Guest blog – NE, Badgers and Judgement by Dominic Woodfield


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’.

Ralph Underhill: http://orangejam.boldlight.co.uk/

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

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16 Replies to “Guest blog – NE, Badgers and Judgement by Dominic Woodfield”

  1. A quick search tells us that Sir Ross Cranston’s specialist subject appears to be in Finance. He is also a ‘friend’ of government having held the position of Solicitor General and having been an MP.
    What is harder to find out is his personal background.
    Is he a shooter? Does he own land? Has he family connections in either or in farming?

    Should it not be easier to find out who is sitting in judgement over us?

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  2. NE took a deliberate decision not to formally conduct HRA because it would have been marking its own homework. I did mention that to those bringing the JR some months ago.

    But a challenge on those grounds at this stage were likely to fall foul of timing - judges often query why fundamental challenges weren't brought early in the process.

    Earlier JRs focused foolishly on claiming that the evidence from RBCT made it an illegal policy. It wasn't illegal but it was wholly disproportionate given the tiny temporary difference it would make to a disease affecting such a tiny proportion of cattle (less than 0.5%).

    Proportionality and the make believe numbers (never challenged through JR despite advice to the contrary) were the only likely grounds for JR.

    JR challenges are against how policy decisions are arrived at, not how the policy is implemented.

    In the cull, both were crap but the how wasn't challenged in the early years.

    That's the difference between using a campaigning approach vs a successful legal challenge.

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    1. This seems confused and largely wrong.

      NE was legally bound to conduct HRA as Competent Authority even if had to judge its own Screenings because that is how the law operates. NE should have fairly made it public information. NE claims that it did do HRA but perhaps it didn't do it very well, as the 2014 FOI responses and recent events show. Probably the worst thing of all and the massive error was for NE to become the licence determinant in the first place. This trapped scrutiny inside NE's now partly broken down wall of secrecy, much to the ridicule of successive Information Tribunal judges. This may have helped save NE from being scrapped, by making it NFU/Defra-obedient, but at the price of secrecy and collusion with the rotten policy as it developed, and based on knowingly trading diseased cattle until 2038 to prevent industry recession from adequate herd measures.

      You can argue the merits of the earlier largely welfare-based challenges and those surrounding the Protection of Badgers Act 1992 - the problems were partly due to Defra's huge power in big-charity funding, and because none of the established major charities seem to have had sufficient cross-sector scientific and political capacity or wish (in a highly toxic arena) to mount effective challenge. That should not belittle the sincere and successful efforts of e.g. the Badger Trust (who won in Wales in 2012), Save Me and very many people who funded legal efforts generously and with expert input. Some charities were under attack from the elite/establishment and party-political lobbyists over continued illegal fox hunting matters and were/are undermined in many ways still.

      The facts are that Natural England are a major architect and collaborator in this foul policy, making legal challenge as difficult as possible at every stage. Those involved at the time and now must accept their guilt, not seek to rewrite history or opine on things they many not properly understand.

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    2. If Natural England didn't want to mark their own homework why didn't they arrange for independent experts to forefill the legal requirement to produce HRA’s?

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  3. From my understanding the problem is the criteria for judicial review, which is not well suited for dealing with the weight of scientific evidence. I am no expert in law and in fact I dislike this whole style of thinking. If anything I say is incorrect from a legal perspective, then those with more knowledge please say.

    My understanding of this judgement can be explained in 2 parts.

    1) The criteria for judicial review is to my understanding, that a decision by an official department has been "perverse and irrational" i.e. that a decision makes no grounds in terms of reason.

    2) The judge rejected this case because whilst he accepted that the government's case for Badger culling was weak and inconsistent compared to the case against Badger culling, because it has some case for it, that it didn't reach the bar required for it to be ruled "perverse and irrational decision".

    Essentially this makes Judicial Reviews unable to deal with matters of science, because science proceeds quite differently to legal argument. It means that even if the government's argument is very weak in terms of science and evidence, that it will not be ruled to have acted as "perverse and irrational" as long as it has something of a case, even if this case is very weak compared to the main body of scientific evidence.

    What needs to change is the criteria for Judicial Review, so courts can rule which side of an argument is consistent with the overwhelming weight of scientific evidence. The judge more or less admitted that the scientific case against Badger culling was by far the strongest, but he couldn't rule against the government, because they had something of a case, even if not a convincing case. Therefore the government was not being "perverse", just tunnel-visioned.

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    1. SteB - interesting points on the policy side, but you seem to overlook that the Habs Regs part of the challenge was dismissed because the judge could see no need to grant relief, not because it had no merits. The judge in fact agreed that NE had acted in breach of its duties under the Habitats Directive.

      Thus, while I don't disagree with the fundamental point you are making, this is an instance where there was in fact a neat legal and non-scientific point. I don't think the Court's reluctance to engage in matters of science fully explains why the Habs Regs part of the challenge was dismissed.

      Your point does however have relevance to any future challenge that might be brought along similar lines. As NE have now changed their procedures in an attempt to better address the very criticisms that formed the basis of the HRA challenge (handing a degree of moral victory to the claimant), this means that if grounds for further and future litigation on the HRA point are pursued, any such challenge is likely to have to grapple even more with the specifics of what has and hasn't been covered, rather than the binary matter of whether it was done at all.

      But we should not suggest that this judgment failed to identify legal error. It did. In fact the evidence is now pretty overwhelming that NE were simply not doing Habs Regs assessments of badger culling worthy of the title at all (let alone lawful ones), prior to Tom Langton asking the question via FOI requests. I see Rosie Wood's comment above, and if this is based on any insider knowledge, then it would appear to add further evidence to corroborate that assumption.

