19th October 2013
LETTER
BEFORE ACTION
Bindmans
LLP, the solicitors acting for Badger Trust, issued the following letter to
Natural England and the Treasury Solicitor for Secretary of State of DEFRA on
18th October 2013:
|
**CPR 54
PRE-ACTION PROTOCOL LETTER**
|
Dear Sirs
Proposed Claimant: Badger Trust
Proposed Defendants: Natural England and Secretary of State for
DEFRA
We write further to our pre-action correspondence on 11 October and your response of 17 October.
We understand that the Board of Natural England will shortly be considering an application to grant a licence to cull badgers for a further 8 weeks in Gloucestershire.
We ask them to consider this letter when they do so. It explains why we consider it would be unlawful to grant that further licence. On that basis we ask them not to do so.
Background
In overall terms, as explained below:
• The stated purpose of the culling was to test the effectiveness of the methods in question in reducing the badger population by 70% within 6 weeks maximum.
• That period was widely consulted upon and then robustly defended by DEFRA (including in the face of certain consultees arguing that longer should be allowed for reasons of practicability) on the basis of the expert opinion of the DEFRA Science Advisory Council and TB Science Advisory Board.
• DEFRA promised that the cull would be monitored by the independent expert group. The group was to evaluate and report on the outcome of its testing, including of effectiveness in reducing the badger population by 70% within 6 weeks.
That was
explained in many places over a long period by DEFRA and its CVO, Mr Gibbens
including as follows.
DEFRA’s policy announcement of December 2011 had explained in clear terms (in its paragraph 5.4) what was to happen:
“… culling will be piloted in two areas, to test our assumptions about the effectiveness, humaneness and safety of controlled shooting, overseen by an independent panel of experts. If monitoring of the humaneness, effectiveness and safety indicates that controlled shooting is an acceptable culling technique, then and only then would this policy be rolled out more widely.”
As for what was meant by “effectiveness”, its paragraph 5.30 explained that:
“Culling would also need to be carried out simultaneously across the entire area, so that culling takes place on all participating land within a maximum period of six weeks.”
See also paragraph 5.34:
“In the first year of culling, a minimum number of badgers must be removed through 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.”
That approach was specifically defended and relied on in the Secretary of State’s defence before Ouseley J and the Court of Appeal of our client’s challenge to the legality of what was to happen.
See thus paragraph 35(b) of the Secretary of State’s Detailed Grounds of Resistance:
“Culling will be allowed to take place over a maximum of 6 weeks, rather than over 8-11 nights as in the RBCT.”
See also paragraphs 38-39:
“In terms of the duration of the cull and the fact that it will be allowed to take place for a maximum of 6 weeks rather than over 8-11 nights (as in the RBCT), the Secretary of State has had to take into account the practical considerations in the light of the available scientific evidence. In designing the policy it was not practical or realistic to deliver culling simultaneously (i.e. over a few days) across such a large area (150 km2). As explained by the Chief Veterinary Officer, this issue was considered by DEFRA’s Science Advisory Council and bTB Science Advisory Body … Consequently, the decision to allow culling over a maximum period of 6 weeks was taken in the light of advice from relevant scientific experts in the field.”
On behalf of DEFRA Mr Gibbens firmly explained the purpose of the pilot culls (8d in his second witness statement):
“In relation to ‘effectiveness’ specifically, the purpose is to confirm our assumption that controlled shooting will be an effective method to reduce the population of badgers by 70% within 6 weeks.” [bold added]
On February 2013, in a written Ministerial Statement to Parliament that the pilot badger culls were to proceed this year, the Secretary of State restated that as being the purpose of what was to happen:
“The policy is being piloted in two areas to test our assumptions about the effectiveness, humaneness and safety of controlled shooting.” [bold added]
That is still explained currently as the position on the DEFRA website, as follows:
“As a first step, there would be a pilot of the policy in two areas to confirm our assumptions about the effectiveness (in terms of badger removal), humaneness and safety of culling.” [bold added]
The website also explains (as part of a public statement on 27 February 2013 confirming that the pilot culls would proceed in 2013, and again entirely consistently with what was set previously) that:
“The pilots are being carried out to test the chosen method of culling through free shooting. The pilots will be independently assessed to check the method is both effective in removing enough badgers and humane.” [bold added]
The December 2011 policy statement had promised the following (paragraph 5.42):
“The design and evaluation of the pilots will be overseen by a panel of independent experts, whose role will include overseeing the design of the data collection, its analysis and interpretation. A decision on further roll-out of a policy that allows controlled shooting will be made following evaluation of results from the six weeks of culling.”
