Monday 27th February 2012
Today, the Badger Trust will lodge a claim in the High Court to seek a Judicial Review of DEFRA’s decision of 14th December 2011 to kill badgers in England. The Trust continues to do all it can to prevent the proposed ‘DIY’ farmer-led cull, which will not benefit badgers, cattle, farmers, rural communities or the tax-payer.
This action to have the decision quashed follows extensive legal and scientific advice as well as correspondence and meetings with DEFRA to clarify its position on the many issues of concern to the Trust. The Badger Trust and a majority of the public consider that the cull poses serious risks to cattle and badgers. The methodology for evaluating any results from the cull is also defective. Before now it was unclear what DEFRA had actually decided, and what remained to be decided following the ‘pilot’ culls planned for late 2012 in Gloucestershire and Somerset. In light of DEFRA’s various responses, the Trust has now concluded that the decision is unlawful and should be quashed.
The Trust will ask the court to overturn DEFRA’s decision on the basis of three grounds:
- 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.
- The cost impact assessment underpinning DEFRA’s decision is flawed, as 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 4-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.
- 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.
The Badger Trust’s decision to bring this challenge arises from the following convictions and obligations which flow from them:
- · Culling badgers as proposed (whether by free-shooting or trapping and shooting) can make no meaningful contribution to the eradication of bTB and risks making matters worse. Stricter cattle measures – as 10 years of taxpayer-funded independent research have concluded – will beat the disease.
- · The badger appears to be a scapegoat for an industry that underrates the risk of cattle-to-cattle transmission, and one which has reportedly experienced a significant number of incidents of poor animal husbandry, fraud and flouting of cattle management regulations.
The Trust’s solicitor, Gwendolen Morgan of Bindmans LLP, said: “We have identified some serious flaws in the way by which the Secretary of State reached her decision to cull badgers. Given that DEFRA’s proposals come at an enormous cost to farmers, and threaten to prompt rather than prevent the spread of disease, we hope that this ill-conceived decision will be struck down by the court.”
Pat Hayden, vice chairman of Badger Trust said: “Despite opposition from the majority of the public who responded to the Government’s consultations and stark warnings from many eminent independent scientists, it is astonishing that DEFRA has given the green light to a badger cull. Badger Trust will exhaust all peaceful, legal avenues of challenge to prevent this wrong-headed cull from going ahead.”