Badger Cull: Labour has a great opportunity to reshape wildlife policy

We urge the new government to break with the failed policies of the Tories

Photo by Vincent van Zalinge on Unsplash

As widely predicted, a Labour government swept into power this week replacing a Tory government that has shown scant interest in wildlife - particularly badgers.

With a substantial majority to work with, those following the history of badger culling might expect a swift and decisive end to the cull. A number of Labour MPs and Ministers have stated that this is Labour’s intention. The Labour Manifesto published before the election stated that the badger culls have been “ineffective”, an acknowledgement that makes culling unlawful under the Protection of Badgers Act 1992 which allows culling "for the purpose of preventing the spread of disease…” but not where it doesn’t actually work….

It does seem unlikely that the new government will issue new licences. However, as we reported recently, in a pre-election interview on Radio 4 the new Secretary of State for the Environment, Steve Reed MP (then Shadow Secretary of course), stated that “we're not going to end any of the existing licences, let me be clear on that. We don't want to send sudden shocks into the system”.

Mr Reed was referring to the nine new supplementary badger control licences and seventeen existing supplementary licences granted by Defra in mid-May, presumably deliberately pushed out ahead of the election and an expected Labour landslide. The Badger Crowd’s Tom Langton estimates that even if no new licences are issued, the deaths of thousands more healthy badgers will take place this year.

Informal discussion on a number of messaging threads suggests that MPs feel their hands are tied and that breaking existing contracts is not legally possible. That makes little sense to Protect the Wild, as it is the government of the day that makes law and it could simply pay any compensation costs anyway. With anti-cull activists knowing full well they would have to be on the ground for just a few months more, the costs of compensation would undoubtedly be far less than the costs of managing and policing a policy that is dead in the water anyway.

It makes no sense to keep culling when it doesn’t work, and because of the admission that culling is ‘ineffective’ it looks to be unlawful too. In fact, campaigners are queuing up to take the government to court…

Three legal actions underway

There are currently three legal challenges on the desk of Labour’s new Environment Secretary. What are they and what are they looking to do?

• Our thanks to the Badger Crowd for permission to republish edited sections of their more detailed 3 July post Legal pressure grows as end to ineffective badger culls anticipated.

Challenge 1. from Stephen Akrill
Seeking permission for Judicial Review at the Court of Appeal.

A  legal challenge against badger culling in England was made in a personal capacity by Stephen Akrill against then Secretary of State for Defra Steven Barclay. With a Judicial Review claim lodged on 14th November 2023, Barclay’s second day in office, Akrill is challenging the historic decision from 2012 to issue the original licences to kill badgers under section 10(2) (a) of the Protection of Badgers Act 1992. The claim is that the Secretary of State acted upon flawed scientific advice that badger culling could influence the spread of disease. Akrill is seeking a quashing order to revoke all licences for badger culls issued by the Secretary of State, with a request to stay extant licences issued in 2024, pending the outcome of his application for Judicial Review.

The Randomised Badger Culling Trial (RBCT) experiment (1998 - 2005) took place under Crown immunity despite the Protection of Badgers Act 1992. This, argues Akrill, did not make any subsequent act of killing badgers lawful. While the 2006 RBCT paper was called the ‘established science’, Akrill’s argument also is that scientific protocol dictates that science only becomes  ‘established science’ once it is shown to be reproducible, not simply because it has been published. This is the science reproducibility argument.

At the Court of Appeal in London in mid-May, Akrill argued that culling badgers by industry without clear reason, and effectively as an experiment,  was potentially a criminal offence.

The case continues, and will now apply to the new Labour Government.

Challenge 2. from Tom Langton supported by Badger Crowd and Protect the Wild
Challenge to the March 14^th ‘sham’ consultation on targeted culling

This is a legal challenge to the Defra consultation on targeted badger culling proposals that ran from March 14^th to 13^th May 2024 (a consultation we labelled a sham and explained why at ‘POLL: Do you agree that Defra's Badger Cull Consultation is a sham?’)

