Badger Trust gives DEFRA notice of legal challenge
The Badger Trust has sent a letter to the Department of Environment, Food and Rural Affairs giving them notice of the grounds of challenge which the Badger Trust intends to pursue if DEFRA does not set aside its decision to kill badgers in its measures to eradicate bovine tuberculosis. DEFRA’s final position should be known by 17 February.
David Williams, chairman of the Badger Trust, said: “The Badger Trust has responded in detail to both DEFRA’s consultation papers on culling and suggested viable alternatives. However, our concerns that the culls proposed will actually spread the disease have not been heeded. In the light of this and our concerns over the legality of the decision, we would be failing in our duty to badgers if we did not pursue a legal challenge despite the difficulty and cost risks involved. If there is an opportunity to save many thousands of healthy badgers, as there is here, we must take it on behalf of the many local badger groups and supporters on whose behalf the Badger Trust works. If successful it would also save farmers the expense of a policy which would not benefit them.
“Once again the Badger Trust leads the way in defence of this iconic indigenous mammal by challenging the legal basis of the Government’s decision. In April 2011 the Badger Trust, with the support of Pembrokeshire Against the Cull, embarked on legal proceedings to quash a second Order of the then Welsh Assembly Government to destroy badgers. As a result of the Badger Trust’s challenge, the matter was suspended pending the outcome of a comprehensive scientific review ordered by the new Welsh Government”.
The Badger Trust’s present action follows extensive legal advice as well as correspondence with DEFRA Ministers and officials to clarify the Department’s position on many topics of concern. Officers of the Badger Trust have also had several discussions with Ministers in person before the decision was announced. Matters raised included what has been decided, what else remains to be decided, when, and the process of implementation.
In short, the Badger Badger Trust considers that:
1. the culls proposed will not meet the strict legal test of “preventing the spread of disease” in the areas being licensed, and may amount to a recipe for spreading the disease. Quite contrary to the aims in the strict test set down in section 10(2)(a) of the Protection of Badgers Act 1992, DEFRA’s own evidence confirms that the proposed cull will in fact increase the spread of the disease in and around the cull zones. This is because a campaign of culling inevitably disrupts badgers’ normally stable social structures and causes them to roam further in search of food and territory, thereby prompting the spread of disease. Badgers outside the area culled are also likely to roam inward and take over the culled badgers setts. (This phenomenon is specific to badger ecology and social behaviour and is known as “perturbation”). Many cattle farmers in and around the cull zones are understandably very concerned about the risk that bovine TB will be spread onto their land as a result of the cull.
2. DEFRA’s cost impact assessment underpinning the decision is flawed because the cost assumptions are based on the free-shooting option which is assumed to be much cheaper. However, in correspondence with the Badger Trust, DEFRA recently confirmed that, if after the first year of piloting the plans, free-shooting is ruled out for being inhumane, ineffective or unsafe, then farmers will be legally obliged to continue the cull on a much more costly “trap and shoot” basis for the remaining years of their licence (and farmers will have to make a further upfront financial deposit on this basis plus a contingency sum of 25 per cent). These are significant cost risks for farmers but they are not properly reflected in the cost impact assessment which underpinned DEFRA’s decision. This may render the decision unlawful. (Farmers would be well advised to study the impact assessment which concludes that they will be out of pocket, even if free shooting were to be approved.)
3. the guidance which DEFRA issued to Natural England is invalid. The Secretary of State issued guidance to Natural England under section 15(2) of the Natural Environment and Rural Communities Act 2006 as to how Natural England should exercise its functions. However, killing badgers is not in fact one of Natural England’s functions, which are mainly focussed on maintaining biodiversity. Even though DEFRA is making Natural England responsible for the administrative arrangements this does not mean that culling becomes one of Natural England’s functions. Therefore, the guidance was not correctly devised.
The Badger Trust will issue a statement on whether proceedings are necessary once it has studied DEFRA’s response. This is expected by 17 February.
Jack Reedy, Badger Trust
01564 783129 or 0775 173 1107
Gwendolen Morgan, Bindmans
0207 833 4433