Friday, July 02, 2010
Badger cull court case
Pembrokeshire against the cull have circulated a report of Wednesday's appeal hearing in which the Badger Trust are seeking to have the action ruled unlawful. I have reproduced it below but two points stand out for me.
Firstly, that the judges identified that the consultation on the order may be flawed as the Welsh Government only sought views on culling badgers in North Pembrokeshire for a trial period whereas the order is for the whole of Wales and enables them to clear the country of badgers indefinitely. There is now an application to make this the third reason for overturning the decision.
Secondly, the judges' asked the basic questions of, ‘are you ready to start culling?’, ‘what is your start date?’, ‘do you have a map of the cull area? Counsel for the Welsh Government were not able to answer any of these queries. In fact the government has consistently refused to put this information into the public domain on the grounds that it will compromise the security of their operation. It is instructive therefore that they are being told to provide it in open court.
This is the PAC report:
Yesterday's Appeal Hearing in Cardiff before Lord Justice Pill, Lady Justice Smith and Lord Justice Stanley was a fascinating affair - with some dramatic twists and turns. At the start of the day, there were two grounds of appeal by the Badger Trust to be considered. These were that the judge erred in law in holding:
1) That “substantially reduce” in section 21 (2) (b) of the Animal Health Act 1981 meant simply a reduction that was “more than merely minor or trivial”, and
2) That, once it arose, the discretion to make an order under section 21(2) could lawfully be exercised without considering the balance between the extent of the benefit in disease terms and the extent of the killing of wild animals required to achieve it.
However, it wasn’t long before astute questioning and reasoning by the judges raised a major anomaly that they suggested could give rise to an application by the Badger Trust for a third ground of appeal! They saw that the Welsh Assembly Government has passed an Order which applies to the whole of Wales and is unlimited in time whereas the consultation and decision to cull, and evidence provided in support of them, was based on an intensive action pilot area (IAPA) of approx 300 square kilometres. With such an Order in place there will be no requirement to justify or consult on any further decisions taken to kill badgers, whether in a target area or across Wales as a whole. The judges were refreshingly direct in their approach and language – one of them pointing out that in effect the Order (which is only secondary legislation) permits the extinction of the badger in Wales and is unlimited in time. If this is set as a precedent in law, it could lead to the extinction of badgers in the UK.
One of the difficulties in dealing with grounds 1 and 2 was that the information the Minister based her decision on sometimes referred to “an IAPA” and sometimes to all of Wales, and sometimes it was not clear which. For example, when the Order was drafted and passed was the expectation that there would be a 6 – 9% reduction in the rate of increase in bovine TB across Wales, or just within a defined pilot area?
So later in the day, David Wolfe, counsel for the Badger Trust, made an application for a third ground of appeal that “the Minister erred in law in making an Order for all of Wales having consulted on the basis of an IAPA and on the basis of evidence which at most supported culling in an IAPA”. Mr Corner, counsel for the Welsh Ministers, argued that this should not be allowed as it had not been a specific ground in the judicial review – but said if it were to be allowed, and he could see the judges were minded to do so, he would need more time to prepare evidence. He asked for an additional two weeks. The judges asked what further evidence there could be as surely they already had before them all the evidence relating to the preparation of the Order and the Minister’s decision to cull. They pointed out that the Welsh Assembly had asked for an expedited hearing because they had said they must start culling as soon as possible – and the court had adjusted its schedule to enable a swift ruling. There was then a pantomime-like exchange with the judges asking the most simple and basic of questions such as, ‘are you ready to start culling?’, ‘what is your start date?’, ‘do you have a map of the cull area?’ – counsel repeatedly turning round to whisper with Dr Glossop and then being unable to provide an answer! One judge in an attempt to get some information asked in the most direct, and graphic, way possible if they actually had their traps and ammunition ready.