A Pre-Action Protocol response was received from Defra in mid-June and the case application was lodged at the High Court on 3 July. It challenges the fairness of the consultation on three Grounds:

1. that it made misleading claims preventing intelligent consideration

2. that it omitted key information on ecological impacts and

3. it omitted information on the likely economic benefits of the proposed policy.

The government’s position has shifted from saying badger culling caused the disease benefit in cattle, to one where they think it helped, but the detail is fuzzy and not backed by evidence.

This was not a good position for the previous government who needed to come up with some evidence that killing 230,000 badgers (and counting) was worthwhile. They failed to do this due to weak analysis and were called out for exaggerating to the public.

Challenge 3. from Badger Trust and Wild Justice
Challenge to the authorisation and reauthorisation of Supplementary Badger Cull licences

The pre-action letter challenges the Supplementary Badger Cull licences that allow the shooting of thousands of mainly completely healthy badgers from 01 June 2024 into the first six months of the next Parliament and next year between June 2025 and January 2026.

Based on the information obtained by Tom Langton from Natural England this May, Badger Trust and Wild Justice have together sent a Pre-action Protocol letter to Natural England and the Secretary of State for Defra to stop the supplementary badger culls from continuing. The challenge aims to stop the cull immediately because the advice of Natural England’s own Director of Science, Dr Peter Brotherton, not to cull badgers was wrongly overruled.

The view is that Natural England, led by Tony Juniper and the Natural England Board, was wrong to overrule Dr Brotherton, who felt supplementary badger culling could no longer be justified. The release of crucial information showed how a Defra official had pressurised Natural England with advice from the Animal And Plant Agency’s Christine Middlemiss (the Chief Veterinary Officer), to carry on culling in order to meet cull company and livestock industry expectations, and to sustain the so-called benefits that Defra have failed to show exist.

The fundamental reasoning behind the decision was inadequate and unlawful. The action could lead to the two organisations applying for a full Judicial Review. Natural England has been given until 15 July 2024 to respond and halt the supplementary culls.

Photo by Hans Veth on Unsplash

A ‘hard stop’ to badger culling

There are no guarantees as far as we’re aware that revoking the existing licences would stop all three legal challenges. The Badger Crowd post ends by saying that “in which case these costly legal actions need not proceed” but individual plaintiffs may wish to push ahead regardless to establish that culling is unlawful. However, the incoming government will be spending months (perhaps years) clearing up the mess left behind by its predecessors - sorting through three legal challenges on this one issue is not something it will welcome or want. Rather than worrying about a ‘shock to the system’ - a system that does NOT work remember - it has a great opportunity to distance itself from the failed cull policies of the last decade, take a deep breath, and stop the bloody cull.

Yes, bovine tuberculosis is a serious disease, but it is one of the dairy industry’s own making. The mass killing of a much-loved species is not the answer. It is hugely unpopular, financially untenable, and most importantly it does not work. Scientific analysis has shown these intensive culls to be ineffective. Labour used that very word in its own manifesto.

We need a new bTb policy from a new government. One that doesn’t include the deaths of tens of thousands of protected animals to appease the NFU and the dairy industry.

Therefore we urge Labour to break with the old, revoke the twenty-six existing licences, and end the cull. They must grasp with both hands the chance to make an immediate statement and demonstrate that they will be a government that - for the first time in years - cares about wildlife and takes its legal responsibilities to protect biodiversity seriously.

---

The descriptions of the three legal challenges were taken (with permission) from a longer blog on The Badger Crowd, a grassroots support and fundraising coalition including Badger Groups and Trusts around the UK, the public and a range of charities and funds. The Badger Crowd believes that legal challenges are an important fight, not just for the badger but also for the future of our countryside and the farming industry. The bovine TB badger cull policy is failing farmers, taxpayers and our precious wildlife and is allowing the bTB epidemic to spread and cause hardship and misery to a wide range of people across the country.

---

At Protect the Wild we are campaigning against badger persecution and the ongoing badger cull.

By adopting a badger with Protect the Wild you will help fund our efforts to protect badgers and help expose wildlife crimes committed against wild badger populations. 

As an adopter, not only will you be helping fund vital work, but you will also receive an exclusive Protect the Wild adoption pack including cuddly toy, glossy photo, and an information fact sheet.