Letter Before Action – Response from Natural England


Badger Trust logoBADGER TRUST
23 October 2013

The Badger Trust solicitors have today 23rd October 2013, received the following response from the solicitors acting for Natural England:

Dear Sirs,

Proposed claimant: Badger Trust
Proposed defendants: Natural England and Secretary of State for Defra

1. I refer to your letter dated 18th October 2013 at 18.02 which purports to be a pre-action protocol letter asserting that it would be unlawful for Natural England to grant a licence to cull badgers in Gloucestershire for a further period this year.

2. You also assume that it will be the Board of Natural England that will determine the application that has been made for this licence and you ask them to consider this letter in making their decision. In fact licensing decisions are not a matter for the Natural England Board. As an operational matter, the decision whether or not to grant a wildlife licence has been delegated to wildlife advisers. However, in accordance with our normal policy for a decision of this nature, the decision has been escalated, in this case, to the Executive Director Science Evidence and Advice. Where licences are of a controversial nature for whatever reason, however, it is normal practice for decisions to be taken by the Director Regulation in consultation with the Executive, and occasionally, the Board, as appropriate. I confirm that a copy of your letter has been shared with the relevant Director, Executive Directors, the Chief Executive and the Board and that they have been consulted on the question of whether to grant a licence to extend the badger cull in Gloucestershire.

3. Your letter does not set out any grounds of challenge to which Natural England can substantively respond. It does however rest on a fundamental confusion between (a) the purpose of the licence that has been granted in terms of disease control; and (b) its use as a pilot to consider whether controlled shooting has been safe, humane and effective in reducing the badger population by 70% in a six week period.

4. As you state in your letter, and as is expressed in Defra’s policy1, the purpose of the pilots was to consider whether controlled shooting has been safe, humane and effective in reducing the badger population by 70% in a six week period. These issues are to be considered by an independent expert panel.

5. But the purpose for which the licences were granted in Gloucestershire and West Somerset is disease control. Thus it is incorrect to characterise the cull as being for 6 weeks only. What Defra’s policy actually states (para 5.1) is:

1 The Government’s Policy on Bovine Tb and Badger Control in England – December 2011
2 The Protection of Badgers Act 1992 does not contain a power to amend licences accordingly if the period of culling in year 1 is to be extended a new licence which permits culling for a further period in year 1 only is required.

“The scientific evidence for this policy shows clearly that in order to achieve a net reduction in the number of new confirmed TB herd incidents, culling must be done on a sufficient scale, in a widespread, coordinated and efficiently way, and over a sustained period of at least four years. (my emphasis)” It is the case that the period this year for undertaking the first annual cull as authorised by Natural England has expired (and that is why an application for a new licence has been made2). But it is not correct (as you state on page 5 of your letter) that the current licence has run out or expired. It has not, and culling will proceed next year under the same licence. In fact the cull must continue for at least a further 3 years, and the licences that have been granted reflect that, in order to achieve the reduction in bovine TB anticipated.

6. The question for Natural England is whether to grant a further licence to cull in Gloucestershire this year given that the cull that has taken place has not achieved a reduction of 70% of the badger population in the six period specified for the annual cull.

7. There is no reason to assume, as your letter does, that the grant of any such licence will frustrate the purpose of the pilot in determining whether or not controlled shooting has been safe, humane and effective in reducing the badger population by 70% in a six week period. The Panel will make that determination on the evidence available to it. The fact they have not reported is irrelevant. Even if the Panel had found that controlled shooting was ineffective, which it has not done, that would not make either the cull or the granting of a further licence unlawful.

8. The purpose of the requirement for a 6-week limit to the licensed period of culling was to ensure that every effort would be made to achieve the objective of reaching the minimum number to be culled within the six weeks. At no point has it been said by Defra or by the CVO that, if culling did not achieve the objective of reaching the specified minimum number within the six-week period of the annual cull, then culling would never be permitted to continue.

Indeed it would be irrational to have done so, given that the purpose of granting the licence was to reduce bovine TB, if a further licence would achieve a greater reduction in bovine TB. In fact very considerable efforts were made to ensure that, if the objective was not achieved in the six week period specified for the annual cull, the fundamental objective of securing a sufficient level of population reduction could be achieved. You are incorrect to state that the agreement with the licence holder to address any shortfall is inconsistent with the Guidance to Natural England and the policy. In fact it was written in full knowledge of the Guidance and the Policy and it was put in place to recognise that real life does not always accord with what was intended.

9. In determining the current application, Natural England, as the licensing body, will consider not only the current policy and guidance but also the scientific and policy advice it has.

10. With our letter dated October 17th 2013 we provided to you a copy of the letter written to Natural England dated 10th October 2013 setting out the Secretary of State’s views on extending the cull. That letter was not limited to the Somerset pilot. We have also received specific advice from Mr Gibbens, the Chief Vet, in relation to Gloucester. A copy of that advice is enclosed. Natural England will take account of both the Chief Vet’s advice and the Secretary of State’s views in determining whether to grant a licence to extend the cull in Gloucestershire.

Information and Documents
11. You have requested certain documentation in your letter I have set out below my response to that request using your own numbering system for ease of reference:

1. Natural England has had no dialogue with the independent monitoring panel. It is not the function of the Panel to consider whether or not a further licence to extend the cull this year should be granted.
2. Natural England has had no dialogue with either the TBSAB or the SAC.
3. I attach a copy of the invite, agenda and the documents that were provided to the Board prior to a meeting on 17th October, before your letter was received. A copy of your letter before action was provided to the Board on 21st October. A further meeting of the Board was held today. The minutes are not yet available. Natural England has not had any dialogue with its Science Advisory Council on the question of the grant of the licence.
4. Natural England is not obliged to consult the Independent Panel, the TBSAB or the Scientific Advisory Committee. It considers that it is in a position to reach a reasonable decision in the light of information and advice available to it.
5. You have already received a copy of the CVO advice relating to the Somerset pilot. A copy of the CVO advice relating to the Gloucestershire pilot is attached.
6. A copy of an email from the Director Animal Health and Welfare (Disease Control) in Defra to Natural England’s Director Regulation about the Gloucestershire pilot is enclosed. I confirm that there has been no other correspondence with Defra about this issue.
7. As mentioned in previous correspondence, cost impact assessments are not a matter for Natural England. I can confirm that the licence holders will be paying for the costs of any additional culling.

Please note that we have moved offices and our address for service is now:
Natural England
Area 1C
Nobel House
17 Smith Square
London SW1P 3JR

Yours faithfully

Badger Trust Contact: Jack Reedy 07751 731107 | 01564 783129