Defra’s decision to interfere with badger cull licensing could be unlawful, new research suggests.
The death knell is sounding for the government’s controversial badger culls.
The government launched its badger control policy stating that it would be science-led – but even so the estimated benefit to bovine TB incidence in cattle was small. Importantly, it was also reliant on satisfying strict licensing criteria.
A cull that delivers no benefit, or that makes the bovine TB situation worse, is not only a waste of time and money; it could also be unlawful because badgers are legally protected. The 1992 Protection of Badgers Act permits licensed culling only for the purpose of preventing the spread of disease.
The Department for Food, Environment and Rural Affairs (Defra) has said that its culls are lawful. However, this claim has been undermined by Defra’s wrongful interference with licensing criteria and by static or worsening bovine TB prevalence in the cull zones.
Secretary of state Liz Truss’s decision to change three of the licensing criteria led to an extensive roll-out of the culls (from three to 32 areas).
These changes were put to the public as proposals, and views were sought in a public consultation in August 2015.
The three proposals were: to extend the culling period; to reduce the minimum cull area size; and to remove the 70 percent land access requirement. None of these changes made sense in terms of disease prevention or reduction.
Furthermore, Defra’s only ‘evidence’ (in relation to the second proposal) was swiftly and adeptly dismissed by the British Veterinary Zoological Society, which said: “We […] consider that the conclusion is drawn on the basis of unsafe assumptions and cannot be relied upon.”
There were almost 1400 responses to the public consultation. The vast majority of responses were opposed to badger culling. Of those who answered the questions, and expressed opposition or support, 92-94 percent were against the proposals themselves.
The argument against the proposals was weighty and convincing. By contrast the argument for the proposals was flimsy and feeble. Respondents homed in on Defra’s ‘assumptions’ and non-existent evidence, and Defra admitted later that it had made no calculations about a resultant impact on bTB incidence.
While wildlife and welfare organisations – representing millions – voiced their opposition, many farmers and farming organisations failed to respond, and the National Farmers Union missed the deadline by two weeks.
Of the farmers who did respond, more were against reducing the cull zone size than in favour; 32 percent were against extending the cull period; and 41 percent were against removing the land access requirement.
Defra produced no evidence that Liz Truss’s decision was informed by the responses.
Moreover, it’s clear from the responses that Defra did not take due account of, or give genuine and conscientious consideration to, the consultation outcome – as stipulated by the Aarhus Convention and the ‘duty to consult’ requirements under common law, known as the Sedley requirements.
It also seems that Natural England, the National Farmers Union, and some farmers had been tipped the wink about Truss’s ‘decision’ before she had even made it: why else would Natural England monitors be conducting biosecurity visits in Devon – where a licence application had been refused a few months earlier – six days before Truss had cleared the Summary of Responses to the Consultation and the revised Guidance to Natural England?
Science was cast aside and a strategy to prevent the spread of disease was abandoned while the aim of killing badgers more easily and in far greater numbers was pursued.
One shrewd respondent said: “Despite the veneer of the licensing process, I am very concerned that the hidden agenda behind all three of these proposals is the virtually uncontrolled killing of badgers. This is a dreadfully damaging approach, not only for badgers but for farming and wildlife as a whole.”
In 2011 – before Defra had decided to go ahead with the policy – the Country Land and Business Association (CLA) was clearly confident that the National Trust would allow culling on its land.
In a letter to Caroline Spelman (the then Environment Secretary), CLA President William Worsley said: “It would be particularly useful, if, in the first instance, licences could be granted to a number of the big institutional landowners, such as the National Trust, the Church Commissioners and the Duchies.”
However, as it turned out, the National Trust would not play ball. It declared in its response that: “We do not support a roll out of the culls.
“Moving away from the evidence base provided by the RBCT risks making the disease more prevalent, not less […] We will not allow the extension of culling to our land. This includes not allowing it on National Trust land that is leased to tenants.” The other landowners mentioned by Worsley have neither confirmed nor denied whether they are involved.
