Legal challenge

Farmers Guardian today report a legal challenge by the Badger Trust, against Defra's proposals for a farmer DIY badger cull. According to the report, the Trust will ask the court to overturn Defra’s decision on the basis of the following three points:

* That the culls, which Defra estimates will reduce TB incidence in cattle by 12-16 per cent after 9 years, will not meet the strict legal test of ‘preventing the spread of disease’ in the areas being licensed, and may ‘in fact amount to a recipe for spreading the disease’

* That the cost impact assessment underpinning DEFRA’s decision is flawed, as its cost assumptions are based on the farmer free-shooting option, estimated to be approximately 10 times cheaper than cage-trapping badgers before killing them). The trust claims that after the free-shooting method may be ruled out for being inhumane, ineffective or unsafe to the public in the pilots, leaving only the more costly ‘trap and shoot’ option until the end of the 4-year licence.

* That guidance which DEFRA issued to Natural England is invalid as killing badgers is not one of Natural England’s original functions, which are mainly focused on maintaining biodiversity. It claims culling badgers ‘for the prevention of spread of disease’ remains the Secretary of State’s own function under the relevant legislation..

It is not often that we would agree with the Badger Trust, but on two of these three points, we concur. It is difficult to see how anyone wanting to nail a potential Judicial Review would use as an example, a protocol so different from that which is proposed now, and costed so differently. As we have said numerous time, the RBCT Badger Dispersal Trial, using cage traps for 8 nights very occasionally, interrupted for at least a year with FMD and then having a change of protocol in 2004, showed us just how not to control tuberculosis in badgers. So why use its results, particularly the whole miserable 9 year span, especially as its Commander in Chief was quite open in his oral evidence, that culling badgers was certainly not going to be the outcome of 'his' trial?

The current proposals are for 6 weeks night shooting annually. Totally incomparable with the aforementioned charade, or even the smaller Clean Ring clearances effected by MAFF in response to cattle breakdowns until 1997. Both these and the later Thornbury badger clearance lasted for weeks only, but kept cattle and other mammals clear of TB for a decade or more. So why let the mathematical modellers loose with this rubbish, which refers to a different protocol, over a different time scale, as justification for any future cull?

Costs of this proposal are certainly variable, depending on who is speaking. Minister Jim Paice is sticking with his £1.4m per area, while the NFU reckon £5/acre or less. Which ever way you cut it, that is a huge gap. So cost v. benefit is a sticky one, But not so sticky is the Badger Trusts's assertion that controlling wildlife, 'to prevent the spread of disease' is an AHVLA competence.
It is, or it should be.

We covered that convoluted bundle of legislation in this posting. And from what we read, the chance to wrest disease control back from the quango calling itself 'Natural' England, and place it firmly in AHVLA's lap was October 2011. We posted this information in August last year and quoted NE's responsibilities under the Protection of Badgers Act thus:

Natural England is authorised to do so by what is known as “a Part 8 Agreement ” made in accordance with section 78 of the Natural Environment and Rural Communities Act 2006;

We pointed out that this involved not merely licenses to move badgers causing damage, but the issue of licences under Section 10(2)(a) of the Protection of Badgers Act (1992) which deals with preventing the spread of disease.

This agreement came into effect on 1st October 2006. It's duration is twenty years from that date, and a review is allowed for in five years. That was October 2011. Was an opportunity missed? We agree that AHVLA should most certainly have responsibility for controlling the spread of a Grde 1 zoonosis. That it was ever moved away is a matter of shame on the Department now calling itself DEFRA.


And if everyone else is as fed up as we are with the constant stream of library pictures of shiny, bushy tailed badgers to illustrate this polemic - here's one which died yesterday. Of tuberculosis.