Badgers’ expectations dashed

29 August 2014 by David Hart KC

R (o.t.a. Badger Trust) v. SoS for Environment and Rural Affairs, Kenneth Parker J, Admin Ct, 29 August 2014 read judgement

This blog has covered the various twists and turns, both scientific and legal, of Defra’s attempts to reduce bovine TB by culling badgers: see the list of posts below. Today’s decision in the Administrative Court is the most recent.

You may remember a pilot cull in Somerset and Gloucester took place in 2013-14. Its target was to remove at least 70% of the badger population. By that standard, it failed massively. In March 2014, an Independent Expert Panel (IEP) concluded that in terms of effectiveness, shooting badgers removed less than 24.8% in Somerset and less than 37.1% in Gloucestershire. As for humaneness, something between 7.4% and 22.8% of badgers shot were still alive after 5 min – so the clean instant death much vaunted prior to the cull was by no means universal.

The current case concerned the future of the IEP in proposed “pilot” culls. The Badger Trust challenged Defra’s decision to extend culling elsewhere without keeping the IEP in place, and without further conclusions from the IEP to be taken into account on effectiveness and humaneness.

The legal route for the public law challenge was substantive legitimate expectation. The Trust said that Defra had given an unqualified and unequivocal assurance about the IEP prior to the first pilot cull, which it should be held to for future culls.

The law was uncontroversial: see a helpful summary at [25]-[29]. For a substantive legitimate expectation to be binding in law, it had to be clear, unambiguous and devoid of relevant qualification. It must be a specific undertaking, directed at a particular individual or group, by which the continuance of the policy in question is assured. The assurance must be a pressing and focussed one.

The judge dismissed the case on the basis that there was no such assurance. He pointed to various passages in the policies, including one in which Defra said that culling would be overseen by the IEP “initially in the first year” – elsewhere that the IEP would evaluate the results from the first six weeks of culling. Hence, he concluded that there was no assurance extending beyond the first trial. He was also troubled that the assurance, if established, would remove the ultimate control of policy from the executive to the IEP ([39]) – even if the executive thought that a continued cull was in the public interest. Further, if such an assurance was as unequivocal as contended by the Trust, the IEP would have been required to function, even if the first cull had been entirely straightforward (which it certainly was not): [40].

Evidently, the Trust’s suspicion is that doing away with the IEP whose analysis seemed to be unfavourable to the continuance of culling would remove some form of check against culling without sufficient analysis of its results and its humaneness. Defra sought to counter this by saying that most of the recommendations of the IEP on effectiveness and humaneness had been adopted for future culls. There would be continued monitoring and an independent audit. Whether this system will be as robust as the IEP process may emerge as and when future culls happen.

Conclusion

Substantive legitimate expectation cases are not easy to win, at a policy level rather than in the very specific cases involving promises to individuals. In many circumstances, it may be inherently unlikely that Government will have committed itself to a specific course of action without having the ability to decide, on public interest grounds, to take a different view at a later stage. That was one of the reasons underlying the judge’s unwillingness to spell out an assurance in this case.

On the other hand, you can quite see why the Badger Trust wanted to retain the IEP whose conclusions had been so desperately inconvenient for those who said that culling as per the pilot scheme was a good idea.

Watch this space – I am taking no money at all on the odds that this is the last piece of litigation on the legality of these culls.

And, as we have said in previous posts, do read Patrick Barkham’s Badgerlands, Granta 2013 on the background to all this

Related posts:

• The latest in the badger cull extension
• Who’s really moving the goalposts?
• All about killing badgers – David Hart
• Pearls and badgers – location, location, location
• National Trust to begin badger vaccination  trial
• Shooting badgers to be legal under proposals for a “big society cull”