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

On 9th June 2020 the Supreme Court turned down a permission request to look again at the long term killing of English badgers by government subsidised cull companies. The application related to a ruling in 2018 on the lawfulness of the 2017 government policy to carry out ‘supplementary’ badger culling (SBC). This is the maintaining of badger culling for periods of five years at a time in places where badger numbers have already been reduced by 70% or more over four years.  Recent scrutiny at the Supreme Court by Lords Kerr and Hamblen with Lady Arden in 2020 found that the application did not ‘raise a point of law worth considering at this time.’, thereby closing the matter.

In 2019, the Court of Appeal (CA) had upheld Judge Cranston’s 2018 High Court ruling that, in introducing SBC, the government had satisfied the purpose of Section 10. of the Protection of Badgers Act 1992,  that otherwise protects badgers from needless persecution. Cranston had decided that “there was a logical and defensible rationale for the licensing of supplementary culling”. But what exactly was that rationale and what does the decision tell us?

In August 2018, Judge Cranston had found that the government’s approach was not unlawful due to “a policy of maintaining a reduced badger population through supplementary culling coupled with the commitment to change tack as evidence became available”. The decision was therefore conditional on the ongoing learning and adapting to results during the process.  Seems reasonable.

The decision was controversial however, firstly because the consultation wording over SBC had been ‘unimpressive’ and had been wrong to say to the Minister and the general public that adopting SBC was ‘necessary’, when the approach was clearly both risky, ‘experimental’ and subject to published warnings that it might not help, might hinder and even make the spread of the disease worse.

What seemed to sway the ruling, as revealed to the court in disclosed email exchanges and meeting notes from Defra in 2016, was the fact that it had been conceived by civil servants and the then Chief Vet Nigel Gibbens and Chief Scientific Advisor (CSA) Ian Boyd.  Their advice was based partly upon models and modelling, and court disclosures indicate that they didn’t think they or the modelers around them instilled confidence. The advice was to depart from tentative findings from the study sites of the main reference project (The RBCT 1998-2005) and to keep on culling rather than to stop in the manner that claimed (modelled) benefit in that study. Somewhat sinister importance and weight was given to shooting syndicates preferring to keep on badger culling. Also the non-consultation of wildlife and welfare charities as the plans were decided was noticeable.

The legal challenges were framed around the RBCT reference project by necessity, as challenging decision making has to be done within the context of the original science that Defra and the NFU chose to follow.  This constraint does not allow doubt subsequent to the decision making to be brought to the court room.

In court, SSEFRA argued that the requirements of the PBA are met if the SSEFRA’s subjective intent was to reduce the spread of TB.  However, the CA did not seem to wholly endorse this finding of Cranston. It re-framed the requirement to require the SSEFRA to reach a decision which was lawful on public law terms – i.e. a rational one. But the CA did also accept that a licence could be granted for the purposes of an experiment where the SSEFRA was advised that it was a logical approach to disease control.

In effect, Cranston’s ruling said the SBC approach was lawful. The Secretary of State is entitled to follow the advice of Government advisors (including departing from the published warnings of science), even when public consultation misinforms about the needs and necessities.

In this case, the decision found that any cessation of culling after a four year cull is expendable, but without evidence. The argument provided was informed by an unpublished ‘confidential’ report based upon adjusted, un-peer reviewed modelling, suggesting that after badger culling stops, bTB may return to previous levels over time.

On the face of it, it is possible to see how the judiciary might give the government the benefit of the doubt: difficult decisions and experts doing their best in an information void. Yet as with everything, hindsight is a wonderful thing. Because after the initial ruling, retiring SBC architect Ian Boyd made an important concession in relation to checking any direct measure of badger culling value, over the long term.

He suggested any learning (Cranston’s ‘change of tack’ as evidence became available) could only be the result of regional scale trends, once national depletion of badgers is achieved, at some point in the 2030’s.  Some modelling once data from six cull areas over four years might or might not reflect direction of trend, but that there would never be direct or categoric evidence to go on. Even at the end. Whether bTB is eradicated or not you will never know the contribution from badger culling.

So what do we make of this? Cranston did not ask about timing and perhaps killing all the badgers for decades on the off chance seemed acceptable? Even when it might encourage the spread of disease, something that no one could detect? However the fact that in truth, there is a lack of any ability to ‘change tack’ is telling in the practical outcome of this case, which seems to be for badger culling to be accelerated.

All we can say is, in finding with the government, as is often the natural tendency of Judges, that in the vital area of disease control, trust was placed in the governments pleadings being full and honest. Government is allowed to take risks with badgers, outwith the confines of legislation controlling the normal boundaries and excesses of experimentation and scientific procedure.

This is a worrying position for wildlife protectors and disease professionals. Governments can take risks if their expert says it is worth trying. Even if they go wrong for decades. Unmeasurable risks it later appears, when outcomes are hard or impossible to monitor. The implications of Cranston’s ruling, albeit in hindsight, are as disturbing as they are dangerous.

