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||Neutral Citation Number:  EWHC 768 (Admin)
||Case No: CO/15769/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SWANSEA CIVIL JUSTICE CENTRE
||Royal Courts of Justice
Strand, London, WC2A 2LL
||16 April 2010
B e f o r e :
THE HON. MR. JUSTICE LLOYD JONES
|| R (Badger Trust)
||- and -
||The Welsh Ministers
David Wolfe (instructed by Bindmans LLP) for the Claimant
Timothy Corner QC and Jonathan Moffett (instructed by the Welsh Assembly Government) for the Defendants
Hearing dates: 22nd and 23rd March 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Honourable Mr. Justice Lloyd Jones :
- The Defendants exercise statutory powers in relation to agriculture and the protection of wild animals in Wales. By this application the Claimant, the Badger Trust, seeks to challenge the decision of the Minister for Rural Affairs ("the Minister") pursuant to the Animal Health Act 1981 to make the Tuberculosis Eradication (Wales) Order 2009 ("the Order"). The Order, which was made on 28th September 2009 and which came into force on 21st October 2009, provides the authority for Welsh Ministers to carry out a non-selective cull of badgers.
- Tuberculosis in cattle or bovine tuberculosis is an infectious disease that has a significant impact on the health and welfare of cattle. It is a serious, chronic, debilitating disease arising from infection with Mycobacterium bovis ("M bovis"). Tuberculosis in cattle is a particularly serious problem in Wales. At 30th November 2009 approximately 10% of registered Welsh herds (1,325 farms) were subject to animal movement restrictions relating to tuberculosis controls. In 2008 over 12,000 cattle had to be slaughtered because of the disease, an increase of some 50% over the number slaughtered in 2007. The equivalent figure for 2009 was around 11,300 cattle.
- The Welsh Assembly Government is required to compensate owners of cattle slaughtered by reason of tuberculosis. In the financial year 2000-2001 the compensation bill was approximately £1.8 million. In the financial year 2008-2009 the bill had risen to just under £24 million. Additional costs are incurred in respect of monitoring, which are met from a central budget for Great Britain currently held by the Department for the Environment, Food and Rural Affairs ("DEFRA"). The industry itself incurs substantial costs in respect of bovine tuberculosis controls such as pre-movement testing.
- Wales has a tuberculosis eradication policy based on the testing and slaughter of cattle believed to be infected, in order to protect both human and animal health, and to prevent the further spread of the disease. Article 3 of Council Directive 77/391/EEC requires Member States in which the cattle population is infected by bovine tuberculosis to draw up plans for accelerating the eradication of the disease in their national territories. It is a stated aim of the Welsh Assembly Government "vigorously to pursue a programme of bovine TB eradication". On 8th April 2008 Elin Jones AM, the Minister for Rural Affairs, announced a policy of eradicating tuberculosis in cattle in Wales which is intended to apply a comprehensive approach by which all sources of infection are dealt with.
- In her Submission to the Minister dated 23rd March 2009, Professor Christianne Glossop, the Chief Veterinary Officer of the Welsh Assembly Government, advised the Minister that despite the application of the current cattle surveillance and control policy, the bovine tuberculosis situation in Wales was now out of control and unsustainable. Despite an intensification of surveillance controls further measures were required in pursuit of the eradication of bovine tuberculosis.
- It was not in dispute in the proceedings before me that there is now clear evidence that the transmission of M bovis between cattle and wildlife species has become an important part of the epidemiology of this disease in Great Britain. Certain wildlife species act as a reservoir of infection which is then transmitted back to cattle making eradication increasingly difficult. In particular, there is evidence that the badger (meles meles; mochyn daear) not only acts as a host for M bovis but also contributes significantly to the disease in cattle. The Minister maintains that failure to address the reservoir of bovine tuberculosis in badgers in Wales would leave a potentially significant source of infection for transmission to cattle. Accordingly, if the objective of eradicating tuberculosis from cattle in Wales is to be achieved, the problem of transmission of tuberculosis from badgers to cattle has to be addressed. The Submission to the Minister dated 23rd March 2009 considered that the benefits from continued surveillance and controls in cattle cannot fully be realised where re-infection occurs from the badger population.
- However the Minister also accepts that dealing with the transmission of tuberculosis from badgers to cattle is only one element, albeit an important one, of the package of measures that is required to achieve the aim of eradicating tuberculosis from cattle in Wales. The necessary measures must include measures aimed at the rapid early identification of infection, controlling the spread of infection (e.g. through improved husbandry and movement restrictions applied to infected herds of cattle) and the effective management of cattle herd breakdowns i.e. identified outbreaks of bovine tuberculosis in herds (including the testing regime and the isolation and removal of infected cattle) alongside preventative measures designed to reduce the risk of uninfected herds becoming infected.
- There has been much discussion and dispute about the most appropriate strategy for controlling badgers in order to achieve a reduction in bovine tuberculosis. As will become apparent later in this judgment, widely different views are held by experts as to the effectiveness of different methods of control in the spread of infection from badgers to cattle, whether considered individually or in isolation. Moreover, there appears to be controversy as to the conclusions which may appropriately be drawn from the available data.
- The Submission to the Minister dated 23rd March 2009 focused on three options: a non-selective badger cull, vaccination of badgers and a combined test, vaccination and cull strategy. The Submission emphasised that all of the options for a badger strategy include unknowns and risks and that, as a consequence, there is potential for the outcomes and benefits from the implementation of any of these strategies to vary from the evidence provided.
- The Claimant, the Badger Trust, is an organisation which promotes the conservation and welfare of badgers and the protection of their setts and habitats for the public benefit. It represents and supports around 60 local voluntary badger groups. It provides expert advice on issues concerning badgers and works closely with the Government, the police and other conservation and welfare organisations.
- It is common ground between the parties, and I readily accept, that the Claimant has standing to make this application for permission to apply for judicial review. It clearly has a legitimate interest in bringing these proceedings. If groups such as the Claimant were not permitted to seek judicial review in cases such as the present, situations might arise in which the legality of acts directly affecting wildlife could not be effectively challenged in the courts.
- The Claimant fully accepts that bovine tuberculosis is a significant problem in Wales. It also accepts that some action needs to be taken to address that problem and that, in addition to bio-security measures (i.e. measures relating to the way in which farms and farming operate), an intervention in the badger population may be appropriate. However, it maintains that there exist perfectly viable options other than a non-selective cull of badgers including, in particular, vaccination of badgers, taking place alongside cattle control measures. It maintains, inter alia, that this option has not been lawfully evaluated by the Minister in reaching her decision and has been impermissibly rejected.
- It is entirely understandable that the proposed killing of large numbers of animals of one species in order to protect another species should give rise to heightened emotions. This is all the more so where, as here, the animals which it is proposed to kill are attractive creatures and are a protected species. The present proceedings have attracted considerable public interest and there was a large attendance by members of the public throughout the hearing at Swansea Civil Justice Centre.
- It is important therefore to emphasise at the outset that it is for Welsh Ministers, acting within their powers and on the basis of expert scientific advice, to decide on the appropriate course of action. It is not for this court to substitute its views as to the appropriate strategies for combating bovine tuberculosis. This case is solely about the legality of the Minister's decision to make the Order.
- Section 1, Animal Welfare Act 1981 provides in relevant part:
"1. General powers of Ministers to make orders
The Ministers may make such orders as they think fit –
(a) generally for the better execution of this Act, or for the purpose of in any manner preventing the spreading of disease; …"
Section 21 provides in relevant part:
"(1) This section –
(a) applies to any disease other than rabies which is for the time being a disease for the purposes of section 1a) above;…
(2) The Minister, if satisfied in the case of any area –
(a) that there exists among the wild members of one or more species in the area a disease to which this section applies which has been or is being transmitted from members of that or those species to animals of any kind in the area, and
(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."
M bovis is a disease for the purposes of sections 1(a) and 21.
- The powers conferred by section 21 have been transferred to the Welsh Ministers insofar as they relate to Wales.
- Section 1(1) of the Protection of Badgers Act 1992 provides:
"A person is guilty of an offence if, except as permitted by or under this Act, he wilfully kills, injures or takes, or attempts to kill, injure or take, a badger."
Section 10(2) provides that a licence to kill or take badgers may be granted for the purpose of preventing the spread of disease.
The process leading to the decision.
- On the 8th April 2008, the Minister announced a policy of eradicating tuberculosis from cattle in Wales. She stated that, as part of this policy, she would give consideration to the culling of badgers alongside additional cattle controls. Technical experts were commissioned to investigate the potential of different badger control strategies and a Tuberculosis Eradication Programme Board was established to make recommendations, drawing on this expert advice. The members of the Programme Board were Professor Glossop, the Chief Veterinary Officer of the Welsh Assembly Government, an independent scientific advisor, a director of Animal Health, a representative of the farming industry, a member of the British Cattle Veterinary Association and the Head of Tuberculosis Policy for the Welsh Assembly Government.
- Having taken into account the advice of the Programme Board, Professor Glossop produced the Submission to the Minister dated 23rd March 2009. Although the Submission was in Professor Glossop's name, other officials also contributed to it and it also summarised the advice received from the Programme Board.
- In the Submission Professor Glossop put forward three options for a badger control strategy to be used in conjunction with additional cattle control measures to remove the disease transmission link between badgers and cattle.
(1) A non-selective badger cull. The cull would be non-selective in the sense that it would involve culling of all badgers that could be trapped, not just the badgers that tested positive for tuberculosis. The objective would be to reduce the badger population in order to reduce the opportunity for contact and thus the transmission of disease between badgers and cattle.
(2) The vaccination of badgers against tuberculosis. Such a strategy would seek to increase immunity within uninfected animals.
(3) A combined vaccination and selective cull strategy. The cull would be selective in that only badgers that had tested positive for tuberculosis would be killed.
These three options were considered in detail in the Submission which was supported by published evidence and modelling work commissioned by the Welsh Assembly Government.
- Professor Glossop advised that the first option, a non-selective cull, should be adopted, on the basis that this would provide the greatest opportunity for a positive impact on cattle herd breakdowns. Professor Glossop states that her advice was supported by the fact that the vaccination of badgers does not address existing infection in badgers and that the outcome of a combined vaccination and selective cull policy was highly unpredictable. The Minister in due course decided that the first option, a non-selective cull, should be adopted.
- On 24th March 2009 the Minister announced that she had formed the view that a cull of badgers was necessary in conjunction with additional cattle control measures.
- Between April 2009 and 30th July 2009 the Minister consulted on a draft of the Order. A summary of the responses received was published on 30th September 2009. Professor Glossop prepared a further submission to the Minister dated 22nd September 2009 that drew the Minister's attention to the outcome of the consultation exercise and various other matters and recommended that she make the Order.
