Badger Trust, R (on the application of) v SSEFRA [2012] EWCA Civ 1286

Case No C1/2012/1847[2012] EWCA Civ 1286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH
ADMINISTRATIVE COURT
(MR JUSTICE OUSELEY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 11 th September 2012
Before
LORD JUSTICE LAWSLORD JUSTICE RIMERLORD JUSTICE SULLIVAN
Between
The Queen on the application of Badger TrustAppellantSSEFRARespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr David Wolfe QC (instructed by Messrs Bindmans) appeared for Appellant.Mr Nigel Pleming QC and Ms Kate Grange (instructed by Treasury Solicitor) appeared for Respondent.
Judgment
[1]This is an appeal with permission granted by myself on 7 August 2012 against the judgment of Ouseley J given in the administrative court on 12 July 2012 ([2012] EWHC Administrative 1904) by which he dismissed the appellant's claim for judicial review of the Secretary of State's decision to proceed with a policy of allowing controlled culling of badgers by farmers and landowners in areas said to be the worst affected by bovine TB (bTB) in England. The claim was brought by the Badger Trust, the appellants, a charitable organisation established to promote the conservation and welfare of badgers and the protection of their setts and habitats.[2]The policy would have effect through the grant of authority by the Secretary of State to a body known as Natural England to issue licences to farmers and landowners to cull badgers. Natural England is a statutory body created by Section 11 of the Natural Environment and Rural Communities Act 2006 and having functions confirmed by that Act. The licences would be issued pursuant to Section 10(2)(a) of the Protection of Badgers Act 1992 ("the 1992 Act") whose correct construction is at the centre of the appeal. The proposal is to proceed step by step. As Ouseley J said in paragraph 1 of his judgment:
"The culling would be piloted in two areas; the first year of the pilot would test the Defendant’s assumption about the effectiveness, humaneness and safety of controlled shooting, also called free shooting, to contrast with cage-trapping followed by shooting. After that first year test within the two pilot areas, the Defendant would review the cost and benefit analysis in those areas to see if the scheme could be ‘rolled out more widely’.'"
[3]It is common ground that bTB is a pressing -- the Secretary of State says the most pressing -- animal health problem in the United Kingdom. The background facts are described clearly and in detail by Ouseley J at paragraphs 4 to 17 of his judgment, which I commend to the interested reader but will not replicate here save for paragraph 6:
“Maps within the Defendant’s July 2011 Eradication Programme show that the trend of cattle TB incidence in England has been rising for 25 years. The areas affected spread from isolated pockets in south west England and Wales in 1986-1990, to large parts of west and south west England and Wales. This case is not concerned with the position in Wales, where the Welsh Ministers have their own programme and powers since this is a devolved issue. By 2010 10.8% of herds in England were under bTB restriction, whereas the figure was 22.8% in the south west. The chief veterinary officer, Mr Gibbens, put the public cost of bTB in England in 2010/11 at over £91m; 25000 cattle were slaughtered for bTB control. Control also leads to financial costs to farmers from animal losses, testing costs and disruption to cattle movement, and stress and ill-health, which is not quantifiable financially. Although not as high as in 2008, new bTB incidents have been rising steadily since.”
[4]Mr Nigel Gibbens, there referred to, the United Kingdom Chief Veterinary Officer since 2008, asserts in his first witness statement (paragraph 14) that the evidence which favours a policy of culling badgers comes from what is called the Randomised Badger Culling Trial (RBCT) which ran from 1998 to 2007 in thirty 100 square kilometre endemic areas of England. Mr Gibbens says that the RBCT "demonstrated conclusively that badgers contribute significantly to TB in cattle" and also showed the impact which the removal of badgers might have on the incidents of the disease. I should make it clear that there is very considerable contention as to the scientific background in this case. While I entirely understand the desire of the parties that our judgments should not proceed on any false factual premises, it is unnecessary to go into the details because the only point in the case is one of statutory construction: thus there is no challenge to the policy brought under the Wednesbury principle [1948] 1 KB 223.[5]The policy under challenge was produced on 14 December 2011. The policy document set out the background and the options which had been considered, including badger vaccination and concluded that culling by controlled shooting in two pilot areas should be undertaken over a period of four years. One area is in west Gloucestershire, the other in West Somerset. Each is about the size of the Isle of Wight. The document described the anticipated benefits of the policy. There was a good deal of accompanying detail including particulars of the licence conditions which would be imposed. As I have said, the proposal is that the licences be issued under Section 10(2)(a) of the 1992 Act, to which I will come.[6]A judicial review claim was brought on three grounds, all of which were rejected by Ouseley J. The first was that Section 10(2)(a) of the 1992 Act did not empower the grant of licences as envisaged by the Secretary of State's policy. The second concerned the Secretary of State's treatment in formulating the policy and the costs and benefits of the available options. It was said that the Secretary of State should have, but did not, obtain the information which was necessary for a proper decision. The third ground was that guidance issued by the Secretary of State to Natural England under Section 15(2) of the 2006 Act was unlawful.[7]I granted permission to the appellants, as I have said, on 7 August 2012, but the permission was limited to the first ground canvassed before the judge; otherwise I refused permission to appeal. The applicants by Mr Wolfe do not seek to renew their permission application on the other grounds.[8]The statute with which we are principally concerned, as I have foreshadowed, is the 1992 Act. It consolidated three earlier Acts dealing with badgers: principally the Badgers Act 1973, Sections 1 and 9 of which contained provisions closely paralleled by Sections 1 and 10 of the 1992 Act, and these are the important Sections for our purpose. Section 1(1) of the 1992 Act provides:
"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."
[9]Section 3, which I need not read, likewise criminalises certain acts which amount to interference with a badger sett. I turn to Section 10.

