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Badger ruling leaves door open for future culls

14 July 2010

The Court of Appeal has comprehensively rejected the Welsh Assembly government's order for a badger cull in Pembrokeshire, but left the door open for future culls in Wales and England.

Welsh rural affairs minister Elin Jones had already conceded that the TB Eradication Order 2009 should not have applied to the whole of Wales but only the cull area (see 6 July 2010 Badger Trust wins appeal over Welsh cull).

Appeal judges have now, by a two to one majority, backed the Badger Trust’s further arguments that the cull would not “eliminate or substantially reduce” the incidence of TB in cattle, as required by section 21(2) of the Animal Health Act 1981, and agreed that the minister had not carried out the necessary balancing exercise before deciding on a cull.

However, Lord Justice Pill, who gave the leading judgment in Badger Trust v The Welsh Ministers [2010] EWCA Civ 807, rejected the two further arguments and said he would have dismissed the trust’s appeal if the order had been restricted to the cull area.

Lady Justice Smith said she did not believe a nine per cent reduction in the incidence of bovine TB could be regarded as “substantial”.

She went on: “However, I do not think that this conclusion makes the minister's position as difficult as might appear. If the minister focuses on the effect of a cull within a specified area, she will be entitled to take the higher figure of reduction relevant to the area itself and to disregard the adverse effect on the area outside the cull area.

“That reduction would plainly be greater than nine per cent and might well be a reduction of substance.”

Smith LJ said the “perturbation effect” outside the cull area, as cattle came into contact with infected badgers escaping the cull zone, would have to be taken into account by the minister when carrying out the balancing exercise.

She added that, along with the adverse impact of killing badgers and the “perturbation effect”, the minister would be entitled to consider the cumulative way in which other cattle control methods might interact with the cull to produce a “beneficial effect greater than that of the cull alone.”

Stanley Burnton LJ agreed that a reduction of nine per cent was not a “substantial reduction”, adding that evidence before the minister indicated that a cull in the specified area would reduce the incidence of bovine tuberculosis in that area by much more than nine per cent.

“Thus her error in specifying the whole of Wales in the order resulted in the requirement in paragraph b [the “substantial reduction” test] not being met when otherwise it might have been.”

Stanley Burnton LJ said the trust’s third ground of appeal would also have failed if the minister had carried out a proper balancing exercise.

“The requirement of a balancing exercise is easily satisfied, and I would have expected the minister to have served evidence leading the court to conclude that she had indeed concluded that the benefits of a cull in the IAPA [the cull area] outweighed the harm involved in the cull of badgers. Had she done so, this ground would have failed.”

The Court of Appeal quashed the TB Eradication Order 2009.

Gwendolen Morgan, solicitor at Bindmans, acted for the Badger Trust. She said the ruling provided “important guidance” for any future cull, but lack of time and fresh evidence meant that it would be difficult for the Welsh government to bring forward new plans before next year.

Rural affairs minister Elin Jones said: “I am disappointed with this judgment, particularly as the court recognises the serious impact that bovine TB is having in Wales and the need to tackle the disease.

“We will now need to consider the judges’ decision in detail before deciding our next steps. It is however clear that if we don’t tackle all sources of infection we will not eradicate it.”

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