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Judicial review launched to save English badgers

27 February 2012

The Badger Trust launched a judicial review today to try and prevent English badgers being culled by DEFRA to control the spread of bovine TB.

The trust wrote to the department earlier this month, giving grounds for a potential legal action and has now lodged a claim in the High Court.

A spokesman for the Badger Trust said the review would challenge DEFRA’s decision of 14 December last year not only to start pilot schemes but to continue killing badgers for a further four years.

“The only thing that could vary is whether or not free-shooting features in the cull,” he said. “The trial is a trial of method.”

Gwendolen Morgan, solicitor at Bindmans, acts for the trust. “We have identified some serious flaws in the way by which the secretary of state reached her decision to cull badgers,” she said.

“Given that DEFRA’s proposals come at an enormous cost to farmers, and threaten to prompt rather than prevent the spread of disease, we hope that this ill-conceived decision will be struck down by the court.”

In a statement today, the trust gave further details of the grounds for its challenge.

It said the cull was aimed at ‘reducing incidence’ of bovine TB, by 12-16 per cent over a nine-year period, but the legal powers given to the secretary of state under the Protection of Badgers Act 1992 required that any cull must be focused on ‘preventing the spread of the disease’.

The statement argues that culling could “prompt the spread of the disease in and around the cull zones”.

The trust’s second ground is that DEFRA’s costs impact assessment is flawed and based on a free-shooting option and not cage-trapping badgers before killing them, which is ten times as expensive.

The trust said that after the first year of piloting the cull plans, the free-shooting method “may be ruled out for being inhumane, ineffective or unsafe to the public”. The statement went on: “In that case, farmers will find themselves legally obliged to continue the cull on the much more costly ‘trap and shoot’ basis until the end of the four-year licence.

“This is a significant cost risk for farmers, yet it is not properly reflected in the cost impact assessment which underpinned DEFRA’s decision.”

The trust’s final ground is that DEFRA’s decision to authorise Natural England to issue culling licences is invalid.

The trust is to argue that under section 15(2) of the Natural Environment and Rural Communities Act 2006, the secretary of state may issue guidance to Natural England as to how it should exercise its functions.

However, killing badgers is not one of Natural England’s original functions, which are centred on maintaining biodiversity, and although DEFRA is making Natural England responsible for the licensing arrangements, under section 10(2)(a) of the Protection of Badgers Act 1992, culling badgers ‘for the prevention of spread of disease’ remains a function of the secretary of state.

A DEFRA spokeswoman said Natural England was considering applications for licences and would make an announcement once it had decided whether to grant any.

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