All about killing badgers

28 September 2012 by

R (o.t.a Badger Trust) v. Defra, Ouseley J, 12 July 2012, read judgment, and on appeal, CA, 11 September 2012, not yet available online.

It is impossible to drive through the narrow and high-hedged lanes of Herefordshire without coming across the sad and inevitable outcome of car meeting badger. One estimate is that we may lose as many as 50,000 badgers a year this way. But this case is about whether we should kill a lot more badgers – deliberately.

For many years there has been a debate about whether, and if so, to what extent, badgers cause the spread of tuberculosis in cattle, and, if it does, what should we do about it. Recently, a decision was made by the Department for Environment, Food and Rural Affairs to cull some of them. And this challenge is to the lawfulness of that decision.

At which point we immediately run up against a bit of an institutional accident. Defra, is, when you scratch it, the old Ministry of Agriculture, Fisheries and Food spliced together with bits of the old Department of Environment. And, a bit like the sad nocturnal collision of badger and vehicle, badgers tend to come off worse when farming interests encounter nature, particularly where, as in this context, the science appears equivocal. That sounds rather contentious, but is not meant to. Let me explain why.

We spend a lot of money on accumulating scientific know-how into our government departments, and we should use it because it enables or should enable government to come up with an objective assessment of the science in a contentious area. And the courts are rightly wary of crashing into the science given our constitutional structure which allows the proper assessment of that science to government, not the courts. That is not to say that the courts will not intervene when there is some egregious twisting of science to fit existing policy objectives, but those instances are rare.

Here, the Badger Trust did not and does not accept the science, in particular Defra’s contention that culling will actually lead to significant improvements in infection rates in cattle. Because just as badgers can infect cattle, so cattle can infect badgers, and cattle can infect cattle. So you cant just say – here are some infected badgers, and here are some infected cattle, ergo the cattle were infected by the badgers. The transmission of disease may have been the other way round, in which case what is the point of killing a lot of badgers because they caught TB from cattle.

Before deciding to proceed to a cull, Defra had a randomised controlled trial carried out to see if culling really worked. Defra said its conclusions supported the cull. The Badger Trust disagreed. One of the curiosities of the results is that infection rates went up in cull areas, but only in a circumscribed area (c.2km) round the cull areas, and only for a temporary period. Defra sought to explain this consistently with the general efficacy of the trial. The Badger Trust pointed out the results of previous culls which they said did not make a “meaningful contribution” to tackling the disease; it was better to stick to restricting cattle movements, so that cattle did not infect cattle any more than necessary

You will see nothing other than the briefest mention of any of this in the initial judgement of Ouseley J. That is because the Badger Trust realised that they were never going to win on such grounds. To do so, they would have to show that Defra hd come to its conclusion irrationally. That is difficult, and, as I have explained, very difficult if the science is controversial. Hence, this challenge concentrated on whether the cull was allowed under the legislation.

The argument was an abstruse one. Defra, rather than culling themselves, was proposing to licence farmers and landowners to carry out a mixture of culling and vaccination. This, so it was said by Defra, would enable farmers “to take control of the wildlife reservoir at the local level and decide for themselves which control measures to use.” Whether farmers are the right people to judge whether to kill or vaccinate badgers is questionable as a matter of policy. But the Trust said that this way forward was not allowed by the Protection of Badgers Act 1992. Not worth dwelling on the intricacies of the argument as it was rejected by the judge and the Court of Appeal, but the upshot is that Defra can grant mass licences to kill badgers under an Act purporting to be about their protection. The Trust had said such a cull could only be done under the Animal Health Act 1981, but neither court accepted this.

The lesson learnt from the case is a more general one. Often these challenges emerge because the claimant, as here, genuinely believes the policy is scientifically misconceived, and is wrongly weighting economic interests over conservation ones. Yet the challenger has to focus on very narrow points in order to stand a real chance of success. But then that is intrinsic in the process of judicial review which is all about challenging the legality of a decision and not its wisdom or (usually) its scientific coherence.

The other factor in the policy debate is the way in which, inevitably, the farmers start a few points up. TB in cattle costs farmers or the government quite a lot of money, and it is relatively easy to sympathise with these losses and calculate them. One assessment of the number of badgers who might be culled is 130,000 over 4 years. How do we or anyone “cost” the loss of so many badgers into any cost benefit analysis? People have tried (see my earlier post) but nobody can pretend it is easy. Because we are weighing up entirely different values.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:


  1. Chris says:

    Im a farmer in North Yorkshire, and WILL NEVER EVER KILL BADGERS, me and my family love them, we don’t even tell people there on our land, so there not hurt.

  2. The fault lies in the intensive methods of farming, not badgers, although, it seems that farmers would rather blame anything other than their questionable methods.

  3. M says:

    Very interesting post (I’m a scientist)…I’m pretty sure the government would have a similar ‘law of averages/works on paper’ approach to scientific evidence/opinion if an Ebola virus outbreak ever hit these shores too….

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: