“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 1a) 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.”
“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.”
“It is not for any court of law to substitute its own opinion for [that of the Secretary of State]; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: seeAssociated Provincial Picture Houses Limited v Wednesbury Operation[1948] 1 KB 223 , per Lord Greene MR at p. 229 Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”
“The model results strongly suggest that the long-term reduction of the confirmed CHB rate for 5 year control would be only about 10% of the no control value.”
“6.3.8 Summary 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 the RBCT, which was a relatively well executed cull, were low (9% average reduction in the incidence of CHB). The benefits continued to accrue at an increasing rate in the two years post trial. Further analysisisplanned to determine if these trends continue in further years. …” 36. Section 9 of the Submission set out the advice to the Minister. Section 9.2.3 stated: “9.2.3 Option 1: non-selective badger cull. The ProgrammeBoard 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 [Intensive Action Pilot Area] provided the greatest opportunity to achieve this. The Programme Board agreed that against the backdrop of an increasing disease incidence, an overall 9% reductionas achievedpost culling in the RBCT was a significant achievement that should not be undervalued. Particularly giventhat knowledge on the effects of perturbation were unknownand 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 acrossWaleswas not appropriate. Instead both culling and vaccination should be considered as part of the veterinary assessment of policies on a regional and epidemiological basis.”
“Christl Donnelly: SE3242 – Further analyses of spatial temporal trends in the cattle data associated with theRandomised Badger Culling Trial. The objectives of this project are: 1 – ongoing monitoring of TB incidence in RBCT areas to examine the impact of culling… Objective 1: data were presented on the effect of culling inside and outside trial areas, during the trial (the period up to one year after the last cull) and up to 36 months post-trial. The results up to 18 months post-trial have already been published (Jenkins et al, 2008 IJID). Data analysed since this indicate that in the last 6 month period (30-36 month’s post-trial), there was no remaining impact of culling either inside or [up to] 2 km outside trial areas. At the start of the post-trial period there was a beneficial effect both within (statistically significant) and outside (not statistically significant) trial areas, but this beneficial effect deteriorated over time. These data have previously been reported to DEFRA and were submitted to the correspondence pages of Nature, but not accepted for publication. The intention is now to submit them to PLoS one.”
“However, continued analysis of data from the RBCT since the final report of the ISG was published show that the rates of bovine TB in the culling area continue to decline, and the increase on the border of the culling area decrease significantly over time, leaving an overall substantial decrease in TB cattle breakdowns.”
“9. In your own letter, you referred to the 2008 research of Jenkins et al, which concluded that the Randomised Badger Culling Trial occasioned an overall 9% reduction in the incidence of cattle herd breakdowns. You also referred to the modelling produced for the Welsh Ministers which concluded that the long-term reduction in the cattle herd breakdown rate would be approximately 10%.”
“7. However, in the years after the 5 year period, the incidence of cattle herd breakdowns in the area surrounding the trial area has reduced. An analysis published in 2008 concluded that if the 5 year period were considered together with the 2 years following the final year of culling, the overall incidence of cattle herd breakdowns had been reduced by 9%. Whilst the claimant repeatedly refers to this as “limited evidence”, it is in fact the most up to date evidence available. … 18. There was sufficient information before the Welsh Ministers to justify a conclusion that the destruction of badgers would result in a substantial reduction in the incidence ofTuberculosisin cattle inWales(even before the implementation of the additional measures referred to in paragraph 10 above). As set out in paragraph 7 above, the scientific evidence indicated that such a course would result in a 9% reduction in the incidence of cattle herd breakdowns over time. A reduction of 9% is more than insignificant or trivial. It follows that it is unarguable that it was irrational for the Welsh Ministers to reach the conclusion that it did.”
“A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.”
