece comment into a mini-paper that was wrong, dressed up as a letter.
Readers can be the judge of whether science was handled ethically in this instance. Defra say they made no attempt to make changes, yet they wrote to VR in very clear and emotive terms a few weeks before publication, and having been ignored, completed a hurried un-peer-reviewed missive that itself was full of error, ambiguity and secrecy. They were successful in getting the VR Editorial Board to require a smattering of changes stating that Defra had other ideas. Un peer-reviewed science of the future influencing peer-reviewed science of the present?
This actually all looks more than a bit dubious from the perspective of publishing ethics. It has to be asked, who is going to look into it? Having re-stated their views on their new blog, Defra have begun signing off new four-year intensive badger cull licences in 10 new cull areas this autumn, with 40,000 or so more badgers condemned. But Defra are wrong. They (wrongly) claim large benefits from badger culling in the first two years of culling, as they did in 2017, yet say this data cannot be used in the Langton et al analysis. And then they won’t talk about it and neither will Natural England’s statistical expert Peter Brotherton. Natural England as a whole have clammed up, presumably because Defra won’t explain their thinking to them either.
The Minister George Eustice owns the badger cull policy and is closely managing it. He must now be aware of what his staff have done. He may even be a part of it. They have painted themselves into a corner and gone to ground. Has he had enough of his experts yet? If he survives the reshuffle that is. If not, perhaps the dodgy legacy will be his, and a new Minister will get to grips with the ridiculous, unscientific yet defiant behaviour of Defra and its agencies on bovine TB and badger culling. As hundreds of badgers a day are shot for no good reason, the evidence clearly points to bad government and desperate measures. This policy of killing largely healthy, protected animals in a manner found cruel by the British Veterinary Association is out of control.
British Trust for Ornithology (BTO) opens up about its ‘secret’ work for Natural England.
Gavin Siriwardena, a BTO ecologist, has been writing online about his experience of working with Natural England (NE). Please see the third comment below the guest piece by Dominic Woodfield on Mark Avery’s blog here. He writes regarding the prolonged suppression of the release of a BTO scientific report, paid for with public funds, that contained a flawed analysis. He helped prepare this report in 2018, with others, for Natural England. A published version was not released until 2021 when the 2018 version was suddenly labelled as a draft, despite not being cited as such before in official documents used for decision making. This report was a promised outcome of a legal case pointing out lack of attention to ecological protection from the effects of mass-killing badgers on sensitive nature reserves.
Why was the initial 2018 report suppressed? Turns out that yet again, government funded work surrounding bovine TB eradication and badger culling has been cloaked in secrecy and hampered by error. In this case the mistakes were rendered inconsequential, but only because the design of the study was so scant and unconvincing that it made the results ‘low inference’, and the exercise not fit for purpose anyway. Perhaps NE did not want to expose the mistakes, how poor an effort it was, and that they were using it to justify decision making to meet the expectations of a High Court judge. It was, after all, one of their main defences from legal challenge, having promised the court to look carefully at badger cull impacts. However, in exposing these problems the BTO employee has revealed a lot about the situation regarding a further, similar legal case on biodiversity protection that goes to court this month. Here are some of his remarks and some thoughts on those remarks:
“Badgers are a top predator in the UK today and are also ecosystem engineers to some extent. Changes in their numbers are certain to have some effect on some other animals and plants, some of which may be biologically significant. “
Natural England’s previous defence in court was that effects are uncertain, and avoidance or mitigation is in general “ultra-precautionary”. Not the case now it seems.
“The analyses were limited by scale and context: this was not an experiment and cull areas are likely to have differed systematically in land-use from non-cull areas, added to which sample sizes were small. “
But NE relied on the BTO 2018 report in court. Gavin S acknowledges it is fraught with limitations, yet it remains the only action NE are taking. Disgraceful?
“However, there was a misunderstanding within the project team and a filter for inclusion of species was set at 30 square-year combinations, as opposed to 30 unique squares, and this was reported incorrectly in the report.”
Although NE used this non-peer-reviewed (at the time of use) analysis in their legal case, it contained mistakes that changed conclusions regarding many species.
“I sympathise with the view that policy should not be made on the basis of reports before they have been improved by peer-review, but I also sympathise with policymakers who may not have time to wait for the process to be completed. “
So BTO feels sympathy for policy rested on inconclusive work – not such a good idea to say this really?
“We could only analyse the species for which we had enough data, which inevitable biased the work towards more common species. “
Limitations to the data make the analyses worthless for many of the cohorts of scarcer species for which impacts are most likely to be significant in conservation terms.