(a) and (b) provide as follows:

"(1) A licence may be granted to any person by the appropriate Conservancy Council authorising him, notwithstanding anything in the foregoing provisions of this Act, but subject to compliance with any conditions specified in the licence— (a) for scientific or educational purposes or for the conservation of badgers— (i) to kill or take, within an area specified in the licence by any means so specified, or to sell, or to have in his possession, any number of badgers so specified; or (ii) to interfere with any badger sett within an area specified in the licence by any means so specified; (b) for the purpose of any zoological gardens or collection specified in the licence, to take within an area specified in the licence by any means so specified, or to sell, or to have in his possession, any number of badgers so specified;"
[10]Next I should turn to the Animal Health Act 1981, because the contrast between Section 21(2)(b) of that Act and Section 10(2)(a) of the 1992 Act is critical to Mr Wolfe's argument. The 1981 Act was also a consolidating Act consolidating with others the Diseases of Animals Act 1950.

(a) of the 1981 Act provides:

“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”
That provision replicates Section 1(1) of the Act of 1950.[11]Section 21(2) of the 1981 Act reads as follows:
“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.”
[12]The contrast at the centre of the appellant's case is between the expression “preventing the spread of disease” in Section 10(2)(a) of the 1992 Act and “reduce the incidence of disease” in Section 21(2)(b) of the 1981 Act. The former expression, Mr Wolfe submits, is a "geographical concept"; that is to say, the Section 10(2)(a) power is only to be used to prevent the spread of disease outside the area covered by the licence, but the Secretary of State has not applied it on that basis. Rather, she proposes that licences under Section 10(2) be issued in effect for the distinct purpose that is in truth given by Section 21(2)(b) of the 1981 Act, namely to reduce the incidence of disease. That being so, says Mr Wolfe, the issue of any such licences would be ultra vires Section 10 and the policy unlawful.[13]The statutory predecessor of Section 21(2)(b) is Section 9(2)(b) of the Agriculture Miscellaneous Provisions Act 1976. Section 9(2) of that statute provides:
"The appropriate authority, 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 or poultry 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 or poultry 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."
[14]Mr Wolfe submits that although this provision was not specific to the culling of badgers in order to reduce the incidence of bTB, it was conceived with that very purpose in mind, and the Parliamentary debates demonstrate as much. He refers in particular to the passage in the speech of the Parliamentary Secretary to the Ministry Mr Strang in Standing Committee on 5 February 1976. Mr Wolfe also submits that the debate in the House of Lords on 15 February 1973 on what was to become the Badgers Act 1973 shows that what is now the Section 10(2)(a) power was put in place in the context of small isolated pockets of TB in the badger population and in order to prevent the spread of disease from those pockets. That is how it is put in paragraph 47 of his initial skeleton; he has expanded that submission in his oral argument today, referring in particular to the concept of reservoirs of disease.[15]The Bill had been introduced by the Earl of Arron as a Private Members’ Bill, and Mr Wolfe refers in particular to the remarks of the Minister, Baroness Young. The Bill was amended to include what are now the Section 10 powers. Mr Wolfe also seeks to make a point on Section 1(1)(a) of the Diseases of Animals Act 1950 which, as I have foreshadowed, like Section 1 of the 1981 Act allowed the Minister to make such orders as he thought fit "for the purpose of in any manner preventing the spread of disease". I may deal with this straight away. Mr Pleming asserts that, for reasons given by Ouseley J at paragraph 29 of his judgment, the primary focus of the 1950 Act is on domesticated or farm animals; though (as he has informed us this afternoon) the 1950 Act was amended in 1974 to apply to foxes. The provision in Section 1 of the 1950 Act does not, as I see it, give any material support to Mr Wolfe's preferred construction of Section 10(2)(a) of the 1992 Act. As regards the House of Lords debate on the Bill which became the Badgers Act 1973, I should set out paragraph 38 of Ouseley J's judgment:
