Badger culls aren’t just controversial, they’re unlawful

Last Updated on 23 November 2018 by Badger

Badger culls aren’t just controversial, they’re unlawful

Anna Dale

The government launched its badger control policy, claiming that it would be science-led, but, even so, the estimated benefit to bovine TB incidence in cattle was small. Importantly, it was also reliant on satisfying strict licensing criteria. A cull which delivered no benefit, or made the bTB situation worse, would not only be a waste of time and money (taxpayers’ and farmers’); it would also be unlawful because badgers are legally protected under the Protection of Badgers Act, 1992, which permits licensed culling only for the purpose of preventing the spread of disease. 

After two years of culling, the government weakened the criteria, following a public consultation. Consultation responses were not made public, but after obtaining and scrutinising them it was clear that the vast majority of respondents were against weakening the criteria. Furthermore, their views were strongly supported by evidence. In contrast, the government’s reasoning was unconvincing and based on assumptions. A number of respondents thought that the proposals were designed to make the killing of badgers cheaper and easier, that no disease benefits would be achieved (as data released three years later confirmed), and that the proposals’ implementation would lead to an extensive cull roll-out. 

The lack of justification for the government’s decision to weaken the criteria suggests that it had not taken due account of the consultation outcome, which has implications for the integrity of democratic processes. It also suggests that the government’s motivation to kill badgers is not for the purpose, as defined above, and that, consequently, the culls are illegal. New evidence strengthens the argument that the culls are unlawful because it shows that there has been no reduction in the prevalence of bTB infected herds in the two pilot cull areas of West Gloucestershire and West Somerset.

The government broke its own rules to facilitate large-scale killing of badgers

Five years ago, there were two cull areas. Three years ago there were three, and now there are 29 – plus two supplementary cull areas (where culling is being extended past four years) and a cull site in a Low Risk Area. That means that badgers are being killed in 32 different areas in England. More than 34,000 have already been killed[i] and by the end of this year another 42,000 could be gone[ii].

What happened between 2015 and now which led to such a rapid, extensive roll-out of this policy, which is deeply unpopular with the public, including many people in the cull zones who were resisting participation?

The government changed the rules, which means they broke the rules that had originally been made.

The rules were agreed by scientific experts and should not have been changed

The rules in question had been set in place by scientific experts. A modest reduction in the net increase of bovine TB in cattle could be achieved if badgers were killed, said the experts, but only if strict criteria were adhered to – and any reduction would be marginal: between 12.4 and 16 per cent over nine years[iii].

Therefore, failing to meet these criteria threatened to render culling non-beneficial in relation to bTB incidence. Furthermore, there was a significant risk that it would make the bTB situation worse.

The government had a duty to consult

The government was obliged to consult the public before making a decision on changing the rules.

Regarding governmental decision-making processes on matters that concern the environment the public has rights in respect of access to information, public participation, and justice. This is granted under the Aarhus Convention. On the subject of consultations, the Convention says that due account must be taken of the outcome of a consultation[iv].

Defra also has a ‘duty to consult’, under common law, because fairness dictates that parties with an interest in the decision must be consulted. The requirements for the duty to consult are known as the ‘Sedley requirements,’ one of which states that “the decision-maker gives conscientious consideration to the response to the consultation.”[v]

But did the government take due account? Did they consider conscientiously or did they ignore? Did they act democratically or undemocratically?

More than 90% said no to licensing changes

On 28 August 2015, Defra launched its public consultation[vi], asking for comments on its proposals to make changes to badger cull licensing criteria.

Its three proposals were:

  1. Changing the duration of the culling period by removing the six-week limit and allowing Natural England to exercise its discretion on the duration of culling.
  2. Reducing the minimum size of a cull area from 150km² to 100km².
  3. Removing the 70% land access requirement, retaining only a requirement that “approximately 90%” of land in the cull area should be accessible or within 200m of accessible land (replacing “at least 90%”).