The Bovine TB Eradication Advisory Group for England, which advises Defra ministers on bTB policy, referred to the reluctance of “institutional landowners” in its response.
It was also reported in the Farmers Weekly on 3 September 2015 that a Devon farmer “described the sign-up process as ‘challenging’ because the National Trust – one of Britain’s biggest landowners – still refuses to allow cullers on to its land.”
Perhaps it was this reluctance by the National Trust along with the cull’s general unpopularity with landowners that led to Defra launching its consultation and removing the strict criteria – because their removal was essential to achieving an extensive cull roll-out.
Badgers are a native, legally protected species and yet they are being massacred in these culls in their tens of thousands. More than 34,000 have already been killed and by the end of this year another 42,000 could be gone.
Furthermore, this killing is being carried out according to licensing criteria that have been enfeebled by the government to such an extent that “preventing the spread of disease” as a purpose – according to the law – is no longer credible. Indeed, recent data have confirmed the futility of culling.
The government was warned, by a number of respondents, that changing the licence criteria would have a negative effect, wiping out any chance of achieving disease control benefits. Unsurprisingly, this prediction has been borne out.
After analysing data released by the government in September 2018, senior vets and animal welfare experts challenged claims by the farming minister George Eustice that the culls were working.
In an open letter to the Observer, the vets and experts said: “The data upon which Mr Eustice bases his statement provide no evidence whatsoever for his claimed ‘reductions in TB cases in Somerset and Gloucestershire’.”
The letter also expressed reservations about Defra’s method of analysis. The vets and experts stated: “Put simply, there are approximately the same proportion of bTB affected herds now, as there were before culling started.
“Badger culling has not resulted in a decrease in bTB in cattle in cull zones, for the prevalence remains unchanged. Any statement made to the contrary is simply not true.”
Moreover, recent data suggest that the incidence and prevalence of infection among cattle herds in the Gloucestershire central cull zone, which has now been subject to six years of culling, is rising significantly.
Uphold the law
A wealth of evidence disputes Defra’s claim that its farmer-led culls are for the purpose of preventing the spread of disease. Getting rid of the licensing criteria that provided (an albeit tenuous) justification to cull, ignoring the warnings about the impact this would have, disregarding data that showed no benefit, and – at the same time – falsely claiming success, are the actions of a government department that has lost its moral compass.
‘Badger control’ is looking less like a policy and more like a conspiracy – with the wholesale slaughter of badgers its one and only goal.
Badgers are protected by law, and that law should be respected, observed and upheld – which is why, instead of escorting cull contractors, or sending in drones to observe protesters, police would be better advised to knock on the door of Number Ten.
Disagreement between farmers and animal rights activists have made this long-running row a brilliant case study in the use and abuse of consultation as a weapon of campaigning. This article is a new example – on an issue where people will have their own opinions.
It is a strong argument against the Government’s decision to extend the roll-out of badger culling. But note the writer’s criticism of a 2015 consultation where, she claims 92% of respondents has opposed the proposals. She argues that DEFRA had not taken these views into account, and that it was in breach of the Gunning Four principle of conscientious consideration.
Now, it would have been open for opponents to mount a legal challenge if it had a strong enough case – but it would have had to do so within 3 months. It didn’t do so, and complaining now in 2018 is substantially too late. She also quotes the Aarhus Convention, though lawyers would immediately say that it only applies to Infrastructure projects!
But these are quibbles. The main learning point for consultors is to realise that campaigners or opponents will crawl all over a consultation output in search of errors in methodology or poor practice. For consultees, there is perhaps a realisation that a public consultation is their opportunity to make their case, mobilise their supporters and insist on a fair process.
What’s your view? Do campaigners purposely analyse consultations in search of errors and poor practice to enhance their argument? Does consultation on important matters dilute the bigger picture? Share your views by emailing The Consultation Movement at: firstname.lastname@example.org.
This article originally appeared on Friday 23 November 2018 in The Ecologist. The Consultation Movement cannot confirm the accuracy of this story or confirm that it presents a balanced view. If you feel this is inaccurate we would welcome your perspective and evidence that this is the case.