Then at paragraph 6.1:
“As noted at paragraph 5.3 above, controlled shooting will be piloted in two areas initially in the first year in order to test our assumptions about the humaneness, effectiveness and safety of this control method. Culling will be closely monitored in these two areas. The monitoring will be overseen by a panel of independent experts, who will advise on the appropriate methods for monitoring effectiveness and humaneness.”
DEFRA’s response to our client’s judicial review challenge promised this (paragraph 40b):
“The effectiveness and humaneness of controlled shooting will be monitored during the pilots and thus monitoring will be overseen by a panel of independent experts.” [40b]
Mr Gibbens (writing jointly with DEFRA’s Chief Scientific Officer) made the same point in a public statement on 11 December 2012:
“[The pilot culls] will be overseen and evaluated by an independent panel of experts who will report their findings to ministers.”
As for the 6 week upper limit mentioned above, Mr Gibbens had previously explained (41 in his first witness statement) that “culling will be allowed to be carried out over a maximum of six weeks”.
The six weeks was, itself, controversial. Our clients and others had argued that a cull taking that long (and so much longer than in the RBCT) could not lead even to the impacts claimed by the RBCT (the conclusions of which were relied on by DEFRA as showing the bTB control benefits of culling.
Mr Gibbens rejected that contention (8c in his second witness statement), not by reference to his own expertise or judgment, but in sole reliance on the conclusions of the experts who had advised DEFRA (as in his NG5) – the joint Science Advisory Council/BTB Science Advisory Board.
The Secretary of State’s skeleton argument also relied solely on those experts on the point. See thus paragraph 28b which explained the ‘minimum criteria’ for the cull, including thus the 6 week limit, which was specifically said to be “based on the advice of the combined DEFRA SAC and SAB” and explained that “The definition of ‘up to six weeks’ is the expert opinion of DEFRA’s SAC and SAB.”
Natural England also relied on those expert groups in supporting the 6 week limit in its own response to the consultation which proceeded adoption of the policy.
Notably, according to DEFRA’s own Summary of Responses to the consultation on the Guidance to be given to Natural England, some respondents argued at the time for a longer period precisely because of concerns about the practicability of completing the task within 6 weeks (i.e. the very thing which has now come to pass). DEFRA robustly rejected that (and other suggestions to change the proposed criteria):
“We do not propose to change fundamentally the licence criteria, as they are criteria which the evidence suggests are necessary to realise the overall reduction in TB in cattle in culled areas achieved in the RBCT. The rationale for each of the criteria is explained in the [December 2011] Policy Statement.”
In other words: what has happened now was foreseeable, and foreseen, and did not change DEFRA’s view that a 6 week limit should be set.
What has happened now
We understand that the licence issued under section 10(2)(a) Protection of Badgers Act 1992 to allow for the culling of badgers over the 6 week pilot period in Gloucestershire expired on 15 October 2013.
We understand from DEFRA’s news announcements yesterday that only 30% of the relevant badger population has been killed within the 6 week period in that area - well short of the 70% minimum target which had been identified as “effective”.
The cull has thus met its purpose in testing the “effectiveness” (in DEFRA’s terms) of culling. It has shown it not to be effective.
However, as far as our clients are aware, the independent expert group which was to monitor the cull and evaluate and report on its outcome has done neither of those things.
Instead, we understand that Natural England is now considering an application to grant a fresh licence (it would not be an extension given that the previous licence has run out) to allow for another 8 weeks of culling in Gloucestershire.
At 17.21 yesterday Natural England sent us:
(1) a copy of advice dated 3 October 2013 from Mr Gibbens supportive of extending the parallel cull in Somerset (after it had achieved a higher rate of killing than in Gloucestershire, but still only 58%).