The public’s answer was a resounding ‘no’. Of the responses, which directly answered the questions and expressed either broad opposition or support, 92% were against proposal 1 and 94% were against proposals 2 and 3.

When no means yes

Defra had led respondents to believe that their views would count, promising in the consultation document that:

“Every response will be read and considered by the policy team in Defra in taking forward our work on the policy” and, importantly, that “Any decision by the Secretary of State to implement these proposals will be informed by the experiences of a third year of badger control in Somerset and Gloucestershire and the first year of badger control in Dorset, as well as responses to this consultation.”[vii]

However, the then secretary of state, Liz Truss, ignored the level of objection and implemented the changes.

Truss did exactly what she was told

Ten weeks after the consultation closed (it closed on 25 September), Liz Truss was provided with two documents, the Summary of Responses[viii] and the revised Guidance to Natural England [ix], along with – as Defra described it – “advice” from “officials”[x].

The “advice”, Summary of Responses and revised Guidance to Natural England were sent to Truss at 5.59pm on 3 December 2015. They were sent in an email from an unidentified policy official to the private secretaries of Liz Truss and George Eustice, the farming minister, and were cc’d to Lord Gardiner’s and Rory Stewart’s private secretaries, Clare Moriarty, and others.

The policy official described ‘the issue’ as:

“Your clearance of the documents to be published as part of the December TB ‘communications moment.’”[xi]

The “advice” turned out to be a brief statement more closely resembling a command:

“Recommendation: That you: Agree to implement the changes to the cull licence criteria consulted on this summer and publish the summary of consultation responses and updated licensing guidance to Natural England (NE) at Annexes B & C.”[xii]

The draft Summary of Responses said: “The responses received, as well as the experiences of a third year of badger control in Somerset and Gloucestershire and the first year of badger control in Dorset, have helped inform the Secretary of State’s decision to implement these proposals”[xiii] even though the secretary of state had not actually made the decision when these words were written.

Was the secretary of state’s decision informed by the responses?

In a freedom of information request, made in January 2016, Defra was asked to disclose:

“all information held by Defra which illustrates or proves that the secretary of state’s decision to implement the proposals has been informed by responses to the consultation.”[xiv]

The email with its one sentence of “advice” from “officials”, along with the Summary of Responses, was all the information that Defra said it held.

Thus, there is evidence that Truss’s decision was influenced by the ‘recommendation’ for her to ‘agree’, but there is no evidence to show that her decision was informed by the responses themselves because – according to Defra – no such evidence exists.

The fact that the updated Guidance to Natural England was provided at the same time as the Summary of Responses (which said that Truss had made the decision already when she had not) suggests that Truss’s decision was not informed by the responses and that she was merely rubber-stamping what others had already decided.

Truss’s decision does not seem to have been taken in the spirit of either the Aarhus Convention or the ‘duty to consult’ requirements. It therefore raises the question of whether it was legal.

The TB ‘communications moment’

The official advised that “timing” should be “Routine but by 10th December, to ensure publication on 17th December, as part of the TB communications moment.”[xv]

Truss implemented the changes on Wednesday 16 December, clearing both the Summary of Responses and the revised Guidance to Natural England (with licence criteria amended) for publication. Both were published on 17 December, the Guidance dated 17 December 2015 and the Summary carrying no specific date other than ‘December 2015’.

Did Natural England know the changes would be made before Truss’s decision?

Additional evidence that supports the notion that the licence changes were ‘a done deal’ involves the licensor, Natural England (NE), whose monitors were conducting biosecurity visits on farms on 10 December 2015, six days before Truss cleared the documents and seven days before Defra’s TB communications moment. NE monitors visited six farms on Thursday 10 December and four more on Monday 14 December[xvi].

The farms in question were in Devon – a county where the licence application had been refused a few months earlier[xvii] and where NE had never before conducted biosecurity monitoring visits[xviii].