- The Minister concluded that the view she had formed in March 2009 remained valid and, accordingly, she made the Order on 28th September 2009. On 30th September 2009 the Minister published a written statement relating to her decision to make the Order. The Order came into force on 21st October 2009. The Order was laid before the National Assembly for Wales on 30th September 2009 and on 4th November 2009 a motion to annul the Order was debated and rejected by 43 votes to 9.
- On 13th January 2010 the Minister decided to commence the culling of badgers pursuant to the Order in an area of 288sq. km, mainly within North Pembrokeshire, an area with a particularly serious problem of bovine tuberculosis. The Minister decided that there will be annual culls over a five year period and that the first cull will not commence before the end of April 2010.
- These proceedings were commenced on 23rd December 2009 in the Administrative Court in London. The Defendants lodged and served an Acknowledgement of Service and Summary Grounds for Resisting the Claim on 14th January 2010. On 2nd February 2010 Burnett J. ordered that the application for permission to apply for judicial review be listed for an oral hearing with the substantive hearing to follow immediately if permission is granted. He ordered that the proceedings be transferred to the Administrative Court in Cardiff. He also made a protective costs order.
- The rolled up hearing took place before me at Swansea Civil Justice Centre on 22nd and 23rd March 2010.
- The grounds on which the Claimant seeks to challenge the legality of the Order have changed since the commencement of the proceedings. In particular, the Claimant no longer relies on the EU Habitats Directive 1992/43/EEC. The grounds relied upon at the hearing may be summarised as follows. The Claimant maintains that:
(1) The Minister unlawfully failed to take into account certain material facts and/or proceeded on the basis of material errors of fact and/or failed to make reasonable enquiries to ensure that she had proper information on which to answer the questions before her.
(2) The Minister misdirected herself as to the meaning of "eliminate or substantially reduce" in section 21, Animal Health Act 1981 and/or reached a conclusion that was unsustainable.
(3) The Minister unlawfully failed to consider or to reach any proper conclusion on a correct factual basis or a conclusion which was sustainable on the evidence as to whether a cull was necessary to achieve the limited benefit which culling might achieve.
(4) The Minister misdirected herself as to the need to undertake, and in any event failed to undertake, a balance of the limited benefit which culling might secure as opposed to the destruction of badgers which would occur or to consider whether the former justified and was proportionate to the latter, contrary to section 21, Animal Health Act 1981 and Article 9, Bern Convention on the Conservation of European Wild Animals and Habitats 1979 ("the Bern Convention").
The Minister unlawfully failed to take into account certain material facts and/or proceeded on the basis of material errors of fact and/or failed to make reasonable enquiries to ensure that she had proper information on which to answer the questions before her.
- Within this ground the Claimant relies upon four specific factual matters:
(1) The emergence at a late stage of further evidence as to the duration of the effects of non-selective culling.
(2) An alleged misunderstanding by the Minister as to the true effect of culling because of a confusion between the statistics relating to confirmed and unconfirmed breakdowns.
(3) An alleged misunderstanding by the Minister as to the true effect of culling because of a failure to appreciate that the results of the Random Badger Cull Trials ("RBCT") did not establish a reduction in the prevalence of tuberculosis but only a reduction in the rate of increase.
(4) An alleged misunderstanding by the Minister as to the true effect of culling in believing that following the cessation of culling the beneficial effect continued to accrue at an increasing rate.
- Mr. Wolfe on behalf of the Claimant submits, and I accept, that the correct approach to this ground is that stated by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014:
"It is not for any court of law to substitute its own opinion for [that of the Secretary of State]; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Limited v Wednesbury Operation  1 KB 223, per Lord Greene MR at p. 229 Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?" (at pp.1064-5.)
Duration of effects of culling.
- The first specific matter relied upon by the Claimant is the likely duration of the beneficial effects of non-selective culling.
- The material produced by the Programme Board and annexed to the Submission of 23rd March 2009 included reports based on computer modelling carried out for the Programme Board. Mr. Wolfe draws attention to references in one of the modelling reports commissioned by the Minister and annexed to the Submission to "long-term reduction", for example:
"The model results strongly suggest that the long-term reduction of the confirmed CHB rate for 5 year control would be only about 10% of the no control value."
However, there is no indication in the report as to what is meant here by "long-term reduction" or as to its duration. In argument Mr. Wolfe accepted that it simply means beyond the 5 years of the cull. The modelling reports do include graphs that show the effects of different strategies, including non-selective culling, projected long into the period after the cessation of the various control measures. The models assume the various alternative measures starting in Year 120 and project the effects forward to Year 160. However, the precise significance of these projections is unclear and, when I raised the matter at the hearing, nobody was able to explain this. Certainly, nobody has claimed in the proceedings before me that the graphs (for example, at Exhibit CG1 p. 262) are a reliable prediction of the effects of different measures over the period between Year 120 and Year 160. What is clear, however, is that these reports were based, at least to a substantial extent, on assumptions made by those operating the models. (See, for example, the discussion of perturbation (i.e. the effect of displacement of badgers) in the third modelling report "Badger Control Model for Wales: Trap – Test – Cull – Vaccinate: Supplemental Report, 4th March 2009" at CG1 p. 264).
- However, the Minister was also provided with an analysis based on the results of actual field trials. This was contained in a paper published by Jenkins and others in the International Journal of Infectious Diseases in 2008. ("Jenkins 2008"). This paper contains a follow up analysis of the results of the Random Badger Cull Trials ("RBCT"). The RBCT was carried out in England from 1998 onwards. The design of the trial was for 5 years of annual culling of badgers in 10 triplets of trial areas. The final culls were all completed by the end of 2005. Jenkins 2008 analysed the data from these culls that was available up to 6th January 2008. The work of the Jenkins team provides the only experimentally-derived estimate of the duration of effects following the cessation of culling. The Minister was provided with a copy of Jenkins 2008 and had read it before she took the decision to make the Order. It is referred to in the Submission of 23rd March 2009 and it was referred to during the discussion by the National Assembly Rural Development Sub-Committee on the progress reports of the Tuberculosis Eradication Programme on 8th July 2009.
- Jenkins 2008 concluded that during the post trial period the incidence of bovine tuberculosis inside culled areas was reduced, to an extent significantly greater than during culling. In neighbouring areas, elevated risks observed during culling were not observed post trial. It concluded that although to date the overall benefits of culling remained modest, they were greater than was apparent during the culling period alone. Continued monitoring would demonstrate how long beneficial effects would last, indicating the overall capacity of such culling to reduce the incidence of tuberculosis in cattle.
"Our results show that the reductions in cattle TB incidence achieved through pro-active badger culling, as conducted in the RBCT, persisted for more than one year after culling was discontinued. Beneficial effects inside culling areas increased in magnitude, and detrimental effects were no longer observed in neighbouring lands.
The epidemiological mechanisms causing this increase in the beneficial effects of badger culling are uncertain. This is unfortunate, because an insight into these mechanisms would help to predict how long the benefits might be expected to persist.
The subsequent cessation of RBCT culling is likely to have had several consequences for the badger population. It would allow the population to grow, as the abundant, unexploited food source available for badgers would allow a high reproductive rate and cub survival. In addition, a stable social organisation would be re-established, leading to contraction of home ranges and greatly reduced immigration. These two aspects of badger population recovery are likely to occur at different speeds, with changes in badger behaviour occurring more rapidly than changes in badger numbers: … These two effects have contrasting implications for the incidence of cattle TB: growth of the badger population would be expected to increase the risk of cattle becoming infected from badgers, while the reduction in badger mobility would reduce those risks. We suspect that the reduction in confirmed herd breakdowns recorded on and around pro-active areas following the suspension of culling, noting that these estimates were non-significantly different from those observed in the final two years of the during-trial period, reflect contractions in badger ranging in a time when badger numbers were still suppressed by past culling. If this explanation is correct, it suggests that the benefits observed in the first years post-culling will dissipate as badger numbers increase. Continued monitoring will allow testing of this prediction; the time scale on which benefits would be expected to disappear cannot yet be determined.
When considering the available data in their entirety, our analysis suggests that an overall reduction in the incidence of confirmed herd breakdowns associated with widespread badger culling remains modest (e.g. on average only 12 confirmed breakdowns prevented over 6 years by 5 annual culls targeting a 125km sq, compared with 130 confirmed breakdowns expected in the absence of culling.)
Continued monitoring will determine how long the beneficial effects last, and will thus provide the measure of the overall capacity of badger culling (as conducted in the RBCT) to reduce cattle TB incidence."
- The advice given to the Minister in the Submission of the 23rd March 2009 was based on the conclusions of Jenkins 2008. Paragraph 6.3.8 which summarised the section on a non-selective badger cull included the following paragraphs:
There is a complex relationship between badgers, cattle and M bovis which means that non-selective culling may have unpredictable effects on cattle TB. A pro-active, non-selective badger cull has the potential to reduce the level of cattle herd breakdowns within several years. The reported benefits of the RBCT, which was a relatively well executed cull, were low (9% average reduction in the incidence of CHB). The benefits continued to accrue at an increasing rate in the two years post trial. Further analysis is planned to determine if these trends continue in further years. …"
Section 9 of the Submission set out the advice to the Minister. Section 9.2.3 stated:
"9.2.3 Option 1: non-selective badger cull.
The Programme Board agreed that the disease levels and associated impacts and costs to government, industry and the taxpayer need to be addressed. Despite the risks associated with delivery, they considered that the potential of a culling strategy (Option 1) applied in an IAPA [Intensive Action Pilot Area] provided the greatest opportunity to achieve this.
The Programme Board agreed that against the backdrop of an increasing disease incidence, an overall 9% reduction as achieved post culling in the RBCT was a significant achievement that should not be undervalued. Particularly given that knowledge on the effects of perturbation were unknown and that in any IAPA the potential benefits from a culling strategy would be reinforced by benefits from the cattle measures.
It was recommended that culling should be applied initially in a single area and that cattle measures are applied in conjunction. The risks of this or any of the other policies were recognised and it was agreed that any of these policies would need careful consideration in their application. A blanket application across Wales was not appropriate. Instead both culling and vaccination should be considered as part of the veterinary assessment of policies on a regional and epidemiological basis."
- The advice to the Minister was clearly based on the results of RBCT as analysed in Jenkins 2008. I consider that the Submission of 23rd March 2009 fairly reflected the conclusions of Jenkins 2008. Mr. Wolfe does not challenge the accuracy of the conclusions drawn in Jenkins 2008. Nor does he suggest that it is not fairly represented in the Submission to the Minister.
- However, he does complain about a failure to draw to the attention of the Minister a further development. On 22nd September 2009, six days before the Minister made the Order, a Veterinary Advisor working within the Welsh Assembly Government, attended a meeting of the Epidemiology and Wildlife Risks Programme Advisory Sub-Group ("EWRPAG") at DEFRA in London. EWRPAG is a sub group of Bovine Tuberculosis Science Advisory Body. The Welsh Assembly Government is not a member of this body or its sub-groups but attends meetings in an observer capacity. The meeting was also attended by Professor Christl Donnelly of Imperial College London, one of the co-authors of Jenkins 2008. She made a presentation to the meeting about that research team's further follow up analysis of the results of the RBCT.
