“1. General powers of Ministers to make orders. The Ministers may make such orders as they think fit – (a) generally for the better execution of this Act, or for the purpose of in any manner preventing the spreading of disease; …”
“(1) This section – (a) applies to any disease other than rabies which is for the time being a disease for the purposes of section 1(a) above;… (2) The Minister, if satisfied in the case of any area – (a) that there exists among the wild members of one or more species in the area a disease to which this section applies which has been or is being transmitted from members of that or those species to animals of any kind in the area, and (b) that destruction of wild members of that or those species in that area is necessary in order to eliminate, or substantially reduce the incidence of, that disease in animals of any kind in the area, may, subject to the following provisions of this section, by order provide for the destruction of wild members of that or those species in that area. (3) Before making an order under this section the minister shall consult with the appropriate conservation body for the area to which it will apply, and every order so made shall specify- (a) the area to which it applies; (b) the disease to which it applies; and (c) the one or more species to which it relates.”
“A person is guilty of an offence if, except as permitted by or under this Act, he wilfully kills, injures or takes, or attempts to kill, injure or take, a badger”
“Whereas Community initiatives to this effect must initially concentrate on certain diseases against which immediate action is possible; whereas this is true of brucellosis, tuberculosis and leucosis.”
“The purpose of this Directive is to improve the state of health of cattle in the Community by means of Community action to accelerate or intensify the eradication of brucellosis and tuberculosis and to eradicate leucosis.”
“For the purposes of this Directive, Member States in which the cattle populations are infected with bovine tuberculosis shall draw up plans for accelerating the eradication of this disease in their national territories . . .”
“Application of Order for the purposes ofsection 21 of the Animal Health Act 1981 2. For the purposes of section 21 (destruction of wildlife) of theAnimal Health Act 1981 this Order- (a) applies to Wales; (b) applies to tuberculosis; and (c) relates to the species of badger.”
“The cattle TB situation in Wales is now out of control and unsustainable.”
“There is a complex relationship between badgers, cattle and M bovis which means that non-selective culling may have unpredictable effects on cattle TB. A pro-active, non-selective badger cull has the potential to reduce the level of cattle herd breakdowns within several years. The reported benefits of RBCT [randomised badger culling trial], which was a relatively well executed cull, were low (9% average reduction in the incidence of CHB [confirmed herd breakdowns]). The benefits continued to accrue at an increasing rate in the 2 years post trial. Further analysis is planned to determine if these trends continue in further years . . . Measures to mitigate against the effects of social perturbation caused by culling have been suggested and are discussed above. The mitigation measures with the highest likelihood of reducing perturbation effects on the increase in cattle herd breakdowns in areas surrounding a cull are maximising the benefits of boundaries, exclusion of badgers from farm buildings and vaccinating buffer zones before a cull is implemented. It is likely that a combination of these measures may have a greater effect than one measure in isolation. However, there is currently no evidence on what effects, if any, these measures may have on reducing the effects of perturbation or on cattle TB.”
“The Programme Board [the CVO’s committee] agreed that the disease levels and associated impacts and costs to government, industry and the taxpayer need to be addressed. Despite the risks associated with delivery, they considered that the potential of a culling strategy (Option 1) applied in an IAPA provided the greatest opportunity to achieve this. The Programme Board agreed that against the backdrop of an increasing disease incidence, an overall 9% reduction as achieved post culling in the RBCT was a significant achievement that should not be undervalued. Particularly given that knowledge on the effects of perturbation were unknown and that in any IAPA the potential benefits from a culling strategy would be reinforced by benefits from the cattle measures. It was recommended that culling should be applied initially in a single area and that cattle measures are applied in conjunction. The risks of this or any of the other policies were recognised and it was agreed that any of these policies would need careful consideration in their application. A blanket application across Wales was not appropriate. Instead both culling and vaccination should be considered as part of the veterinary assessment of policies on a regional and epidemiological basis.”
“It is likely that an area in southwest Wales will be the most suitable location for an IAPA, in terms of having a high density of cattle TB, shared bovine TB strains between badgers and cattle, number of cattle slaughtered, average duration of bovine TB breakdowns, vicinity to cross border farms and level of compensation.”
“CCW recognises the considerable impact that the increasing incidence of bTB in cattle is making within Wales. CCW believes that the inclusion of a badger culling policy as part of a Bovine TB Eradication Strategy should be based on sound evidence on the effectiveness of such a policy.”