NE only conducts monitoring on a small proportion of farms – despite the requirement for all participants to have reasonable biosecurity measures[xix]. NE has said that it chooses farms to visit by “grouping farms together according to the number of cattle owned and the number of setts present on each farm” and then using “a stratified random number system … to select from the different groupings.”[xx]

Considering that NE would have needed to assess which farms to visit, and arrange convenient dates, it is conceivable that NE knew that the changes would be implemented before the secretary of state had made the decision or, perhaps, before she had even been supplied with the Summary, the Guidance and “advice” at 5.59pm on 3 December.

It is likely that the reason for Devon’s failure to be issued with a licence earlier in 2015 had been effectively dealt with by the licence criteria changes – and that NE knew this, which is why it was bothering to carry out biosecurity monitoring visits when previously it had not.

It seems also to be the case that the Devon cull company and its participants knew – certainly before the documents had been cleared – that the licence criteria would be changed. Having had their licence application refused, it would surely have seemed odd to the cull company and the farmers for NE monitors to want to conduct visits on their farms.

NE did not announce that it had received a new licence application for Devon until 18 February 2016[xxi]. It is likely, therefore, that NE had selected farms to monitor in December based on the list of participants from the old, refused application when the licence criteria were different.

Why would Natural England be conducting biosecurity monitoring visits in December, just before Christmas?

It is probable that NE knew that the changes would guarantee that many more licence applications would be successful in 2016 (necessitating biosecurity monitoring visits in multiple counties). This provides a plausible explanation as to why NE was starting biosecurity monitoring at such an early stage. In the years before 2015, NE usually conducted visits in the spring or summer (i.e. six months – or less – before culling began)[xxii].

Prior knowledge of the implementation of the changes seems highly likely. But when did NE know? When was the updated Guidance produced? Did NE know ten weeks after the consultation closed or eight weeks or four weeks – or before the consultation was even launched?

Why were so few respondents in favour of the proposals?

Despite its promises, Defra went against the opinions of 92-94 per cent of respondents who had directly answered the questions and said ‘yes’ or ‘no’ to the proposals. But why did Defra do this? Was the consultation just a tick-box exercise, the results of which were destined to be ignored unless they agreed with Defra’s plans? – Or were the arguments given by those against the proposals considered weaker than those given in support?

Who responded to the consultation?

Defra divided respondents into six groups:

  1. Members of the public (or not disclosed)
  2. Farmers or farming organisations
  3. Vets or veterinary organisations
  4. Wildlife or welfare organisations
  5. Research or academic interests
  6. Other interests

Which were the largest groups of respondents and who directly addressed the questions?

At 90% of respondents, ‘Members of the public (or not disclosed)’ was – by far – the largest group, making up roughly 86% of all those who addressed the questions and expressed opposition or support.

Among these members of the public were a former Defra employee, a former member of Defra’s Science Advisory Council (both of whom were against the proposals) and the partner of a farmer with TB reactors (who was in favour).

Very few farmers or farming organisations responded

Defra said it alerted 335 ‘contacts’ by email[xxiii] “considered to have cattle sector farming and welfare interests or registered on Defra’s distribution lists about the launch of the consultation”[xxiv] . However, only five farming organisations and 36 farmers responded to the consultation[xxv]. This is out of a total of 1,394 respondents[xxvi], and represents  three per cent.

When asked how many of the 335 alerted parties responded to the consultation, Defra confirmed that “the emails were sent to a range of stakeholders using distribution lists for this specific purpose” and that “additional emails may also have been sent by individuals within Defra or the Defra group”, but told the Information Commissioner’s Office (the information watchdog) that despite knowing that 335 contacts had been alerted, it was “unable to find these lists” and therefore could not say how many of the alerted parties did not respond[xxvii] . Defra also said that “the members of staff that completed the work have since moved on”[xxviii] which is unimpressive considering that the information was requested from Defra in January 2016, a mere month after the Summary of Responses was published.

Defra has effectively prevented the public from knowing the truth, but it seems likely that the number of ‘alerted parties’ who failed to respond to the consultation was a three-digit figure.

