“The Judge erred in law in finding that the First Respondent’s consultation process on the adoption of the Supplementary Culling Policy was lawful; … (c) The judge erred in finding that the consultation was lawful notwithstanding the failure of the First Respondent to consider himself the consultation responses from the Claimant, the Badger Trust, and the Zoological Society of London.”
“The Judge erred in finding that the Supplementary Culling guidance was lawful. The Judge erred in finding that the question of whether the guidance was lawful turned on the First Respondent’s subjective view as to whether the proposal would prevent the spread of disease.”
“The Judge erred in finding that there was no breach of the Habitats Regulations and/or in finding that any such breach should not give rise to relief … (d) The Judge wrongly found that the licence conditions were not mitigation measures and in finding that they could properly be taken into account in the ‘screening’ decisions.”
“1. In relation to ground 1, there is no dispute about the legal requirements for a valid consultation and the judge was best placed to assess whether on the facts the consultation in this case satisfied those requirements. I see no real prospect that the Court of Appeal would interfere with the judge’s findings, including his findings that there was in fact sufficient consultation on whether there should be supplementary culling, that the consultation document, considered as a whole, was not misleading, and that the only matter among those relied on by the appellant which it was mandatory for the Secretary of State to take into account was that supplementary culling was untested – which he knew.”
“The Badger culling policy 17. The new government published its policy, Bovine TB Eradication Programme for England, in July 2011. Cattle measures and good biosecurity alone would not be enough, it said, and unless the transmission of TB from badgers to cattle was reduced bTB would never be eradicated. The government was therefore committed to introducing a carefully managed and science-led policy of badger control. The RBCT was clear that culling badgers could reduce the incidence of TB in cattle, although if not done properly culling could make matters worse. The document proposed a package of measures, including a proposal to pilot the controlled shooting of badgers in areas with a high incidence of bTB. 18. There then followed in December 2011 publication of The Government’s policy on Bovine TB and badger control in England. That document reviewed the findings of the RBCT and analysis of what had happened at its end. The RBCT demonstrated, it said, that the benefits of culling in the RBCT persisted far beyond the culling period, with the negative effects disappearing within 12-18 months after culling stopped. Thus among the measures proposed was the licensing of annual pilot culls over a six week period for four years to test the effectiveness of culling in respect of animal welfare (humaneness of killing methods) while reducing bTB. Culling would need to remove 70% of the badger population in the first of the four years of a licence. 19. To implement the policy, the Secretary of State issued guidance to Natural England in 2011 as to licences to take and kill badgers in identified areas, using controlled shooting, cage trapping and shooting in an annual cull in each year over a fouryear period (or for such period as it might specify).”
“(i) The Secretary of State would decide to amend the guidance in the way proposed, as informed by the scientific and veterinary evidence available, experience from the badger control operations to date, and responses to the consultation … (ii) The aim of a supplementary cull ‘is to prolong the disease control benefits from a completed licensed cull’, which ‘would be achieved by keeping the badger population at, or below, a level consistent with that achieved by the end of that cull’ … … (iv) Applications for a supplementary culling licence would only be considered if the prior cull was judged effective in achieving a population reduction likely to reduce disease transmission to cattle … (v) Since the statutory purpose of a licence was to prevent the spread of disease, Natural England would take appropriate steps to evaluate the effectiveness of the licensed activity in terms of such things as numbers achieved and effort deployed … (vi) The onus would be on applicants to demonstrate to Natural England how they would plan and deliver effective supplementary badger control … (vii) A licence would be granted for five years, if Natural England was satisfied that the annual operation was effective in maintaining a reduced level of badger population, but there would be ongoing monitoring of the badger population for this purpose and to prevent local extinction, and a licence could be revoked at the annual evaluation or at any other time on reasonable grounds … (viii) Supplementary badger control had to start in the year following the conclusion of a prior cull, since allowing the badger population to recover and then undertaking control risked causing a perturbation effect and undermining the disease control benefits achieved ….”
