LETTER TO NATURAL ENGLAND
Bindmans
LLP, the solicitors acting on behalf of Badger Trust, issued the following
letter to Natural England on 9th October 2013:
Dear
Sirs
Proposed
Claimant: Badger Trust
Proposed
Defendants: Natural England and Secretary of State for
DEFRA
DEFRA
We write further
to our correspondence prior to the cull, which was to
have been conducted under strict adherence to the licence conditions
authorised by Natural England and DEFRA’s guidance to Natural England
under section 15 Natural Environment and Rural Communities Act 2006.
Despite the undisputed fact that the shooters have failed to reach the
mandatory 70% targets within the permitted pilot timeframe, and the
widespread reports of animal cruelty and serious public safety concerns,
and the fact that it was necessary to resort to expensive cage-trapping
during the cull term, we now learn that the shooting companies are
proposing to apply to Natural England for an extension of the licence
period beyond the maximum 6 weeks permitted.
have been conducted under strict adherence to the licence conditions
authorised by Natural England and DEFRA’s guidance to Natural England
under section 15 Natural Environment and Rural Communities Act 2006.
Despite the undisputed fact that the shooters have failed to reach the
mandatory 70% targets within the permitted pilot timeframe, and the
widespread reports of animal cruelty and serious public safety concerns,
and the fact that it was necessary to resort to expensive cage-trapping
during the cull term, we now learn that the shooting companies are
proposing to apply to Natural England for an extension of the licence
period beyond the maximum 6 weeks permitted.
DEFRA’s
guidance to Natural England is quite clear in its terms:
“10. Applicants must satisfy Natural England that they are able to deliver an
effective cull in line with this policy and have arrangements in place to achieve
this. To deliver an effective cull, the following requirements must be met.
“10. Applicants must satisfy Natural England that they are able to deliver an
effective cull in line with this policy and have arrangements in place to achieve
this. To deliver an effective cull, the following requirements must be met.
a.
Culling must be co-ordinated on accessible land across the entire
control area.
b. Culling must be sustained, which means it must be carried out
annually (but not in closed seasons) for the duration of the licence
(minimum of 4 years). The killing/taking of badgers must be limited to
a six-week cull period specified in each licence. Culling will not be
permitted during the following closed seasons:
control area.
b. Culling must be sustained, which means it must be carried out
annually (but not in closed seasons) for the duration of the licence
(minimum of 4 years). The killing/taking of badgers must be limited to
a six-week cull period specified in each licence. Culling will not be
permitted during the following closed seasons:
i.
1 December to 31 May for cage-trapping and shooting badgers;
ii. 1 February to 31 May for controlled shooting; and
iii. 1 December to 30 April for cage-trapping and vaccination.
ii. 1 February to 31 May for controlled shooting; and
iii. 1 December to 30 April for cage-trapping and vaccination.
c.
Culling must remove a minimum number of badgers in each year as specified
below:
i. in the first year of culling, a minimum number of badgers must be removed during an intensive cull which must be carried out throughout the land to which there is access, over a period of not more than six consecutive weeks. This minimum number should be set at a level that in Natural England’s judgement should reduce the estimated badger population of the application area by at least 70%” [emphasis added]
Given the clear criteria in the guidance and the DEFRA December 2011 policy document, there is no legal power to extend the culling period in these circumstances.
Furthermore, even if this were not so, or if Natural England were asked to grant a new licence, it would be necessary to consult lawfully given the clear deviation from the fundamental terms of the published policy, which resulted from a consultation process. If there is serious consideration being given to an extension, please confirm in your reply that there will be proper consultation before doing so.
We set out below reasons why granting an extension, which deviates even further from the RBCT methodology, would be likely to result in the spread of disease, and not meet the licence conditions. We hope that reports of an extension have been exaggerated and that it will not be necessary to seek injunctive relief to prevent such a harmful course of action. We seek confirmation of your position on the matter.
i. in the first year of culling, a minimum number of badgers must be removed during an intensive cull which must be carried out throughout the land to which there is access, over a period of not more than six consecutive weeks. This minimum number should be set at a level that in Natural England’s judgement should reduce the estimated badger population of the application area by at least 70%” [emphasis added]
Given the clear criteria in the guidance and the DEFRA December 2011 policy document, there is no legal power to extend the culling period in these circumstances.