“Mr Pleming referred me to Hansard in relation to the provisions of the Badgers Act 1973, the predecessor to the 1992 Act, to show the mischief behind what is now s10 of the 1992 Act, and to refute Mr Wolfe’s contention as to the purpose which Parliament had in mind. I did not hear elaborate arguments on its admissibility, but Mr Pleming preferred to put his argument on the mischief basis after consideration rather than on Pepper v Hart[1993] AC 593, the conditions for which, though often ignored, do not really apply here. The Badgers Bill was a private member’s Bill introduced in the House of Lords. Baroness Young, the Junior Environment Minister speaking for the Government, referred to the evidence that bTB was transmitted from badgers to cattle and that it was necessary to consider destroying some badgers for the health of cattle and of badgers themselves. In HL vol 338 15 February 1972 col 1692 and on, she said that the Bill was unacceptable in its then form since it contained no provision for any control measures to prevent the spread of disease. But by the time of the debate on 2 April 1973, the Bill had been amended to include what is now s10 of the 1992 Act. In HL vol col 341 col 22 and on, Baroness Young said that the new provision covered all purposes for which it might be necessary to issue licences to kill badgers. It is clear, were it not clear before, that the distinction drawn by Mr Wolfe was not what Parliament contemplated at all, and it used the words it did to create a broad power to grant licences to permit the killing of badgers because of the risk bTB infected badgers posed for cattle.”
[16]Mr Wolfe referred to other passages in the debate, and his focus on the passage of argument in Parliament has been a principal feature of his submissions this afternoon. However it seems to me that the position is as Baroness Young stated it, as described by the judge in that paragraph. The fact that the incidence of bTB has increased, perhaps very considerably increased, since 1973 forms no basis for confining the construction of Section 10(2)(a) as Mr Wolfe has submitted. Much of Mr Wolfe's argument, indeed, has been to the effect that the situation has greatly changed since the 1970s and that the Section 10(2)(a) power should not be construed to address that newly developed situation. But absent words of a statute imposing such a limitation, or a good argument based on Wednesbury or Padfield [1968] AC 997, the submission in my judgment lacks force. Mr Wolfe referred to the Padfield case this afternoon; but there is in truth no point here save that of pure construction. The kind of interest which the Bill was intended to serve in the 1970s is the same kind of interest as, on Mr Pleming's case, is served by the Act of 1992; the difference in scale does not provide a difference in interpretation.[17]Going to Section 9 of the 1976 Act, Mr Pleming in my judgment is right to submit, and the judge was right to find (paragraph 40), that it is important to notice that the Section gave compulsory powers of entry onto private land. Hence the use of the expression "eliminate or substantially reduce" the incidence of disease: a narrower formulation than “prevent the spread of disease”. I note that Section 9(7) required the appropriate authority to inform the landowner of its intention to carry out the authorised destruction (see also subsections (8) and (9), which I will not set out). The Minister's observations in Standing Committee certainly demonstrate that it was intended to use the powers under Section 9 (now Section 21 of the 1981 Act) to address the perceived problem relating to badgers; Mr Wolfe is correct so to submit. But those observations do not begin to refute the conclusions I have just set out. Nor does the fact that the 1950 Act (primarily dealing, as I have said, with domesticated or wild animals) had itself provided for certain powers of entry.[18]The importance of all this, as Mr Pleming submitted and as it seems to me, is that the 1981 and 1992 Acts contemplate alternative routes to deal with the problem as it was seen from time to time. The 1981 Act conferred compulsory powers; the 1992 Act proceeds by means of voluntary cooperation with landowners. It is clear that in 1976 the Minister was seeking specific intrusive powers, different in kind from what was otherwise available.