21st July 2010: Corfe Mullen BioBlitz event 28th August

Dorset’s first ever BioBlitz will take place on 28th August 2010.

Jane Adams, Dorset Wildlife Trust Webmaster and co-ordinator of Corfe Mullen Nature Watch, said: “For International Year of Biodiversity, we wanted to involve as many people as possible in an event that will be both informative and great fun. Taking place over 12 hours, the BioBlitz will gather information about as many organisms as possible, giving an important snapshot of the biodiversity of Corfe Mullen’s varied habitats and making people aware of just how much wildlife is living alongside us.”

The more people who take part, the more effective the BioBlitz will be. If you would like to attend, please email Jane Adams on jane@naturewatched.org

For more information on the BioBlitz event, please see the Dorset Wildlife Trust website.

13th July 2010: Victory for badgers in Wales!

Victory for badgers on all counts as Court of Appeal declares proposed Welsh badger cull unlawful.

Campaigners were celebrating today as the Court of Appeal handed down judgment finding the proposed Welsh badger cull to be unlawful on all three grounds they raised on appeal.

On 5 July, the Welsh Ministers had conceded the appeal on the basis of one of three grounds: that the 2009 Order which permitted culling in the whole of Wales (even in the many areas where TB is not a problem) was not supported by evidence and was unlawful as a result.

However, the Court of Appeal today ruled that the Welsh Ministers had also acted unlawfully in misinterpreting section 21 of the Animal Health Act 1981 as giving them power to cull if they could achieve a potential reduction in TB which was merely more than trivial or insignificant. They also unlawfully failed to carry out a balancing exercise to weigh up the harm involved (i.e. killing over 2,000 badgers) against the potential benefit (which the Minister’s own model predicted to be a reduction in the rate of cattle herd breakdowns of just 0.3% of farms annually).

On the balance point, Lady Justice Smith said [para 90]: “In my view, [the Respondent’s] submission rather missed the point. It is not necessarily a question of how many badgers will be killed; the important matter is consideration of the nature and extent of the adverse effects of killing a large number of badgers and whether the benefits to be derived from the proposed cull outweigh those adverse effects. The submissions to the Minister contained nothing about the adverse effects of killing a large number of badgers; indeed, from those submissions it would not be possible to understand why killing badgers might be regarded as ‘a bad thing’.”

Giving the lead judgment, Lord Justice Pill sounded a warning to the Welsh Ministers when he said that [para 72]: “It is not open to the Welsh Assembly Government immediately to make a fresh Order in the same terms but covering only the IAPA [Intensive Action Pilot Area] and to proceed forthwith with a badger cull there.”

Lord Justice Stanley Burnton made this observation [para 96]: “If this order is valid, it would follow that, in the absence of devolution, the Act could be used, in effect, to disapply the Protection of Badgers Act 1992 throughout England and Wales, by means of a single statutory instrument [such as the TB Eradication (Wales) Order 2009, which is secondary legislation]. If the cull authorised by such an order were effective, the badger, an indigenous species, would be eradicated and become extinct in this country. I doubt that this is what Parliament envisaged or authorised when enacting section 21.”

Two of the three judges also ruled that the short-term 9% potential reduction in TB to be gained from the proposed cull on the Minister’s evidence did not qualify as a ‘substantial reduction’ as required by the Animal Health Act 1981. Lady Justice Smith said this [para 83] about the short-term 9% potential reduction: “I would call it modest. I would accept that that reduction might be worthwhile and might well be, to use the words of the submission to the Minister ‘a significant achievement that should not be undervalued’. I would even accept that it could be described as a reduction of ‘substance’. But that is not the test; the test is whether the reduction will be substantial and I do not think a reduction of 9% can be so described.”

Gwendolen Morgan of Bindmans LLP who represents the Trust said today:

“This is a just outcome for a determined group of wildlife campaigners and an even better day for badgers. This case was the first in relation to section 21 of the Animal Health Act 1981 and it will give important guidance to Ministers considering future culls, potentially in relation to different species and different diseases. The court emphasised the fact that Parliament deliberately drafted the Act so that wildlife could not be killed without robust scientific evidence proving that this would result in a ‘substantial reduction’ or elimination in the incidence of a disease. In future scenarios, the relevant Minister will now have to conscientiously carry out a balancing exercise weighing up the detriment in terms of the extent of wild animals to be killed, and the impact on the species, against the potential benefits in terms of disease reduction. Finally, the Minister may only make an order to cull following lawful consultation in relation to a specific area for which there is scientific evidence to justify a cull. As Lady Justice Smith said ‘Hunch and anecdote would obviously not be sufficient; nor would impermissible extrapolation [from the scientific evidence].’”