“Monitoring therefore remains critical and we will continue to investigate the cull’s effects on birds where we can. “
We are in agreement that a proper monitoring scheme to look specifically at this issue is needed. Despite this, it appears the BTO is planning to repeat their previous dubious exercise with another year’s data, even though it is inherently non-conclusive/low inference by design. Is this just because they are being asked to do so by Natural England and the (taxpayers) money is just too good to refuse?
So, what do we make of all this? A BTO scientist appear to agree with us that there is/was a need to monitor the ecological impacts of badger culling properly. They say they did what they could with low-powered subsets of volunteer data. They admit that they made mistakes in the analyses of these data . Natural England used the error-infected study as evidence in a Judicial Review. A later process of peer review found the mistakes. NE and BTO declined to release the original report to their supporters and interested parties, or to confirm what they were doing with the BTO data. The report was submitted for publication as a peer reviewed paper but rejected on the grounds that the science was weak. They submit the report to BTO’s own journal. It is accepted for publication but conveniently not published until it is too late for it to be subject to legal scrutiny. Pretty stinky?
As others have said, this is not a good look for BTO and is damaging to its reputation for independence, scientific integrity and impartiality. Do NE, on the other hand, care that much? What has been said by a BTO scientist in the Mark Avery online comment is useful. Very useful in showing the world how Defra and Natural England find ways to sidestep the necessary ‘due regard’ of the impacts of Government policy on the natural world. To deliver what their political masters want and to pick up the rewards for doing so.
You can donate towards the legal costs of opposing the flawed policy here:
Who tampered with the data when examining potential ecosystem impacts?
In the last week of July 2022, the Court of Appeal in London will reconsider the 2021 Judicial Review findings of Defra’s alleged failures, under their NERC Act (2006) duty in relation to badger culling. The original claim was that of a failure of government to adequately consider the potential ecological impacts of mass badger removal upon priority species and habitats in badger cull areas under the Act, and to take adequate steps to deal with them.
Now is an appropriate time to report on one important aspect of the case. It relates to a scientific paper published in February 2021 in the journal Bird Study, published by the British Trust for Ornithology, entitled “A comparison of breeding bird populations inside and outside of European Badger (Meles meles) control areas”.
A forerunner of this paper was an unpublished report using BTO volunteer data, that was used in decision making, yet labelled by Defra agency Natural England (NE) as ‘secret’. It had been referred to in NE ecological impacts guidelines, having been cobbled together to try to show the judiciary that Natural England had not completely overlooked the subject after all, and were treating it seriously. NE needed to show something, having been found by a High Court judge as being in breach of duty in respect of SSSI protection.
Why then was this earlier report, prepared in 2018 and cited in government advice, not available publicly until 2021 and despite multiple requests for access to it, as is normal? It is now a story that is worthy of close scrutiny. It is a story that the main expert witness in the case, Dominic Woodfield, a professional in ecological impact assessment, has devoted much time and energy to in support of the legal challenges. He tells clearly and concisely the story of what has happened in his new guest blog for Mark Avery.
We think it sheds more than a little light on the way Natural England, and their handlers Defra, are managing information with the aim of providing the messaging that they are looking for, to facilitate the continuation of badger culling policy. Policy-lead evidence if ever you saw it?
You can find the full story here on Mark Avery’s blog..
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?
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.
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 . 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 . 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 . 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 . 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,
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:
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.
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?
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)
On July 2nd, the Court of Appeal heard the challenge to the decisions of Sir Ross Cranston in the High Court in July 2018 (Langton -v- The Secretary of State for the Environment Food and Rural Affairs and Natural England). The Court sat between 10.30am and 4.10pm, with much of the proceedings (the morning and part of the afternoon) televised and now available on Youtube:
Unfortunately the sound quality from parts of the room was not too good at times, which is a shame for those wanting to listen and analyse the detail. The afternoon coverage cuts out at about 2.45pm; we do not know why. Unfortunately this means that the summing up is not recorded.
In this instance, two grounds of the case that the High Court decision of 2018 was incorrect were fully examined following some opening discussion over the scope of the Grounds (reasons for challenge).
Richard Turney opened with his arguments over why allowing supplementary badger culling (SBC) for 5 years after the completion of intensive culling is ‘ultra vires’, that is, beyond the provisions allowed for under Section 10 of the Protection of Badgers Act 1992 (PBA)
One aspect of the issue relates to the fact that the effects of SBC are unknown and cannot be separated from other bTB control measures. They may, according to published science (Jenkins et al. 2010) make things worse. The inability to be able to tell whether SBC works or not was reinforced in the reference material and in a recent letter from Defra to the claimant.
