Speaking up for badgers at the Court of Appeal
On July 21st I posted a podcast (Badger Culls, Biodiversity, Birds, and the High Court) with ecologists Tom Langton and Dominic Woodfield which looked at the background to a challenge they were taking to the Court of Appeal on July 26th (yesterday).
The conversation was complex but at its heart were two linked elements:
- whether George Eustice, the Secretary of State at the Department for Environment, Food, and Rural Affairs (Defra) was bound to protect biodiversity by a statutory duty laid out in Section 40 of the Natural Environment and Rural Communities Act 2006 (the NERC Act) which says that “The public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity” (biodiversity is the variety of plant and animal life in the world or in a particular habitat);
- and if so, were Eustice/Defra disregarding that duty by agreeing to extend badger culling (as laid out in the ‘Next Steps’ badger culling policy) without investigating the effects of predator release (where populations of medium-sized predators eg foxes rapidly increase in ecosystems after the removal of larger, top carnivores eg badgers) on, for example, declining ground-nesting birds in areas of cull zones NOT included within designated nature sites like SSSis or SPAs – because of an earlier challenge Tom made, the government had already been forced to change cull licencing conditions to ‘have regard’ to the biodiversity of designated sites within cull areas but (Tom argued) hadn’t done anything about the biodiversity in the 90% of land in a cull zone NOT designated as a protected site.
Tom had asked me after we’d recorded the interview if I’d like to come up to the Court and watch proceedings so I could see for myself what takes place. I’ve never been to court (even as an observer) and I jumped at the chance.
At this point, I should perhaps make clear – if it isn’t already – that I am not a lawyer. I have no legal training whatsoever. It’s obvious that I wanted the Appeal to be granted but I am not remotely qualified to comment on the proceedings in terms of whether the law was applied properly. For what it’s worth I think it was, but what follows must be understood as the impressions of a layman. If I’ve misunderstood something that is on me and not the legal teams involved.
With that in mind…
Speaking up for badgers: in the court
Legal training or not, most of us will know that we have an adversarial legal system here.
Each ‘side’ have barristers (specialists in court advocacy) that argue their client’s case to the judge(s) or jury. All barristers work from the same set of rules, as it were, and spend weeks working out the best way to present their arguments – in other words, the best way to win.
This hearing was not to determine whether Defra were bound by a particular duty or not, but for the judges (there are typically three of them) to determine whether there were grounds for an Appeal on a previous ruling which would then take place at a later date. So ‘our side’ was looking to persuade the judges that an Appeal should be granted, and the (in this case) government side was looking for them to dismiss the grounds for Appeal. If a future Appeal was denied, that would be pretty much it for this particular line of argument for stopping the cull.
We went into court at about 10:30 on Tuesday morning. We were back outside by 13:00. In that time the judges heard both sides, left to consider their decision, came back in and were petitioned about costs, went back out and a few minutes later returned with their decision on how much should be paid by the losing side and by when.
The arguments the barristers presented in that short time were complex and – to be honest – I didn’t understand some of what was said (particularly confusing were frequent references to this being ‘an academic’ case – I took ‘academic’ to have something to do with ‘intellect’ or how a decision might actually mean a change in the law, but as Dominic explained afterwards it was the far more mundane meaning of ‘moot’: in other words, the matter had already been decided so any future discussion would be purely ‘academic’ and not change anything).
Our side (it seemed to me) was arguing about a broad statutory duty to protect biodiversity, the government’s side appeared to be narrowly picking apart the merits of the Appeal itself.
As the tweet I uploaded soon after the decision states, we lost. All three judges decided there were no grounds for appeal. As it also states, it seemed to me that our side lost on those very narrow points of law.
I’m not suggesting in any way at all that anything improper took place (I’m really not), but I came out of court feeling angry, shocked, and with what I think now was almost a sense of disbelief. Tom’s and Dominic’s emotional (and financial) investment is far, far deeper than mine of course, and both looked momentarily shattered – but as the image above shows Tom’s first thought was to go and thank the anti-cull protestors that had turned up at the court – he’s a classy individual…
Speaking up for badgers: angry and shocked
Anyway, why angry, shocked etc? I guess trying to work that out for myself is why I wanted to write this post. To an extent I’m still processing the events of yesterday, but I wanted to write something while it was still fresh in my mind.
