All about killing badgers

28 September 2012 by David Hart KC

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.

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