“It is recommended that you:Sign the Tuberculosis Eradication (Wales) Order 2009 and lay it before the National Assembly for Wales. Approve the Statement of Information at Document 1, its publication and the publication of the Summary of Responses document and all responses to the consultation, in their entirety, once you have made your decision on the Order and informed Cabinet Members. Note that the TB Programme Board has reviewed the responses to the consultation and has confirmed its view regarding the need for a badger cull within the IAPA. Note that the next step is the completion of the Environmental Impact Assessment by officials and the selection of the location of the IAPA. Note that you will need to issue licences under theProtection of Badgers Act 1992 to the people who will undertake the cull. Note that appropriate contractors must be identified and relevant contracts agreed between them and the Welsh Assembly Government.”
“The powers provided by the Order are essential to undertake badger culling within the IAPA. There is increasing expectation that your decision on the IAPA is imminent.”
“(1) That ‘substantially reduce’ in section 21(2)(b) of the 1981 Act meant simply a reduction that was ‘more than merely minor or trivial’; and (2) That, once it arose, the discretion to make an order under section 21(2) could lawfully be exercised without considering the balance between the extent of the benefit to be gained in terms of disease reduction and the extent of the killing of wild animals required to achieve it.”
“85. This was the expert advice to the Minister. To my mind a possible reduction of 9% in the incidence of confirmed breakdowns in comparison with the position which would otherwise be reached can fairly be considered a substantial reduction. (Even if one brings into account, in addition, unconfirmed breakdowns in order to make allowance for the effects of incorrect diagnoses, as opposed to the actual extent of the disease, I still consider that the reduction of 6% can fairly be considered a substantial reduction.) I consider that Professor Glossop and the Programme Board were reasonably entitled to conclude that an overall 9% reduction in confirmed breakdowns was "a significant achievement that should not be undervalued". Equally I consider that the Minister was reasonably entitled to conclude on the basis of the advice she received that the reduction, which she was advised on the basis of Jenkins 2008 was achievable, was substantial. 86. This conclusion is further supported by the advice in the Submission "that in any IAPA the potential benefits from a culling strategy would be reinforced by benefits from the cattle measures". Whereas the RBCT had been carried out in isolation, the advice to the Minister emphasised that a comprehensive approach was required to pursue the eradication of bovine tuberculosis in Wales and that within an IAPA this would necessitate dealing with infection in both cattle and badgers. Professor Glossop's evidence makes clear that the Minister was advised that the culling of badgers can only be one element of the package of measures required to achieve the policy aim of eradicating tuberculosis in cattle in Wales and that any culling would have to take place alongside additional cattle control measures. Professor Glossop and the Programme Board advised and in my judgement were reasonably entitled to advise that the beneficial effects of culling could be enhanced through the application of a comprehensive approach aimed at tackling all sources of infection simultaneously. 87. For these reasons I consider that the Minister was reasonably entitled to conclude that the contemplated reduction in the incidence in bovine tuberculosis was substantial within the meaning of section 21(2), Animal Health Act, 1981.”
“79. . . . the word ‘substantial’ has a chameleon character, its precise meaning and hue varying according to its context . . . I do not consider that the statutory framework of theAnimal Health Act 1981 creates a statutory presumption against the killing of animals. While it is correct that the exercise of the power under section 21 permits the killing of badgers, an activity which would otherwise be unlawful and criminal, I do not consider that this provision should be narrowly construed as a derogation from a prohibition on killing animals. The statutory purpose of section 21 is to prevent disease.The Animal Health Act 1981 is, as its short title suggests, an Act concerned with animal health. As the broad general power confirmed by section 1(a) indicates, it is concerned with the purpose of preventing the spread of disease in any manner. Part II of the Act, where section 21 is found, is concerned particularly with the control of disease. If the incidence of disease can be substantially reduced by the proposed conduct, there is a power to authorise it provided the other conditions are also satisfied. The statutory scheme does not justify a narrow reading of ‘substantially reduce’.”
“80. Nor do I consider that the juxtaposition of the two concepts "eliminate or substantially reduce" justifies a restrictive reading of "substantially reduce". The words "substantially reduce" clearly describe something other than elimination. The reference to "eliminate" does not cast any light on the meaning of "substantially". 81. To my mind the words "substantially reduce" when considered in the context of this statutory provision bear the meaning that the reduction should be of substance and something more than insignificant or trivial i.e. the meaning contended for by the Defendants. If conduct is reasonably considered capable of making a reduction which is more than insignificant or trivial the policy of the provision suggests that there should be a power to act in this way. I can see no justification for reading the words so as to require the higher standards for which the Claimant contends. . . .”
