Badger News

Victory for badgers on all counts as Court of Appeal declares proposed Welsh badger cull unlawful

Campaigners were celebrating today as the Court of Appeal handed down judgment finding the proposed Welsh badger cull to be unlawful on all three grounds they raised on appeal.

On 5 July, the Welsh Ministers had conceded the appeal on the basis of one of three grounds: that the 2009 Order which permitted culling in the whole of Wales (even in the many areas where TB is not a problem) was not supported by evidence and was unlawful as a result.

However, the Court of Appeal today ruled that the Welsh Ministers had also acted unlawfully in misinterpreting section 21 of the Animal Health Act 1981 as giving them power to cull if they could achieve a potential reduction in TB which was merely more than trivial or insignificant. They also unlawfully failed to carry out a balancing exercise to weigh up the harm involved (i.e. killing over 2,000 badgers) against the potential benefit (which the Minister’s own model predicted to be a reduction in the rate of cattle herd breakdowns of just 0.3% of farms annually).

On the balance point, Lady Justice Smith said [para 90]: “In my view, [the Respondent’s] submission rather missed the point. It is not necessarily a question of how many badgers will be killed; the important matter is consideration of the nature and extent of the adverse effects of killing a large number of badgers and whether the benefits to be derived from the proposed cull outweigh those adverse effects. The submissions to the Minister contained nothing about the adverse effects of killing a large number of badgers; indeed, from those submissions it would not be possible to understand why killing badgers might be regarded as ‘a bad thing’.”

Giving the lead judgment, Lord Justice Pill sounded a warning to the Welsh Ministers when he said that [para 72]: “It is not open to the Welsh Assembly Government immediately to make a fresh Order in the same terms but covering only the IAPA [Intensive Action Pilot Area] and to proceed forthwith with a badger cull there.”

Lord Justice Stanley Burnton made this observation [para 96]: “If this order is valid, it would follow that, in the absence of devolution, the Act could be used, in effect, to disapply the Protection of Badgers Act 1992 throughout England and Wales, by means of a single statutory instrument [such as the TB Eradication (Wales) Order 2009, which is secondary legislation]. If the cull authorised by such an order were effective, the badger, an indigenous species, would be eradicated and become extinct in this country. I doubt that this is what Parliament envisaged or authorised when enacting section 21.”

Two of the three judges also ruled that the short-term 9% potential reduction in TB to be gained from the proposed cull on the Minister’s evidence did not qualify as a ‘substantial reduction’ as required by the Animal Health Act 1981. Lady Justice Smith said this [para 83] about the short-term 9% potential reduction: “I would call it modest. I would accept that that reduction might be worthwhile and might well be, to use the words of the submission to the Minister ‘a significant achievement that should not be undervalued’. I would even accept that it could be described as a reduction of ‘substance’.  But that is not the test; the test is whether the reduction will be substantial and I do not think a reduction of 9% can be so described.” [underlining added]

Gwendolen Morgan of Bindmans LLP who represents the Trust said today:

“This is a just outcome for a determined group of wildlife campaigners and an even better day for badgers. This case was the first in relation to section 21 of the Animal Health Act 1981 and it will give important guidance to Ministers considering future culls, potentially in relation to different species and different diseases. The court emphasised the fact that Parliament deliberately drafted the Act so that wildlife could not be killed without robust scientific evidence proving that this would result in a ‘substantial reduction’ or elimination in the incidence of a disease. In future scenarios, the relevant Minister will now have to conscientiously carry out a balancing exercise weighing up the detriment in terms of the extent of wild animals to be killed, and the impact on the species, against the potential benefits in terms of disease reduction. Finally, the Minister may only make an order to cull following lawful consultation in relation to a specific area for which there is scientific evidence to justify a cull. As Lady Justice Smith said ‘Hunch and anecdote would obviously not be sufficient; nor would impermissible extrapolation [from the scientific evidence].’”

David Williams, Chairman of the Badger Trust, said: “We are delighted with this outcome. We are grateful to all the badger groups and supporters whose donations and encouragement made this crucial legal action possible.

“Of all the wildlife organisations the Badger Trust exists to secure the welfare of our native protected species, the badger, and we will continue to do so through lawful means. We are pleased to see that the protection offered by wildlife law cannot be vitiated by political smoke and mirrors and that the court saw the issues so clearly. We also note the court’s criticism of the Welsh Ministers’ failure to reveal their advice without heavy redactions.

“Scientific evidence about the futility of killing badgers to control bovine TB remains exactly the same. Although some farmers may see this judgement as a setback, the massive body of rigorously peer-reviewed literature shows that killing badgers can play no meaningful part in the eradication of bovine TB and that robust cattle measures are sufficient, as demonstrated by the fact that the rate of increase in new TB outbreaks is already starting to slow. We also hope that the Minister will now adopt a strategy of vaccination as a cost-effective, viable alternative.”