There were no real surprises in the arguments around the meaning of the term “substantially reduce” – with the Welsh Assembly still contending that it should be taken to mean anything more than trivial or insignificant. The arguments about the need to conduct a balancing exercise between the harm to badgers and the benefit to cows (in this particular instance) were more revealing, and very pertinent in the light of the third ground of appeal. Is it enough to ‘take into account’ the fact that many, many badgers will be killed when deciding on this course of action, without conducting any actual balancing exercise which includes some quantification of the numbers of badgers to be killed or harmed and related disbenefits against the number of cows to be saved and related benefits? Counsel for the Welsh Assembly did not produce any evidence that such an exercise had been carried out, nor that the number of badgers potentially affected by the Order had been known and factored into their consideration. But without such a balancing exercise, and with the low threshold for the meaning of ‘substantially reduce’ that WAG wishes to be accepted, it could mean, as one judge pointed out, that just one cow was saved at a cost of exterminating hundreds of badgers.
We left the court at the end of the day with a clear timeline set out by the judges for receiving submissions on the third ground of appeal and for handing down their decision. The Welsh Assembly are required to provide a written submission by the end of next Monday 5 July, the Badger Trust then have two days to respond - and the judges will hand down their decision on the following Monday 12 July in Cardiff.
The lasting impression of the day – the Welsh Assembly are using a sledgehammer to crack a nut – and more and more people are questioning such heavy handed practice, and just where it could lead to in future. The more the Minister’s reasons for deciding to cull badgers are examined in these judicial proceedings, the more unconvincing and lacking any integrity they are revealed to be.
I have been sent the latest research on the long term effects of the cull by Dr Dan Forman, who is a member of the Conservation Ecology Research Team in Swansea University. He makes the point that the Welsh Government need to justify how they came to very different conclusions without the benefit of a full field trial experiment. He says that the Minister has verified that the Order in Wales is not an experiment:
All the most up to date peer reviewed models indicate poor cost for money, poor delivery of the aims and a failure to combat the disease in a meaningful and sustainable manner. Please can you submit all your models to peer reviewed journals so that the scientific community can reviewed the logic WAG has used This is the scientific process and as scientists yourselves and I would hope that you would all be accepting of the need for independent review and comment otherwise we (all scientists) might as well just make things up as we please.
The full research article can be read here. I have reproduced the abstract below:
Background: In the British Isles, control of cattle tuberculosis (TB) is hindered by persistent infection of wild badger (Meles meles) populations. A large-scale field trial—the Randomised Badger Culling Trial (RBCT)—previously showed that widespread badger culling produced modest reductions in cattle TB incidence during culling, which were offset by elevated TB risks for cattle on adjoining lands. Once culling was halted, beneficial effects inside culling areas increased, while detrimental effects on adjoining lands disappeared. However, a full assessment of the utility of badger culling requires information on the duration of culling effects.
Methodology/Principal Findings: We monitored cattle TB incidence in and around RBCT areas after culling ended. We found that benefits inside culled areas declined over time, and were no longer detectable by three years post-culling. On adjoining lands, a trend suggesting beneficial effects immediately after the end of culling was insignificant, and disappeared after 18 months post-culling. From completion of the first cull to the loss of detectable effects (an average five-year culling period plus 2.5 years post-culling), cattle TB incidence was 28.7% lower (95% confidence interval [CI] 20.7 to 35.8% lower)inside ten 100 km2 culled areas than inside ten matched no-culling areas, and comparable (11.7% higher, 95% CI: 13.0% lower to 43.4% higher, p = 0.39) on lands #2 km outside culled and no-culling areas. The financial costs of culling an idealized 150 km2 area would exceed the savings achieved through reduced cattle TB, by factors of 2 to 3.5.
Conclusions/Significance: Our findings show that the reductions in cattle TB incidence achieved by repeated badger culling were not sustained in the long term after culling ended and did not offset the financial costs of culling. These results, combined with evaluation of alternative culling methods, suggest that badger culling is unlikely to contribute effectively to the control of cattle TB in Britain.
Firstly, that the judges identified that the consultation on the order may be flawed as the Welsh Government only sought views on culling badgers in North Pembrokeshire for a trial period whereas the order is for the whole of Wales and enables them to clear the country of badgers indefinitely. There is now an application to make this the third reason for overturning the decision.