(2) a copy of a letter from the Secretary of State of 10 October 2013 to Natural England which seems intended to supplement the Statutory Guidance (which itself had been the subject of public consultation even following the original consultation which underpinned the culling policy itself) previously given to Natural England in which 6 weeks had been specified as the limit for the culling pilot.
We consider that the decision to extend the cull in Somerset was unlawful, particularly in the light of those documents. But given that we have only just seen them and given the relatively shorter extension there, we have advised our clients that it would not now be practicable (given the court process) to seek injunctive relief to prevent it.
But that is not the case in relation to the contemplated decision in relation to Gloucestershire not least because of the much longer extension (8 weeks) being sought (and not yet granted) and the fact that our clients have now seen the nature of the arguments being relied on to justify further culling.
In particular, we assume for this purpose that Mr Gibbens has given similar advice in relation to the Gloucestershire proposal; and that the Secretary of State has written a similar letter. We wrote to you to request these earlier today, and look forward to receiving them with your reply.
We note in that regard that neither document even addresses the actual purpose of the pilot at all: namely to test (so far as is relevant here) the effectiveness of culling (as explained) in reducing the badger population by 70% in 6 weeks. That purpose has now been met, as above, by culling being demonstrated not to be effective in that regard.
Moreover, neither document acknowledges the fact that our clients, the affected communities, and others were repeatedly promised (as above) that the cull would last no more than 6 weeks; and that its effectiveness (on that basis) would then be evaluated at that point by the independent expert group.
Neither document refers to the views of the TBSAB and SAC. We infer that neither was consulted or provided expert input into decision on the new culling period.
Importantly, Mr Gibbens identifies no new material or change of circumstance which could justify the dramatic change of stance which he advocates.
In particular, the only factual change from the position when the policy and guidance was being developed (or when the licence was granted) is the reduced badger number estimate. But that is not the issue here.
On the other hand, the possibility that it might prove practical to cull 70% of the badgers in 6 weeks (i.e. the situation now faced) was precisely contemplated and considered by DEFRA as above. In particular, it was raised by consultees (who presumably argued for a longer period or more flexibility) and – reliant on its expert advice – DEFRA nonetheless stuck with, and robustly defended, the 6 week limit. In particular, it did not then suggest that it might be necessary or appropriate to press on if the 70% target was not reached in the 6 weeks (as has happened now). Nothing has been identified to change that approach, but Mr Gibbens nonetheless appears to have changed his advice about how to respond to that entirely foreseeable and foreseen circumstance.
We note that the letter mentions a provision in the agreement entered into (pursuant to the Guidance) by Natural England and the company carrying out the culling which allowed a mechanism for them to agree extensions to the culling period. But that provision was plainly inconsistent with the Guidance and with the DEFRA’s own policy as above. In any event the fact that a contractual mechanism was put in place does not lend any weight to an argument that it should be deployed, let alone in these circumstances.
Overall, therefore, Natural England is being asked to exercise its power to grant a further 8 week licence:
(1) in breach of what had repeatedly been said by DEFRA (and tested by DEFRA through wide consultation) to be a maximum or upper limit – 6 weeks - set on the basis of the best scientific opinion;
(2) without the cull having been monitored or evaluated at the end of the 6 week period by the independent expert group, as had been promised. It is plainly necessary – at the very least - to take into account their views on the proposed extension before considering permitting any further culling.
(3) without any relevant change of circumstance or situation which was not entirely foreseeable, and foreseen by DEFRA in previously rejecting consultee suggestions that practicality considerations might require a longer than 6 week cull;
(4) on the basis of Mr Gibbens advice when he (and DEFRA more widely) had relied solely on the advice of the SAC and BTSAB in setting, and then defending against criticism, the 6 week limit; and
(5) without taking into account the views of those expert bodies on the proposal to have a further 8 week cull in violation of their previous advice. It is plainly necessary – at the very least - to take into account their views on the proposed extension before considering permitting any further culling.
In the light of those matters we consider it would be unlawful for Natural England to grant the new licence now being sought.
Information and Documents requested
Please provide us with the following key information pursuant to your client’s duty of candour. It is in any event information to which our clients are entitled under the Environment Information Regulations 2004.