Furthermore, even if this were not so, or if Natural England were asked to grant a new licence, it would be necessary to consult lawfully given the clear deviation from the fundamental terms of the published policy, which resulted from a consultation process. If there is serious consideration being given to an extension, please confirm in your reply that there will be proper consultation before doing so.
We set out below reasons why granting an extension, which deviates even further from the RBCT methodology, would be likely to result in the spread of disease, and not meet the licence conditions. We hope that reports of an extension have been exaggerated and that it will not be necessary to seek injunctive relief to prevent such a harmful course of action. We seek confirmation of your position on the matter.
In
the RBCT, proactive culls were completed across entire areas in 8-11 nights. On
the four occasions when culls were conducted non-simultaneously and hence were
prolonged (lasting 33, 107, 150 and 207 days from start to finish), there was an
increase in the proportion of badgers infected, over and above the “background”
increase in badger TB prompted by culling. The associated odds ratio was 1.7
(95% CI 1.18-2.56) (Woodroffe et al. 2006)[1]. Subsequently, DEFRA sought other
explanations for this effect, but it remained evident despite the small sample
size.
On the basis of the published analyses Sir David King agreed with the ISG[2] thus:
“Sir David confirmed that conducting badger culls simultaneously over such an area would have to be an essential element of any culling programme that was deemed to have been undertaken competently” (ISG 2008)
On the basis of the published analyses Sir David King agreed with the ISG[2] thus:
“Sir David confirmed that conducting badger culls simultaneously over such an area would have to be an essential element of any culling programme that was deemed to have been undertaken competently” (ISG 2008)
And
Defra’ science advisory committee[3] said this:
“There is little useful data on the issue of what time period should be considered as “simultaneous”. The Group advised that if culling was carried out in a period of up to 6 weeks (although preferably less), that is likely to reduce the adverse effects of non-simultaneous culling; this advice is based on opinion and not on evidence. The longer the period that culling is carried out in, the less confident one can be that the deleterious effects seen with non-simultaneous culling as carried out in the RBCT will be minimized.” (Science Advisory Council/Bovine Tuberculosis Science Advisory Body Joint Group on Defra’s Bovine TB consultation 2010)
“There is little useful data on the issue of what time period should be considered as “simultaneous”. The Group advised that if culling was carried out in a period of up to 6 weeks (although preferably less), that is likely to reduce the adverse effects of non-simultaneous culling; this advice is based on opinion and not on evidence. The longer the period that culling is carried out in, the less confident one can be that the deleterious effects seen with non-simultaneous culling as carried out in the RBCT will be minimized.” (Science Advisory Council/Bovine Tuberculosis Science Advisory Body Joint Group on Defra’s Bovine TB consultation 2010)
To
grant any extension or licence fresh culling in these circumstances would
further undermine the purported purpose for which a licence under Protection of
Badgers Act 1992 was granted – prevention of the spread of disease.
We look forward to hearing from you by close of business on Monday.
We look forward to hearing from you by close of business on Monday.
Yours
faithfully
Bindmans LLP
Bindmans LLP
[1]
Woodroffe, R., Donnelly, C.A., Jenkins, H.E., Johnston, W.T., Cox, D.R., Bourne,
F.J., Cheeseman, C.L., Delahay, R.J., Clifton-Hadley, R.S., Gettinby, G., Gilks,
P., Hewinson, R.G., McInerney, J.P. & Morrison, W.I. (2006) Culling and
cattle controls influence tuberculosis risk for badgers. Proceedings of the
National Academy of Sciences of the United States of America, 103,
14713-14717.
[2] ISG (2008) Meeting between the Independent Scientific Group on Cattle TB and the Government Chief Scientific Adviser 13th December 2007. Defra.
[3] Science Advisory Council/Bovine Tuberculosis Science Advisory Body Joint Group on Defra’s Bovine TB consultation (2010) Advice based on the consultation questions.
[2] ISG (2008) Meeting between the Independent Scientific Group on Cattle TB and the Government Chief Scientific Adviser 13th December 2007. Defra.
[3] Science Advisory Council/Bovine Tuberculosis Science Advisory Body Joint Group on Defra’s Bovine TB consultation (2010) Advice based on the consultation questions.
Badger
Trust Contact:
Jack
Reedy 07751 731107
01564 783129
01564 783129
