Badger Trust Judicial Review 23 April 2012
Badger Trust judicial review to stop costly, counterproductive badger cull given green light on all 3 grounds
The Badger Trust is very pleased that Mr Justice Irwin has today granted permission 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.
In granting permission, the judge observed that arguably DEFRA’s evidence shows that the proposed cull may in fact make matters worse and spread bovine TB. The case is likely to be heard at the High Court of London in June 2012.
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 pleased 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.