1. Any dialogue with or consideration by the independent monitoring expert panel.
2. Any dialogue with or consideration by TBSAB and SAC.
3. Any dialogue with or consideration by the Board of Natural England or its Science Advisory Council.
4. Please confirm specifically if those listed were consulted and, if not, why not.
5. All CVO advice in relation to the cull and its extension.
6. Correspondence between DEFRA to Natural England in this regard.
7. Any updated costs impact assessment and confirmation of who will pay for the cost of additional culling, and associated policing.
We look forward to hearing from you in due course.
Yours faithfully
Bindmans LLP
CONTACT
Jack Reedy
01564 783129
0775 173 1107
DEFRA’s policy announcement of December 2011 had explained in clear terms (in its paragraph 5.4) what was to happen:
“… culling will be piloted in two areas, to test our assumptions about the effectiveness, humaneness and safety of controlled shooting, overseen by an independent panel of experts. If monitoring of the humaneness, effectiveness and safety indicates that controlled shooting is an acceptable culling technique, then and only then would this policy be rolled out more widely.”
As for what was meant by “effectiveness”, its paragraph 5.30 explained that:
“Culling would also need to be carried out simultaneously across the entire area, so that culling takes place on all participating land within a maximum period of six weeks.”
See also paragraph 5.34:
“In the first year of culling, a minimum number of badgers must be removed through 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.”
That approach was specifically defended and relied on in the Secretary of State’s defence before Ouseley J and the Court of Appeal of our client’s challenge to the legality of what was to happen.
See thus paragraph 35(b) of the Secretary of State’s Detailed Grounds of Resistance:
“Culling will be allowed to take place over a maximum of 6 weeks, rather than over 8-11 nights as in the RBCT.”
See also paragraphs 38-39:
“In terms of the duration of the cull and the fact that it will be allowed to take place for a maximum of 6 weeks rather than over 8-11 nights (as in the RBCT), the Secretary of State has had to take into account the practical considerations in the light of the available scientific evidence. In designing the policy it was not practical or realistic to deliver culling simultaneously (i.e. over a few days) across such a large area (150 km2). As explained by the Chief Veterinary Officer, this issue was considered by DEFRA’s Science Advisory Council and bTB Science Advisory Body … Consequently, the decision to allow culling over a maximum period of 6 weeks was taken in the light of advice from relevant scientific experts in the field.”
On behalf of DEFRA Mr Gibbens firmly explained the purpose of the pilot culls (8d in his second witness statement):
“In relation to ‘effectiveness’ specifically, the purpose is to confirm our assumption that controlled shooting will be an effective method to reduce the population of badgers by 70% within 6 weeks.” [bold added]
On February 2013, in a written Ministerial Statement to Parliament that the pilot badger culls were to proceed this year, the Secretary of State restated that as being the purpose of what was to happen:
“The policy is being piloted in two areas to test our assumptions about the effectiveness, humaneness and safety of controlled shooting.” [bold added]
That is still explained currently as the position on the DEFRA website, as follows:
“As a first step, there would be a pilot of the policy in two areas to confirm our assumptions about the effectiveness (in terms of badger removal), humaneness and safety of culling.” [bold added]
The website also explains (as part of a public statement on 27 February 2013 confirming that the pilot culls would proceed in 2013, and again entirely consistently with what was set previously) that:
“The pilots are being carried out to test the chosen method of culling through free shooting. The pilots will be independently assessed to check the method is both effective in removing enough badgers and humane.” [bold added]
The December 2011 policy statement had promised the following (paragraph 5.42):
“The design and evaluation of the pilots will be overseen by a panel of independent experts, whose role will include overseeing the design of the data collection, its analysis and interpretation. A decision on further roll-out of a policy that allows controlled shooting will be made following evaluation of results from the six weeks of culling.”
Then at paragraph 6.1:
“As noted at paragraph 5.3 above, controlled shooting will be piloted in two areas initially in the first year in order to test our assumptions about the humaneness, effectiveness and safety of this control method. Culling will be closely monitored in these two areas. The monitoring will be overseen by a panel of independent experts, who will advise on the appropriate methods for monitoring effectiveness and humaneness.”
