Animal health – Badgers – Slaughter

Badger Trust v Welsh Ministers: CA (Civ Div) (Lords Justices Pill, Stanley Burnton, Lady Justice Smith): 13 July 2010

The appellant (B) appealed against a decision ([2010] EWHC 768 (Admin), [2010] NPC 45) that an order of the respondent ministers concerning badger culling was lawful.

Bovine tuberculosis had serious effects on livestock. B had accepted that it was a significant problem in a particular area of Wales, that badgers might contribute to its spreading and that intervention with badgers might be necessary to achieve the implementation of government policies. A minister initially proposed making an order for the culling of badgers in a limited area of Wales pursuant to the Animal Health Act 1981, and a consultation exercise was conducted. However, the order that was eventually made authorised the ministers to carry out a non-selective culling in the whole of Wales. B commenced proceedings challenging that order, but it was upheld. However, at the instant hearing, the ministers conceded that the appeal should be allowed on one of the grounds, namely that the evidence before the minister had only focused on the likely effect of the destruction of the badgers in the limited area in Wales and not in relation to the whole of the country. B submitted that: (1) ‘substantially reduce’ in section 21(2)(b) should be interpreted as stepping back from the starting point of ‘eliminate’ and contemplated a major reduction; (2) it was necessary, when exercising a discretion to make a decision under section 21(2), to strike a balance between the benefit for livestock and the harm to badgers.

Held: (Pill LJ dissenting) (1) It was accepted that, on the evidence, it was to be concluded that a badger cull produced a net reduction in the incidence of bovine tuberculosis of 9%. The word ‘substantial’ could only be construed in context. The context in the instant case was that there had to be either elimination or a substantial reduction, namely a reduction of a substantial degree from the 100% level of incidence. There was an element of comparison between the whole and the part, Palser v Grinling [1948] AC 291 HL considered. The size of the reduction had to be considered against the total. A reduction of 9% was a reduction from 100% to 91%. As a matter of ordinary language, such a reduction was not a substantial reduction.

(2) Consideration of relevant matters was necessary before the discretionary power to make a decision could be properly exercised. In the instant case, the minister did not give a reasoned decision, she simply made the order. The important matter was 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 outweighed those adverse effects. Further, if and when the minister considered the expected reduction in the incidence of tuberculosis in cattle within the cull area, she should also consider the increase which was to be expected outside the cull area due to the perturbation effect. It might also be appropriate to consider the uncertainties inherent in the assessment of the likely effect of a cull and, in the exercise of her discretion, to consider the cumulative or synergistic way in which other cattle control methods she intended to deploy might interact with the cull so as to produce a beneficial effect greater than that of the cull alone. Those considerations did not comprise an exhaustive list.

Appeal allowed.

David Wolfe (instructed by Bindmans) for the appellants; Timothy Corner QC, Jonathan Moffett (instructed by in-house solicitor) for the respondents.