- The substance of Professor Donnelly's presentation is apparent from the minutes of the meeting which were released on 6th October 2009. Minute 3 includes the following passages:
"Christl Donnelly: SE3242 – Further analyses of spatial temporal trends in the cattle data associated with the Randomised Badger Culling Trial.
The objectives of this project are: 1 – ongoing monitoring of TB incidence in RBCT areas to examine the impact of culling…
Objective 1: data were presented on the effect of culling inside and outside trial areas, during the trial (the period up to one year after the last cull) and up to 36 months post-trial. The results up to 18 months post-trial have already been published (Jenkins et al, 2008 IJID). Data analysed since this indicate that in the last 6 month period (30-36 month's post-trial), there was no remaining impact of culling either inside or [up to] 2 km outside trial areas. At the start of the post-trial period there was a beneficial effect both within (statistically significant) and outside (not statistically significant) trial areas, but this beneficial effect deteriorated over time. These data have previously been reported to DEFRA and were submitted to the correspondence pages of Nature, but not accepted for publication. The intention is now to submit them to PLoS one."
- Minute 3 also records a discussion by the Committee of this presentation.
A general concern was expressed over whether we are over-analysing the data from the RBCT, and the reliability of the conclusions that could be drawn. [A] suggested that any paper arising from these data could potentially be controversial. [B] and [C] confirmed that DEFRA would see a draft of any such paper before it was published and provide comments, but the authors were not obliged to take these into account.
[D] expressed concern about analysing the RBCT data by quarter (including excluding data from later quarters), and suggested that this work receives more scrutiny.
It was suggested that CD should present data on the statistical significance of the trend in breakdowns observed in the [up to] 2 kilometres outside the pro-active trial areas before the end of the RBCT."
It appears therefore that questions were raised at the meeting as to the reliability of the conclusions drawn by Professor Donnelly in her presentation.
- The presentation at the meeting on the 22nd September 2009 was not drawn to the Minister's attention before she made the Order on 28th September 2009. In her witness statement Professor Glossop gives two reasons for this. First, the information presented by Professor Donnelly at the meeting was to be submitted for publication in a scientific journal and was to be subject to peer review prior to publication. Professor Donnelly did not indicate that the information and analysis presented to the meeting was yet in its final form. It was considered that the information presented was potentially subject to change and should therefore be regarded as work in progress. Professor Glossop observes that much of the information presented to sub groups of the Bovine Tuberculosis Science Advisory Body is of a similar nature. Secondly, it was not considered materially to add to the information that had already been provided to the Minister.
- The information disclosed at the meeting on 22nd September 2009 was subsequently included with other material in a paper published by the Jenkins research team in February 2010 in PLoS one (Jenkins 2010"). Mr. Wolfe accepts, quite correctly, that the legality of the Minister's decision is to be assessed as at the date on which the Order was made and he does not seek to rely on any further material in Jenkins 2010.
- The disclosure made by Professor Donnelly at the meeting on 22nd September 2009 was confidential. However, it is not suggested on behalf of the Minister that it would not have been possible to convey to the Minister the substance of Professor Donnelly's presentation in advance of her decision.
- The Minister does maintain that Professor Donnelly's presentation was work in progress and potentially subject to change. This is, no doubt, an important qualification to be borne in mind when considering her conclusions. Nevertheless, if these conclusions were capable of having an important bearing on the Minister's decision I consider that this qualification alone would not justify a failure to draw these matters to the Minister's attention.
- Before considering the potential relevance of Professor Donnelly's presentation to the Minister's decision, it is necessary to consider the Claimant's submission that the Minister, in taking the decision, was under a misapprehension and was acting in the mistaken belief that the benefit of culling would in fact continue.
- In this regard the Claimant relies on the following matters all of which are statements made on behalf of the Minister after taking the decision.
(1) In a letter dated 27thOctober 2009 a member of the TB team within the Office of the Chief Veterinary Officer, responding to a letter to the Bovine TB mailbox, stated
"Previous studies have concluded that badgers are a reservoir of bovine TB to cattle and vice versa. Following the publication of the report of the Independent Scientific Group on cattle TB (ISG), further post cull analysis was undertaken which demonstrated a continued decrease in bovine TB in cattle in the areas concerned."
This is clearly a reference to Jenkins 2008. Although it is a brief statement, it does accurately record that following the cessation of a cull, there was a continued decrease in bovine TB in cattle in the areas of the cull. I do not read this as suggesting that the benefits would continue to be enjoyed into the future. It expresses very briefly the results contained in Jenkins 2008 which had been accurately reported to the Minister.
(2) A press statement issued by the Press Office of the Department of the First Minister and Cabinet on 4th November 2009 set out a statement made by the Minister following the debate in the National Assembly on 4th November. The notes which are appended to the Press Release include the following passage:
"However, continued analysis of data from the RBCT since the final report of the ISG was published show that the rates of bovine TB in the culling area continue to decline, and the increase on the border of the culling area decrease significantly over time, leaving an overall substantial decrease in TB cattle breakdowns."
The same passage appears in substantially the same terms twice in the Notes. Once again, I consider that this is a reference to Jenkins 2008 and, subject to a point considered below, that it accurately reflects Jenkins 2008. Indeed the use of the word "overall" seems to have been taken directly from Jenkins 2008 at p. 463, col. (2) and seems to be a reference to the need to net off the effect of culling within the area of the cull and its effect in the adjoining area. I do not read this passage as reflecting the view that the beneficial effects of the cull will continue in the long term.
(3) In a letter dated 3rd December 2009 to the Claimant's solicitors, a lawyer in the Legal Department of the Welsh Assembly Government acting on behalf of the Minister stated:
"9. In your own letter, you referred to the 2008 research of Jenkins et al, which concluded that the Randomised Badger Culling Trial occasioned an overall 9% reduction in the incidence of cattle herd breakdowns. You also referred to the modelling produced for the Welsh Ministers which concluded that the long-term reduction in the cattle herd breakdown rate would be approximately 10%."
It seems to us that these two pieces of research plainly constitute evidence that the destruction of badgers would substantially reduce the incidence of disease, in the sense that the reduction would be more than insignificant or trivial…"
The reference to Jenkins 2008 is a fair and accurate statement. The reference in the modelling to long-term reduction has been considered above. It does not indicate the duration. Moreover, it is clear that the Minister was advised and acted in this regard on the basis not of the modelling but the Jenkins 2008 analysis of the results of the field trials. I do not read this passage as supporting the view that the Minister was under the mistaken belief that the beneficial effects of culling would continue as suggested by the Claimant.
(4) The Claimant also relies on the following passages in the Defendants' Summary Grounds:
"7. However, in the years after the 5 year period, the incidence of cattle herd breakdowns in the area surrounding the trial area has reduced. An analysis published in 2008 concluded that if the 5 year period were considered together with the 2 years following the final year of culling, the overall incidence of cattle herd breakdowns had been reduced by 9%. Whilst the claimant repeatedly refers to this as "limited evidence", it is in fact the most up to date evidence available.
- There was sufficient information before the Welsh Ministers to justify a conclusion that the destruction of badgers would result in a substantial reduction in the incidence of Tuberculosis in cattle in Wales (even before the implementation of the additional measures referred to in paragraph 10 above). As set out in paragraph 7 above, the scientific evidence indicated that such a course would result in a 9% reduction in the incidence of cattle herd breakdowns over time. A reduction of 9% is more than insignificant or trivial. It follows that it is unarguable that it was irrational for the Welsh Ministers to reach the conclusion that it did."
Paragraph 7 includes an incorrect statement. At this date Jenkins 2008 was not the most up to date evidence available. However, these paragraphs accurately state the conclusion of Jenkins 2008. (The figure of 9% does not appear in Jenkins 2008 but it was common ground before me that this figure is correct on the basis of the figures produced in Jenkins 2008 in the passage quoted above.) Nothing here supports the view that the Minister had formed the view that the benefits of culling would continue into the future.
- I do not consider that the above statements, whether considered individually or cumulatively, provide any basis for the submission that the Minister was under a misapprehension as to the duration of the beneficial effects of culling.
- The extracts from Jenkins 2008 quoted above include a prediction that the benefits observed in the first years post culling (i.e. the first 2 years addressed in Jenkins 2008) will dissipate as badger numbers increase. It indicates that continued monitoring will be required to test that prediction and that the time scale within which benefits would be expected to disappear cannot be determined. (This is a reference to the further work to be undertaken by the Jenkins team, which eventually resulted in Jenkins 2010.)
- That is carried through into the submission of 23rd September 2009. Paragraph 6.3.8, quoted above, makes clear that while Jenkins 2008 shows that the benefits continue to accrue at an increasing rate in the 2 years post trial further analysis was planned to determine if these trends continue in further years. This reflects the important qualifications in Jenkins 2008 and makes clear that it cannot be assumed that the benefits will continue. Moreover there is nothing in the advice which suggests that the trend would continue beyond the period of 2 years post trial.
- Furthermore, the evidence of Professor Glossop, which has not been challenged in this regard, is that she discussed Jenkins 2008 with the Minister. She states that at the time of the making of the Order the Minister understood that the benefits of badger culling (in terms of reducing the incidence of tuberculosis infection in cattle) continued in the two years following culling, although she also recognised that tuberculosis infection was still present in the cattle population within the cull areas and that there was an ongoing risk that at some stage the incidence of infection in cattle was likely to start to increase again, given that it had not been eliminated completely. She had read the comment in the paper that "the benefits observed in the first years post culling will dissipate as badger numbers increase" and understood it within that context.
- In these circumstances I am unable to accept the Claimant's submission that the Minister considered that beneficial effects of culling would extend beyond the period of two years post culling. The Minister was aware that the beneficial effects continued within the two years after the end of the cull. The team which had analysed the results of the trials had predicted that they would dissipate and further research would have to be carried out to ascertain the timescale within which they would dissipate. The significance of the Minister's lack of knowledge of the presentation at the meeting of the 22nd September 2009 falls to be assessed in that context.
- The significance of Professor Donnelly's presentation was that it was the first report of evidence based on analysis of field trials as to the possible duration of the beneficial effects of culling beyond the two years post cull addressed in Jenkins 2008. However it was not inconsistent in any way with the analysis or the conclusions in Jenkins 2008, nor did it invalidate any of the conclusions in that paper. On the contrary, it confirmed the prediction as to the dissipation of beneficial effects made in Jenkins 2008. What was new was that it put a time on the duration of the beneficial effect for the first time. It was not suggested that in the extended period which was now addressed (i.e. the five year period of the culling plus the three years following) there was no benefit to be derived from the culling. Rather, it simply made the point that the culling had no remaining impact within the last six months (30 – 36 months post-trial).