“Given the constitutional position as this court now holds it to be, a minister who reserves a decision to himself – and equally a civil servant who is authorised by him to take a decision – must know or be told enough to ensure that nothing that is necessary, because legally relevant for him to know, is left out of account. This is not the same as a requirement that he must know everything that is relevant. Here, for example, much that was highly relevant was appropriately sifted by the Commission in formulating its advice and then distilled within the department in order to make a submission to the minister which would tell him what it was relevant (not simply expedient or politic) for him to know. What it was relevant for the minister to know was enough to enable him to make an informed judgment. This centrally included the Commission’s advice and the reasons for it. It also included the fact of Professor Ernst’s opposition and the essential reason for it. All this he had. … Here, while – as I have said – it might have been better had a certain amount more been drawn to the minister’s attention, I am unable to hold that the three matters omitted from the briefing were things which either the statutory purpose or the nature of the issue before the minister made so relevant that a lawful decision could not be taken in ignorance of them. They are all things which undoubtedly enhance the case against a ban, but that is not the test.”
“Our aim is to achieve at the very minimum similar benefits to the RBCT, which was a 9% overall reduction in TB in cattle 2 years after the last cull take place. With the additional cattle measures that we are putting in place, I expect the impact to be greater than this. This situation will not improve overnight, and disease incidence could go up in the area in the short term.”
“Jenkins et al. 2008 estimated that 12 herd breakdowns, out of a potential 130, were prevented by the pro-active cull. This equates to an overall 9% reduction in the incidence of cattle herd breakdowns.”
“The Programme Board agreed that against the background 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.”
“The benefits continued to accrue atan increasing rate in the twoyears post-trials”
“It has hitherto been taken for granted that, if the premises are Block B, then two flats out of the 50 do not constitute “a substantial part of” the premises. Were it otherwise, there would have been no point in the Appellant pursuing matters to this House. The Respondent has not hitherto sought to argue otherwise. In my view, it was right not to do so. “Substantial” is a word which has a wide range of meanings. Sometimes it can mean “not little”
“The reported benefits of the RBCT, which was a relatively well executed cull were low (9% average reduction in the incidence of CHB).” (b) Badger Control Model – Comparison of Strategies for Wales states (at p. 67): “It is important to note that the reductions in numbers of infected badgers in the control area did not “translate through” to reductions in CHBs over the whole grid to the same extent. In other words, very large reductions in the numbers of infected badgers in the control area in the model gave only small reductions in the overall numbers of CHBs. The model results strongly suggest that the long-term reduction of the confirmed-CHB rate for a 5 year control would be only about 10% of the no control value. With a pre-control CHB rate of about 5% of farms per annum, that would mean a possible reduction of the CHB rate from 5% to 4.5% - representing a saving of just 5 CHBs in 1000. The figure is even smaller if we consider both confirmed and unconfirmed CHBs where the saving would be about 3 CHBs in 1000.” (c) A paper entitled “The Principles of Culling Wildlife for Disease Control and Alternative Control Strategies: Badgers and Bovine Tuberculosis” points out at Section 2.1 that the conclusions of the RBCT have been the subject of considerable debate with alternative interpretations of the results. “Overall, the benefits of pro-active culling were so small, when the detrimental effects on neighbouring unculled land were taken into account, as to be trivial in terms of disease control and were greatly outweighed by the costs of culling (Delahay et al. 2008). This led the ISG to conclude that badger culling can make no positive, or cost effective contribution to cattle TB control in Britain.(Bourne et al. 2007a) However, King et al. (2007) reached a different conclusion on reviewing the results of the RBCT, stating that “the removal of badgers could make a significant contribution to the control of cattle TB in those areas of England where there is a high and persistent incidence of TB in cattle.”
“I recognise that vaccination is another potential tool to reduce the risks of bovine TB and I will continue to work with the Department for Environment, Food and Rural Affairs on research to explore the potential for the use of an effective badger vaccine. I welcome confirmation that an injectable licensed vaccine for badgers is expected in mid 2010 and that an oral bait vaccine will be available by late 2014. The latter is recognised as an efficient means of vaccinating the wildlife population over large areas, although any benefits in reduced cattle herd breakdowns are not expected to be evident, through vaccination alone, for several years. I will monitor vaccine development closely with the view to introducing vaccination into Welsh policy as and when available and appropriate, recognising both culling and vaccination are part of the measures required to pursue the eradication of bovine TB in Wales.”