“Professor Glossop and the Programme Board have emphasised the importance of combining enhanced cattle measures with the proposed culling and have expressed the opinion that this may improve the efficacy of the culling. However, cattle measures in isolation were not even identified as a viable option and on the basis of the material placed before the Minister it is readily apparent why this was the case.”
“Jenkins et al. (2008) estimated that 12 herd breakdowns, out of a potential 130, were prevented by the proactive cull. This equates to an overall 9% reduction in the incidence of cattle herd breakdowns.”
“‘Substantial’ is a word which has a wide range of meanings. Sometimes it can mean ‘not little’. Sometimes it can mean ‘almost complete’, as in ‘in substantial agreement’. Often it means ‘big’ or ‘solid’, as in a ‘substantial house’. Sometimes it means ‘weighty’ or ‘serious’, as in a ‘substantial reason’. It will take its meaning from its context. But in an expression such as a ‘substantial part’ there is clearly an element of comparison with the whole: it is something other than a small or insignificant or insubstantial part. There may be both a qualitative element of size, weight or importance in its own right; and a quantitative element, of size, weight or importance in relation to the whole. The works intended by this landlord are substantial in relation to each of the flats involved, but those flats do not in my view constitute a substantial part of the whole premises.”
“It is plain that the phrase requires a comparison with the whole rent, and the whole rent means the entire contractual rent payable by the tenant in return for the occupation of the premises together with all the other covenants of the landlord. ‘Substantial’ in this connexion is not the same as ‘not unsubstantial’, i.e., just enough to avoid the ‘de minimis’ principle. One of the primary meanings of the word is equivalent to considerable, solid, or big. It is in this sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence. Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case, the onus being on the landlord. If the judgment of the Court of Appeal in Palser’s case were to be understood as fixing percentages as a legal measure, that would be going beyond the powers of the judiciary. To say that everything over 20 per cent. of the whole rent should be regarded as a substantial portion of that rent would be to play the part of a legislator : if Parliament thinks fit to amend the statute by fixing percentages, Parliament will do so. Aristotle long ago pointed out that the degree of precision that is attainable depends on the subject matter. There is no reason for the House to differ from the conclusion reached in these two cases that the portion was not substantial, but this conclusion is justified by the view taken on the facts, not by laying down percentages of general application.”
“It is sufficient to say that although I do not accept that ‘substantial’ can never mean ‘more than de minimis’ or that in [Palser], Viscount Simon was saying more than that in the particular statutory context it did not have this meaning, I am satisfied that in section 64(3) the word does indeed lie further up the spectrum than that. To say how far up is another matter. The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision.”
“You are the judges, but your own common sense will tell you what it means. This far I will go. Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between and Parliament has left it to you and other juries to say on the evidence, was the mental responsibility impaired, and, if so, was it substantially impaired?”
“It seems to us that these two pieces of research plainly constitute evidence that the destruction of badgers would substantially reduce the incidence of disease, in the sense that the reduction would be more than insignificant or trivial. Accordingly, we are unable to accept your assertion that there was no evidence before the Welsh Ministers to support a conclusion that the destruction of badgers would eliminate or substantially reduce the incidence of disease and we reject your first purported ground of claim.”
“Section 21 does not expressly impose such an obligation. Nor do I consider that a duty to carry out such a balancing exercise is implicit in section 21 considered in isolation. For reasons set out earlier in this judgment, I do not accept that the statutory context creates a statutory presumption against the making of an order. Furthermore, there is nothing in the wording or statutory scheme to support the existence of the duty contended for. Section 21(2) creates preconditions which must be satisfied before the power may be exercised. The Minister must be satisfied that there exists among badgers in an area tuberculosis which is being transferred to cattle. The Minister must also be satisfied that destruction of badgers is necessary in order to eliminate or substantially reduce the incidence of tuberculosis in cattle in that area. If those preconditions are satisfied the Minister has a discretion to make an order. However, these pre-conditions do not include the obligation contended for by the Claimant. Had it been the intention of Parliament to impose such a duty it could be expected to have said so expressly. In my view, section 21 does not impose a further pre-condition of the kind contended for by the Claimant.”
“What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision.”
“I think that there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the Ministers collectively would not be in accordance with the intention of the Act.”