I did try and take notes at the time (recording kit is not allowed in court), but again if I have misunderstood anything that is on me, and I’ll apologise in advance if I have misinterpreted something (I’m sure anyone reading this will forgive the cautious tone – I’m writing about senior judges and a senior lawyer after all!). What follows then is how I understood the argument the government side was presenting (no doubt when Tom and/or Dominic read this they’ll offer corrections/suggestions I can edit in to make it clearer or more accurate).
In no particular order the government’s barrister claimed:
- There was no public interest in the case, so why should the courts spend more time on it.
- That – according to the ‘no difference defence’ which says essentially that no matter the outcome the client (ie Defra) would have done the same thing anyway – this was an ‘academic’ case and there was no point in an appeal being granted.
- The wording of Section 40 of the NERC Act 2006 was being replaced – at some point – by Section 102 of the Environment Act 2021, and because of these ‘significant and material’ changes hearing an Appeal based around the wording about ‘duty’ of Section 40 made no sense.
- That the argument about Section 40 was just a small part of the original decision made by Judge Griffith (the case now being appealed) anyway, so the appeal should be denied.
- That the Secretary of State has many duties to consider and the point of argument about Section 40 was too narrow for an Appeal to be heard.
- That on the point about investigating impacts on biodiversity outside of the cull area, to do so ‘would take years’, ‘would be too costly’, and that ‘supplementary culling is on the way out’ anyway so – again – there is no point in the appeal.
- That the ‘Next Steps’ policy was designed to keep badger populations at their current level, that there was no NEW proof of any ecological damage outside of designated sites, and there was ‘no prospect’ of new information making a difference to the decision anyway.
In their unanimous denial of the Appeal the judges agreed that there was no history of similar cases or public interest; the wording of the NERC Act was indeed being changed; and that this was an academic case and the Court would be reluctant to grant an Appeal that wouldn’t essentially lead to any changes to the original verdict anyway.
In fact, they seemed to suggest this request for an Appeal should never have been brought – though they did acknowledge that the government had inserted more information at a very late date (July 4th) and that had ‘our side’ had that information earlier they may have decided to withdraw. This last point substantially affected the costs they were likely to grant the government, which they stated could only be charged from the date of that late insertion.
Speaking up for badgers: unpicking the arguments
Now, the arguments may have been more nuanced. I may have misunderstood. The judges of course could only reach a decision based entirely on points of law, but at no point did the government side show any empathy with or sympathy for badgers or the UK’s biodiversity (and no mention of ethics or morals – they don’t figure in legal argument about the cull). That’s perhaps understandable – they were there to win and not to talk about wildlife – but I found it utterly dispiriting that the government would send out a barrister to effectively shut down any debate about culling policy when it is one of the country’s MOST contentious wildlife issues.
Having said that, I’m going to unpick some of the arguments that the barrister made and explain why I reacted the way I did.
To begin with, damn right there’s a ‘public interest’ in this case. The badger cull is funded by us – the taxpayer – and we’d ‘invested’ up to £60 million of public funds by the end of 2019. More by now. And maybe there is ‘no history’, but for something to have a history at all, there logically has to be a first time. This could have been that ‘first time’. That seems a very odd argument to me…
Those are perhaps small points and may even not be legally relevant. The most shocking argument to me – and I’m in no doubt about this being relevant – was that a government-appointed barrister would suggest that adhering to a statutory duty to protect biodiversity would be too difficult! Of course it’s going to be difficult. Ecosystems are incredibly complex things. Scientists are only just starting to understand the impacts of removing large predators like wolves on their prey, they have no idea at all how removing badgers over huge areas of the countryside might impact Skylarks or Curlews. Or how losing nesting birds might impact everything they prey on. How that might impact pollinators or plants. Or hedgehogs. The impacts potentially go on and on. Which is the point. If the Secretary of State for the environment doesn’t know how killing tens of thousands of badgers might impact the environment (an estimated 175,000 of them so far in one of the most already nature-depleted countries on earth), then he shouldn’t do anything with such potential for harm until he does. And complaining that investigating would be too costly in the light of a cull already costing multi-millions is just insulting to all of us that care about badgers.