Ends

Notes for editors

By law badgers may only be culled if such culling would “eliminate or substantially reduce” the incidence of TB in cattle. The Badger Trust successfully argued that the High Court made an error of law in holding:

• that the words “substantially reduce” in section 21(2)(b) of the Animal Health Act 1981 meant simply any reduction in TB that was “more than merely minor or trivial”; and
• that, once it arose, the discretion to make an order under section 21(2) could lawfully be exercised without the Minister doing any balancing act to consider the harm   involved (i.e. killing over 2,000 badgers) against the potential benefit (which the Minister’s own model predicted to be a reduction in the rate of cattle herd breakdowns of just 0.3% of farms annually).
• In addition, the Trust argued that the Ministers erred in making an Order for the whole of Wales having only consulted on the basis of the Pembrokeshire IAPA and on the basis of evidence which, at best, supported culling in the IAPA only. The Welsh Ministers conceded the appeal by reference to this point and the court unanimously agreed that it rendered the Order unlawful notwithstanding their findings on the first two points.

Details about Badger Trust:

Since 1986 the organisation has been the leading voice for badgers. It now represents and supports around 60 local voluntary badger groups and around 1,200 individual supporters. The Trust’s objectives are to promote and enhance the welfare, conservation and protection of badgers, their setts and their habitats for the public benefit.  It provides expert advice on all badger issues and works closely with Government, the police and other conservation and welfare organisations. The Trust uses all lawful means to campaign for the improved protection of badgers.

For further information please see: http://www.badger.org.uk/Content/Home.asp

Bindmans LLP:

Bindmans LLP was founded in 1974 by a small group of solicitors specialising in civil liberties and the rights of the individual. These concerns have remained at the heart of the firm as it has grown to its present size of 16 Partners and around 100 other staff, and Bindmans is ranked by Chambers UK and The Legal 500 as one of the country’s leading public law practices.

For more information about the firm:

• Tel: 020 7833 4433
• Web: www.bindmans.com

Defra ’significantly under-estimating’ TB levels in non-bovines

26 August 2010 | By Alistair Driver

DEFRA is facing calls to tighten up bovine TB (bTB) controls for non-bovine species in England, amid signs the disease is spreading far more rapidly in some species than official figures indicate.

The latest Defra statistics (see table below) show, for example, that bTB was confirmed in 28 alpacas in the first six months of the year.

However, 16 members of an alpaca TB support group have reported the loss of 155 animals to the disease between them in the first seven months of this year. One owner alone has lost around 40 animals, making a mockery of the official Defra figure.

Defra officials have told the group’s founder, Diane Summers, that 35 alpaca herds were under restriction in the middle of August, compared with 11 in July 2009. Her group therefore represents less than half of those currently affected.

“The Defra numbers are a joke. The reality is that we have absolutely no idea what the total losses are nationally,” Ms Summers said.

The reason for the discrepancy is that Defra’s figures only cover those animals where a culture or post mortem shows a positive result. Once TB has been confirmed in herds of non-bovine species, subsequent animals that test positive to the skin or blood tests ‘may not be examined’, Defra says.

“Therefore not all animals removed for TB disease control purposes will be reported,” a note accompanying the statistics admits.

This was confirmed by  an irate owner of a heavily infected alpaca herd, from Devon, who told Farmers Guardian he had recently reported a dead animal to Animal Health to be told he would have to organise and pay for any post mortem, himself.

The official Defra figures show that 105 alpacas were examined in the first half of this year, of which just the 28 were confirmed as ‘positive’.

Ms Summers, from Cornwall, is concerned this under-reporting  figures is contributing to a ‘lack urgency’ within Defra, Animal Health and the wider alpaca community in addressing what she believes is already a ‘horrendous’ problem.

She is campaigning for TB controls on camelids in England to put on the same footing as those applying to cattle, including routine testing, although she stressed that a more accurate test for alpacas was required.

She also wants steps taken to ensure that Animal Health is able to fully trace movements from restricted herds. This is in light of concerns that a lack of information being made available by at least infected herd has contributed to other breakdowns.

“Unless the rules are tightened up and some owners start behaving behave more responsibly, the problem is going to get worse and worse,” she said.

The British Alpaca Society (BAS) stressed that the problem was only affecting a minority of herds. BAS board member Philip O’Connor said the ‘vast majority’ of Britain’s 1,000 were clear of TB.

He said the society was ‘working tirelessly with Animal Health and Defra to address the issues and put together a plan to ‘control and eradicate TB in alpacas’.

Wales recently announced plans to tighten its TB controls in non-bovine species. A  Defra spokesman said the Department was ‘publishing a consultation on measures to tackle bTB later this year, and will publish plans for a full package of measures in the Spring’.

TB is a notifiable disease in camelids and Animal Health has powers to restrict a herd’s movement. Defra ‘recommends’ that the best way to control the disease, where confirmed, is through slaughtering infected animals, with compensation paid to the owner.

• Data refers to number number of M. bovis isolations from notified suspect clinical and post-mortem cases of TB.
• Cultures and post mortem examination may not be carried out on every animal removed from a herd once TB has been confirmed. Therefore not all animals removed for TB disease control purposes will be reported.
• The figures refer to individual animals not herds.

Readers’ comments (2)

• Anonymous | 26 August 2010 2:35 pm

Lets hope it spreads like wildfire among domestic cats and dog, then we’ll see the badger huggers and people who worship their pets go to war with each other. Wonderful

• Hugh Jones | 26 August 2010 6:39 pm

There is now an awareness amongst Alpaca?Lama ,farmed and Wild Deer ,but many domestic animal keepers know the of risks & symptoms .
Very Worrying.