“… ‘These supplementary culls maintain disease control benefits in an area after completion of the four-year “intensive culls”.’ Based on evidence-led advice from the chief veterinary officer and chief scientific adviser, a consultation had been conducted. The submission stated that in the absence of deployable non-lethal methods of badger control, and without supplementary culling, the benefits of intensive culling would cease after about seven years. It explained that the majority of consultation responses opposed culling in principle, and that those that addressed the specific consultation questions did not provide evidence to change the proposal on which consultation had been undertaken.”
“… the supplementary culling of badgers represented a coherent and logical progression of the current badger control policy. … Defra wanted to avoid the pattern observed in the RBCT where the benefits from culling in terms of the occurrence of disease in cattle were maximised in the years immediately after culling ended, but then began to decline, eventually returning close to pre-culled levels of disease in the 7.5 years after the RBCT ended. That effect almost certainly happened because of the recovery of the badger population.”
“… to be driven by data, as there is uncertainty about the effect of intensive culling. … data should be collected on the disease in both badgers and cattle in cull areas, and the ongoing analysis of the epidemiology in the cull zones relative to unculled areas would inform the development of policy. It was … important for Defra to avoid being in a position where it could not move forward with a new, or modified, policy unless it had carried out an experiment beforehand.”
“Much had happened since then and Defra and those carrying out the culls were much more experienced than at the time of the RBCT.”
“72. In his witness statement for the hearing, the UK’s chief veterinary officer 2008-2018, Mr Gibbens, accepts that in the RBCT there was no net benefit of culling when the results in the culling area and perturbation ring were taken together. Jenkins 2010 and the SE 3279 report showed that the overall net benefit of culling only emerged after culling had finished. He states that when his initial views on supplementary culling were sought in September 2015, there was no reason not to rely on the long-term results from the RBCT in the SE3279 report, which also showed a gradual reduction in the benefits of culling. In that discussion, his view was that once the badger population reduction target was achieved, there were theoretical options. At that point the imperative to address the risk of the perturbation effect was reduced or removed since the potential for transmission was significantly reduced. That opened up the option of maintenance culling, combined with monitoring of the badger population to show that it remained low. 73. Mr Gibbens states that he also considered vaccination as an option, as well as a ‘do nothing’ approach. It was suboptimal: while the disease control benefits of intensive culling were expected to last for a period, eventually the benefits would evaporate, so that another intensive cull would be necessary, the start of a cycle of intensive culls. There was no data on supplementary culling, but it ‘is a logical option which is biologically plausible and which will, in my opinion, maintain the benefits from the first four-year cull.’”
“111. The purpose of supplementary culling was to try to preserve or extend the disease control benefit. It was not inappropriate to refer to the chief veterinary officer’s view on this at paragraph 2.2, when we have seen that both he and Defra’s chief scientific adviser supported supplementary culling. Any overstatement in paragraphs 3.2 is counteracted by the more qualified language of paragraph 3.3, and the warning in paragraph 3.10 that there was no evidence yet available on the effects of the longer-term control of badgers in Gloucestershire and Somerset. 112. It is not surprising that there was an absence of information from the intensive culls, given that they were only coming to an end. In fact it was not until 2017 that the Brunton study of their first two years (2013-2015) of intensive culling was published. Moreover, it is not immediately clear to me what difference the provision of information on the disease control benefits achieved by these two culls could have made to a consultation on a different policy of supplementary culling. … 115. As to how the Secretary of State addressed the consultation responses, for unlawfulness the claimant must establish that a matter was such that no reasonable decision-maker would have failed in the circumstances to take it into account as a relevant consideration: R (National Association of Health Stores) v Department of Health[2005] EWCA Civ 154 , [60]-[63], per Sedley LJ; R (Khatib) v Secretary of State for Justice[2015] EWHC 606 (Admin) , [49]-[53], per Elias LJ. In my view none of the matters the claimant raises fall into that category. 116. The starting point is paragraph 2.3 of the Summary of responses, which albeit broadly deals with the points the claimant now raises. Then there is the evidence of the senior Defra official, Mr Ross, quoted earlier, that the responses received to the consultation, including ZSL’s and those like the claimant’s opposed to supplementary culling, were considered by officials within Defra and factored in prior to the final decision, even when not mentioned in the summary of responses. Mr Ross also explains that responses were referred to the TB experts within Defra if they canvassed scientific points. 