- Although the statistics do not appear to have been produced at the meeting of 22nd September 2009, the figures produced in February 2010 in Jenkins 2010 in respect of the extended period surveyed led the authors to conclude that the overall number of confirmed breakdowns estimated to be preventable by pro-active culling is 22.6 breakdowns prevented over 7.5 years in an area that would otherwise experience roughly 187 breakdowns. A comparison of the figures in Jenkins 2008 and Jenkins 2010 is instructive. Jenkins 2008 predicts that the effects of pro-active culling on the incidence of confirmed cattle TB breakdowns inside the trial area in the period from first cull to 6th January 2008 would be a reduction of 30.2% whereas Jenkins 2010, in respect of the period from first cull to 42 months after cessation of culling would substitute a figure of a reduction of 28.7%. Similarly Jenkins 2008 in respect of the estimated effect in the area up to 2 kilometres outside the trial area in respect of the period first cull to 6th January 2008 shows an increase of 12.5% whereas Jenkins 2010 in respect of the period from first cull to 42 months after the cessation of culling would substitute an increase of 11.7%. Both Jenkins 2008 and Jenkins 2010 conclude that pro-active culling results in only a modest overall reduction in cattle herd breakdowns.
- It was not suggested at the meeting on 22nd September 2009 that once one took into account a longer period there was no longer an overall benefit (although that suggestion was subsequently made in Jenkins 2010).
- Accordingly what the Minister did not know at the date she took the decision was that there was now, for the first time, evidence – albeit in the form of work in progress – that the beneficial effects of culling did not extend beyond 30 months post culling. Where a Minister takes a decision on the advice and information supplied by officials, clearly the Minister cannot be required to know everything. The question which arises for consideration here is whether this lack of knowledge was sufficiently significant to invalidate the decision.
- In Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24 the High Court of Australia considered the situation where a Minister had made an order affecting land rights in ignorance of a potentially crucial fact. Brennan J. said:
"A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered." (at p. 61).
"The department does not draw the minister's attention to every communication it receives and to every fact its officers know. Part of a department's function is to undertake an evaluation, analysis and précis of material which the minister is bound to have regard to or to which the minister may wish to have regard in making decisions…the consequence…is, of course, that the minister's appreciation of a case depends to a great extent on the appreciation made by his department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of the ministerial function. A minister may retain his power to make a decision while relying on his department to draw his attention to the salient facts." (at p. 65)
- In R (on the application of National Association of Health Stores) v Department of Health  EWCA Civ 154 the Court of Appeal was concerned with a challenge to an order prohibiting the sale for medicinal purposes of kava-kava on the grounds that the Minister had not been provided with all the relevant evidence. Sedley L.J. referred to the passages in the judgment of Brennan J. in Peko-Wallsend cited above and observed:
"Given the constitutional position as this court now holds it to be, a minister who reserves a decision to himself – and equally a civil servant who is authorised by him to take a decision – must know or be told enough to ensure that nothing that is necessary, because legally relevant for him to know, is left out of account. This is not the same as a requirement that he must know everything that is relevant. Here, for example, much that was highly relevant was appropriately sifted by the Commission in formulating its advice and then distilled within the department in order to make a submission to the minister which would tell him what it was relevant (not simply expedient or politic) for him to know. What it was relevant for the minister to know was enough to enable him to make an informed judgment. This centrally included the Commission's advice and the reasons for it. It also included the fact of Professor Ernst's opposition and the essential reason for it. All this he had.
Here, while – as I have said – it might have been better had a certain amount more been drawn to the minister's attention, I am unable to hold that the three matters omitted from the briefing were things which either the statutory purpose or the nature of the issue before the minister made so relevant that a lawful decision could not be taken in ignorance of them. They are all things which undoubtedly enhance the case against a ban, but that is not the test." (at paras. 62, 64).
- In the present case the recommendation to the Minister was made expressly on the basis of the benefits identified in Jenkins 2008 i.e. the overall reduction in confirmed breakdowns of 9% estimated in Jenkins 2008 in respect of the specific period addressed in that paper. That benefit identified in Jenkins 2008 was considered to be sufficiently significant to justify the proposed course of action. No reliance was placed on the possibility of further benefits accruing beyond the period of two years following the cessation of culling as justifying the recommendation and no assumption was made that there would be any continuing benefits. Accordingly the specific basis of the recommendation was not disturbed in any way by Professor Donnelly's presentation. Furthermore, the Minister had been told that the question whether the benefits of culling would continue beyond two years after cessation would require further research. She also knew that Jenkins 2008 predicted that they would dissipate within an unidentified time.
- In these circumstances I consider that the Minister had been informed of the salient facts which give shape and substance to the matter. The further facts emerging in the presentation of Professor Donnelly were not of such importance that failure to consider them would lead to the conclusion that the matter had not been properly considered. Having regard to the statutory purpose, the nature of the issue before the Minister and the basis of the decision, it cannot be said that this further information was so relevant that a lawful decision could not be taken in ignorance of it.
- Furthermore, for the reasons set out above the Minister did not take the decision when under a material mistake of fact as to the likely duration of the beneficial effects of non-selective culling, nor had she failed to make proper enquiries.
Confirmed and unconfirmed herd breakdowns.
- The second factual matter on which the Claimant relies under this ground concerns confirmed and unconfirmed herd breakdowns.
- Jenkins 2008 concluded that the overall reduction in the incidence of confirmed herd breakdowns associated with culling would on average be 12 confirmed breakdowns prevented over 6 years by 5 annual culls compared with 130 confirmed breakdowns expected in the absence of culling. Although it does not appear in Jenkins 2008, it is common ground between the parties that from these figures a reduction of 9% can be derived. The computer modelling carried out for the Programme Board came to a very similar conclusion.
- It is important to note that these documents refer to a reduction in the number of confirmed breakdowns. Where bovine tuberculosis is suspected in a herd, animals are slaughtered. Thereafter tests are carried out which may confirm that tuberculosis is present (confirmed breakdowns) or not (unconfirmed breakdowns). The point is made on behalf of the Claimant that disruption to agriculture is as great whether the breakdown is confirmed or unconfirmed. Account should be taken of the disruptive effect of bovine tuberculosis whether in the result its presence is confirmed or not. Accordingly, in order to give a fair picture of the effect of the proposed culling it is necessary to express this in terms of its effect on both confirmed and unconfirmed breakdowns. Since about one third of breakdowns are unconfirmed the likely reduction in all (confirmed and unconfirmed) breakdowns as predicted by Jenkins 2008 would be approximately a 6% reduction.
- The Submission to the Minister dated 23rd March 2009 includes an analysis of potential outcomes in the case of a non-selective badger cull (at section 6.3.4) which makes entirely clear that it is addressing confirmed breakdowns. Although the word "confirmed" does not appear at every point where the potential outcomes are discussed e.g. the final paragraph of section 6.3.4 or at section 6.3.8, it is clear from the context that the references are to confirmed breakdowns.
- Here, the Claimant does not make any complaint about the material or the advice supplied to the Minister. However it points to certain statements on behalf of the Minister which, it submits, reveal a failure by the Minister to understand that the analysis in Jenkins 2008 relates only to confirmed breakdowns and, therefore, indicate that the Minister misunderstood and overestimated the true benefit.
- In this regard the Claimant relies, first, on paragraph 9 of the letter dated 3rd December 2009 by a lawyer in the Legal Department of the Welsh Assembly Government sent in response to the letter before claim. This is set out at paragraph 45(3) above. Secondly, it relies on the Press Release of the 13th January 2010 which includes the following statement:
"Our aim is to achieve at the very minimum similar benefits to the RBCT, which was a 9% overall reduction in TB in cattle 2 years after the last cull take place. With the additional cattle measures that we are putting in place, I expect the impact to be greater than this. This situation will not improve overnight, and disease incidence could go up in the area in the short term."
Thirdly, the Claimant relies on paragraphs 7 and 18 of the Defendants' Summary Grounds which are set out at paragraph 45(4) above.
- Each of these passages refers to an overall reduction of 9%. The word "overall" is taken directly from the language of Jenkins 2008 where it is used to refer to the net effect of culling, setting the impact on the culling area against that on the adjoining area. It is used in Jenkins 2008 in a context where only confirmed breakdowns are being considered.
- It is correct that the passages relied upon do not qualify the statement by limiting it to the impact on confirmed breakdowns. However, these statements were not made by the Minister personally and were made after the decision was taken. I am unable to accept that they demonstrate that the Minister was labouring under any mistake of fact in this regard when taking the decision. On the contrary, the advice to the Minister in the Submission (and in particular section 6.3.4) made abundantly clear that the 9% figure related to confirmed breakdowns.
- For these reasons I am unable to accept that the Minister in taking the decision failed to appreciate that the statistics related to the effect of culling on confirmed breakdowns only.
Reduction in incidence of tuberculosis.
- The Claimant submits that the Minister was under a further mistake of fact at the time she made the Order in that she erroneously believed that the evidence as to the possible reduction in the incidence of bovine tuberculosis showed a reduction by comparison with the position before the start of culling, whereas in fact it was a reduction by comparison with the position which would have been reached had there been no culling.
- Jenkins 2008 describes a reduction in the incidence of breakdowns by comparison with what would happen if there were no culling. Indeed, it expresses its conclusion in terms of the number of confirmed breakdowns which would be prevented compared with the number of "confirmed breakdowns expected in the absence of culling". It was based on the RBCT results which were a side by side comparison of culled and unculled areas monitored over the same period. The results did not establish a reduction in the prevalence of tuberculosis but only a reduction in the rate of increase.
- In support of its submission that the Minister misunderstood this fact, the Claimant points to the following statement in the Note to the Press Release of the 4th November 2009:
"However, continued analysis of data from the RBCT since the final report of the ISG was published show that the rates of bovine TB in the culling area continue to decline, and the increase on the border of the culling area decrease significantly over time, leaving an overall substantial decrease in TB cattle breakdowns." (sic)
This is a reference to Jenkins 2008. The Claimant correctly points to an error in this passage. Jenkins 2008 does not support a decline in the rates of bovine tuberculosis. It merely supports a decline in the rate of increase.
- However, in considering whether the Minister was mistaken at the time she took the decision, as suggested by the Claimant, it is necessary to have regard to the way in which the evidence was presented to her in the submission of 23rd March 2009. Section 6.3.4 includes:
"Jenkins et al. 2008 estimated that 12 herd breakdowns, out of a potential 130, were prevented by the pro-active cull. This equates to an overall 9% reduction in the incidence of cattle herd breakdowns."
The comparison with "a potential 130" make entirely clear that the comparison is with what would otherwise happen if no action were taken. It is a lessening in the number of breakdowns which would otherwise occur. That is fairly described as a reduction. However it is also made entirely clear that it is a reduction by comparison with what would otherwise occur.
