Appeal Court Overturns Badger Cull

UK - The Court of Appeal has allowed the Badger Trust's appeal against the badger cull in Wales that had been put in place as a measure to control the spread of bovine TB.

14 July 2010

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The Tuberculosis Eradication (Wales) Order 2009 made by the Minister for Rural Affairs in Wales.

The Welsh Rural Affairs Minister, Elin Jones said: "I am disappointed with this judgement 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. Farmers, their families and our rural communities are suffering from the devastating consequences of this disease and I remain committed to its eradication."

National Farmers' Union acting director of communications Terry Jones said: "We are bitterly disappointed by today's news as we have supported the WAG's holistic approach to control this disease through cattle measures and wildlife control in the Intensive Action Pilot Area.

"Sixty-four percent of herds in the IAPA have had bovine TB in the last six years and in the absence of an integrated eradication approach this number will only increase. Indeed when you read the judgement, the Badger Trust concede that bTB is a significant issue in that area, that badgers may contribute to its spread and that intervention with badgers may be necessary to achieve the implementation of government policies.

"Having fought TB for years on both sides of the border we are not giving up. This is an unfortunate setback but we remain committed to a policy of using all the tools available in controlling this disease but we have to recognise that doing nothing to control the disease in the badger population is simply not an option."

David Williams, Chairman of the Badger Trust, said: "We are delighted with this outcome. We are grateful to all the badger groups and supporters whose donations and encouragement made this crucial legal action possible.

"Of all the wildlife organisations the Badger Trust exists to secure the welfare of our native protected species, the badger, and we will continue to do so through lawful means.

"We are pleased to see that the protection offered by wildlife law cannot be vitiated by political smoke and mirrors and that the court saw the issues so clearly. We also note the court.s criticism of the Welsh Ministers. failure to reveal their advice without heavy redactions."

On 5 July, the Welsh Ministers had conceded the appeal on the basis of one of three grounds: that the 2009 Order which permitted culling in the whole of Wales (even in the many areas where TB is not a problem) was not supported by evidence and was unlawful as a result.

However, the Court of Appeal this week ruled that the Welsh Ministers had also acted unlawfully in misinterpreting section 21 of the Animal Health Act 1981 as giving them power to cull if they could achieve a potential reduction in TB which was merely more than trivial or insignificant.

The court also ruled that they unlawfully failed to carry out a balancing exercise to weigh up the harm involved (i.e. killing over 2,000 badgers) against the potential benefit (which the Minister.s own model predicted to be a reduction in the rate of cattle herd breakdowns of just 0.3% of farms annually).

Lady Justice Smith said: °In my view, [the Respondent.s] submission rather missed the point. It is not necessarily a question of how many badgers will be killed; the important matter is consideration of the nature and extent of the adverse effects of killing a large number of badgers and whether the benefits to be derived from the proposed cull outweigh those adverse effects. The submissions to the Minister contained nothing about the adverse effects of killing a large number of badgers; indeed, from those submissions it would not be possible to understand why killing badgers might be regarded as „a bad thing..”

Lord Justice Pill said: “It is not open to the Welsh Assembly Government immediately to make a fresh Order in the same terms but covering only the IAPA [Intensive Action Pilot Area] and to proceed forthwith with a badger cull there.”

Lord Justice Stanley Burnton said: “If this order is valid, it would follow that, in the absence of devolution, the Act could be used, in effect, to disapply the Protection of Badgers Act 1992 throughout England and Wales, by means of a single statutory instrument [such as the TB Eradication (Wales) Order 2009, which is secondary legislation]. If the cull authorised by such an order were effective, the badger, an indigenous species, would be eradicated and become extinct in this country. I doubt that this is what Parliament envisaged or authorised when enacting section 21.”