In front of Sir Ross Cranston in the High Court in 2018, Defra and the SSEFRA had used the claim that they would learn from the SBC results and adapt their policy accordingly to support their case. The arguments yesterday included whether the PBA allows ‘experimentation’, although SBC cannot even be regarded as an experiment, since there can be no learning resulting from it.
The judges have a fine line to tread in that under the current approval, SBC might only be claimed to have helped, and cease, if bTB goes down and is eradicated. However if it does not, (and the government scientist’s position is that it could take a very long time for success or failure to be indicated), it is not possible to be sure whether SBC is helping or holding things back. Under an experimental approach, if SBC is actually worsening the spread of the disease, you may not find out for decades or even ever.
We remember that in the 1960’s bTB was reduced by 80% in four years with thorough cattle measures. What we know of SBC from results in Gloucestershire in its first year is that there has been an increase in confirmed new herd breakdowns by 80%. Government claims that it is too early to be able to interpret the results of SBC and longer periods of implementation are needed; this is not correct as there can never be certainty on causation with the current policy.
In approving the policy, the Minister may have overreached the powers of the PBA; there is a clear argument that this should only have been attempted under different legislation. Defra/SSEFRA argued that licensing doesn’t have to be definite in terms of outcome. But that didn’t seem to address the capacity of SBC to increase the spread of bTB disease on a country-wide basis, in a manner that it is impossible to detect.
The other part of the case argued yesterday concerned the way in which Natural England approaches its legal duties of assessment in terms of the negative impacts of badger culling on non-target species in internationally protected sites. Much of the evidence relied upon in this challenge arises out of forensic analyses of the detail of Natural England’s impact assessments by our Habitats Regulations expert Dominic Woodfield, who continues to work pro bono on the case.
The argument centres on the implications of a suite of recent European and domestic court cases, in particular an Irish case known as ‘People Over Wind’. In this case the European Courts ruled that mitigation measures, taken specifically to avoid or mitigate adverse effects that would otherwise be likely to occur to sites protected under the EC habitats and Birds Directives, cannot be taken into account by a decision maker when screening proposals for ‘likely significant effects’ – the first stage of what is called a ‘Habitats Regulations Assessment’.
In the challenge in the High Court in 2018, Sir Ross Cranston accepted NE’s argument that measures imposed as conditions on badger licences, in order to try and avoid impacts on sensitive species and sites, were not ‘mitigation measures’ because NE had invited applicants to incorporate them into their application and they were thus integral parts of the project. This is an approach that contradicts the methodology NE requires to be followed in all other aspects of its duties under the Habitats and Birds Directives and it is telling that NE has very recently overhauled all of its Habitats Regulations Assessments for badger culling to try to correct this error.
The Court of Appeal’s decision on this aspect of the case has huge implications. If the Court of Appeal finds that Sir Ross Cranston’s decision was correct, it will put UK case law squarely at odds with that of all other EU countries bound by the Directive and will mean that Natural England’s approach to marking its own homework when it comes to badger licensing is open for wider adoption by developers and others as a means of avoiding the more stringent requirements of the Appropriate Assessment stage of Habitats Regulations Assessment. This will result in reduced protection to internationally important sites and have knock on implications for wildlife protection generally. On the other hand, if the Court of Appeal finds that Sir Ross Cranston’s decision to accept NE’s unusual definition of mitigation was wrong, it will confirm that NE’s authorisations for badger culling over vast areas of south-western and western England were unlawful, in both 2017 and 2018.
The question now remains what relief could occur if the cases are successful. With SBC it will be all or nothing; supplementary culling will either be stopped or considered acceptable. With the Natural England licences, judgment in favour of Mr Langton could see a number of licences quashed. This would both show the validity of the original challenges and focus a spotlight on how NE approached the 2019 licence applications.
We hope that judgment will be handed down before the end of July, but it is possible that it will be towards the end of August or even later. The courts were fair and open yesterday and we can only wait to see the verdicts. Huge thanks again to all those supporting the legal challenges and sending in messages of good wishes this week. It really is appreciated. Please keep encouraging donations as we are still short of funds. Huge thanks to the legal team and the contributing experts, advisors and researchers too.
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.
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;
Badger numbers are crudely guess-estimated and not properly assessed as is essential in determining population sizes; a vital consideration.
Natural England backtracked on requiring data from cull companies on fox and other predator control numbers in and around cull areas.
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.’’
“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.”
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.
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.