      This, then, is an SNCO shown to have abdicated on its statutory responsibility as 'competent authority' to conduct properly rigorous assessments to ensure European Sites are protected from potentially damaging activities. There could hardly be a more simple and fundamental legal error for NE to have made. They were let off the hook in large part because they promised to react if it emerged that their HRA failures had translated or were translating to significant ecological consequences. Yet the judge did not seem to be interested in whether the monitoring NE sought to rely upon was frequent or thorough enough to have the remotest prospect of picking up any such consequences. We know it is not. This is one of the factors that calls into question whether the precautionary principle was properly engaged in his reasoning.

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  4. The cases are being appealled. Longer explanations and discussions will be put online to explain about the two cases further in due course and the new ones as they unfold. Rationality is one high bar test but generally JRs aim to expose incorrect procedure or process that break a law and the balancing of evidence may or may not be important to the key facts.

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  5. Read Carol Day's excellent offering p41 to p71 in the full version of #PeoplesManifestoForWildlife and the JR issue is explained in detail.

    Elsewhere in the draft is discussed the statutory agencies .... #FitForPurpose?

    It's up to all of us to raise our campaigning/lobbying/'badgering' bar and to 'hunt' out those who claim to care, we need review (its been done to death but the analysis needs to be truly independent) and urgent reform (through collaboration) but sooner rather than later, the perpetual investigation(s) take too long and Nero moves on etc.

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  6. Hartridge Common in Luppitt, Devon is managed by a Trust consisting of 5 local farmers. They have been granted licence to swale the common by Natural England, who, however, have not done an Environmental Impact Assessment. They admitted this only after a great deal of prevarication and smoke-screening. Beautiful, grid referenced, badger setts exist under the extensive bracken. The Hartridge Commons Trust will not communicate with me or Badger Trust despite the latter having warned them of the law concerning interference with badger setts.

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  7. Basically, Natural England the only body within the whole of Government that was supposed to uphold the interests of our natural world, a principle so at odds with the current administration that it infiltrated, corrupted objectives and parasitized its function, morphing NE to its own will. As a conservation body it has lost all public credence and respect, as it appears more an instrument of nature’s removal than protector. Subservient to Government and so at odds with its stated aims it has to constantly to defend itself even in a court of law. Natural England is the organisation that has just issued licences to kill 42,000 of a protected species, how is that remotely promoting conservation and protecting biodiversity. Enough is enough it is corrupted beyond salvation and we must have a body independent of Government as natures champion but this can only be achieved by political will. At present the whole political system only has one thing on its mind, while a species may be going into terminal decline.
    Natural England responsibility stated at:
    https://www.gov.uk/government/organisations/natural-england/about

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  8. If you're going to take on the government on a high profile policy using the legal system you need to have a brilliant legal team. Sadly this is out of reach of most interested parties. You need to know law procedure and tactics twice as well as the government lawyers, match them QC for QC and arm yourself with clearly argued relevant, precise and concise evidence. Otherwise you will be batted away like files. JD quite rightly has a very high bar, so you have to be able to make your case. It may seem the system is biased against sensible outcomes, but more often than not it's about legal procedures and tactics and the quality of the lawyers. Sadly these days most lawyers are more concerned with their corporate profile than having a passion to see right done. The Government are much more able to 'buy' justice than the rest of us, - using our money of course! The judgement was made on legal grounds not policy grounds.

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    1. Tim, this is a highly specialist area and we have Richard Buxton Environmental and Public Law and Landmark Chambers on the case with myself and Dominic Woodfield. We have a range of additional professional and retired legal and wildlife law brains behind us checking and commenting constantly. We have loads of High Court JR experience and understand only too well what you say!

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  9. This judgment is interesting for many reasons. It clearly demonstrates the inadequacies of Natural England and that, given its very narrow scope, Judicial Review is an ineffective mechanism for protecting the environment. Even in those cases where there are clear procedural defects and decisions are quashed, the decision maker can simply get its house in order and arrive at the same decision down the line. The relief therefore is often fleeting at best and this goes some way to justifying the provisions of s.31(2A) of the Senior Courts Act 1981 - the "no difference" point relied on by Natural England. The one finding against Natural England related to sites within 10 kms of standard licence cull areas and it appears to have been an easy conclusion for the Judge to draw that s.31 could apply given the HRA assessments made for the sites in the culling areas. Will the appeal relate to that specific finding (and the related finding about lack of evidence of disturbance risk) or the two main grounds of review in their entirety? Tom (Langton) refers above to more detailed explanations being provided online re the application and it would be very interesting to know more about the obstructive approach taken by Natural England in the proceedings.

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  10. I sat on the MAFF Badgers panel over 30 years ago and tried to get more research done on the other animals that came into contact with cattle, that were known to carry BTB. Voles, rats etc, Nothing was done, and now it's known is almost every mammal a cow might bump into or its faeces.

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  11. There has been a lot of interest and the following Links give further information on the broader implications of the cases: Carol Day writes regarding the implications for wildlife protection if our Appeals are not successful:

    https://www.wcl.org.uk/duplicate-of-judicial-review-%E2%80%93-a-blunt-tool-for-badger-protection.asp

    There are other legal comments for those interested in the legal nitty gritty. There is a lot of discussion over the timing of consideration of mitigation of environmental harm to wildlife when assessing impacts:

    http://www.blplaw.com/expert-legal-insights/articles/the-fall-out-of-people-over-wind

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