Who were the farming interests that responded?

The five farming organisations were the National Farmers’ Union (NFU), the Family Farmers’ Association (FFA), NFU & Dairy Crest Direct, HNV Associates Ltd (the West Somerset cull company) and the Bovine TB Eradication Advisory Group for England (TBEAG),[xxix] which advises Defra ministers on bTB policy. Four organisations supported all proposals and one (the FFA) did not answer the questions.

Fewer than half of the 36 farmers directly answered the questions and expressed opposition or support.

However, in contrast to the farming organisations which were firmly pro-cull, the farmers who directly answered the questions were split. For proposal 2, more farmers were against the proposal than in favour, and 32% and 41% were against proposals 1 and 3 respectively.

The lateness of the NFU’s and CLA’s responses suggests that the writing was on the wall

A casual approach to the consultation was displayed by the NFU and the Country Land and Business Association (CLA), two of the most enthusiastic supporters of the government’s badger control policy. Both of their responses were submitted late (12 days late in the case of the NFU)[xxx]: the only two organisations, out of 53, to miss the deadline. Furthermore, the CLA’s response was brief, clumsily worded and error-strewn: “Theses [sic] areas must not be constrained where there are [sic] a high proportion of badgers,” said the CLA, as if its response had been a rush job, undertaken with minimal care.

If the deadline was seen as flexible by the NFU and CLA, and making the effort to respond was not viewed as important by potentially hundreds of ‘interested parties’, perhaps they felt that the decision was already in the bag and that Defra did not need persuading. 

Who supported the proposals?

Across all six categories of respondent, just 46, 40 and 42 respondents, respectively, supported proposals 1, 2 and 3. Most of these ‘supporters’ were members of the public (or not disclosed) or farmers and farming organisations, but among the others were a handful of vets or veterinary organisations, and Devon and Cornwall police, who suggested suspending the law protecting badgers in the cull areas.

Some responses were succinct or put forward no argument

Supporters of the proposals tended to be brief: “OK with me” (member of the public, proposal 2) and “good idea” and “very sensible” (member of the public, proposals 2 and 3).

Other responses were slightly longer, but put forward no argument: “I am strongly in favour of culling badgers in the high TB incidence areas and increasing the duration of the culling period as much as possible” (member of the public from MooBaa Technologies, proposal 1) or “I support the reduction of the minimum area size in which licensed culling may take place” and “I support the removal of the requirement for 70% land access” (member of the public from Reading Agricultural Consultants, proposals 2 and 3). All that the National Beef Association could muster in response to proposal 3 was: “In the view of the NBA this does make sense,” and the entirety of the Family Farmers’ Association’s comment on the proposals was: “The practical guidance seems mainly sensible, and we would not wish to criticise the activity part of the consultation.”

Reasons for supporting the proposals

Pro-proposal respondents were inclined not to refer to scientific evidence.

One respondent supported proposal 1 because it would “water down the presence of the antis” which would “bring the costs down and the job of reducing the badger population would be accomplished far sooner instead of the present 25 year timescale.” Tellingly, this respondent made no mention at all of bovine TB.

Words such as ‘better’, ‘necessary’, ‘effective’, successful’, ‘sensible’ and ‘appropriate’ were favoured by those supporting the proposals, but, largely, these were not defined; nor were they supported by evidence.

Supporters’ arguments concentrated on making the killing of badgers easier. “Anything to make things easier for farmers to get the job done,” said one (not disclosed), and “Anything to allow culling to proceed in key areas to obtain appropriate cull rates is welcome,” said Lambert Leonard and May Farm Vets. Neither mentioned nor considered how ‘anything’ might affect bTB incidence or the legitimacy of killing badgers. One respondent (not disclosed) said: “It would be a large improvement to get the job do [sic] rather than having to stop half way [sic] through because an arbitrary time limit has been reached,” revealing ignorance of the importance of the six-week limit or disdain for the opinions of expert scientists. The NFU displayed a similar attitude, calling the six-week limit “rigid” and “restrictive”. The NFU also said: “We do not feel that this [extending the cull duration] will have caused any significant negative impact upon disease levels in the cattle population,” basing their opinion on how they ‘felt’ (without referring to factual evidence) and only attaching importance to “significant negative impact” rather than to any negative impact.

