Judicial Review


Badger Trust vs Coalition Government
on the legality of the currently planned ‘pilot’ Badger Cull in two areas.

This is a familiar situation, now. Another courtroom. Another battle in the continuing war against cruelty to animals (the last one was in Wales, where currently the cull has been shelved (in favour of a vaccination programme).

It’s another chapter in the fight to bring Britain into enlightenment as regards the way the Human Race treats the other creatures with which we share this fragile planet.

The Storyline Coalition Government is at present still clinging to an outdated set of values. They place a value on animals which is related purely to how useful they are to humans. So the value of a cow is based on how much food it can provide – the flesh of its body, or the milk it is made to produce during the course of its life. The value of a badger is not defined, but effectively, in all their reckoning, it is assumed to be zero. So various schemes for ‘dealing with’ an outbreak of a disease have been assessed by the Government on the basis of how what they achieve and much they cost, in terms of the value of cows, but completely disregarding the value of badgers, or any other wild animal. Because, to them, a wild animal has no value. Not surprisingly, they find it perfectly acceptable to kill any number of badgers to try to avoid the premature deaths of cows.

Now, even if the death of thousands of mostly healthy badgers COULD bring about the eradication of bovine TB, this would be a terrible scheme to contemplate – a terrible price to pay. In the light of the bigger picture of the whole animal kingdom of which we are a part, it would probably be judged by any ethically aware alien from another planet to be unjustifiable.

But the fact that, scientifically it can also be shown to be a futile and ineffective course of action, makes the plan to cull doubly insupportable, and, in fact, quite absurd and pernicious.

Morally, scientifically, logically, the Government are pushing forward a ridiculous and wholly disgraceful plan, which will drench our British countryside with the blood of badgers. And achieve – nothing.

But in this courtroom, virtually none of this will be discussed. The whole procedure is centred around what is legal, and what is not. The Badger Trust claims that the pilot culls at present proposed and now planned by the Government, under the leadership of the minister of Rural Affairs, Caroline Spelman, are illegal.

This is the second day of this JR – similar in some ways to the action taken by the Badger Trust in Wales last year, the counsel for the Government is standing a few feet in front of me, in this light and airy courtroom, number 76 in the High Court. He is defending the Government’s stance, and of course we, the taxpayer, are funding their defence. We have no choice in this.

The counsel is looking at the origins of measures taken in the past to make exceptions to the protections offered to badgers against being killed, in the Act which made badgers a protected species.

He says the 1976 Act grants the Government draconian powers to force destruction of wildlife – but he says this Government is not using them – but instead using a voluntary acquiescence of landowners to pursue a course of destruction of wild animals accused of spreading disease to farmed animals. Of course even this is, in the present situation, a false accusation. There is little doubt that TB exists in the two populations – cows and badgers – and that the two populations interact, passing the disease back and forth between them. But all available evidence points to the main method of the spread of the disease being cow to cow. Indeed bovine TB originated in herds of cows, and the bacterium infected the surrounding wildlife over the past two hundred years or so. Only then did wildlife become any part of the problem. It would seem, morally, that farming, responsible for this terrible infliction of suffering on our wild animals, ought to be making amends, and offering to treat the wild animals to help them overcome the disease, and take the threat of illness from them.

But far from it. The farmers see the whole process in a different way. They look out into the woods which surround their open grazing fields, and see what they think are enemies. They feel anger, and seek vengeance on these innocent creatures – and many farmers are taking the law into their own hands to take a terrible revenge on Badgers. We have seen evidence from wildlife rescue operations that nine out of ten badgers found dead on the roads in the West Country have been either poisoned or shot, and dumped on the road, to make it look as if they died by accident. So we are effectively already in a situation in which a ‘cull’ is in operation. And in this situation, bovine TB is flourishing. This fact alone ought to be a broad enough hint to farmers, and to Messrs Paice and Spelman, that culling does not work.

The reason that this is so is a phenomenon known as Perturbation. Perturbation says that if badgers are a factor in spreading TB, sporadic killing and disruption of their families is exactly the mechanism which will cause them to scatter, and spread disease to neighbouring farms.

