25th May 2012
The Badger Trust’s Judicial Review of the Coalition Government’s decision to kill badgers in England has been set for Monday and Tuesday June 25 and 26. It will be heard in the High Court of Justice, Queen’s Bench Division, in the Administrative Court.
The Trust’s Judicial Review of the Welsh Assembly Government’s decision to kill badgers succeeded on all grounds in the Court of Appeal in 2010. The Trust considers that culling would not prevent the spread of disease but rather make matters worse at great cost to farmers, the tax payer and badgers. The Welsh Government announced in March 2012 that it would vaccinate badgers and improve cattle testing methods etc rather than kill badgers in light of the science.
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, 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 licencev. 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’ still 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 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.”
Dave Williams, Badger Trust’s Chair added: “The listing of Badger Trust’s judicial review comes just days after new peer-reviewed scientific evidence was published in Naturehttp://www.nature.com/news/