117. Further, as outlined earlier in the judgment, the points raised by those such as the claimant and [the Zoological Society] had been considered over the years prior to the consultation and in some cases rejected in favour of supplementary culling, which was seen as a logical extension of the existing policy. As the decision-maker in June 2017, the Secretary of State had already been provided with the draft consultation document and guidance at the time of the December 2016 submission. With the June 2017 submission was the draft summary of responses as well. The fact was that the Secretary of State knew that supplementary culling was untested - the main thrust of [the Zoological Society’s] response and a point made in paragraph 3.10 of the consultation document. None of the other matters raised by the claimant were mandatory factors which a rational decision-maker was bound to take into account. Protection of Badgers Act, section 10 118. Under this head Mr Turney submitted that the licencegranting power under section 10(2)(a) of the Protection of Badgers Act had to be read in its statutory context, which was an Act whose goal was to stop the widespread persecution of badgers. It was a derogation from the general protection afforded. Moreover, the section did not confer a broad discretion on the licensing authority, since licences had to be ‘for the purpose of preventing the spread of disease’. That meant that there had to be an evidence base for granting a licence to demonstrate that it would serve the statutory purpose of preventing the spread of disease. Mr Turney cited authorities such as Begum v Tower Hamlets London Borough Council[2003] UKHL 5 ;[2003] 2 AC 430 , [7], per Lord Bingham, [99], per Lord Millett; IBA Health Ltd v Office of Fair Trading[2004] EWCA Civ 142 ;[2004] ICR 1364 , [93], per Carnwath LJ; and R (on the application of Badger Trust) v Welsh Ministers[2010] EWCA Civ 807 , [57]-[58], per Pill LJ, [77], [87], Smith LJ (‘[h]unch and anecdote would obviously not be sufficient; nor would impermissible extrapolation’). 119. In this regard Mr Turney also relied on the Tameside line of cases, that the Secretary of State as the decision maker was required to take reasonable steps to acquaint himself with the relevant information to enable him to make his decision correctly (Secretary of State for Education and Science v Tameside MBC[1977] AC 1014 ). 120. In Mr Turney’s submission, the Secretary of State’s case that supplementary culling followed logically or rationally from what had gone before it was not enough to engage the section. There needed to be some objective evidence capable of sustaining the Secretary of State’s decision. The Secretary of State had lost sight of the point from the RBCT that the greatest reduction in bTB occurred immediately after culling ceased. Albeit that the benefits of culling would diminish over time, Mr Turney continued, that did not support, either as a matter of epidemiology or logic that prolonging culling at a lower intensity would lengthen the benefits of intensive culling. In April 2015 [the Animal and Plant Health Agency] made clear that supplementary culling was not supported by the evidence, that the international evidence was unreliable, and that there was support in the evidence for a “do nothing” policy following intensive culling. Quite apart from such matters being left out of account, Mr Turney submitted, there was no proper evidential basis for concluding, as required by section 10, that supplementary culling would prevent the spread of disease. As the [Zoological Society] had observed in its submission to the consultation, supplementary culling might undermine the benefit derived from stopping culling and make matters worse. 121. In R (on the application of Badger Trust) v Secretary of State for the Environment, Food and Rural Affairs[2012] EWHC 1904 (Admin) , Ouseley J held that the words of section 10(2)(a) did not have a technical or specialist scientific character, and that the Secretary of State had acted lawfully when her purpose subjectively, and judged by its intended effect, was to prevent the spread of disease [35], [43]. Mr Turney attempted to distinguish the case: Ouseley J’s consideration of section 10(2)(a) had been in the context of an argument that the power could only be exercised for the purpose of preventing the spread of disease and, it was said, the Secretary of State intended to act for a different purpose of preventing the transmission of disease and reducing its incidence. Despite the particular context in which Ouseley J had to construe the section, I am bound by his interpretation unless I think it wrong. There is no basis to think that it is; there is nothing in the legislation to suggest that Parliament’s words have other than their natural meaning. 