Section 9.2.3 states:
"The Programme Board agreed that against the background of an increasing disease incidence, an overall 9% reduction as achieved post culling in the RBCT was a significant achievement that should not be undervalued."
Here again, the reference to "the backdrop of an increasing disease incidence" makes clear that the comparison is with what would otherwise happen. Contrary to the submission of Mr. Wolfe on behalf of the Claimant, I am unable to accept that these statements in the Submission are inaccurate or misleading.
- The error in the Note to the Press Statement does not, to my mind, demonstrate that the Minister made the Order under the suggested mistake of fact. The Note is not a statement made by the Minister personally. The Minister was familiar with Jenkins 2008 which makes the nature of the reduction entirely clear. Furthermore, that was fairly and clearly represented in sections 6.3.4 and 9.2.3 of the submission. Everyone understood that the problem was getting worse and that the conclusions in Jenkins 2008 related to a slowing in the rate of increase.
An increasing rate.
- The final mistake of fact alleged by the Claimant relates to the following statement in section 6.3.8 of the Submission of the 23rd March 2009:
"The benefits continued to accrue at an increasing rate in the two years post-trials".
In fact this is an accurate reflection of Jenkins 2008 which concluded that at the end of culling there was little benefit but that a benefit then accrued in the two years thereafter. Jenkins 2008 estimates that the effect of culling on the incidence of confirmed breakdowns inside the trial areas would be -31.8% in the final year of culling, -48.7% in the first year post-trial and -60.8% in the second year post-trial. Similarly, it estimates that the effect of culling on the incidence of breakdowns in the area up to 2 kilometres outside the trial area boundaries would be +17.3% in the final year of culling, -16.2% in the first year post-trial period and -30.1% in the second year post-trial. Accordingly, the tables in Jenkins 2008 do show an increase in the rate of benefit in the two years post culling.
The Minister misdirected herself as to the meaning of "eliminate or substantially reduce" in section 21 Animal Health Act 1981 and/or reached a conclusion that was unsustainable.
- Under section 21(2), Animal Health Act, 1981, the Minister is required to be satisfied, inter alia, that the destruction of wild members of a given 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. This is a precondition to the exercise of the power. The Order recites in the preamble that the Minister is so satisfied. The Claimant submits that she was not reasonably entitled to be so satisfied.
- Ground 2 is directed at the words "in order to eliminate, or substantially reduce the incidence of, that disease…". The argument before me concentrated on two matters: the true meaning of the statutory provision and the question whether there was material which reasonably entitled the Minister to come to her conclusion.
The interpretation of section 21.
- It appears from the Defendants' Summary Grounds that the Minister directed herself that "substantially reduce" in section 21 refers to a reduction which is "more than insignificant or trivial". By contrast, the Claimant maintains that in the context of this provision, the word "substantially" bears the sense of "almost complete". The Claimant maintains that section 21 allows for culling only where it would eliminate or almost completely eliminate disease. Alternatively, the Claimant says that the words "substantially reduce" mean more than merely achieving an insignificant or trivial reduction, although the Claimant does not provide a formulation of the alternative standard contended for.
- Both parties rely on an obiter passage in the speech of Baroness Hale in Majorstake Limited v Curtis  1 AC 787, a case on the Leasehold Reform Act 1967:
"It has hitherto been taken for granted that, if the premises are Block B, then two flats out of the 50 do not constitute "a substantial part of" the premises. Were it otherwise, there would have been no point in the Appellant pursuing matters to this House. The Respondent has not hitherto sought to argue otherwise. In my view, it was right not to do so. "Substantial" is a word which has a wide range of meanings. Sometimes it can mean "not little". Sometimes it can mean "almost complete", as in "in substantial agreement". Often it means "big" or "solid" as in a "substantial house". Sometimes it means "weighty" or "serious", as in a "substantial reason". It will take its meaning from its context. But in an expression such as a "substantial part" there is clearly an element of comparison with the whole: it is something other than a small or insignificant or insubstantial part. There may be both a qualitative element of size, weight or importance in its own right; and a quantitative element of size, weight or importance in relation to the whole. The works intended by this landlord are substantial in relation to each of the flats involved, but those flats do not in my view constitute a substantial part of the whole premises." (at paragraph 40)
- As is apparent from Baroness Hale's observations, the word "substantial" has a chameleon character, its precise meaning and hue varying according to its context. The context in which the word is used in section 21 is, of course, very different from that of the Leasehold Reform Act 1967. Contrary to the submission of the Claimant, I do not consider that the statutory framework of the Animal Health Act 1981 creates a statutory presumption against the killing of animals. While it is correct that the exercise of the power under section 21 permits the killing of badgers, an activity which would otherwise be unlawful and criminal, I do not consider that this provision should be narrowly construed as a derogation from a prohibition on killing animals. The statutory purpose of section 21 is to prevent disease. The Animal Health Act 1981 is, as its short title suggests, an Act concerned with animal health. As the broad general power confirmed by section 1(a) indicates, it is concerned with the purpose of preventing the spread of disease in any manner. Part II of the Act, where section 21 is found, is concerned particularly with the control of disease. If the incidence of disease can be substantially reduced by the proposed conduct, there is a power to authorise it provided the other conditions are also satisfied. The statutory scheme does not justify a narrow reading of "substantially reduce".
- Nor do I consider that the juxtaposition of the two concepts "eliminate or substantially reduce" justifies a restrictive reading of "substantially reduce". The words "substantially reduce" clearly describe something other than elimination. The reference to "eliminate" does not cast any light on the meaning of "substantially".
- To my mind the words "substantially reduce" when considered in the context of this statutory provision bear the meaning that the reduction should be of substance and something more than insignificant or trivial i.e. the meaning contended for by the Defendants. If conduct is reasonably considered capable of making a reduction which is more than insignificant or trivial the policy of the provision suggests that there should be a power to act in this way. I can see no justification for reading the words so as to require the higher standards for which the Claimant contends. Indeed, an example given by Mr. Corner QC, counsel for the Defendants, during the course of argument demonstrates that to do so could lead to results which Parliament cannot have intended. If the words in the statute mean "almost completely eliminate" it would not be possible to authorise under section 21 the destruction of a small number of animals of a wild species despite the fact that that would result in a 50% reduction in the incidence of a serious disease in domestic livestock.
- Mr. Wolfe further submitted that the words "substantially reduce" require a true reduction in the incidence of disease rather than a slowing in the rate of its increase. On that basis and having regard to the conclusions of Jenkins 2008, he submits that in the circumstances of the present case the condition in section 21(2)(b) could not be satisfied. I am unable to accept this submission. The words "substantially reduce the incidence of…disease" are entirely appropriate to describe both an absolute reduction and a reduction by comparison with the position that would otherwise be reached. The policy of controlling disease supports that view. It would be very surprising if the legislation permitted culling only if it brought about a substantial absolute reduction by comparison with the pre-existing position as opposed to achieving a substantial reduction by comparison with the position that would otherwise be reached.
The application of section 21 in the present case.
- The Claimant draws attention to a number of passages in the Submission of 23rd March 2009 and the documents annexed to it in support of the Claimant's submission that it was not reasonably open to the Minister to conclude that the proposed measures would substantially reduce the incidence of tuberculosis.
(a) The Submission states at section 6.3.8, (which has been quoted more fully above at paragraph 35):
"The reported benefits of the RBCT, which was a relatively well executed cull were low (9% average reduction in the incidence of CHB)."
(b) Badger Control Model – Comparison of Strategies for Wales states (at p. 67):
"It is important to note that the reductions in numbers of infected badgers in the control area did not "translate through" to reductions in CHBs over the whole grid to the same extent. In other words, very large reductions in the numbers of infected badgers in the control area in the model gave only small reductions in the overall numbers of CHBs. The model results strongly suggest that the long-term reduction of the confirmed-CHB rate for a 5 year control would be only about 10% of the no control value. With a pre-control CHB rate of about 5% of farms per annum, that would mean a possible reduction of the CHB rate from 5% to 4.5% - representing a saving of just 5 CHBs in 1000. The figure is even smaller if we consider both confirmed and unconfirmed CHBs where the saving would be about 3 CHBs in 1000."
(c) A paper entitled "The Principles of Culling Wildlife for Disease Control and Alternative Control Strategies: Badgers and Bovine Tuberculosis" points out at Section 2.1 that the conclusions of the RBCT have been the subject of considerable debate with alternative interpretations of the results.
"Overall, the benefits of pro-active culling were so small, when the detrimental effects on neighbouring unculled land were taken into account, as to be trivial in terms of disease control and were greatly outweighed by the costs of culling (Delahay et al. 2008). This led the ISG to conclude that badger culling can make no positive, or cost effective contribution to cattle TB control in Britain. (Bourne et al. 2007a) However, King et al. (2007) reached a different conclusion on reviewing the results of the RBCT, stating that "the removal of badgers could make a significant contribution to the control of cattle TB in those areas of England where there is a high and persistent incidence of TB in cattle." This conclusion was strongly refuted by the ISG on the basis that King et al. (2007) did not consider economic and practical issues, analysed incomplete data and incorrectly interpreted statistical outputs and modelling results. In addition, the suggestion of using boundaries impermeable to badger movements to reduce immigration of badgers in culled areas (King et al. 2007) and hence minimise detrimental effects of culling-induced perturbation, was dismissed on the basis that there are too few natural geographical boundaries in the UK (Bourne et al. 2007b). It is apparent that while badger culling may have the potential to deliver a modest benefit in reducing TB incidence in cattle under some circumstances, the outcomes of culling are not clear-cut and may include an increase in cattle TB."
(d) A paper entitled "A Review of Badger Culling Techniques for TB Control in Cattle" states (at p. 4) under the heading "Current Position":
"There is evidence from a number of field studies in Great Britain and Ireland that provide compelling evidence that badger culling influences the risk of infection in cattle. However, a lack of replication and strict experimental controls in most of these studies means that the confidence with which the results in terms of cattle herd breakdown (CHB) rates could be attributed to the culling is limited. The Randomised Badger Culling Trial (RBCT) was designed to definitively quantify the contribution that badger culling could make to the control of cattle TB. The most recent results from the RBCT is that the overall benefits of culling remain modest due to the detrimental effects of badger culling during trial operations on land neighbouring pro-active areas." (sic)
(e) Jenkins 2008 describes the overall reduction in the incidence of confirmed herd breakdowns as "modest".
