Badger culls and the law: some thoughts on the judicial review

The Badger Trust's judicial review of Defra's badger cull plans starts next week (June 25th) and I was asked recently whether there was any judicial review of the original scientific experiment ran by the ISG - after all both the RBCT and the current trial involve killing badgers and are trials (of sorts).

Even though both sides of the badger cull debate now use the ISGs evidence to support their views, when the RBCT was being set up, both sides were pretty much against it. In this paper (apologies, paywall - contact me for a copy) I reviewed the arguments that were being put forward by the National Federation of Badger Groups (now the Badger Trust), the NFU and MAFF. Basically, whilst the NFU were pretty much suggesting that the answer was known already and the RBCT was an academic exercise, the NFBG were arguing that the relationship between cattle and badgers was much more complex and that different kinds of research needed to be undertaken. The NFBG also questioned the statistical design ot the RBCT and arguing that the experiment would not answer some of the research questions that were originally set.

All of these debates took place in the agricultural select committee who paid great attention to TB between 1997-2008. As an aside, its very much a shame that they have not continued to do so. So much for parliamentary scrutiny.

Although the NFBG were against the RBCT, there was no judicial review. Maybe this was because the RBCT was being run as an experimental field trial and that there was no reason to question the powers that MAFF had to do that.

However, the NFBG did refer the RBCT to the Bern Convention - under which badgers are protected by European law. You can read the NFBGs letter to the Convention here and an appendix here

It meant that those involved in designing the experiment had to make the case to the standing committee of the Convention that there would be no local extinction or other breaches.

You can read Maff's response to the Bern Convention here

There is also a commentary on what happened in the ISG's final report (para 2.27) see here

As the ISG's report points out:

In December 1998, while the ISG was still planning the trial procedures, the Standing Committee of the Bern Convention recommended that the trial be postponed pending an opinion on whether it was in breach of the Convention...The ISG assisted and supported MAFF in making the case that, in the light of the severity of the cattle TB problem in the country and the explicitly scientific motivation underlying the planned culling activities, the trial did not breach either the letter or the spirit of the Convention. Twelve months after it had raised the issue, the Standing Committee agreed with this argument and closed its file on the matter, MAFF agreeing to provide it with regular updates both on the RBCT and on the wider TB control programme

I think its fair to say that those involved saw the challenge as something they could have done without. As somebody close to the experiment once told me: it nearly scuppered the whole thing.

In the context of the legal challenge to the current badger cull policy, it will probably be more interesting to see the result of the Humane Society International's complaint to the Bern Convention, rather than the Badger Trust's judicial review. This is partly because of the nature of the current policy and what it could mean for the population of badgers in the UK.

Firstly, the new policy is being framed as a "trial". Now, there are a number of issues relating to the difference between trials, experiments and evidence. Our research is showing that the loose way in which those terms are being used is confusing and misleading for many people involved. Its not just a problem in relation to culling, but vaccination too. But essentially, Defra's argument has been that badger cull methodologies are interchangeable, so this is a trial to test the efficiency of shooting badgers, not its impact. In one sense, Defra could defend the badger cull trials simply as trials - just as the RBCT was. There is no policy yet because there are no results yet: until those results are in, all arguments are hypothetical. Indeed, for Defra ministers to prejudge the results might be better grounds for appeal.

Secondly, if the trial leads to new cull areas being proposed then this would fall into the area of the Bern Convention. One document from Natural England showed that licences for badger culls had been submitted for pretty much the whole of South West England. When the ISG were working on the RBCT they told in no uncertain terms that that prospect was never going to be a realistic policy - not just because it was seen as socially unacceptable, but because of the Bern Convention.

It will be interesting to see what happens at the judicial review. Although the review is framed around 3 issues raised by the Badger Trust, it will be interesting to see whether these matters of the future are matters for consideration, or whether the judges take the view that until the trial is over, there is nothing to rule on. It might be that whatever the result, the legal fight has only just begun.