DEFRA’s response to our client’s judicial review challenge promised this (paragraph 40b):
“The effectiveness and humaneness of controlled shooting will be monitored during the pilots and thus monitoring will be overseen by a panel of independent experts.” [40b]
Mr Gibbens (writing jointly with DEFRA’s Chief Scientific Officer) made the same point in a public statement on 11 December 2012:
“[The pilot culls] will be overseen and evaluated by an independent panel of experts who will report their findings to ministers.”
As for the 6 week upper limit mentioned above, Mr Gibbens had previously explained (41 in his first witness statement) that “culling will be allowed to be carried out over a maximum of six weeks”.
The six weeks was, itself, controversial. Our clients and others had argued that a cull taking that long (and so much longer than in the RBCT) could not lead even to the impacts claimed by the RBCT (the conclusions of which were relied on by DEFRA as showing the bTB control benefits of culling.
Mr Gibbens rejected that contention (8c in his second witness statement), not by reference to his own expertise or judgment, but in sole reliance on the conclusions of the experts who had advised DEFRA (as in his NG5) – the joint Science Advisory Council/BTB Science Advisory Board.
The Secretary of State’s skeleton argument also relied solely on those experts on the point. See thus paragraph 28b which explained the ‘minimum criteria’ for the cull, including thus the 6 week limit, which was specifically said to be “based on the advice of the combined DEFRA SAC and SAB” and explained that “The definition of ‘up to six weeks’ is the expert opinion of DEFRA’s SAC and SAB.”
Natural England also relied on those expert groups in supporting the 6 week limit in its own response to the consultation which proceeded adoption of the policy.
Notably, according to DEFRA’s own Summary of Responses to the consultation on the Guidance to be given to Natural England, some respondents argued at the time for a longer period precisely because of concerns about the practicability of completing the task within 6 weeks (i.e. the very thing which has now come to pass). DEFRA robustly rejected that (and other suggestions to change the proposed criteria):
“We do not propose to change fundamentally the licence criteria, as they are criteria which the evidence suggests are necessary to realise the overall reduction in TB in cattle in culled areas achieved in the RBCT. The rationale for each of the criteria is explained in the [December 2011] Policy Statement.”
In other words: what has happened now was foreseeable, and foreseen, and did not change DEFRA’s view that a 6 week limit should be set.
What has happened now
We understand that the licence issued under section 10(2)(a) Protection of Badgers Act 1992 to allow for the culling of badgers over the 6 week pilot period in Gloucestershire expired on 15 October 2013.
We understand from DEFRA’s news announcements yesterday that only 30% of the relevant badger population has been killed within the 6 week period in that area - well short of the 70% minimum target which had been identified as “effective”.
The cull has thus met its purpose in testing the “effectiveness” (in DEFRA’s terms) of culling. It has shown it not to be effective.
However, as far as our clients are aware, the independent expert group which was to monitor the cull and evaluate and report on its outcome has done neither of those things.
Instead, we understand that Natural England is now considering an application to grant a fresh licence (it would not be an extension given that the previous licence has run out) to allow for another 8 weeks of culling in Gloucestershire.
At 17.21 yesterday Natural England sent us:
(1) a copy of advice dated 3 October 2013 from Mr Gibbens supportive of extending the parallel cull in Somerset (after it had achieved a higher rate of killing than in Gloucestershire, but still only 58%).
(2) a copy of a letter from the Secretary of State of 10 October 2013 to Natural England which seems intended to supplement the Statutory Guidance (which itself had been the subject of public consultation even following the original consultation which underpinned the culling policy itself) previously given to Natural England in which 6 weeks had been specified as the limit for the culling pilot.
We consider that the decision to extend the cull in Somerset was unlawful, particularly in the light of those documents. But given that we have only just seen them and given the relatively shorter extension there, we have advised our clients that it would not now be practicable (given the court process) to seek injunctive relief to prevent it.
But that is not the case in relation to the contemplated decision in relation to Gloucestershire not least because of the much longer extension (8 weeks) being sought (and not yet granted) and the fact that our clients have now seen the nature of the arguments being relied on to justify further culling.