- The materials relied on by Programme Board and supplied to the Minister demonstrate that the outcomes of culling are not clear-cut. Widely different views are held as to the effectiveness of culling as a means of reducing the incidence of bovine tuberculosis and, as the minute of the meeting of the 22nd September 2009 shows, as to the extent to which it is permissible to analyse the data from the RBCT so as to derive reliable conclusions. Nevertheless, Jenkins 2008, a paper founded on the RBCT results, suggested that, within the period addressed by that report, an overall reduction of 9% in the incidence of confirmed breakdowns could be achieved. It was specifically on the basis of that conclusion in Jenkins 2008 that a recommendation was made to the Minister in the following terms:
"The Programme Board agreed that against the background of an increasing disease incidence, an overall 9% reduction as achieved post culling in the RBCT was a significant achievement that should not be undervalued. Particularly given that knowledge on the effects of perturbation were unknown and that in any IAPA the potential benefits from a culling strategy would be reinforced by benefits from the cattle measures." (Section 9.2.3.)
- This was the expert advice to the Minister. To my mind a possible reduction of 9% in the incidence of confirmed breakdowns in comparison with the position which would otherwise be reached can fairly be considered a substantial reduction. (Even if one brings into account, in addition, unconfirmed breakdowns in order to make allowance for the effects of incorrect diagnoses, as opposed to the actual extent of the disease, I still consider that the reduction of 6% can fairly be considered a substantial reduction.) I consider that Professor Glossop and the Programme Board were reasonably entitled to conclude that an overall 9% reduction in confirmed breakdowns was "a significant achievement that should not be undervalued". Equally I consider that the Minister was reasonably entitled to conclude on the basis of the advice she received that the reduction, which she was advised on the basis of Jenkins 2008 was achievable, was substantial.
- This conclusion is further supported by the advice in the Submission "that in any IAPA the potential benefits from a culling strategy would be reinforced by benefits from the cattle measures". Whereas the RBCT had been carried out in isolation, the advice to the Minister emphasised that a comprehensive approach was required to pursue the eradication of bovine tuberculosis in Wales and that within an IAPA this would necessitate dealing with infection in both cattle and badgers. Professor Glossop's evidence makes clear that the Minister was advised that the culling of badgers can only be one element of the package of measures required to achieve the policy aim of eradicating tuberculosis in cattle in Wales and that any culling would have to take place alongside additional cattle control measures. Professor Glossop and the Programme Board advised and in my judgement were reasonably entitled to advise that the beneficial effects of culling could be enhanced through the application of a comprehensive approach aimed at tackling all sources of infection simultaneously.
- For these reasons I consider that the Minister was reasonably entitled to conclude that the contemplated reduction in the incidence in bovine tuberculosis was substantial within the meaning of section 21(2), Animal Health Act, 1981.
The Minister unlawfully failed to consider or to reach any proper conclusion on the correct factual basis or conclusion which was sustainable on the evidence as to whether a cull was necessary to achieve the limited benefit which culling might achieve.
- Both parties agree that the meaning of "necessary" in section 21(2)(b) is that there must be no reasonably practicable alternative way of achieving the elimination or substantial reduction of the incidence of disease. I agree that that is the meaning of the provision. Although Mr. Wolfe had previously contended that the interpretation of this provision should take account of the words "provided that there is no other satisfactory solution" in Article 9 of the Bern Convention, he did not maintain this in oral argument. Mr. Wolfe's other submissions on the Bern Convention are addressed under Ground 4.
- Furthermore, it was common ground between the parties that the third option addressed in the submission of the 23rd September 2009 i.e. a combined test, vaccination and cull strategy, was not a viable option. Accordingly, the question for consideration is whether the Minister was reasonably entitled to conclude that vaccination was not a reasonably practicable alternative.
- Mr. Wolfe's first submission under this head was that the Minister had a mistaken view of the potential benefits of culling and that, accordingly, she was unable to give fair consideration to the question whether vaccination was a reasonably practicable alternative. The alleged errors of fact relied upon have been addressed under Ground 1. For the reasons given above, I am satisfied that the Minister did not approach her decision on the basis of a mistake of fact.
- The Claimant then contends that the Minister did not conclude that vaccination was not a reasonably practicable alternative; indeed, the Claimant submits that the Minister publicly recognised that vaccination was a reasonably practicable alternative. Here the Claimant relies on the following statement in the Press Statement of the 24th March 2009 directly attributed to the Minister personally:
"I recognise that vaccination is another potential tool to reduce the risks of bovine TB and I will continue to work with the Department for Environment, Food and Rural Affairs on research to explore the potential for the use of an effective badger vaccine. I welcome confirmation that an injectable licensed vaccine for badgers is expected in mid 2010 and that an oral bait vaccine will be available by late 2014. The latter is recognised as an efficient means of vaccinating the wildlife population over large areas, although any benefits in reduced cattle herd breakdowns are not expected to be evident, through vaccination alone, for several years. I will monitor vaccine development closely with the view to introducing vaccination into Welsh policy as and when available and appropriate, recognising both culling and vaccination are part of the measures required to pursue the eradication of bovine TB in Wales."
- However, to my mind this passage makes clear that the Minister's position is that while the point may well be reached in the future at which vaccination is a reasonably practicable alternative, that point has not yet been reached. I certainly do not consider that the above passage is an acceptance by the Minister that vaccination is at present a reasonably practicable alternative to culling.
- The Claimant further submits that the advice of the Minister's own Programme Board had actually been:
"Alternative control strategies, such as vaccination and vaccination with selective culling may deliver greater benefits in cattle TB control than non-selective culling".
These words appear in the paper "The Principles of Culling Wildlife for Disease Control and Alternative Control Strategies. Badgers and Bovine Tuberculosis" annexed to the Submission of 23rd March 2009. However, the words quoted appear under the heading "Points for Discussion". They are one of a number of bullet points and are preceded by a statement that the following points are put forward for discussion. Certain other propositions set out in this section clearly were not accepted by the Programme Board, Professor Glossop or the Minister.
- The Claimant also relies on statements in the Submission based on modelling exercises. The first (at section 6.4.2) refers to a modelling exercise carried out by Wilkinson and others.
"This modelling exercise suggested that at least 40% of healthy badgers need to be immunised each year to eradicate bovine TB in the badger and vaccination of badgers is a viable alternative to badger culling for the control of bovine TB in cattle. The models did not analyse the time scales for these outputs to be achieved in cattle herd breakdowns."
The following passage appears at 6.6 under the heading "Modelling Comparison of the Three Options".
"The most recent model commissioned by the Welsh Assembly also included output comparing the effects of each control strategy on the incidence of cattle herd breakdowns. While the model cannot predict the time until benefits can be seen with each approach, the differences in reductions in cattle herd breakdowns between the cull only, vaccinate only and combined method without perturbation were minimal and unlikely to be detectable in the field. All three of these options resulted in a reduction in CHB of between 5% and 10% over 10 years.
There are assumptions and uncertainties within the majority of models to examine further outcomes of disease and potential management strategies, and the models reported here are no exception. However, all three models are based on all the most up to date scientific evidence on bovine TB dynamics in badgers and cattle and the potential efficacies of the suggested control options. The unknowns surrounding the perturbation effects in the combined strategy make it difficult to reliably determine where in the range of possible effects this option would fall."
- On this basis the Claimant submits that not only was vaccination a perfectly viable alternative but the modelling had predicted that the difference in benefits was minimal and unlikely to be detected in the field.
- However, it is important to bear in mind that these statements in the Submission are based on the results of modelling and therefore are subject to important limitations. Modelling involves assumptions which may or may not prove correct. Whereas culling had been the subject of extensive field trials including the RBCT, the results of which were available for analysis, inter alia in Jenkins 2008, this was not the case with regard to vaccination, a point made at 6.4.2 of the Submission.
"The effect of vaccinating badgers on cattle TB has not been quantified in field trials and much of the information on the effects of BCG vaccination on badger TB and cattle TB comes from modelling exercises." (The same point is made at paragraph 6.5.3).
There was no evidence as to the efficacy of vaccination based on field trials as it had never been implemented.
- Moreover, the Claimant's argument is based on a selective reading of the Submission. Other passages, including the main text on vaccination, contradict the Claimant's reading.
"6.4 Option 2: The vaccination of badgers
Vaccines for badgers are seen as potentially significant future contributors to the control of bovine TB. The key requirements for a successful vaccination programme are the existence of an effective vaccine, an effective method of delivery and the ability to vaccinate a sufficient proportion of the population.
Bacille Calmette Guerin (BCG) is currently the only candidate bovine TB vaccine that could be available for use in badgers in the near future. BCG is a widely used vaccine that has been shown to be effective in a range of species. Information on the safety of BCG in badgers will be provided from a field trial being carried out in England (Badger Vaccine Study, DEFRA) and the results of a laboratory based experimental challenge study will provide information on BCG efficacy. These will form the basis for a Marketing Authority application to the Home Office which is expected to be submitted in 2009 with a response from the Home Office to the application expected in May 2010.
Delivering a BCG vaccine to badgers is problematic and the use of an oral bait perhaps holds the greatest promise for mass vaccination. No oral bait formulation currently exists for use in the UK. However a scientific study, funded by the UK's Department for Environment, Food and Rural Affairs (DEFRA), is currently underway to develop suitable oral bait and investigate the most effective method of delivering an oral vaccine. The oral bait is anticipated to be available for use in late 2014. In the meantime, an initial vaccination deployment project being developed by DEFRA is considering the capture and injection of badgers. The aim of this project is to demonstrate the potential to vaccinate badgers in the field as part of a bovine TB control policy. Any benefits in reduced cattle herd breakdowns are not expected to be evident within the life of the 5 year project."
Similarly the Summary at 6.4.5 states:
"The BCG vaccine has been demonstrated experimentally to generate an immune response in badgers, which is associated with protective immunity from bovine TB. Therefore, BCG is likely to be a suitable vaccine for use in badgers in the wild. Although the efficacy of the BCG in badgers is unknown, challenge studies have shown that it is effective in preventing disease in healthy badgers. It is highly unlikely to produce any adverse disease effects even if the vaccine proves not to be sufficiently effective, or the programme is halted prematurely. However, the level of benefits, in terms of reduction of cattle herd breakdowns and the timescale to realise the benefits is not yet known."
That summary concludes the discussion of Option 2: Vaccination.
- Finally, in this regard, it should be noted that the Advice Section of the Submission included the following passage on the vaccination option. After referring to the models for vaccination referred to above and continued (at Section 9.2.2):
"The Programme Board was particularly interested in the timescales in the transfer of protection in badgers to benefits being realised in cattle herd breakdowns. There was only very limited information available, even from modelling, on the likely timescale and level of benefit that could be achieved.
- Professor Glossop and the Programme Board clearly recognised that the use of vaccination should not be ruled out as it is likely to provide opportunities in the future for dealing with this disease in Wales. In particular, they recognised that vaccination could potentially be used as a barrier to the progressive spread of infection, as a risk reducing measure. They also recognised that, as such, it has the potential to be used post-culling to ensure that the benefits accrued from culling are maintained and as a buffer zone to any culling operations.
