No binding assurances about badgers, says Court of Appeal

4 November 2014 by

BadgerR (o.t.a. Badger Trust) v. SoS for Environment and Rural Affairs, CA, 29 October 2014, read judgment, on appeal from Kenneth Parker J, Admin Ct, 29 August 2014 read judgment

The Court of Appeal has dismissed an attempt by the Badger Trust to quash Defra’s unwillingness to retain an Independent Expert Panel on future badger culls. The arguments mirrored those before the judge (summarised in my previous post here), and were dismissed for pretty much the same reasons.

The background was the pilot cull in Somerset and Gloucester in 2013-14. It sought to remove at least 70% of the badger population in the area. The Panel reviewed its results, and concluded that in terms of effectiveness, shooting badgers removed less than 24.8% in Somerset and less than 37.1% in Gloucestershire. It decided that in terms of humaneness, something between 7.4% and 22.8% of badgers shot were still alive after 5 min. Not quite what had been promised for shooting.

Two main public bodies were involved in regulating the cull. Natural England granted licences to take and kill badgers using controlled shooting in an annual cull over a 4 year period until the end of 2015 (as such other period as it may decide) in Somerset and Gloucestershire, Defra’s December 2011 Policy had stated that culls should continue for a period of not less than 4 consecutive years, based on expert scientific advice.

The Trust said that Defra had given an unqualified and unequivocal assurance in its Policy (and other material to be read with the policy) that, as long as it had in contemplation the extension of culling beyond the pilot areas in Somerset and Gloucestershire, it would keep in place the IEP and would not extend culling beyond the two pilot areas unless either (a) the IEP had concluded that culling by controlled shooting was safe, effective and humane; or (b) the Defendant had at least taken into account an evaluation made by the IEP as to the safety, effectiveness and humaneness of culling by controlled shooting.

The legal route for the public law challenge was substantive legitimate expectation; Defra ought to be held to its assurance.

The law was uncontroversial. There must be a representation or promise which is clear, unambiguous and devoid of relevant qualification. There must be a “specific undertaking”, directed at a particular individual or group, by which the relevant policy’s continuance is assured. A representation may be clear, unambiguous and devoid of any relevant qualification even though some details are missing, or some terms are not defined with the precision to be found in a competently drafted commercial contract.

The Trust argued that the Defra Policy meant that the IEP will remain in place throughout the period of the “pilot”.

The Court thought that the “pilot” referred to was the initial 6 week culling, not the 4 years contemplated by Natural England and Defra.

It added that even if the references to “pilot” in the Policy are ambiguous, this did not get the Claimant home under the principles of legitimate expectation.

Hence Bean LJ’s conclusion (for the CA) that

I do not accept that any of the passages in the Policy give an assurance of any continuing role for the IEP after it had overseen the monitoring of, and evaluated the results from, the six week period of culling in the two areas of the pilot scheme in the first year. As the judge observed, “this is not a case where the court should be tempted to read into the Policy assurances which cannot be fairly extracted from the express language used by the policy-maker in an important policy document.”

Conclusion

As I noted in my previous post here, the Trust is suspicious that getting rid of the IEP was motivated by the unwelcome results of its analysis of the initial 6 week cull. Defra argued that most of the recommendations of the IEP on effectiveness and humaneness had been adopted for future culls, and that there would be continued monitoring and an independent audit. That may be so, but then one wonders still why get rid of the IEP.

But Courts are reluctant to find unqualified assurances by Government. They would bind Government to a policy the merits of which may change over time.  Hence, the requirement of a specific promise to a specific group in order to found a legitimate expectation in law.  And, the CA decided, that was not established on the facts.

Do read Patrick Barkham’s Badgerlands, Granta 2013, on the background to all this.

Related posts:

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.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals 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 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


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.

%d bloggers like this: