R (on the application of the National Farmers Union and T&G Stone Ltd) v Secretary of State for the Environment, Food and Rural Affairs and Natural England (2020)
Badgers are a protected species. They may be killed in limited circumstances as provided in the Badgers Act 1992. Badgers are also a vector for transmission of bovine tuberculosis. This is a serious animal health problem and requires infected animals to be destroyed. Scientific evidence indicates that culling badgers can be effective in reducing transmission. The culling of badgers is a highly emotive issue involving difficult political and ethical value judgments.
Under the Act of 1992 the Secretary of State may enter into an agreement with Natural England (NE) to issue licences for badger culling. Licensed culling is limited to an annual six-week period which cannot take place before June and the licence is normally granted for a minimum of four years.
In September 2019 the Secretary of State issued a Direction to NE requiring it not to grant any badger culling licences in Derbyshire before May 2020.
At the time when the Direction was issued, NE was about to grant a licence to T&G Stone Ltd, covering a specific zone in Derbyshire. The company had been set up by a group of farmers for the purpose of applying for a licence. The National Farmers Union (NFU) supported the company throughout the application process. The company had satisfied NE that it met all the requirements set out in the relevant statutory guidance. It had demonstrated that it was able to deliver an effective and humane cull in compliance with those requirements.
The claimants applied to the High Court for judicial review of the Secretary of State’s decision. They challenged the Direction on the following grounds:
· Unlawful departure from policy
· Frustration of a legitimate expectation
· Unreasonableness.
The claim for judicial review was dismissed.
The decision to issue the Direction was not unlawful. The Secretary of State has power to dictate to NE how it should exercise its functions. That power is wide enough to cover a situation in which the Secretary of State has decided for wider political reasons that licences should not be issued in circumstances in which NE would otherwise have issued them. There had been no promise that the licence would be granted. Even if there had been a clear and ambiguous promise to grant a licence, this was probably an example of a situation where it would have been fair to allow the government to depart from it.
In relation to unreasonableness, assiduous efforts were made to obtain and consider the relevant factual and scientific information and advice before the decision was taken. The decision was taken on political grounds. Derbyshire was a county with a particularly substantial vaccination programme and a particularly vocal animal rights and anti-culling lobby. Permitting a cull to take place in Derbyshire was liable to inflame local and national tensions and risked limiting the government’s future policy options.
A political judgment had to be made about whether it was worth risking the fallout in terms of adverse publicity and the loss of goodwill among lobbyists if a vaccinated badger was killed by mistake. There was nothing irrational about concluding that it was not.
The decision was a difficult one which involved the exercise of complex political and ethical value judgments which are quintessentially matters for the democratically accountable decision maker. A scientist would have weighed those factors differently but that did not make the decision irrational.
The Court stated that it well understood the disappointment, frustration and bewilderment felt by the company and those individuals behind it who had worked so hard to achieve what was necessary to obtain a licence. But the decision to issue the Direction was not unlawful.
The NFU is reported to have made the following comments:
· It was shocked and dismayed by the High Court decision. The 11th hour decision by the Secretary of State was made against absolutely all the scientific and veterinary advice and left farmers in Derbyshire, who met all the licence criteria, completely devastated. Many of them had seen the cull as their last hope of dealing with this awful disease which had been devastating their cattle herds and crippling their business for years. It remained the view of the NFU that it simply could not be lawful for the government to make policy up on the hoof. Affected farmers invest a huge amount of time and money applying for a licence and they are entitled to have their application dealt with fairly.
· Bovine tuberculosis is a devastating disease which causes untold hardship for family farming businesses across the country. The impact of the decision to abandon the cull at the last minute has left affected farmers in Derbyshire in despair. What happened to them has completely undermined their confidence in government policy. The judgment would have a chilling effect on farmers looking to engage with government on bovine tuberculosis policy in the future.
· The cancellation of the Derbyshire cull came after the intervention of Carrie Symonds, Boris Johnson’s partner and a patron of the Conservative Animal Welfare Foundation.
The extension of the cull to Derbyshire was opposed by a number of wildlife groups including the Badger Trust and Derbyshire Wildlife Trust which argued that a cull would adversely affect its work with landowners and farmers which vaccinated 221 badgers in 2019.
In 2019 35,000 badgers were killed in England. It is reported that this has done little to prevent the spread of bovine tuberculosis to cattle. Scientific literature has estimated that badgers contribute to less than one-third of outbreaks of the disease in cattle.
The Badger Trust is reported to have made the following comments:
· It was delighted to see that the prime minister had taken note of the concerns which it had raised in its open letter to him on why a badger cull licence should not be issued in Derbyshire.
· The High Court judgment showed that the prime minister was highly engaged in the decision-making process to withhold the cull licence and it was pleased to see that the judge accepted that his intervention in the case was legitimate and lawful.