“The respondents erred in law in making an Order for the whole of Wales having consulted on the basis of an IAPA and on the basis of evidence which at most supported culling in an IAPA.”
“The basis for the concession is that the evidence before the Minister focused on the likely effect of the destruction of badgers in an IAPA, only providing her with sufficient evidence to enable her to be satisfied that the destruction of badgers in that area would eliminate or substantially reduce the incidence of bovine TB in the area. The evidence did not focus on the position in relation to the whole of Wales.”
“That you agree that the priority area for the establishment of an IAPA is within the bovine TB endemic area of Dyfed and is specifically located to maximise the opportunities and benefits of the locality. Using the coast as an impermeable boundary would suggest that a location in the North of Pembrokeshire would be a preferred location.”
“It is likely that an area in southwest Wales will be the most suitable location for an IAPA, in terms of having a high density of cattle TB, shared bovine TB strains between badgers and cattle, number of cattle slaughtered, average duration of bovine TB breakdowns, vicinity to cross border farms and level of compensation.”
“It was recommended that culling should be applied initially in a single area and that cattle measures are applied in conjunction. The risks of this or any of the other policies were recognised and it was agreed that any of these policies would need careful consideration in their application. A blanket application across Wales was not appropriate. Instead both culling and vaccination should be considered as part of the veterinary assessment of policies on a regional and epidemiological basis.”
“Lessons learnt from this pilot can then be applied to an extended roll out of the principles to other endemic areas of Wales as appropriate.”
“On24 March 2009 , based on comprehensive evidence, the Minister for Rural Affairs announced her intention to implement a cull of badgers, alongside additional cattle disease control measures, within an Intensive Action Pilot Area (IAPA) to simultaneously deal with both sources of infection. The IAPA would be located in an area where bovine TB is endemic, and located to maximise the opportunities and benefits of the locality. The Minister has agreed that North Pembrokeshire would be a preferred location.”
“CCW welcomes the recommendation by the TB Eradication Board that a blanket application of culling across Wales is not appropriate.”
“Note that the TB Programme Board has reviewed the responses to the consultation and has confirmed its view regarding the need for a badger cull within the IAPA.”
“‘Substantial’ in this connexion is not the same as ‘not unsubstantial,’ i.e., just enough to avoid the ‘de minimis’ principle. One of the primary meanings of the word is equivalent to considerable, solid, or big. It is in this sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence”
“Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case, …”
“The Claimant has failed to provide the Court with any evidence as to the basis on which it is being represented or as to the likely level of its own costs in this matter. As it has not been suggested that the Claimant’s representatives are acting pro bono or on a conditional fee agreement, it must be assumed that the Claimant is willing to contemplate that, if it is unsuccessful, it will have to pay its own costs in addition to up to£10,000 of the Welsh Ministers’ costs. In the light of this, there is no basis on which the Claimant could contend that it would be unreasonable to cap the level of costs that the Claimant would be entitled to recover from the Welsh Ministers in the event that an award of costs were made in its favour.”
“In the absence of information referred to in the preceding paragraph, the appellants’ costs should be capped at the same level”
“In the event that the claimant is found liable to pay the defendants’ costs of the claim, that liability shall not exceed£10,000 . In the event that the defendants are found liable to pay the claimant’s costs of the claim, that liability shall not exceed£10,000 .”
“(i) When making any PCO where the applicant is seeking an order for costs in its favour if it wins, the court should prescribe by way of a capping order a total amount of the recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability. (ii) The purpose of the PCO will be to limit or extinguish the liability of the applicant if it loses, and as a balancing factor the liability of the defendant for the applicant's costs if the defendant loses will thus be restricted to a reasonably modest amount. The applicant should expect the capping order to restrict it to solicitors' fees and a fee for a single advocate of junior counsel status that are no more than modest. (iii) The overriding purpose of exercising this jurisdiction is to enable the applicant to present its case to the court with a reasonably competent advocate without being exposed to such serious financial risks that would deter it from advancing a case of general public importance at all, where the court considers that it is in the public interest that an order should be made. The beneficiary of a PCO must not expect the capping order that will accompany the PCO to permit anything other than modest representation, and must arrange its legal representation (when its lawyers are not willing to act pro bono) accordingly.”
“We consider that a PCO should in normal circumstances be sought on the face of the initiating claim form, with the application supported by the requisite evidence, which should include a schedule of the claimants’ future costs of and incidental to the full judicial review application.”