Can anything more be done? Well, that is now being looked into. This is rough justice and a worrying and disappointing outcome for all of us seeking to defend badgers and to control cattle disease. Badgers can be killed in ways that might increase or decrease the spread of disease or that might actually have no effect at all. That is surely not what the legislation allows or common sense advises. This is not the end, but a new beginning, as the legal action exposes what is really going on behind closed doors.

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Supreme Court permission application on challenge to the introduction of Supplementary Badger Culling has been refused

The last ten days in the fight to protect badgers from culling in England have been tumultuous.

We have the hugely disappointing news that the Supreme Court will not examine the 2018 rulings by Judge Cranston and those of the Appeal court. In 2019, the Court of Appeal had previously upheld Judge Cranston’s 2018 ruling that the government had satisfied the purpose of the Protection of Badgers Act 1992 and that “there was a logical and defensible rationale for the licensing of supplementary culling”. Judge Cranston had found that the government’s approach was not unlawful due to “a policy of maintaining a reduced badger population through supplementary culling coupled with the commitment to change tack as evidence became available.”

However, in a final twist, information was received as the result of legal enquiries in 2019, showing that ‘changing tack as evidence becomes available’ is not something that can be done according to government advice, which suggests that  it is not possible to determine directly, the extent to which any individual intervention (of which badger culling is one) has worked or not or made things worse. Equally, Defra’s strange approach to modelling falsely suggests sweeping success in the first two pilot cull areas. They have used this as a basis to justify new culling policy in 2020.  Ridiculous if the implications were not so truly horrible. So the battle moves on to new ground as the excuses and dead badgers pile up. The legal fight opens a new chapter.

Further, a fresh legal claim against aspects of the 5th March 2020 policy guidance on badger culling has recently been lodged by Tom Langton, supported by The Badger Trust, against the Secretary of State for EFRA and with Natural England  (NE) as an Interested Party. This follows the refusal of the request that Defra should follow the key Godfray Review report recommendation and tell NE not to issue new Supplementary Badger Culling (SBC) licences in 2020. Also to stop badger culling after four-year culls for a two-year period to enable more badger vaccination.

Raised concern also follows NE holding secret for two years a publicly funded report by the British Trust for Ornithology charity on aspects of potential ecological damage to Sites of Special Scientific Interest (SSSIs). This report was used by NE in 2018 and 2019; they now say it is obsolete. So what exactly are NE and British Trust for Ornithology (BTO) hiding? Ecological issues will also be pursued in the new claim.

The 2020 supplementary licences started on 1st June 2020 in seven cull areas where the four-year intensive culls have ended; in Cornwall (2), Devon (2), Dorset, Gloucestershire and Herefordshire. The Godfray report suggested a two-year no-cull period and then badger vaccination in half of them. Defra have now responded saying that they have rejected this Godfray recommendation, having consulted the NFU and cull companies. The May 2020 Defra consultation on culling and badger vaccination ending 26 June shows that prospects for badger vaccination are being heavily suppressed with reactive cull style culling being floated for the future. The Edge area of England is now fully at risk of culling for spurious reasons  using evidence that the Derbyshire Wildlife Trust have recently shown is incompetent, something Defra seem to partly recognise..

It will not have escaped the attention of many that the new 5 March “Next Steps” policy not only rows back on the new government’s commitment, described in court recently by Sir James Eadie QC to ‘tilt’ bTB control away from culling and towards badger vaccination but has now come up with a half-baked options on methods for trapping and shooting  badgers right up to the edge of vaccination areas. This is a betrayal of past commitments, an affront to those who work hard in the countryside for badgers, and it constrains and threatens the current and future prospects of the promised expansion of badger vaccination. The new legal challenge attacks not only the decision to reject specific Godfray report recommendations, but also Defra’s further highly selective use of modelled data since 2017,  including data and maps that unfairly, only it controls. Such sickening misrepresentation of science has become a familiar pattern. Counter arguments have been made in Veterinary Record but have yet to receive a positive response or change of direction. There is no excuse for this animal abuse and events in recent months renew our determination to fight on, no matter how difficult during the Covid 19 crisis, for the sake of badgers and our diminishing wildlife.

A number of related cases were stayed on the back of the Supreme Court decision. These will now be reviewed and regular updates will be made. Please support with whatever you can to help  reach the full target in the current Just Giving crowd fund, and to meet funding obligations. Other cases are being developed, so your help is much appreciated and a little from everyone can help make the difference. Thank you again for all your hard work and donations in support. We are The Badger Crowd. Standing up for Badgers. As and when a new appeal  for  a new case is launched, we will let you know and direct you to the crowd fund page.

A more detailed analysis of what we have learned from the Supreme Court’s refusal of permission to revisit Judge Cranston’s High Court ruling is given in a separate blog here.

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Waiting for the Appeal Hearing outcome…….