David Williams, Chairman of the Badger Trust, said: “We are delighted with this outcome. We are grateful to all the badger groups and supporters whose donations and encouragement made this crucial legal action possible.

“Of all the wildlife organisations the Badger Trust exists to secure the welfare of our native protected species, the badger, and we will continue to do so through lawful means. We are pleased to see that the protection offered by wildlife law cannot be vitiated by political smoke and mirrors and that the court saw the issues so clearly. We also note the court’s criticism of the Welsh Ministers’ failure to reveal their advice without heavy redactions.

“Scientific evidence about the futility of killing badgers to control bovine TB remains exactly the same. Although some farmers may see this judgement as a setback, the massive body of rigorously peer-reviewed literature shows that killing badgers can play no meaningful part in the eradication of bovine TB and that robust cattle measures are sufficient, as demonstrated by the fact that the rate of increase in new TB outbreaks is already starting to slow. We also hope that the Minister will now adopt a strategy of vaccination as a cost-effective, viable alternative.”

Notes:

By law badgers may only be culled if such culling would “eliminate or substantially reduce” the incidence of TB in cattle. The Badger Trust successfully argued that the High Court made an error of law in holding:

· that the words “substantially reduce” in section 21(2)(b) of the Animal Health Act 1981 meant simply any reduction in TB that was “more than merely minor or trivial”; and

· that, once it arose, the discretion to make an order under section 21(2) could lawfully be exercised without the Minister doing any balancing act to consider the harm involved (i.e. killing over 2,000 badgers) against the potential benefit (which the Minister’s own model predicted to be a reduction in the rate of cattle herd breakdowns of just 0.3% of farms annually).

· In addition, the Trust argued that the Ministers erred in making an Order for the whole of Wales having only consulted on the basis of the Pembrokeshire IAPA and on the basis of evidence which, at best, supported culling in the IAPA only. The Welsh Ministers conceded the appeal by reference to this point and the court unanimously agreed that it rendered the Order unlawful notwithstanding their findings on the first two points.

Details about Badger Trust:

Since 1986 the organisation has been the leading voice for badgers. It now represents and supports around 60 local voluntary badger groups and around 1,200 individual supporters. The Trust’s objectives are to promote and enhance the welfare, conservation and protection of badgers, their setts and their habitats for the public benefit. It provides expert advice on all badger issues and works closely with Government, the police and other conservation and welfare organisations. The Trust uses all lawful means to campaign for the improved protection of badgers.

For further information please see the Badger Trust website.

2nd July 2010: Badger Trust Appeal

From the Badger Trust: Judgment in the appeal brought by the Badger Trust against the High Court’s refusal to grant a judicial review on badger culling is expected to be handed down in Cardiff in the week beginning July 12.

In the meantime, the Welsh Assembly Government (WAG) has been instructed to respond by Monday (July 5) to a third ground of appeal brought by the Trust. This was that the Order made by Elin Jones and endorsed by the WAG applies to the whole of Wales and not just the Intensive Action Pilot Area in ill-defined parts of Pembrokeshire and Ceredigion. Therefore, the Minister could not have been satisfied that the statutory test under section 21 Animal Health Act 1981 was met, because she had not consulted for the whole of Wales and nor did she have evidence of a potential “substantial reduction” for the whole of Wales. The Badger Trust will reply by Wednesday (July7).

The appeal, heard in Cardiff on Wednesday (June 30th) was against the High Court’s rejection in April of the Trust’s application for judicial review of the WAG decision to cull badgers as part of its programme to eradicate bovine tuberculosis (bTB). The appeal is also based on two other points of wider legal importance: what is the correct statutory construction of the term “eliminate or substantially reduce” disease as required under legislation to justify the killing of large numbers of wild species; and whether the scale of killing should be balanced against the expected benefit.