It is quite scandalous that this unlawful culling is not condemned by the NFU, and the perpetrators actively restrained. It asks the question whether the NFU really DOES want the eradication of bovine TB, or is simply preoccupied with the business of ‘being seen to do something’ to placate the angry farmers. The obsession with a patently ineffective course of action begins to look like window dressing – a pretence that suitable action is being taken. “SOMETHING HAS TO BE DONE” seems to be the favourite phrase among those who advocate the killing of badgers – and, one assumes, eventually the eradication of ALL wildlife. But that something is not the slaughter of badgers.

Ultimately, the only hope in dealing with bovine TB properly is VACCINATION. Vaccination of cows and badgers was proposed 30 years ago – and was advocated in the conclusion of Krebs after years of study. Successive governments have refused to put enough muscle into research into vaccination, and into changing the law in Europe which forbids to do it. We are now paying the price. The first action of this current Coalition was to close down 5 out of the 6 research studies in vaccination set up by Hilary Benn in the previous regime. At the same same, Jim Paice and others, even before election, were boasting that they would kill badgers once they came to power. A Public Consultation was instigated, but the Government ignored the huge opposition to culling from the majority of the responses. All they spend time and our money on following this farcical consultation was trying to insure themselves against potential legal challenges to what they had already firmly decided to do.

This is where we are now. Viewed from a distance, it’s actually quite scandalous, and borders on insanity, for the Government to be clinging to a policy which will slaughter thousands of of innocent animals – a policy which, by their own admission, will at best achieve only a marginal improvement in the health of cows (they claim, tenuously, a hoped-for almost trivial improvement of 12-16 per cent over 9 years) and at worst will make matters worse. Matters getting worse is exactly what the majority of researchers in the field believe will be the outcome of this cull.

For a government which claims to be protecting the interests of farmers, neglecting to advance a vaccination programme during this time amounts to criminal negligence.

The point under consideration at the moment, in the courtroom, is whether Caroline Spelman took into account the fact that option 6 (badger culling combined with other measures) might be pushed off course if the free shooting is shown to be ineffective or inhumane, and the killing has to be carried on by trapping and shooting, with the result that farmers and taxpayers would then have a massively increased bill to pay. It seems that their counsel has demonstrated to the judge that the information was fully available for the Secretary of State, but that she indeed DID fail to take it into account. The judge seems to be of the opinion that she should then have gone back and re-reviewed options 1-5. Counsel seems to be trying to persuade the judge that she didn’t need to, because she was only licensing pilot culls. He is now using the phrase “Pilot Tests”, which implies that these culls are an attempt to prove that the technique works, an intent which has been previously denied by Jim Paice. He said in a meeting we attended, that he considered that the effectiveness of free shooting of badgers had already been proven (a wild and scientifically unsupportable claim).

It seems to be emerging that the arrogance of this Government is a major weakness. They have not taken the trouble to delve deeply enough into the repercussions of their proposed actions, the consequences to farmers, and to the general taxpaying public.

And I keep returning to the thought that it is so hard for a court to make any moral decision … it can only interpret the laws as they stand and the precedents that have been established in the past. It is the lawmakers – the Governments – which we trust to make sure that the laws of this country reflect decent moral values, so if we have a morally bereft government, what hope is there?

This is the Government which only last month tried to authorise the destruction of buzzards’ nests in response to the plea of a handful of rich landowners who were upset that the buzzards might be killing a few of their farmed pheasants before they could be shot by the shooters from whom they take millions of pounds every year. They nearly got away with it. It was only public outcry and outrage which forced Richard Benyon to withdraw. The fact that Benyon himself had an interest in the shooting industry, with the consequent question of corruption being raised, had to be enough to put fear into David Cameron and his fox-hunting colleagues, so the U-Turn happened in record time.

Once again, we went the High Court only to observe – it’s impossible for any member of the public to speak at these court sessions. But there is a lot to be learned.

What will be the result of this Judicial Review? We will know in about 3 weeks’ time, I am informed. All that matters, after all is said and done, is the opinion in the head of one man – the judge. We shall pray.

For everybody in the courtroom, this was work.

But for the badgers, this is truly life or death.


Entrance to Court No 76
The entrance to Court number 76. All in a day’s work for some. But for the badgers .. life or death.

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