- At paragraph 10 of the Recommendations to the Minister they recommend that the Minister note:
"That vaccination is seen as another tool to reduce the risks of bovine TB in susceptible populations and that its development for badgers in injectable and oral bait form will be monitored closely with the view to introduction into Welsh policy as and when available and appropriate, recognising that both culling and vaccination are part of the measures required to pursue eradication of bovine TB in Wales."
- The Minister's position is, perhaps, best summed up in the published response to consultation:
"Vaccination is, as yet, unproven as a tool in the management in disease in cattle. We are working closely with DEFRA on the development of a vaccine and will consider its introduction into Welsh policy as and when it is available and appropriate. Only an injectable vaccine is likely to be available for at least the next 5 years; the practicalities of delivering an injectable vaccine to wild animals and the scale of the epidemic in cattle mean that an alternative proven course of action is needed as a priority. The Intensive Action Pilot Area is set to run for at least 4 years, by which time an oral vaccine should soon be available and may be used to reduce the risk posed by remaining or recolonising badgers." (at Section 4.1.9)
- It is entirely consistent with this approach that the Order makes provision not only for the destruction of badgers but also for their vaccination.
- It is clear therefore that the Minister has not ruled out the possibility of the use of vaccination in future. On the contrary, it appears that this option is under active consideration. However, on the basis of the advice that she was given, she was, in my judgement, reasonably entitled to conclude that at the date of her decision there was no reasonably practicable alternative to the course adopted which was therefore necessary within the section 21(2)(b).
- The Claimant also relies on the very different approach to bovine tuberculosis that as been adopted by DEFRA in England.
- In a Press Release date 7th July 2008 the Secretary of State announced the policy that licences should not be issued to allow badger culling. Instead £20 million would be invested over a 3 year period in developing usable cattle and badger vaccines. The Secretary of State considered that instead of culling, efforts should be put into strengthening DEFRA's research programme to develop cattle and badger vaccines and maintaining cattle controls. Funding would also be provided to set up and run a deployment project to build confidence in the long term contribution badger vaccination could make to tackling bovine tuberculosis and to provide valuable information which could help move towards the long term goal of an oral badger vaccine. The Secretary of State explained that £18 million had been invested in the last 10 years in vaccine development which had delivered good results including evidence that vaccinating young calves was effective, making progress towards developing a test to differentiate infected from vaccinated cattle and showing that injectable BCG can protect badgers and developing oral badger vaccine baits. He now intended to increase significantly spending on vaccines (£20 million over 3 years) to strengthen the chances of successfully developing them. He accepted that it would be some time before an oral vaccine for badgers or a cattle vaccine became available so for the time being it was necessary to reduce the spread of disease and try to stop it becoming established on new areas. In this regard he referred to cattle controls.
- In a Press Release dated 19th March 2009 the Secretary of State announced that the first vaccine against bovine tuberculosis in badgers would be used in the field in England in 2010 and continue for at least 5 years. It would be the first practical use of a vaccine for TB in badgers outside research trials.
"The deployment project will focus on developing practical approaches for use rather than developing further evidence of the effectiveness of the vaccine, although DEFRA will be looking at the number of cattle herd TB breakdowns in the area for any changes in cattle disease trends."
- It is clear from these Press Releases that the Secretary of State in England has adopted a different approach from that of the Minister in Wales. However, these Press Releases also show that the project in England is intended to develop practical approaches for the use of vaccines. It is intended to assist in gaining knowledge as to the effective deployment of vaccination. It appears therefore that this is an option which is still in the relatively early stages of its development.
- In Wales, the Minister was advised that
(a) The effect of vaccinating badgers on bovine tuberculosis had not been quantified in field trials. (Submission, section 6.4.2)
(b) The level of benefits in terms of the reduction of cattle herd breakdowns and the timescale to realise these benefits was not yet known. (Submission, section 6.4.5)
Neither of these propositions was challenged by the Claimant.
- Clearly, different views may be held and are held, as to the likely efficacy of vaccination. However, having regard to the fact that vaccination is still in a relatively early stage of development and having regard to the evidence and recommendations placed before the Minister, I am unable to accept that it was not reasonably open to her to conclude that vaccination was not a reasonably viable alternative.
- Finally in this regard, Mr. Wolfe points to the statement in the final report of the RBCT that the data and modelling suggest that substantial reductions in the incidence of bovine tuberculosis could be achieved by improving cattle based control measures, such as the introduction of more thorough controls of cattle movement through zoning or herd attestation, strategic use of the IFN test, quarantine of purchased cattle, shorter testing intervals, careful attention to breakdowns in areas that are currently at low risk and whole herd slaughter in chronically affected herds. On the basis of this he suggests that the proposed culling cannot be considered necessary. However, at no point in the long debate which preceded the Minister's decision was it suggested that such additional cattle measures could stand alone as a reasonably practicable alternative. Professor Glossop and the Programme Board have emphasised the importance of combining enhanced cattle measures with the proposed culling and have expressed the opinion that this may improve the efficacy of the culling. However, cattle measures in isolation were not even identified as a viable option and on the basis of the material placed before the Minister it is readily apparent why this was the case.
The Minister misdirected herself as to the need to undertake and in any event fail to undertake, a balance of the limited benefit which culling might secure as opposed to the destruction of badgers which would occur or to consider whether the former justified and was proportionate to the latter, contrary to section 21 Animal Health Act 1981 and Article 9, Bern Convention on the Conservation of European Wild Animals and Habitats 1979 ("the Bern Convention").
- The Claimant maintains that implicit within section 21, Animal Health Act 1981 is a requirement to balance the harm caused by the destruction of badgers in a non-selective cull against the benefits which it would bring. In this regard it submits that the beneficial effects would be marginal and the cost in terms of the destruction of badgers would be substantial. The Claimant maintains that the failure of the Minister to carry out such a balancing exercise vitiates her decision. The Minister, on the other hand, denies any legal obligation to conduct such a balancing exercise.
- Section 21 does not expressly impose such an obligation. Nor do I consider that a duty to carry out such a balancing exercise is implicit in section 21 considered in isolation. For reasons set out earlier in this judgment, I do not accept that the statutory context creates a statutory presumption against the making of an order. Furthermore, there is nothing in the wording or statutory scheme to support the existence of the duty contended for. Section 21(2) creates preconditions which must be satisfied before the power may be exercised. The Minister must be satisfied that there exists among badgers in an area tuberculosis which is being transferred to cattle. The Minister must also be satisfied that destruction of badgers is necessary in order to eliminate or substantially reduce the incidence of tuberculosis in cattle in that area. If those preconditions are satisfied the Minister has a discretion to make an order. However, these pre-conditions do not include the obligation contended for by the Claimant. Had it been the intention of Parliament to impose such a duty it could be expected to have said so expressly. In my view, section 21 does not impose a further pre-condition of the kind contended for by the Claimant.
- The Claimant then maintains that section 21 must be construed in the light of and in conformity with Article 9, Convention on the Conservation of European Wildlife and Natural Habitats, Bern, 19th September 1979 ("the Bern Convention"), to which the United Kingdom is a party. Article 8 of the Bern Convention provides, in relevant part:
"In respect of the capture or killing of wild fauna species specified in Appendix III … Contracting Parties shall prohibit the use of all indiscriminate means of capture and killing and the use of all means capable of causing local disappearance of, or serious disturbance to, populations of a species, and in particular, the means specified in Appendix IV."
The badger is a species specified in Appendix III. The means specified in Appendix IV include the use of traps.
Article 9 provides in relevant part:
"Each Contracting Party may make exceptions … from the prohibition of the use of the means mentioned in Article 8 provided that there is no other satisfactory solution and that the exception will not be detrimental to the survival of the population concerned:
to prevent serious damage to crops, livestock, forests, fisheries, water and other forms of property;…"
Article 9(2) requires the parties to report every two years to the Standing Committee on the exceptions made under Article 9(1).
- On behalf of the Claimant, Mr. Wolfe submits that Article 9 necessarily imports a duty to evaluate benefit against cost. In support of this submission he points to Resolution No. 2 (1993) on the scope of Articles 8 and 9 of the Bern Convention adopted by the Standing Committee, created pursuant to Article 13. Paragraph 16 of the Resolution states;
"A further worrying question that arises in connection with Article 9, paragraph 1, second sub-paragraph, is that of how to interpret "serious damage" (to crops, livestock, forests, fisheries, water and other forms of property) If "damage" is taken to mean prejudice sustained by a person as a result of damage caused to those items of property that are listed in Article 9 paragraph 1, second sub-paragraph, and it seems legitimate to do so, then the adjective "serious" must be evaluated in terms of the intensity and duration of the prejudicial action, the direct or indirect links between that action and the results, and the scale of the destruction or deterioration committed. "Serious" does not, of course, necessarily mean that the damage was widespread: in some cases the item of property effected may cover only a limited geographical areas (for example, a region), or even a particular farm or group of farms. However, in the latter case, the exceptions must be proportional: the fact that an isolated farm sustains damage would not justify the capture or killing of a species over a very wide area, unless there is evidence that the damage could extend to other areas."
- The Claimant submits that section 21 must be interpreted in the light of the treaty obligations of the United Kingdom under the Bern Convention. It submits that both the test of whether it is necessary in order to eliminate or substantially reduce the incidence of disease and the discretion conferred by section 21(2) give rise to an ambiguity which must be resolved in conformity of the treaty.
- The United Kingdom signed the Bern Convention on 19th September 1979, before the Animal Health Act 1981 was enacted, and ratified the Convention on 28th May 1982, after it was enacted. However, the Bern Convention is not implemented into domestic law within the United Kingdom by the 1981 Act. That Act is expressed to be an Act to consolidate the Diseases of Animals Act 1935, the Diseases of Animals Act 1950, the Ponies Act 1969, the Rabies Act 1974, the Diseases of Animals Act 1975 and certain related enactments. Section 21 re-enacts in substantially similar terms section 9, Agriculture (Miscellaneous Provisions) Act 1976, which in section 9(2)(b) employs the test 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 or poultry of any kind in the area". This is not, therefore, a situation where a statutory provision has been enacted in order to give effect of the United Kingdom's obligations under a treaty. No doubt Parliament in enacting the 1981 Act will have had regard to the terms of the Bern Convention. However the Bern Convention has not been implemented into domestic law and so cannot, of itself, give rise to any rights or duties in domestic law (J H Rayner (Mincing Lane) Limited v Department of Trade and Industry  2 AC 418).