David Williams, Chairman of the Badger Trust, said: “We were grateful to the Court for agreeing to an expedited hearing and now await with interest the submissions from the WAG on this vitally important question which, as the judges indicated, has implications not just for Wales but for the whole of the UK. In addition we see this case as a test of the power of wildlife law to protect species often at the mercy of ill-considered policies, devastating planning decisions and cruelty”.

The hearing was before Lord Justice Pill, Lady Justice Smith and Lord Justice Stanley Burnton at the Civil Justice Centre, Cardiff on 30 June.

CONTACT
Jack Reedy
01564 783129
0775 173 1107

28th June 2010: New venue for Badger Trust appeal hearing

From Dave Williams, Chairman, Badger Trust:

The Appeal will be held at Cardiff Civil Justice Centre, 2 Park Street, Cardiff, South Wales, CF10 1ET. We shall be in Court 15, which holds approximately 60 people. The Court is approximately two minutes from Cardiff Central Station. We are advised that parking facilities in the area are somewhat limited.

Those wishing to attend are advised to arrive at 10.00 a.m. for an anticipated starting time of 10.30 a.m.

SAVE THE BADGER flyer

Please download a copy of the "Big Question" flyer to display or circulate.

10th June 2010: Leave to Appeal granted to Badger Trust

Dear Friends,

I am delighted to be able to tell you that we have been granted leave to appeal against the judgment handed down by Mr. Justice Lloyd Jones in the Judicial Review brought by Badger Trust against the Welsh Assembly Government. An expedited Hearing has been requested but at present we have no information as to when or where this will take place. While this does not mean we have won, it also means that we have not lost either and it is excellent news that we have the opportunity to re-state our arguments on the two legal points. There is nothing further I can add at present but we will, of course, continue to keep you fully informed.

It is imperative that we continue to do everything we can to raise public awareness of the potential and unnecessary killing of badgers throughout the UK. We already know that the new coalition government is closely monitoring what is happening in Wales before making their decision on how to reduce the spread of bovine TB in England. Much work has already been undertaken to ensure that the public is better informed of the scientific and financial arguments against the cull of badgers and this is reflected in a healthy increase in new supporters of Badger Trust. As part of our public awareness campaign, badges and car stickers have been produced which we are offering for sale to wildlife groups or indeed any organisation prepared to sell them on to concerned individuals. These are in the name of Save the Badger, the organisation set up to co-ordinate the efforts of those fighting against the cull in Wales, but they are designed to raise public awareness of the unnecessary slaughter of badgers throughout the UK. Supplies can be obtained by e-mailing Admin@badgertrust.org.uk and I hope that those of you who have not already done so, will help us by requesting a stock of the items.

Please accept my thanks on behalf of the Board of Directors for the past help given to Badger Trust and we look forward to your continued support.

Best wishes,

Dave Williams,

Chairman, Badger Trust.

7th May 2010: Information on Thomson Ecology from Badger Trust

Dear All,

We have recently had it confirmed that Thomson Ecology, is the company which accepted the Welsh Assembly Government sett surveying contract within the cull area. We had anonymous communications, but we have now had confirmation that this is the case. This goes against one of their core company values which is scientific integrity. We are told that many of the staff of Thomson Ecology are deeply unhappy that their company is involved in implementing the mass slaughter of a protected species against the wishes of many landowners in the "killing fields" area. We have no quarrel with the employees but we do question the motives of their management who are apparently prepared to act against their company ethics for purely financial reasons.

Many of you may have dealings with them particularly in regard to data searches, I would therefore like to suggest to all of you that with immediate effect we refuse to provide data searches for Thomson Ecology. I have already implemented this within my own Badger Group as I am not able to work with a company which is prepared to behave in such an unethical and underhand fashion. Their employees should be working to protect wildlife not to kill them against the best scientific evidence available. We still do not know whether or not these employees will be expected to undertake the actual shooting of caged badgers, I personally am very disappointed as I live close to their head office and personally know some of the employees and ex employees. No one is Thomson is prepared to discuss or defend their actions.

I cannot dictate to you - you all have to make your own decision but I hope that you will look at this and decide if you can support such a company.

Dave Williams

5th May 2010: Badger Trust Seeks Leave to Appeal to Court of Appeal

The Badger Trust has applied to the High Court for permission to appeal to the Court of Appeal against the rejection of its challenge to the legality of the Welsh Assembly Government’s (WAG) decision to kill badgers as one of its measures intended to eradicate bovine tuberculosis (bTB) from Wales.