122. In this case the purpose of the Secretary of State’s policy of supplementary culling, stated in his Summary of responses to the consultation at paragraph 3.2, quoted earlier, was that it would ‘prolong the expected disease control benefits’ of the intensive culling. That disease control purpose was expressly stated in the December 2016 consultation document (see in particular paragraph 4.2), is evident in the internal discussions within government before its publication, and is confirmed in the witness statements before the court of Professor Boyd, Defra’s chief scientific adviser, and Mr Gibbens, the government’s chief veterinary officer. Whatever [the Animal and Plant Health Agency] might have thought of supplementary culling in April 2015, by the time of the June 2016 meeting of Defra’s TB Strategy Implementation Group, APHA’s chief executive officer was in support. 123. Thus the Secretary of State acted for the proper purpose for which the legislative power in section 10(2)(a) was conferred. In the words of Ouseley J in approving the policy on supplementary culling, and guidance to Natural England, his actions subjectively, and judged by their intended effect, were to prevent the spread of bTB. Despite the views its officials had expressed the previous year, [the Animal and Plant health Agency] was formally in support. Importantly, both Defra’s chief scientific adviser and the government’s chief veterinary officer considered that supplementary culling had a logical and defensible rationale, which was to maintain the reduced weight of infection achieved in the badger population at the end of an intensive cull. There was evidence that it was immediately following intensive culling that its benefits were greatest, but there was also evidence that its disease control benefits declined over time. 124. The issue thus becomes whether in acting in this way under his statutory power the Secretary of State’s actions were otherwise flawed in public law terms. In my view it cannot be said that he acted irrationally in a public law sense, that he failed to take relevant factors into account, or that he took into account irrelevant factors. The scarcity of evidence about supplementary culling was acknowledged in the December 2016 ministerial submission and made clear in the consultation document. When the international evidence was put to the Secretary of State, it was that it supported the longer term control of a TB wildlife reservoir, not that it was evidence supporting supplementary culling. The same applied to its summary in the 2016 Consultation document. As I have said, both the Secretary of State’s chief scientific adviser and the government’s chief veterinary officer were in support. Against this background a policy of maintaining a reduced badger population through supplementary culling cannot be said to be irrational when coupled with the commitment to change tack as evidence became available. 125. As to the so-called Tameside duty, that takes its colour from the statutory context. If the logic of the statute does not compel certain considerations to be taken into account, it is for the Secretary of State to make the primary judgment as to what should be considered in the particular circumstances, with the court exercising a secondary judgment where a matter is so obviously material that it would be irrational to ignore it: R (on the application of DSD, NBV, Mayor of London, News Group Newspapers Ltd) v Parole Board of England and Wales[2018] EWHC 694 (Admin) , [141], per Sir Brian Leveson PQBD, Jay and Garnham JJ. Even if the point about benefits being greater after the end of an intensive cull was not put to the Secretary of State, I am not persuaded that this was a relevant consideration against the background of the other matters or that, for the reasons given in the previous paragraph, it was irrational for it not to be taken into account.”
“(1) The Secretary of State must give Natural England guidance as to the exercise of any functions of Natural England that relate to or affect regional planning and associated matters. (2) The Secretary of State may give Natural England guidance as to the exercise of its other functions. … (4) The Secretary of State must publish any guidance given under this section as soon as is reasonably practicable after giving the guidance. … (6) In discharging its functions, Natural England must have regard to guidance given under this section.”
“I do not think that it is disputed that the section 21 consideration of whether the destruction of members of a wild species is necessary to eliminate or reduce the incidence of a disease in animals must be based on scientific evidence. Hunch and anecdote would obviously not be sufficient; nor would impermissible extrapolation. In the present case, the scientific evidence put before the Minister was derived very largely from the randomised badger culling trial (RBCT) which had been reported by Jenkins et al in the International Journal of Infectious Diseases in 2008.”
“… the interests of justice would not be served by entertaining an appeal on the fact-sensitive question of legitimate expectation of consultation which, by reason of the supervening events described by my Lord, no longer has any practical utility.”
“…the fact remains that the courts … exist to resolve real problems and not disputes of merely academic significance. Judges do not sit as umpires on controversies in the Academy. Nor is it the task of a judge when sitting judicially … to set out to write a textbook or practice manual or to give advisory opinions.”
“…academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem (supra) that “a large number of similar cases exist or anticipated” or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive.”