In particular, we assume for this purpose that Mr Gibbens has given similar advice in relation to the Gloucestershire proposal; and that the Secretary of State has written a similar letter. We wrote to you to request these earlier today, and look forward to receiving them with your reply.
We note in that regard that neither document even addresses the actual purpose of the pilot at all: namely to test (so far as is relevant here) the effectiveness of culling (as explained) in reducing the badger population by 70% in 6 weeks. That purpose has now been met, as above, by culling being demonstrated not to be effective in that regard.
Moreover, neither document acknowledges the fact that our clients, the affected communities, and others were repeatedly promised (as above) that the cull would last no more than 6 weeks; and that its effectiveness (on that basis) would then be evaluated at that point by the independent expert group.
Neither document refers to the views of the TBSAB and SAC. We infer that neither was consulted or provided expert input into decision on the new culling period.
Importantly, Mr Gibbens identifies no new material or change of circumstance which could justify the dramatic change of stance which he advocates.
In particular, the only factual change from the position when the policy and guidance was being developed (or when the licence was granted) is the reduced badger number estimate. But that is not the issue here.
On the other hand, the possibility that it might prove practical to cull 70% of the badgers in 6 weeks (i.e. the situation now faced) was precisely contemplated and considered by DEFRA as above. In particular, it was raised by consultees (who presumably argued for a longer period or more flexibility) and – reliant on its expert advice – DEFRA nonetheless stuck with, and robustly defended, the 6 week limit. In particular, it did not then suggest that it might be necessary or appropriate to press on if the 70% target was not reached in the 6 weeks (as has happened now). Nothing has been identified to change that approach, but Mr Gibbens nonetheless appears to have changed his advice about how to respond to that entirely foreseeable and foreseen circumstance.
We note that the letter mentions a provision in the agreement entered into (pursuant to the Guidance) by Natural England and the company carrying out the culling which allowed a mechanism for them to agree extensions to the culling period. But that provision was plainly inconsistent with the Guidance and with the DEFRA’s own policy as above. In any event the fact that a contractual mechanism was put in place does not lend any weight to an argument that it should be deployed, let alone in these circumstances.
Overall, therefore, Natural England is being asked to exercise its power to grant a further 8 week licence:
(1) in breach of what had repeatedly been said by DEFRA (and tested by DEFRA through wide consultation) to be a maximum or upper limit – 6 weeks - set on the basis of the best scientific opinion;
(2) without the cull having been monitored or evaluated at the end of the 6 week period by the independent expert group, as had been promised. It is plainly necessary – at the very least - to take into account their views on the proposed extension before considering permitting any further culling.
(3) without any relevant change of circumstance or situation which was not entirely foreseeable, and foreseen by DEFRA in previously rejecting consultee suggestions that practicality considerations might require a longer than 6 week cull;
(4) on the basis of Mr Gibbens advice when he (and DEFRA more widely) had relied solely on the advice of the SAC and BTSAB in setting, and then defending against criticism, the 6 week limit; and
(5) without taking into account the views of those expert bodies on the proposal to have a further 8 week cull in violation of their previous advice. It is plainly necessary – at the very least - to take into account their views on the proposed extension before considering permitting any further culling.
In the light of those matters we consider it would be unlawful for Natural England to grant the new licence now being sought.
Information and Documents requested
Please provide us with the following key information pursuant to your client’s duty of candour. It is in any event information to which our clients are entitled under the Environment Information Regulations 2004.
1. Any dialogue with or consideration by the independent monitoring expert panel.
2. Any dialogue with or consideration by TBSAB and SAC.
3. Any dialogue with or consideration by the Board of Natural England or its Science Advisory Council.
4. Please confirm specifically if those listed were consulted and, if not, why not.
5. All CVO advice in relation to the cull and its extension.
6. Correspondence between DEFRA to Natural England in this regard.
7. Any updated costs impact assessment and confirmation of who will pay for the cost of additional culling, and associated policing.
We look forward to hearing from you in due course.
Yours faithfully
Bindmans LLP
CONTACT
Jack Reedy
01564 783129
0775 173 1107
