Non-selective badger-culling through ‘controlled shooting’. Consultation declared unlawful

This is Blog No 46

The never-ending saga of badger-culling has seen many twists and turns in recent years. Now

In a judgment handed down this week, Mr Justice Scoffield comprehensively analysed the consultation that led to a Ministerial decision in March 2022 to proceed with the cull, despite sustained criticism from key stakeholders who felt that the consultation had denied them the opportunity to develop their arguments and respond to the proposal.

Campaigners, Northern Ireland Badger Group and Wild Justice, argued that the Department for Agriculture, Environment and Rural Affairs (DAERA) had withheld the all-important business case, and thereby “made it impossible for consultees to scrutinise the financial arguments or make an informed independent judgement of its merits.”

In reality, there were far more than financial issues at stake. Scientists, farmers, environmentalists and conservationists have been at loggerheads over this for years. Bovine Tuberculosis is a disease suffered by cattle herds, but infected badgers are thought to be a significant contributory factor in its prevalence and spread. Except that this is contested, and the scientific community seems divided on the role played by badgers. Some stakeholders believe that the way to control the disease is solely through vaccination; others favour a mixture of vaccination and culling. Even among those who advocate a badger cull, there are those who accept ‘controlled shooting’, whereas others favour more humane methods.

No wonder therefore that there was considerable interest in the options, and curiosity as to how DAERA came to select ‘Option 8’ from a long list of potential options. The consultation document explained it thus:

“Having taken into account strategic fit, costs and benefits, including sensitivity analyses on such; other non-monetary issues; and risks; the preferred option was identified as: Option 8…”

In a clear and lucid exposition, the Judge captured effectively the problem caused by the Department’s lack of transparency.

“What does this mean?’ one might ask.  What is “strategic fit”?  How was it assessed?  What were the benefits of this option which were identified over others?  What other “non-monetary issues” were considered important or influential in selecting the preferred option?  What risks were, and were not, identified; and how were they assessed?  The thrust of the applicants’ case, with which I have considerable sympathy, is that this jargon-laden, conclusionary statement really provides no insight into why the Department preferred Option 8 and what factors it really considered important in reaching that view.” (at Paragraph 51)

The Department had used five non-monetary ‘criteria’, but this had not been disclosed to consultees. Neither was the weighting given to each one, prompting the Judge to speculate that, had they known, it is quite possible that environmental campaigners might have had views to express had they discovered that 30% of the scores had been awarded to the interests of the farming community, but only 15% to the principle of engaging with wildlife stakeholders! Again, in the words of the Judge,

“…the Department may be entitled (for instance) to prioritise support from farmers over that of conservationists; but it must be frank about such prioritisation in order to allow consultees a fair opportunity to persuade it otherwise.” (at Paragraph 68)

This is not the first case about disclosing the scoring of options at the pre-consultation stage. In 2013, in the wake of attempts to rationalise children’s cardiac surgery in England, parents lobbying for the Leeds Infirmary successfully won the right to see the sub-scores awarded for different hospitals as part of options analysis.

The Northern Ireland badger cull case is, in many ways a straightforward application of the Gunning Two principle that consultors must provide sufficient information as to enable consultees to apply ‘intelligent consideration’ to the proposals. Civil servants, unaccountably failed to realise that their refusal to disclose such case-critical information jeopardised the whole consultation.

There was also a separate Gunning Four challenge. The applicants argued that the Minister had not been adequately briefed on the proposed culling method, and that, having announced that ‘humaneness’ was an important consideration, officials failed to point out that with ‘controlled shooting’, up to 22.8% of badgers took longer than five minutes to die!

One theory is that officials tried to avoid confronting the Minister with the queasier aspects of the policy they recommended. But the law is quite clear. Decision-makers must demonstrate that they gave ‘conscientious consideration’ to consultee views. Judge Scoffield concluded that:

…the Minister ought to have been advised, but was not, of the evidential basis upon which a number of the consultation respondents contended that the Department’s preferred option represented an inhumane option which would give rise to unnecessary suffering (even accepting that it was appropriate for healthy badgers to be culled). (at paragraph 107)

For Government departments, public bodies and indeed consultor organisations of all kinds, this case provides a timely reminder that we live in an age where consultees have a well-established expectation that all the relevant information WILL be provided. Web-based publication options allow for different layers of detail, and it is not possible, as DAERA attempted on this occasion, to argue that providing too much would simply confuse stakeholders.

Few subjects may be as contentious as badger-culling. But, for those of us delivering training and guidance on consultation law, we have just been handed a very useful case study which perfectly illustrates the high standards of transparency that are now essential.