Dominic Woodfield is the Managing Director of Bioscan, a long established and well respected consultancy specialising in applied ecology. He is a life-long birder, a specialist in botany, habitat restoration and creation and in protected fauna including bats, herpetofauna and other species. He is also a highly experienced practitioner in Environmental Impact Assessment and Habitats Regulations Assessment. Most of his work is for the development sector, but he has also undertaken commissions for Natural England, the RSPB, Wildlife Trusts and campaign groups. He once mounted an independent legal challenge in defence of an important site for butterflies in Bicester, Oxfordshire, which resulted in planning permission for a five-hundred unit housing development being overturned. He lives in Oxford with his partner and family.
A recent challenge to Natural England and Defra in relation to badger culling and related wildlife impact assessments (background in my previous guest blog), was dismissed last month by Sir Ross Cranston. The reasons why the claims failed, and why licences continue to be issued by Natural England to kill tens of thousands of badgers across large tracts of countryside (including in and around protected Sites of Special Scientific Interest, Special Protection Areas and Ramsar Sites) will be of relevance and interest to those pursuing or following other live or future legal challenges to the wildlife management policies being pursued by Natural England and the current Government. I believe they send an alarming signal to government agencies that they can act with impunity, even when they are ‘found out’.
The main ground of challenge was that supplementary badger culling was a departure from evidence-based policy. There are plenty of commentators (not least the claimant Tom Langton himself) who have been unpicking that part of the judgment in print and on social media. I will therefore leave it alone for the present purpose, save only to say that if I was undecided before getting involved in this legal challenge about the scientific rationale and rigour behind badger culling as a means to control bovine TB, I no longer harbour any doubts that it is catastrophically wrong-headed.
The second ground of challenge, and the one that I provided expert evidence in support of, was that NE failed to properly identify and assess the risk of impacts to the highest tier of protected sites, such as Special Protection Areas, from badger culling taking place within or close to their boundaries, and that this was a failure to comply with the Habitats Regulations (and the Habitats Directive). This also failed.
The judgement and what has followed since is instructive in relation to other live challenges related to the conduct of the statutory authority and its approach to science, and risk. It is a salutary warning that even if one exposes clear failures in Natural England’s execution of its statutory duties, one cannot expect it to follow that the legal system will make an example of them. Of all the cases in the last six or seven years that have reached the High Court and where procedural failures by NE have arguably been exposed, it is only the Wealden case (see here) where meaningful sanction has been handed down.
The judgment can be read here. Perhaps the key morsel of food stuck in the teeth of Natural England’s victory smile is to be found at paragraph 139. Here the judge accepts in short terms that Natural England made procedural failures that amounted to a breach of its duties under the Habitats Regulations. The case against NE was that they had failed to carry out adequate assessments pursuant to its duties under the Habitats Regulations. One cannot slide a cigarette paper between the challenge and the verdict – so why did we lose?
Simply put, the judge was not prepared to find with the consequential part of the claimant’s case – i.e. that if such failures had taken place, protected sites and rare species had been put at unacceptable risk. Once NE realised it was in difficulty attempting to justify its complete failure to engage meaningfully in assessments of trans-boundary and in-combination effects, it defaulted to a “so what?” position, saying that even if the challenge was fairly made and that more detailed and considered assessments should have been done, none of it mattered as they, NE, would have delivered exactly the same result. In short, NE contended that there was no conceivable prospect of any different outcome, not even of more or different conditions or restrictions on licences related to the times and locations of badger culling needing to be imposed to address the risks we had highlighted as having been overlooked or disregarded.
When one thinks about that in the context of the magnitude of the failures which were uncovered, such as NE’s failure to put in place any measures to protect hen harrier roosts in the Dorset Heathlands SPA other than within the small part of that site where the SSSI papers specifically mentioned them, the judge’s acceptance of this defence becomes hard to understand. There was certainly sufficient information before the judge to see the consequences (in terms of risk) of the failures he agreed had taken place: indeed it may be the case that there was simply too much material before him. That volume was a consequence of NE’s obduracy and secrecy and in that context it rankled to see the claimant criticised by the judge during the hearing for the way the evidence was presented – the multiple iterations of evidence were necessarily reactive because NE only revealed essential facts when cornered and challenged on them. That is a tactic that it continues to employ.
