Welsh government admits badger cull order was unlawful

The Welsh Assembly Government has admitted that an order sanctioning a mass cull of badgers in Pembrokeshire was unlawful.

The Badger Trust appealed to the Court of Appeal after the High Court cleared the way for the cull, part of the Welsh government's strategy to combat bovine TB (see solicitorsjournal.com 9 June 2010).

Now rural affairs minister Elin Jones has admitted that the TB Eradication Order 2009 should not have applied to the whole of the Principality but only the pilot cull area in west Wales.

Jones said the argument on the extent of the order had only just been raised, but the Trust had been allowed to include it as a third ground of appeal.

'We have evidence that there is a bovine TB reservoir in badgers in TB endemic areas in Wales,' Jones said. 'I have also said repeatedly that there are no circumstances in which we would cull badgers across Wales in areas where there is no evidence that there is a bovine TB reservoir in wildlife.

'Therefore we have agreed to address this third ground of appeal in order to satisfy the court. We await the court's judgement on grounds one and two and we remain committed to fully implementing our TB eradication programme.'

The first ground of appeal is 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.

The Trust's second point was that the rural affairs minister had not carried out the proper balancing exercise before deciding that there should be a cull of badgers.

Gwendolen Morgan, solicitor at Bindmans, acts for the Badger Trust.

She said the Welsh Assembly government had conceded the appeal by admitting that the order was invalid.

'The Trust welcomes the minister's recognition that the order she made was not justified and went too far, and was not lawful as a result,' Morgan said.

Morgan said that even if the Welsh government won on the two remaining points, it would have to consult again on a fresh order, lay it before the Welsh Assembly and if enough members requested it, there would have to be another debate.

'I hope the Assembly will be better informed this time. A third of landowners in the pilot area do not want a cull.

'The Welsh government is presenting this as a glitch, but it is not as simple as that. There is very little time before the Assembly adjourns and they are unlikely to get it through.'

Morgan said she expected the Court of Appeal to hand down its judgment in the case early next week.