Supporters displayed eagerness to remove obstacles that were preventing many areas from obtaining licences, such as this farmer: “Wholeheartedly support the reduction in minimum area size. Particularly where non supportive [sic] land holdings are preventing culling operations within a zone under current limits.” The NFU’s lawyers (Foot Anstey LLP) concurred: “This [proposal 3] will make it easier on the cull companies in most cases to sign up landowners with sufficient land to allow a cull to proceed,” it said.

Others also suggested that a lack of support for the policy among landowners was stopping the culls from being extended to other areas. “Areas will be constrained by farmer non participation [sic],” said the CLA.

Reducing the inconvenience of protesters was popularly cited as a reason to support the proposals, by individuals but also by organisations such as the National Beef Association, NFU and Dairy Crest Direct, the NFU, and Foot Anstey LLP.

It should be noted here that, on 9 November 2015, a Tribunal stated in its Judgment that: “Increased protesting in the cull areas (or better directed protesting) is perfectly legitimate in a democratic society.”[xxxi] Furthermore, Defra was an appellant in this case and would have been fully aware that protest in the cull areas is lawful.

Who opposed the proposals?

Of those who answered the questions and expressed opposition or support, these are the proportions within groups who were opposed to the proposals:

Members of the public (or not disclosed)              96% (P 1 and P2) 97% (P3)

Wildlife or welfare organisations                             100% (P1 and P3) 97% (P2)

Research or academic interests                                100% (P1) 83% (P2) 86% (P3)

Farmers                                                                          32% (P1) 53% (P2) 41% (P3)

Vets or veterinary organisations                               50% (P1) 43% (P2) 37.5% (P3)

Other interests                                                              67% (P1) 87% (P2) 87.5% (P3)

The results in nearly all the groups reveal opposition to the proposals. Wildlife and welfare organisations were almost unanimously against all the proposals while members of the public, research and academic interests, and other interests all had considerably more respondents opposed to the proposals than in favour. The vets and veterinary organisations were split fairly evenly against/in favour (although five out of eight supported proposal 3). Finally, very notably, more farmers were against proposal 2 than in favour with around a third against proposal 1 and two-fifths against proposal 3. (The farming organisations were unanimously in favour of all proposals.)

Who would fail to respect the opinions of landlords, with vast amounts of land, who have tenant farmers?

It is a given that some farmers rent land, but it is a lesser known fact that charities such as the National Trust are among these farmers’ landlords.  Of the 37 wildlife and welfare organisations that responded to the consultation a number of them own land and a sizeable proportion of that land is grazed by cattle. It stands to reason, therefore, that the landlords of cattle farmers have a vested interest in reducing the incidence of bTB, or preventing the spread of bTB to non-infected areas, and that their opinions should carry considerable weight. These organisations have a responsibility to those who farm their land, and to the wildlife which lives on it, to encourage the use of methods which will be effective in reducing bTB and rejecting those methods that will be ineffective.

The National Trust, alone, looks after 775 miles of coastline and 250,000 hectares of countryside, 200,000 hectares of which is farmland[xxxii]. In its response it told Defra: “We … have over 1,800 tenant farmers of whom over half have cattle grazing their land.” The National Trust did not support proposals 1 and 3 and said it would not support proposal 2 if implemented with 1 and 3. It said: “We do not support a roll out of the culls” and “Moving away from the evidence base provided by the RBCT risks making the disease more prevalent, not less” and “We will not allow the extension of culling to our land. This includes not allowing it on National Trust land that is leased to tenants.”