Perhaps most worryingly of all in terms of case law and its wider application to government accountability is that the judgment appears to set the bar impossibly high for claimants in similar cases of systemic failure by a large agency. The judge ruled that it was for the claimant to provide evidence of a negative effect arising from NE’s breaches of the Habitats Regulations. To do so would mean the claimant assembling evidence of a significant effect on bird populations associated with large designated sites to which there may be limited or no public access and to isolate a specific impact source (badger culling activity) taking place over an extended period with no predictable times and which the statutory agency discloses no information about unless forced to by the Information Commissioner via tribunal! If this isn’t a means of refusing access to justice by the back door it is difficult to see what else it can be described as.
It also, to my mind, flies in the face of the ‘precautionary principle’, long established in EU law. The difficulty in documenting impacts that may be insidious and take time to play out, even if one has the appropriate resources and access to sites and information, means that the only way to sensibly implement the Habitats Regulations is not reactively but proactively by preventing predictable adverse effects happening in the first place. Risk should be assessed based on the best available scientific information and avoided where found to be credible. Natural England’s defence was ultimately to say “OK we see the problem, but our view is that our assessments were already good enough to allow us to licence the culling, even if they were procedurally flawed”. That is to suggest the level of engagement and rigour required to discharge the agency’s duty is the same whether assessing whether a risk is even credible, as when assessing whether a clear cut threat is likely to translate to adverse consequences. That cannot be right.
In this case, the judge let Natural England off “notwithstanding the precautionary principle”. He elaborates by stating that he takes comfort from NE’s claims of relevant monitoring (no evidence for which was provided) and their ‘undertaking’ to look for any signs of a significant negative effect and to address these if any are found (“if, contrary to expectations, evidence were to emerge of a legally relevant adverse effect on bird populations, Natural England would introduce anti-predator fencing and/or arrange for gamekeepers and site managers to shoot more foxes”). ‘Notwithstanding’ the precautionary principle? This is more like disregarding it entirely.
Imagine a situation where risk assessments for a nuclear plant were found to be inadequate and in breach of statutory requirements a few years into operation. Would it be an acceptable outcome for the operator to escape sanction by invoking in the first instance, the defence that nothing bad appears on the face of it to have yet happened as a consequence? Would it be acceptable for that statement to be accepted without any supporting evidence? Would it be acceptable for any challenge to that claim to founder on the basis that no-one is in a position to provide conclusive scientific data one way or the other? Would it be an acceptable outcome for the operator to have escaped sanction on the basis that they would have OK’d the continuation of operation whether or not the assessments were duly thorough?
Natural England escaped sanction in this challenge through simply repeating to the judge in bland terms, and absent any supporting evidence, the mantra that they would have reached the same conclusions about risk to wildlife had they actually done their job properly. The claimant has since learned that at the same time, and unbeknownst to the Court (notwithstanding matters such as ‘duty of candour’), they were hurriedly amending their procedures for Habitats Regulations Assessments of cull licence applications in a manner that could scarcely be more precise in vindicating all the claimant’s criticisms of procedural failure. It strongly suggests they not only knew they were wrong but were planning for the eventuality of losing the case. This has all only been revealed by FOI request in the last few weeks, conveniently too late to influence the judgment. There could hardly be a more damning indictment of what’s gone before, nor a more clear indication that the Habitats Regulations challenge was legitimately made.
An application to the Court of Appeal has been made, but time does not stand still and attention also now turns to whether the efforts Natural England have made to remedy their procedures in the face of this claim are enough to bring them finally into regulatory alignment. In the last few weeks, new licences have been issued for more badger culling in sensitive landscapes and ecosystems and if risks of collateral ecological damage to European Sites and SSSIs have not been duly assessed and eliminated, more challenges are likely to come.
By Chris. P – Flickr: Badger 25-07-09, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=17198984