Adding that the ‘Next Steps’ policy is designed to keep badgers at their current population just makes that insult worse. After nearly ten years of culling the government doesn’t know what the current overall population is or whether it’s at a sustainable or healthy level. They are seemingly oblivious to the war they have encouraged and unleashed on badgers by shooting estate owners and some farmers outside cull areas which will be impacting populations the government doesn’t even know about. Blithely stating that ‘supplementary culling is on the way out’ ignores the fact anyway that landowners who want badgers dead will undoubtedly step up the killing while there’s still time. Besides which, the government has known for years that the methods of killing badgers their licenced operators are using are in many cases leading to the suffering of badgers. Many, many more badgers WILL die – in pain – in the meantime.
Yes, the wording of the NERC Act (which is quite nebulous in reality) is being changed but even the judges pointed out that there was no indication when the government (the same government ripping itself apart at the moment) would pass the new Environment Act into law – so NERC should still apply. Besides which the wording of the new Act adds ‘and enhance’ to the current duty. In other words, the new Act adds to the duties of the NERC Act rather than just simply changing them slightly. Arguing that the minister responsible for the environment shouldn’t be challenged because the law is changing at some point in the future – while knowing full well that the new law still refers to a duty to conserve biodiversity – seems like a ridiculous, semantic get-out that wouldn’t pass muster in a high-school debating society.
And using the ‘no difference defence’ – which the government barrister opened his remarks with – seems to me to make a mockery of the whole judicial process anyway. If a senior lawyer can argue that no matter what is said, Eustice would have written the ‘Next Steps’ policy in the same way anyway, why bother going through the effort of the whole damn procedure in the first place? As Dominic said in the interview last week, perhaps there is a good legal reason why the ‘no difference defence’ is allowed in court, but from my (admittedly totally inexperienced) point of view it seems like a very blunt instrument indeed.
So, ‘it’s too hard’, ‘the Sec of State is a busy man, ‘we’re going to carry on anyway’, ‘no one else has challenged us’, ‘it’ll all be over soon anyway so don’t worry about it’ …how does that address the ongoing slaughter of a protected (and much-loved) wild mammal or address the impact of the cull on the nation’s biodiversity? Clearly, it doesn’t even touch the sides…is it any wonder we came out of the court feeling so deflated?
Speaking up for badgers: no history of challenges?
Does it mean that had there been a history of challenges the judges might have been more inclined to grant an Appeal? If that is true, it does lead me to wonder why more challenges to the badger culling policy haven’t taken place. No organisation or charity – according to people I spoke with afterwards who know better than I do – have put in the numerous requests for judicial review or Appeals that Tom has. Dominic has of course worked long, long hours supporting him, but why haven’t major animal charities put in the same effort in taking the government to court?
My tweet above elicited one response that perhaps partly explains it: that response questioned the point of Tom’s challenges and suggested that nothing would ever change. The thinking goes that Defra is in the pockets of the National Farmer’s Union (the NFU is effectively a lobby group for agri-business), the dairy industry wants badgers killed, and that nothing any of us do would stop the killing.
That is palpably not true, though. Tom’s previous challenges have led to changes in cull licence conditions and have led to marches, articles in the national media, and a far better understanding that the government threw the cull together without due regard to its ecological impacts or effects. He has repeatedly won the science argument. How much further would be towards ending this bloody cull altogether if there had been a ‘history’ of challenges? We will never know…
Besides, surely the takeaway point here is that if we don’t try to end the cull or challenge and change laws to protect badgers and wider biodiversity, who will? Certainly not the government, Defra, or the NFU. I’ve never seen any evidence that they care at all.
The truth is that we are all that is left.