Badger Trust’s judicial review of DEFRA badger cull given green light on all 3 grounds
Date: 24 April 2012
The Badger Trust is pleased that Mr Justice Irwin granted permission on 20 April 2012 for their judicial review of DEFRA’s decision to allow badgers to be killed in England as part of the Government’s programme to eradicate bovine tuberculosis.
The court’s decision times with DEFRA’s publication of the latest statistics on bovine TB. Despite the doomsday picture painted by DEFRA in the run up to the decision to cull in December 2011, the (belatedly published) statistics point to a slight decline in bovine TB -without a single badger being killed. Perhaps, more rigorous cattle testing and restrictions on infected cattle’s movement is having the positive effect predicted by the Independent Scientific Group (ISG) which concluded that culling would not work.
Badger Trust’s solicitor, Gwendolen Morgan of Bindmans LLP said “We are delighted that the court has given the Badger Trust’s challenge the green light on all three grounds. The badger cull as proposed would make matters worse at great cost to farmers, badgers and rural communities.”
At the judicial review hearing, the Trust will ask the court to overturn DEFRA’s decision on the basis of three grounds:
1. The Secretary of State has authorised Natural England to issue licences to reduce the rate of new incidences of bovine TB (although she expects a mere 12-16% reduction in bTB after 9 years at a huge net cost to the farmer). However, ‘reducing incidence’ is not the purpose for which the legal power was granted. The culls proposed will not meet the strict legal test of “preventing the spread of disease” in the areas being licensed, and may in fact amount to a recipe for spreading the disease. DEFRA’s own evidence confirms that the proposed cull would in fact prompt the spread of disease in and around the cull zones. Badger Trust considers that this is entirely antithetical to the aims in the strict test set down in section 10(2)(a) of the Protection of Badgers Act 1992.
2. The cost impact assessment underpinning DEFRA’s decision is flawed, since its cost assumptions are based on the farmer free-shooting option (this is estimated to be approximately ten times cheaper than cage-trapping badgers before killing them). However, after the first year of piloting the cull plans, the free-shooting method may be ruled out for being inhumane, ineffective or unsafe to the public. In that case, farmers will find themselves legally obliged to continue the cull on the much more costly “trap and shoot” basis until the end of the four-year licence. This is a significant cost risk for farmers, yet it is not properly reflected in the cost impact assessment which underpinned DEFRA’s decision. The Secretary of State did not ask herself the right questions so as to obtain crucial information on costs. Badger Trust considers that this renders the decision entirely unlawful. Given the poor cost-benefit prognosis for the cull, the Trust also hopes that Parliament and the farming community will now carefully reconsider DEFRA’s ‘Big Society’ DIY cull plans.
3. Guidance which DEFRA issued to Natural England is invalid. Under section 15(2) of the Natural Environment and Rural Communities Act 2006 the Secretary of State may issue guidance to Natural England as to how Natural England should exercise its functions. However, killing badgers is not one of Natural England’s original functions, which are mainly focussed on maintaining biodiversity. Even though DEFRA is making Natural England responsible for the licensing arrangements, under section 10(2)(a) of the Protection of Badgers Act 1992, culling badgers ‘for the prevention of spread of disease’ remains the Secretary of State’s own function. Thus, she had no legal power to issue section 15 guidance to Natural England in these circumstances.
0775 173 1107
(Badger Trust solicitor)
 Latest TB statistics -www.defra.gov.uk/statistics/foodfarm/landuselivestock/cattletb/national/
 In 1998, the Independent Scientific Group on Cattle TB (ISG), a group of independent scientists, was commissioned by the Government to conduct a Randomised Badger Culling Trial (RBCT) in order to establish the effects of badger culling on the incidence of bovine TB in herds. In 2007 the ISG final reporthttp://archive.defra.gov.uk/foodfarm/farmanimal/diseases/atoz/tb/isg/index.htm was presented to the Secretary of State for DEFRA.
Based on almost a decade of research costing over £50 million and 11,000 culled badgers, the report concluded that: “The ISG’s work – most of which has already been published in peer-reviewed scientific journals - has reached two key conclusions. First, while badgers are clearly a source of cattle TB, careful evaluation of our own and others’ data indicates that badger culling can make no meaningful contribution to cattle TB control in Britain. Indeed, some policies under consideration are likely to make matters worse rather than better. Second, weaknesses in cattle testing regimes mean that cattle themselves contribute significantly to the persistence and spread of disease in all areas where TB occurs, and in some parts of Britain are likely to be the main source of infection. Scientific findings indicate that the rising incidence of disease can be reversed, and geographical spread contained, by the rigid application of cattle-based control measures alone.”
These findings have not been rebutted and, even putting the case at its highest, after 9 years of culling DEFRA only anticipates a net slowdown in new incidents of bovine TB of between 12-16%. This comes at a huge cost to farmers responsible for shooting badgers, and represents a net loss to the tax payer in cost-benefit terms according to DEFRA’s own Economic Impact Assessment of 30 November 2011, which underpins the final decision - www.defra.gov.uk/animal-diseases/a-z/bovine-tb.
 Following a potential judicial review challenge by the Badger Trust in 2011 and a change in government, the Welsh Government agreed to conduct a review of the science underpinning its decision to cull. On 20 March 2012 the Minister for Environment announced that Wales had scrapped its badger cull plans on the basis of the science. It will now implement a package of cattle-focussed measures of which vaccination is a part.
Please click on the links below for the related press coverage:
Judicial review approved into badger culling (The Telegraph, 21 April 2012)
Review ordered over badger cull (The Independent, 21 April 2012)
Badger culling: High Court challenge granted (BBC News, 20 April 2012)
Judge grants permission for badger cull judicial review (Farmers Guardian, 20 April 2012)