It’s been a month now since our High Court Appeal hearing, and the important matter of ‘what happens next’ still hangs in the balance.  The understanding is that the Courts and Judiciary are largely closed down over August, so having not received results thus far it is quite likely that we might not hear anything for several more weeks. This means of course that we may be into September before we find out more, and September is the month when we fear confirmation of  yet more areas for badgers to be shot, and for the badger cull carnage to be imposed over a much larger area. We could hear at any time, however.

As well as the Appeal outcomes, there should be news of the government’s response to the ‘Godfray Group’s’ review of the current bovine TB policy, and presumably Defra’s newly massaged ‘results’ of the pilot badger cull, (Downs et al. 2019) as an update to Brunton (2017). Raw data shows that supplementary culling has been followed by a massive bTB spike in Gloucestershire. ‘Downs’ has been used in the decision making process to try to help justify Supplementary Culling, but has been kept secret thus far. Rather like the British Trust for Ornithology (BTO) report on effects of culling on the wider environment, which was held back from public scrutiny by Natural England for no good reason; the motives for withholding both are highly suspect. As ‘Downs’ has not yet been made available, we are guessing that it will be a much caveated piece of selective modelling, which will say that badger culling may be helping reduce bTB in cattle, but many more years of data will be required to be slightly more confident that it is a possibility or a likely  failure.

This is ‘the cull until 2038’ approach. The same old fudge that shames the government and the reputations of all those involved, whether they are actively enabling it or just keeping quiet for their own personal convenience/advancement. Government has said to us in writing that there is no way to identify the cause of any change in bTB breakdown rates in cull areas, and in any case, in some areas it might be expected not to work. Nobody is fooled about what is being done and aimed for; a corrupted version of the 30 years of failed badger culling in Republic of Ireland.

Perhaps those at Defra and Natural England hope to continue to hide behind the ensuing Brexit furore, hoping that badgers will not be most people’s priority at this time of national crisis? The bTB crisis in the national herd will not disappear though, but will spread, whatever happens with Brexit. At some point, those in charge will have to acknowledge that equivocal interventions are pointless, a complete waste of time and money without first addressing the major causes of disease in cattle; failed testing and hopeless movement restriction. This in fact was Natural England’s position during the original cull policy consultations – so what happened?

The solutions to bTB are available and have been used successfully in the past, and they don’t involve culling wildlife. Killing badgers may be damaging other wildlife species and habitats, in addition to all-but exterminating a persecuted apex species for spurious reasons. There are new cattle testing technologies becoming available, being stifled by vested interests that will make control easier and cheaper. The sooner the government’s policy advisors stop following failed veterinary and cattle lobby rhetoric and start listening to informed scientists (without vested interests), the faster will be the progress against this terrible disease. Whatever the outcome of the Court of Appeal, the Badger Crowd will continue to work to defeat this horrible policy using common sense, science and the law.

 

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.

 

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.

Natural England keep supplementary culling, despite Gloucestershire bTB spike

Yesterday was a surprising day. In the morning lawyers for the claimant received a letter from Natural England, here, saying they had not yet decided whether to re-authorise the supplementary badger cull licenses in 2019. They claimed that “the representations made in your letter regarding the effectiveness of supplementary culling may be considered by the decision maker in the context of the re-authorisation decision.” They said that “ judicial review is therefore premature and we invite you to await our further correspondence on this issue.”

We didn’t have long to wait. Just a few hours later, we received a letter from Defra with news that the cull licenses had been authorised, coming into effect immediately with letters of authorisation from Natural England placed on the Defra web pages dated 12th June. Word from the field comes that pre-cull activities started earlier in the week so when was the decision to issue actually made?

At the bottom of their letter Natural England said “…Natural England does not accept the allegation in your letter that it acts “under dictation” from DEFRA.”

Events suggest that the first letter was written at the same time the decision to issue the licences was made. What should we make of these two letters? Does it look like two separate hands on the wheel?

This morning a response was made by the Government Legal Department to the claimant’s pre-action letter regarding a request for supplementary badger culling to be suspended. More on this later.

 

Supplentary culling licences

Yesterday the claimants legal team received an email from Natural England’s solicitor in response to the pre-action letter. The letter says that Natural England have not yet made a decision on whether to re-authorise the supplementary badger cull licences for Areas 1 and 2  (Gloucs and Somerset) in 2019. Presumably the same applies to Area 3. (Dorset) which has had 4 years of culling and is now a candidate for supplementary culling. NE says that ‘’representations made in your letter regarding the effectiveness of supplementary culling may be considered by the decision maker in the context of the re-authorisation decision.”

This doesn’t sound like much of a concession yet, but at least Natural England are actively considering new information and evidence. NE know that their licensing decisions are being carefully scrutinised, and they know that the science is uncertain.

Please help to continue the calls for more openness on environmental information, data and the decision-making processes of badger cull licensing, and to highlight the lack of evidence for the policy as a whole.

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