High Court rejects English badger cull judicial review

The High Court has today rejected a judicial review brought by the Badger Trust to challenge planned culls in England later this year to combat the spread of bovine TB.

The Badger Trust wrote to Defra in May, giving grounds for a potential judicial review. This followed a successful judicial review against the Welsh government, which announced in March this year that it would vaccinate badgers rather than cull them.

Delivering judgment in R(on the application of the Badger Trust) v Secretary of State for the Environment [2012] EWHC 1904 (Admin), Mr Justice Ouseley said the trust challenged the environment secretary’s decision to authorise Natural England to license groups of farmers and landowners to kill badgers.

Ouseley J said the licenses would be granted under Section 10 of the Protection of Badgers Act 1992.

“The culling would be piloted in two areas; the first year of the pilot would test the defendant’s assumption about the effectiveness, humaneness and safety of controlled shooting, also called free shooting, to contrast with cage-trapping followed by shooting,” the judge said.

“After that first year test within the two pilot areas, the defendant would review the cost and benefit analysis in those areas to see if the scheme could be ‘rolled out more widely’”.

Ouseley J said the trust argued that under Section 10(2)(a) of the 1992 Act, the environment secretary, Caroline Spelman, could only exercise her powers to prevent the spread of the disease and not to “reduce its incidence”.

The judge found that Section 10 must include reducing the incidence of the disease.

It was not necessary to “delve into the language used on various occasions” by Caroline Spelman or her witnesses. Her purpose “judged subjectively and judged by its intended effect” was to prevent the spread of the disease and “that can include reducing its incidence.”

Ouseley J said the trust’s second ground was that Spelman had failed to ascertain the true costs of her chosen option or should have considered other options.

However, he said this argument invited the court to “interfere unduly in the political or administrative decision-making process, a long way short of the point at which an error of law could arise”.

Ouseley J went on: “It is important to remember the decision to be made before deciding that a particular piece of information is so essential that a decision made without it would be irrational and unlawful.

“It was whether to proceed with the two pilot tests, using controlled shooting. The purpose of the trial was to test the effectiveness, humaneness and safety of the less expensive technique of controlled shooting.

“There was no means of finding out about that for certain without trying it. The relative costs of each method were known however, to the extent to which current information permitted the cost of controlled shooting to be known.

“The Secretary of State knew, in so far as then possible, by how much the costs would be increased if the test of controlled shooting failed, and the cull in the two pilot areas had to be concluded with cage-trapping and shooting.”

Ouseley J went on to reject its final ground, that the secretary of state had no power to issue guidance to Natural England about the way it should carry out the secretary of state’s functions.

“There is no sensible practical reason why the secretary of state should be able to give guidance and directions to Natural England in respect of a function laid by statute directly upon Natural England, but not when the function is performed pursuant to an agreement empowered by statute.”

The application for judicial review was rejected.