Secondly, the judges' asked the basic questions of, ‘are you ready to start culling?’, ‘what is your start date?’, ‘do you have a map of the cull area? Counsel for the Welsh Government were not able to answer any of these queries. In fact the government has consistently refused to put this information into the public domain on the grounds that it will compromise the security of their operation. It is instructive therefore that they are being told to provide it in open court.
This is the PAC report:
Yesterday's Appeal Hearing in Cardiff before Lord Justice Pill, Lady Justice Smith and Lord Justice Stanley was a fascinating affair - with some dramatic twists and turns. At the start of the day, there were two grounds of appeal by the Badger Trust to be considered. These were that the judge erred in law in holding:
1) That “substantially reduce” in section 21 (2) (b) of the Animal Health Act 1981 meant simply a reduction that was “more than merely minor or trivial”, and
2) That, once it arose, the discretion to make an order under section 21(2) could lawfully be exercised without considering the balance between the extent of the benefit in disease terms and the extent of the killing of wild animals required to achieve it.
However, it wasn’t long before astute questioning and reasoning by the judges raised a major anomaly that they suggested could give rise to an application by the Badger Trust for a third ground of appeal! They saw that the Welsh Assembly Government has passed an Order which applies to the whole of Wales and is unlimited in time whereas the consultation and decision to cull, and evidence provided in support of them, was based on an intensive action pilot area (IAPA) of approx 300 square kilometres. With such an Order in place there will be no requirement to justify or consult on any further decisions taken to kill badgers, whether in a target area or across Wales as a whole. The judges were refreshingly direct in their approach and language – one of them pointing out that in effect the Order (which is only secondary legislation) permits the extinction of the badger in Wales and is unlimited in time. If this is set as a precedent in law, it could lead to the extinction of badgers in the UK.
One of the difficulties in dealing with grounds 1 and 2 was that the information the Minister based her decision on sometimes referred to “an IAPA” and sometimes to all of Wales, and sometimes it was not clear which. For example, when the Order was drafted and passed was the expectation that there would be a 6 – 9% reduction in the rate of increase in bovine TB across Wales, or just within a defined pilot area?
So later in the day, David Wolfe, counsel for the Badger Trust, made an application for a third ground of appeal that “the Minister erred in law in making an Order for all of Wales having consulted on the basis of an IAPA and on the basis of evidence which at most supported culling in an IAPA”. Mr Corner, counsel for the Welsh Ministers, argued that this should not be allowed as it had not been a specific ground in the judicial review – but said if it were to be allowed, and he could see the judges were minded to do so, he would need more time to prepare evidence. He asked for an additional two weeks. The judges asked what further evidence there could be as surely they already had before them all the evidence relating to the preparation of the Order and the Minister’s decision to cull. They pointed out that the Welsh Assembly had asked for an expedited hearing because they had said they must start culling as soon as possible – and the court had adjusted its schedule to enable a swift ruling. There was then a pantomime-like exchange with the judges asking the most simple and basic of questions such as, ‘are you ready to start culling?’, ‘what is your start date?’, ‘do you have a map of the cull area?’ – counsel repeatedly turning round to whisper with Dr Glossop and then being unable to provide an answer! One judge in an attempt to get some information asked in the most direct, and graphic, way possible if they actually had their traps and ammunition ready.
There were no real surprises in the arguments around the meaning of the term “substantially reduce” – with the Welsh Assembly still contending that it should be taken to mean anything more than trivial or insignificant. The arguments about the need to conduct a balancing exercise between the harm to badgers and the benefit to cows (in this particular instance) were more revealing, and very pertinent in the light of the third ground of appeal. Is it enough to ‘take into account’ the fact that many, many badgers will be killed when deciding on this course of action, without conducting any actual balancing exercise which includes some quantification of the numbers of badgers to be killed or harmed and related disbenefits against the number of cows to be saved and related benefits? Counsel for the Welsh Assembly did not produce any evidence that such an exercise had been carried out, nor that the number of badgers potentially affected by the Order had been known and factored into their consideration. But without such a balancing exercise, and with the low threshold for the meaning of ‘substantially reduce’ that WAG wishes to be accepted, it could mean, as one judge pointed out, that just one cow was saved at a cost of exterminating hundreds of badgers.
