QUEEN'S BENCH DIVISION
SWANSEA CIVIL JUSTICE CENTRE
Strand, London, WC2A 2LL
B e f o r e :
| R (Badger Trust)
|- and -
|The Welsh Ministers
Timothy Corner QC and Jonathan Moffett (instructed by the Welsh Assembly Government) for the Defendants
Hearing dates: 22nd and 23rd March 2010
Crown Copyright ©
The Honourable Mr. Justice Lloyd Jones :
"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.
"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.
(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.
(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.
(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.
"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 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).
"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."
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."
"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."
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.
(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.
"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)
"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).
Confirmed and unconfirmed herd breakdowns.
"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.
Reduction in incidence of tuberculosis.
"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.
"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.
An increasing rate.
"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.
The interpretation of section 21.
"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)
The application of section 21 in the present case.
(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 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.)
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.
"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."
"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.
"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."
"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.
"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.
"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.
"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."
"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)
"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."
(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.
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").
"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).
"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."
"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.)
"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).
"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."
"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.
"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)
"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)
"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).
"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.