Court rules on supplementary badger culling

In the latest challenge to the Government’s badger culling policy to continue the licenced killing of badgers to reduce bovine tuberculosis (“bTB”), Tom Langton, supported by prominent anti-culling groups, brought a challenge against the latest policy, ‘Next steps for the strategy for achieving bovine tuberculosis free status for England’ (“Next Steps”), which continues a programme of supplementary badger culling.

The claimant challenged Next Steps, which sets out the next phase in the government’s strategy to combat bTB. Although bTB has been described as one of the most difficult and intractable animal health challenges that England faces today and results in around 30,000 cattle being slaughtered annually due to infection, it also leads to the annual killing of 100,000 healthy badgers. Next Steps, published in March 2020, is the Government’s response to the Godfray Review of the government’s culling strategy and includes, among other things, the continuation of supplementary badger culling following a period of intensive culling. Badgers are a protected species and, in adopting Next Steps, the claimant argued that the Government had failed in its duty to have regard to the purpose of conserving biodiversity as required by section 40 of the Natural Environment and Rural Communities Act 2006 (“NERC Act”).

Despite the adverse ecological impacts of badger culling being raised by the claimant in repeated submissions to the Department for the Environment, Food and Rural Affairs, and noted in the Godfray Review, none were analysed in the Next Steps policy document. The claimant argued that this failure undermined the adoption of the policy.

The High Court refused permission for the case to proceed both on the papers and at a renewed hearing, but on appeal the Court of Appeal granted permission for the NERC Act ground to be heard and remitted the case to the High Court for a substantive hearing that took place in July 2021.

The High Court found against the claimant but this is a significant case because it provides commentary on an issue which has been litigated rarely: the scope of the NERC Act duty to conserve biodiversity. A notably narrow duty, the judge emphasised that it is qualified as only operating “so far as is consistent with the proper exercise of the decision maker’s functions.” In the Court’s judgment, biodiversity had been considered at multiple points before the policy was issued and there was nothing which suggested that there were fresh implications for the purpose of conserving biodiversity which had to be considered upon the policy’s adoption. The decision of the High Court has been appealed to the Court of Appeal (C1/2021/1570) and a decision on the permission application is (as of spring 2022) pending.

Richard Buxton Solicitors instructed Richard Turney and Ben Fullbrook of Landmark Chambers.