The Royal Society for the Protection of Birds (RSPB) was another respondent that owns a vast amount of land (more than 140,000 hectares[xxxiii]). It said in its response: “The Society manages a large conservation estate and utilises cattle grazing as an important component of nature reserve management.” Disagreeing with all three proposals, the RSPB said that they “could actually make the disease situation worse.”

The Wildlife and Countryside Link (Link) said: “Taken together our members … manage over 750,000 hectares of land.”

Despite being landlords to farmers, custodians of the wildlife which live on their land and, in some cases, even setting up badger vaccination projects (the NT, for example, were vaccinating on the Killerton Estate in Devon), Defra ignored the opinions of them all.

Size should matter

The fact that the views of big-hitting landlords like the National Trust and RSPB et al were disregarded is even more shocking when the size of their membership is taken into account.

For example, in 2015, the National Trust had 4.5 million members[xxxiv], the RSPB had 1.16 million members[xxxv] and the Wildlife Trusts had more than 840,000 members[xxxvi]. The Wildlife and Countryside Link (Link) said that its members “have the support of over 8 million people in the UK” and that its response was supported by 15 Link members, including the RSPCA, the Woodland Trust, Friends of the Earth and Humane Society International/UK.

The membership figures of the 37 wildlife and welfare organisations dwarf those of the five farming organisations. For example, the NFU said it had “40,000 countryside members with an interest in farming and the country” and that it represented “47,000 farm businesses in England and Wales” (“farm businesses”, but not “farmers”).  This is one tenth – at most – of the membership of the Wildlife Trusts: just one out of the 37 wildlife and welfare organisations.

Which arguments were put forward by the opposers of the proposals?

Those against the proposals relied upon scientific, ethical and economic reasons to support their views.

The strict criteria set out by scientists should be retained

The RSPB said: “The minimum criteria for badger culling were set out in a note of a meeting of key scientific advisers that met on 4th April 2011. These criteria were: covering at least 70% of the land within the culled area, a minimum area of 150km², sustained for a minimum of four years and conducted within a six week period each year. We note that the proposals in this consultation are to change three of these four criteria.”

Many of the respondents who were against the proposals, and directly answered the questions, supplied detailed scientific argument and evidence, asserting that 75% of the strict criteria stipulated by expert scientists should not be ripped up.

Expert scientists were not consulted

It was pointed out that expert scientists, including the Independent Scientific Group (ISG), who were involved in the Randomised Badger Culling Trial (RBCT), and those in the Independent Expert Panel (IEP), who had overseen the first year of the pilot culls, had not been asked for their opinions.

A respondent (not disclosed) said: “The ISG and IEP scientists have not been consulted on the proposed licensing changes; nor it seems have the internal scientific advisory groups which previously provided input to the 2011 Defra Guidance. The data and rationale for the proposed changes have not been subject to the independent oversight and input previously considered necessary, and therefore have no credibility.”

‘Where is the evidence supporting the proposals?’ vets & researchers ask

The British Veterinary Zoological Society (BVZS) questioned the evidence base for the proposals: “We consider that the Policy Statement referred to … does not provide a balanced interpretation of the RBCT, and that the statement referring to ‘clear evidence’ is inaccurate … We dispute the conclusion of the CVO … that farmer-led groups can deliver the level of effectiveness required … The first statement in this paragraph [2.6], that duration and extent of access ‘can be revised’ (our emphasis) is presented as fact, whereas this is merely an opinion. It is unclear from this footnote what exactly the evidence base for this opinion is.”

The issue of a lack of evidence to support the proposals was also raised by a ‘research or academic interest’ from Imperial College, London, who has carried out work for Defra. This respondent said: “I have seen no data to support the use of a longer culling period. Six weeks was already much longer, with the culling days correspondingly less intense, than the RBCT proactive culls, the results of which informed the current policy … Both the scientific and logistical evidence base would argue against loosening the time constraints on culls.”