“Alternative control strategies, such as vaccination and vaccination with selective culling may deliver greater benefits in cattle TB control than non-selective culling”
“The BCG vaccine has been demonstrated experimentally to generate an immune response in badgers, which is associated with protective immunity from bovine TB. Therefore, BCG is likely to be a suitable vaccine for use in badgers in the wild. Although the efficacy of the BCG in badgers is unknown, challenge studies have shown that it is effective in preventing disease in healthy badgers. It is highly unlikely to produce any adverse disease effects even if the vaccine proves not to be sufficiently effective, or the programme is halted prematurely. However, the level of benefits, in terms of reduction of cattle herd breakdowns and the timescale to realise the benefits is not yet known.”
“That vaccination is seen as another tool to reduce the risks of bovine TB in susceptible populations and that its development for badgers in injectable and oral bait form will be monitored closely with the view to introduction into Welsh policy as and when available and appropriate, recognising that both culling and vaccination are part of the measures required to pursue eradication of bovine TB in Wales.”
“In respect of the capture or killing of wild fauna species specified in Appendix III … Contracting Parties shall prohibit the use of all indiscriminate means of capture and killing and the use of all means capable of causing local disappearance of, or serious disturbance to, populations of a species, and in particular, the means specified in Appendix IV.”
“Each Contracting Party may make exceptions … from the prohibition of the use of the means mentioned in Article 8 provided that there is no other satisfactory solution and that the exception will not be detrimental to the survival of the population concerned: … to prevent serious damage to crops, livestock, forests, fisheries, water and other forms of property;…” to prevent serious damage to crops, livestock, forests, fisheries, water and other forms of property;…”
“It follows from this that in most cases the English courts will be wholly unconcerned with the terms of the Convention. The sole exception is when the terms of primary legislation are fairly capable of bearing two or more meanings and the court, in pursuance of its duty to apply domestic law, is concerned to divine and define its true and only meaning. In that situation various prima facie rules of construction have to be applied, such as that, in the absence of very clear words indicating the contrary, legislation is not retrospective or penal in effect. To these can be added, in appropriate cases, a presumption that Parliament has legislated in a manner consistent, rather than inconsistent, with the United Kingdom’s treaty obligations.”
“For the purposes of domestic law, the Convention has the status of an international treaty, not directly incorporated. Thus its provisions cannot be directly applied by domestic courts, but may be taken into account in resolving ambiguities in legislation intended to give it effect…”
“In any event, the Welsh Ministers did take the Bern Convention into account when deciding to make the Order, concluding that the Order would not give rise to a breach of the Bern Convention.”
“Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable. It would moreover be unfortunate if decision-makers were to be deterred from seeking to give effect to what they understand to be the international obligations of theUKby fear that their decision might be held to be vitiated by an incorrect understanding.”
“It simply cannot be the law that, provided only a public officer asserts that his decision accords with the state’s international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue.”
“The Standing Committee shall be responsible for following the application of this Convention. It may in particular: ·keep under review the provisions of this Convention, including its appendices and examine any modifications necessary; ·make recommendations to the Contracting Parties concerning measures to be taken for the purposes of this Convention; … ·make any proposal for improving the effectiveness of this Convention, including proposals for the conclusion, with the States which are not Contracting Parties to the Convention, of agreements that would enhance the effective conservation of a species or groups of species.” ·keep under review the provisions of this Convention, including its appendices and examine any modifications necessary; ·make recommendations to the Contracting Parties concerning measures to be taken for the purposes of this Convention; … ·make any proposal for improving the effectiveness of this Convention, including proposals for the conclusion, with the States which are not Contracting Parties to the Convention, of agreements that would enhance the effective conservation of a species or groups of species.”