We left the court at the end of the day with a clear timeline set out by the judges for receiving submissions on the third ground of appeal and for handing down their decision. The Welsh Assembly are required to provide a written submission by the end of next Monday 5 July, the Badger Trust then have two days to respond - and the judges will hand down their decision on the following Monday 12 July in Cardiff.
The lasting impression of the day – the Welsh Assembly are using a sledgehammer to crack a nut – and more and more people are questioning such heavy handed practice, and just where it could lead to in future. The more the Minister’s reasons for deciding to cull badgers are examined in these judicial proceedings, the more unconvincing and lacking any integrity they are revealed to be.
I have been sent the latest research on the long term effects of the cull by Dr Dan Forman, who is a member of the Conservation Ecology Research Team in Swansea University. He makes the point that the Welsh Government need to justify how they came to very different conclusions without the benefit of a full field trial experiment. He says that the Minister has verified that the Order in Wales is not an experiment:
All the most up to date peer reviewed models indicate poor cost for money, poor delivery of the aims and a failure to combat the disease in a meaningful and sustainable manner. Please can you submit all your models to peer reviewed journals so that the scientific community can reviewed the logic WAG has used This is the scientific process and as scientists yourselves and I would hope that you would all be accepting of the need for independent review and comment otherwise we (all scientists) might as well just make things up as we please.
The full research article can be read here. I have reproduced the abstract below:
Background: In the British Isles, control of cattle tuberculosis (TB) is hindered by persistent infection of wild badger (Meles meles) populations. A large-scale field trial—the Randomised Badger Culling Trial (RBCT)—previously showed that widespread badger culling produced modest reductions in cattle TB incidence during culling, which were offset by elevated TB risks for cattle on adjoining lands. Once culling was halted, beneficial effects inside culling areas increased, while detrimental effects on adjoining lands disappeared. However, a full assessment of the utility of badger culling requires information on the duration of culling effects.
Methodology/Principal Findings: We monitored cattle TB incidence in and around RBCT areas after culling ended. We found that benefits inside culled areas declined over time, and were no longer detectable by three years post-culling. On adjoining lands, a trend suggesting beneficial effects immediately after the end of culling was insignificant, and disappeared after 18 months post-culling. From completion of the first cull to the loss of detectable effects (an average five-year culling period plus 2.5 years post-culling), cattle TB incidence was 28.7% lower (95% confidence interval [CI] 20.7 to 35.8% lower)inside ten 100 km2 culled areas than inside ten matched no-culling areas, and comparable (11.7% higher, 95% CI: 13.0% lower to 43.4% higher, p = 0.39) on lands #2 km outside culled and no-culling areas. The financial costs of culling an idealized 150 km2 area would exceed the savings achieved through reduced cattle TB, by factors of 2 to 3.5.
Conclusions/Significance: Our findings show that the reductions in cattle TB incidence achieved by repeated badger culling were not sustained in the long term after culling ended and did not offset the financial costs of culling. These results, combined with evaluation of alternative culling methods, suggest that badger culling is unlikely to contribute effectively to the control of cattle TB in Britain.
Comments:
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Clearly the Welsh Assembly Government aren't going to back down on this now, it has become a matter of principle to them that they will not be dictated to by the Badger Trust or any other organisation or individuals who are against this cull.
But the question needs to be asked, once WAG has succeeded in getting rid of all Badgers in Wales, rebuilt Offa's Dyke, and put badger grids on every road into Wales to stop any English badger from coming into the country, what species will replace the badger in it's ecological niche?
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But the question needs to be asked, once WAG has succeeded in getting rid of all Badgers in Wales, rebuilt Offa's Dyke, and put badger grids on every road into Wales to stop any English badger from coming into the country, what species will replace the badger in it's ecological niche?
# posted by 
: 8:42 AM
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