[19]So in my judgment the history of the legislation does not materially assist Mr Wolfe's case. If one then turns to the language of Section 10 of the 1982 Act, there is nothing there to suggest that its purpose is limited to preventing the spread of disease outside the area of the licence and therefore the area of the proposed cull. The verb “spread” may, no doubt, in some contexts indicate the occupation of or penetration into a greater geographic area. But in the context of disease it connotes, or may readily connote, an intensification or increase of the incidence of the disease, whether or not over a greater area, and in particular may connote, as it does naturally here, the spread of disease from one species to another: from badgers to cattle. I agree with Ouseley J's reasoning at paragraph 35:
“Whatever may be the way in which some scientists may choose to express themselves, where a badger transmits the disease so that it infects cattle in a herd which is not infected, the incidence of the disease is increased, and the disease has been spread in ordinary English. In ordinary English, the disease would also have been spread, and its incidence increased, where a badger infects uninfected cattle, whether part of a herd which is already infected or not, and whether or not the newly infected beast is part of a herd at all. In ordinary English, preventing those events occurring is preventing the spread of the disease. The natural meaning of the words of s10(2)(a) does not involve the distinction necessary for Mr Wolfe’s argument. Nor is the phrase one which obviously has a technical or specialist scientific meaning, let alone one on the meaning of which there is a general scientific consensus.”
In short it seems to me that in the end it makes very little sense to contemplate a provision concerned with preventing the spread of disease outside but not at all inside the area where action is being taken.[20]Mr Pleming points also to two anomalies that would arise on Mr Wolfe's construction. The first is that the area of the licence, and thus of the cull, would have to be very tightly defined so as to exclude the very area where the beneficial effect was intended, and the licensor moreover would have to decide whether he was granting the licence to prevent the spread of disease or reduce its incidence: a strained and artificial operation. The second anomaly is that it would not be possible pursuant to a Section 10 licence to take badgers for vaccination, a recourse which is favoured by the appellants. Trapping the badger in the area of the licence and vaccinating it would ordinarily, no doubt, reduce the incidence of disease within that area. The appellants suggest that Section 10(2)(b) might allow such trapping and Mr Wolfe made brief reference to that subsection this afternoon. We have set it out and, in my judgment, it is quite clear that it would not have that effect.[21]There is a further point which the court raised with counsel in the course of argument. If the Secretary of State made an order under Section 21 of the 1981 Act for the destruction of badgers, any person killing badgers pursuant to the order would, on the face of it, commit a criminal offence under Section 1 of the 1992 Act. The Act of 1992 provides no defence based on the existence of such an order; the offence is committed "except as permitted by or under this Act". (Section 1). It cannot be contemplated that Parliament has authorised the Secretary of State to make an order to require the commission of a crime. It might appear therefore that the Act of 1992 impliedly repealed Section 21 of the 1981 Act pro tanto – so far as it might relate to badgers. If that is right, Mr Wolfe could not of course rely on that latter provision; and this is so whatever the practicalities of any possible prosecution of a person acting under the Secretary of State's Section 21 order.[22]We make it clear that we have not heard extended argument on this question and we do not decide it, but if hereafter ministers were to contemplate the use of Section 21, then it seems to us, with respect, that the point would have to be considered.[23]In the result, the judge was, in my judgment, right to reject ground 1 and for the reasons I have given I would dismiss the appeal.[24]I agree.[25]I also agree.

Order

Appeal dismissed

Cited in 1 later judgment