- However, Mr. Wolfe goes on to invoke the general principle that legislation should be interpreted, where possible, in conformity with the obligations of the United Kingdom in international law. He submits that that principle extends to interpretation in conformity with obligations arising under treaties which have not been implemented into domestic law. In this regard he relies on R v Secretary of State for the Home Department ex parte Brind  1 AC 696 where the House of Lords accepted that, despite the fact that the European Convention on Human Rights had not, at that time, been implemented into domestic law, resort might be made to the presumption that Parliament had intended to legislate in conformity with it in order to resolve ambiguity or uncertainty in a statutory provision. In the Court of Appeal in that case, Lord Donaldson M.R. expressed the principle in the following way:
"It follows from this that in most cases the English courts will be wholly unconcerned with the terms of the Convention. The sole exception is when the terms of primary legislation are fairly capable of bearing two or more meanings and the court, in pursuance of its duty to apply domestic law, is concerned to divine and define its true and only meaning. In that situation various prima facie rules of construction have to be applied, such as that, in the absence of very clear words indicating the contrary, legislation is not retrospective or penal in effect. To these can be added, in appropriate cases, a presumption that Parliament has legislated in a manner consistent, rather than inconsistent, with the United Kingdom's treaty obligations." (at p 718.)
- Similarly, in Morgan v Hinton Organics (Wessex) Limited  EWCA Civ 107 Carnwath L.J. delivering the judgment of the Court of Appeal observed with regard to the Aarhus Convention:
"For the purposes of domestic law, the Convention has the status of an international treaty, not directly incorporated. Thus its provisions cannot be directly applied by domestic courts, but may be taken into account in resolving ambiguities in legislation intended to give it effect…" (at para 22).
- Contrary to the submission of Mr. Corner on behalf of the Defendants, I do not consider that this principle of interpretation is limited to situations in which the legislation under consideration is intended to implement a treaty into domestic law. Nevertheless, this principle does have certain limitations.
- In the present case, I am unable to see that this is a case where an ambiguity in legislation justifies resort to the text of a non-implemented treaty. First, I do not consider that there is any ambiguity here. Secondly, it seems to me that the Claimant's argument goes far beyond resolving an ambiguity. Rather it seeks to import further obligations with the effect of restricting a general discretion granted by Parliament. To my mind, the Claimant's submission in the present case is precisely the submission that was rejected by Lord Bridge in Brind at p747-8.
"It is accepted, of course, by the applicants that, like any other treaty obligations which have not been embodied in the law by statute, the Convention is not part of the domestic law, that the courts accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it. But it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it. Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes. I confess that I found considerable persuasive force in this submission. But in the end I have been convinced that the logic of it is flawed. When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity. It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity of the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it. If such a presumption is to apply to the statutory discretion exercised by the Secretary of State under section 29(3) of the Act 1981 in the instant case, it must also apply to any other statutory discretion exercised by the executive which is capable of involving an infringement of Convention rights. When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislation function."
- Accordingly, if matters had stopped there, the fact that the Minister may have failed to take account of a treaty provision not sounding in domestic law could not have been challenged before this court on the basis of inconsistency with the treaty provision. However, a further dimension is added to this case by the fact that the Minister has claimed to be acting in a manner consistent with the Bern Convention. The Defendants' Summary Grounds state at paragraph 31:
"In any event, the Welsh Ministers did take the Bern Convention into account when deciding to make the Order, concluding that the Order would not give rise to a breach of the Bern Convention."
In these circumstances, Mr. Wolfe contends that it is open to this court to review the correctness of the Minister's self-direction. He submits that this court should interpret the relevant provisions of the Bern Convention, should conclude that the Minister's interpretation was incorrect and should quash the Minister's decision on this basis.
- There are, undoubtedly, circumstances in which the courts will decide questions as to the extent of the obligations of the United Kingdom or, indeed, other States under treaties which have not been implemented into domestic law. (See, for example, J H Rayner (Mincing Lane) Limited v Department of Trade and Industry  2 AC 418 per Lord Oliver at pp. 500-501; Occidental Exploration and Production Company v. The Republic of Ecuador  EWCA Civ 1116.) However, to my mind the present situation is directly comparable with that which arose in R. (on the application of Corner House Research) v Director of the Serious Fraud Office  UKHL 60. There the Director had claimed to be acting in accordance with Article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997, an unincorporated treaty provision. However, Lord Bingham considered each step of the Claimants' submission in that case, which exactly paralleled those of the Claimant in the present case, to be problematical.
- R. v Secretary of State for the Home Department ex parte Launder  1 WLR 839, 866-7 and R. v Director of Public Prosecutions ex parte Kebilene  2 AC 326 both concerned decision-makers claiming to act consistently with the European Convention on Human Rights at a time when it had not been given effect in domestic law. In those cases the courts accepted the propriety of reviewing the compatibility with the Convention of the decision in question. However, it is clear that an unrestricted application of this approach could undermine the fundamental constitutional principle, enunciated by Lord Oliver in Rayner that, without the intervention of Parliament, unincorporated treaties cannot confer rights upon individuals or deprive individuals of rights which they enjoy in domestic law. The difficulty is expressed by Sales and Clement in their article, "International Law in Domestic Courts: The Developing Framework"  LQR 388 in terms approved by Lord Brown in Corner House.
"Part of the problem here is that the executive may not have any practical option but to direct itself by reference to international law, and if the rule of law in Launder is treated as unlimited it will lead to very extensive direct application of treaties and international law in the domestic courts, thereby for practical purposes undermining the basic constitutional principle about the non-enforceability of unincorporated treaties. One solution might be for the domestic courts, in recognition of the limits of their competence to provide a fully authoritative ruling on the point, the limits of their competence and domestic constitutional arrangements to rule on the subject-matter in question and the dangers posed to the national interest by them ruling definitively on the point at all, either to decline to rule or to allow the executive a form of "margin of appreciation" on the legal question, and to examine only whether a tenable view has been adopted on the point of international law (rather than ruling on it themselves, as if it were a hard-edged point of domestic law).
This is the approach which has been adopted by the ECtHR, when it has to examine questions of international law which it does not have jurisdiction to determine authoritatively itself. Adoption of a "tenable view" approach would be a way - under circumstances where the proper interpretation of international law is uncertain, the domestic courts have no authority under international law to resolve the issue and the executive has responsibility within the domestic legal order for management of the United Kingdom's international affairs (including the adoption of positions to promote particular outcomes on doubtful points of international law) - to allow space to the executive to seek to press for legal interpretations on the international plain to favour the United Kingdom's national interests, while also providing a degree of judicial control to ensure that the positions adopted are not beyond what is reasonable." (at p. 406)
- In Corner House Lord Bingham observed that while in Launder and in Kebilene the courts accepted the propriety of reviewing the compatibility with the Convention of the decisions in question, there was in Launder no issue between the parties about the interpretation of the relevant articles of the Convention and in Kebilene there was a body of Convention jurisprudence on which the courts could draw in seeking to resolve the issue before them. Lord Bingham observed:
"Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable. It would moreover be unfortunate if decision-makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the UK by fear that their decision might be held to be vitiated by an incorrect understanding." (at paragraph 44.)
Lord Brown observed:
"It simply cannot be the law that, provided only a public officer asserts that his decision accords with the state's international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue." (at paragraph 67)
- A further reason why I feel some diffidence in embarking upon a unilateral interpretation of the Bern Convention is that the Convention itself provides a procedure for monitoring application of the Convention by the Standing Committee. Article 14(1) provides:
"The Standing Committee shall be responsible for following the application of this Convention. It may in particular:
• keep under review the provisions of this Convention, including its appendices and examine any modifications necessary;
• make recommendations to the Contracting Parties concerning measures to be taken for the purposes of this Convention;
• make any proposal for improving the effectiveness of this Convention, including proposals for the conclusion, with the States which are not Contracting Parties to the Convention, of agreements that would enhance the effective conservation of a species or groups of species."
This is not the formal procedure for the settlement of disputes under the Convention; that is provided by Article 18. Nevertheless, Article 14 provides a forum and a machinery for the discussion of differences. In this regard also, it appears to be directly comparable with the situation under the OECD Convention considered in Corner House. (See Lord Bingham at paragraph 45).
- I appreciate that the Claimant's submission in this regard rests upon a resolution of the Standing Committee. However, without expressing any concluded view on the point, it seems to me that paragraph 16 of Resolution No. 2 is a very slender basis on which to rest the obligation for which the Claimant contends. The Claimant contends for a general obligation to balance the benefit which culling might secure against the destruction of badgers which would occur and to consider whether the former justified and was proportionate to the latter. Nothing in the text of the Convention itself supports the existence of such an obligation.
- Paragraph 16 does make reference to an evaluation which takes account of the links between the prejudicial action and the results. However, it is simply concerned, at this point, with the question whether the damage which the measure is intended to prevent is serious. It is solely in that regard that it requires an evaluation in terms of the intensity and duration of the prejudicial action, the direct or indirect links between that action and the results, and the scale of the destruction or deterioration committed. Moreover, it is, to my mind, highly significant that the text of the Convention itself does not contain any statement of the more general obligation for which the Claimant contends. If it had been the intention to impose a general obligation to balance the harm caused by the remedial action against the benefits in each case, I should have expected an express provision to that effect in the Convention. Rather, Article 9 simply requires that there be no other satisfactory solution and that the exception would not be detrimental to the survival of the population concerned. Finally, in this regard, I have not been shown any evidence that any of the Contracting States to the Bern Convention have advocated or accepted a general obligation such as that contended for by the Claimant.
- Having regard to all these matters, I consider that it is not necessary for me to express a concluded view as to the meaning of Article 9, beyond that it is, at the very least, clearly a tenable view that it does not impose on Contracting States the general obligation for which the Claimant contends. In those circumstances I do not consider that the decision of the Minister is vitiated by the stated view of the Minister as to the extent of obligations arising under the Convention.
- Finally, I should record that there has been no challenge to the Minister's evaluation of the seriousness of the damage caused by bovine tuberculosis in Wales. On the contrary, the Claimant "fully accepts that bovine tuberculosis is a significant problem in Wales". It is difficult to see how this could be regarded as failing to meet the test of serious damage to livestock under Article 9 of the Bern Convention. The Claimant has not taken issue with the account given by the Defendant as to the extent and severity of bovine tuberculosis in Wales or with the Minister's statement of its economic consequences. Similarly, the Claimant has not sought to challenge the tuberculosis eradication policy announced by the Minister on 8th April 2008. In this regard I note that the advice to the Minister contained in the Submission proceeded on the express basis that
"Failure to address the reservoir of bovine TB in badgers in Wales would leave a potentially significant source of infection for transmission to cattle, and would impact on the efficiency of certain cattle control measures, e.g. whole herd slaughter, and the ability to eradicate the disease.
The increasing impact of bovine TB for the farming industry and the rising compensation costs for the Welsh Assembly Government are both unacceptable and unsustainable. As such the option to do nothing with the reservoir of infection in badgers has been discounted." (at Section 6.2. See also Section 9.2.3 quoted above at paragraph 35.)
It was against this background that the various options for control of badgers were considered and evaluated. Accordingly, I consider that there has been a proper evaluation of the seriousness of damage to livestock caused by bovine tuberculosis.
- For these reasons I consider that Ground 4 also fails.
- For the reasons set out above I grant permission to apply for judicial review but refuse judicial review.
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