A court sitting in Swansea in March granted permission for a judicial review but refused to quash the Minister’s decision.

The Chairman of the Badger Trust, David Williams, said: “This case has raised matters of much wider public importance – in both legal and non-legal terms. The judgment in the judicial review could be interpreted as giving a green light to the killing of all sorts of wildlife across England and Wales on the flimsiest of evidence of any benefit in the form of disease prevention. Worryingly, the judgment explicitly rejects the Trust’s argument that before a cull can be lawful a balancing exercise needs to be carried out, which weighs up the harm posed to badgers (in this case) against the potential benefit in terms of disease reduction.

“As a registered charity we have a duty to work for the welfare of badgers for the public good. Consequently the Trust must do all it can to ensure that the legislation that is clearly intended to protect animals does so, and that any exceptions to prohibitions have to be rigorously tested.”

The Trust’s submissions have been received by the court and WAG and the Government’s response is expected by Friday May 7th.

The Trust considers that at least two arguments made in the judicial review have wider public importance beyond this specific case.

Firstly, the court’s interpretation of the words “eliminate or substantially reduce” in section 21 of the Animal Health Act,1981 (AHA): the judge concluded that culling of wildlife was permitted under section 21 simply where there would be an impact on, in this case, bovine TB which was “more than minor or trivial”. The Trust contends that this interpretation takes the section 21 power to an extreme position whereby the most vicious and widespread cull of wild animals could be authorised for a benefit in terms of disease which is minimal. The judgment could also be taken to mean that the Act could provide for orders permitting the culling of wildlife across England and Wales on the widest possible basis – clearly that is a profound result and a point of much wider public importance.

Secondly, the Trust challenges the rejection of its argument that section 21 must be considered against the background of a legislative presumption against the killing of wildlife, in this case badgers. The High Court held that section 21 does not require the Minister to consider whether the extent and impact of the destruction of wild animals in play is justified by the extent and nature of the benefit to disease which might be brought about. The Trust argues that the starting point is that the Protection of Badgers Act precisely makes the killing of badgers an offence [2], with section 21 of the AHA offering one way (individual licences being another) of departing from it. The Trust claims that there is a requirement to consider the balance of potential benefits in terms of disease prevention versus likely harm to badgers in exercising this discretion, particularly if the court’s interpretation of “substantial” holds and the threshold for that discretion arising is simply where the killing (on whatever scale, small or vast) would bring a benefit in disease terms which is only just above the smallest level.

It is important to note that whilst in her statement to the Assembly on 13 January, the Minister confidently announced that the proposed cull would yield a
9% overall reduction in cattle TB two years after the last cull took place, in fact what emerged in evidence painted quite a different picture. In the Trust’s judicial review, the Minister conceded that:

Bovine TB will increase dramatically on lands adjoining culled land;

The best case scenario of a 9% ‘overall reduction’ in bovine TB in reality only amounts to a 6% decline in the rate of increase over all cattle herd breakdowns;

Any benefits observed in the first years post-culling will dissipate as badger numbers increase;

The longer term prognosis (that is, 30 months post-cull), is that there is in fact no ongoing benefit from culling.

The Trust will now ask the Welsh Assembly to go back and conscientiously reconsider the decision to cull in light of these important new facts. In these tough economic times, it seems only fair to the tax payer that an expensive pilot cull which has been shown not to be cost effective should be reconsidered carefully. This is especially so given that the cheaper option of vaccination has now been licensed for use in the UK and the Minister says it is a viable alternative to culling.

NOTES

[1] Section 21 of the Animal Health Act, 1981: Destruction of wildlife on infection other than rabies. (2) The Minister, if satisfied in the case of any area . . . (b) that destruction of wild members of that or those species in that area is necessary in order to eliminate, or substantially reduce the incidence of, that disease in animals of any kind in the area, may, subject to the following provisions of this section, by order provide for the destruction of wild members of that or those species in that area.

[2] The Protection of Badgers Act, 1992 (sections 1-5) created offences in relation to badgers arising from the taking, injuring or killing badgers, from cruelty to badgers, from interfering with badger setts, from the selling and possession of live badgers and from the marking of badgers. Section 6 provides a defence where the person is, among other things, “unavoidably killing or injuring a badger as an incidental result of a lawful action” or does so pursuant to a licence.