The respondent also took issue with reducing the amount of participating land: “Logically, substantially reducing land access will substantially reduce opportunities to cull badgers thereby reducing effectiveness. I would like to see the details of any data analysis that informed the conclusion that removing the 70% land access requirement would make no material difference to the badger cull rates,” this ‘research or academic interest’ said.

Changing “at least” for “approximately” is unacceptable

Defra’s third proposal removed the 70% land access requirement and replaced the requirement that “at least 90%” of land should be accessible, or within 200m of accessible land, with “approximately 90%”. Some respondents recognised the gravity of this.

For example, this respondent said: “The word ‘approximately’ is unacceptable. The public will not know whether 85% was deemed enough, or 80%, or 75%, and what is deemed close enough to 90% may change over time with no one other than the applicant and NE knowing.”

The significance of allowing a cull, with proposal 3 as a criterion, is revealed by examining the data from the RBCT. While the average amount of participating land over the ten RBCT areas was 70%, and nine out of ten of the areas had participating land of 64% or above, one area’s participating land was 50%[xxxvii]. This same area had 83% of its land accessible or within 200m of accessible land. Therefore, if NE deems 83% to be “approximately 90%” it could be licensing areas where owners of 50% of the land are refusing to cull, and if NE is permitting culling where 75-80% is judged to be “approximately 90%”, landowner participation could be even lower. This is shocking, and supports the theory that proposal 3 was made purely to get round the lack of support for the policy by local landowners.

Criteria should not be changed before the end of the pilot culls

A Gloucestershire cattle farmer was among those arguing that licence criteria should not be changed before the conclusion of the trial culls: “Changing protocols part way through a four year pilot is unscientific and unprofessional because it will have unquantifiable effects on the end results,” the farmer said. His or her view was shared by other respondents, including this member of the public, who said: “The cull was supposed to be a four year trial adhering to certain requirements. Trials by definition should follow a concise set of rules for a precise length of time to allow for statistics to be obtained and evaluations made.”

The same concern was voiced by a member of the public who said he or she was a member of Defra’s Science Advisory Council “for 8 years”: “The impression given is that the careful objectives of the pilots to test assumptions about safety, efficacy and humaneness of controlled shooting are being dismantled. It started with the failure to ensure that independent oversight of the culling operation was maintained and appears to be continuing with policy based on assumptions that are not evidence based.” This respondent also said: “The frequent changes to protocols do not inspire confidence and make accurate epidemiological analysis difficult if not impossible.”

Proposals would not deliver necessary benefits

The Wildlife Trust for Lancashire, Merseyside and North Merseyside said: “The proposals … have been designed to facilitate the wider rollout of culling by removing or relaxing criteria put in place to ensure an intensive, coordinated effort as recommended by the RBCT.”  It went on to say that it opposed “all proposals … which collectively risk establishing a legal ‘open season’ for badgers and would result in a protocol deviating so completely from the RBCT that it could not be expected to deliver the modest disease-control benefits claimed.”

Defra was asked – in the January 2016 freedom of  information request – what precise reduction, as a percentage, of confirmed incidents of bTB in cattle it had calculated would be achieved (in a cull area and 2km ring area) if the three changes were made to the culling criteria, and Defra revealed that it had not worked that out. Defra said:

“On the points of:

  • if no initial limit on the duration of the culling period is specified in the licence; and,
  • if “the licence requirement for at least 70% of the land in candidate areas to be accessible” is removed,

No calculations have been carried out to estimate the changes in net benefit altering these conditions will have.”[xxxviii]

In respect of proposal 2 Defra said: “With regard to reducing the minimum area size to 100km² instead of 150km², the analysis of the long-term effects of the RBCT by Professor Christl Donnelly showing the size of area needed to have a high confidence of a net benefit are published and referred to in the consultation”[xxxix].

This ‘analysis’ suggested that a net benefit of roughly 10% over 11.5 years could be achieved[xl], but as a ‘research or academic interest’ pointed out in their response: “This minimum was based on a circular area, minimizing the size of land up to 2km outside the cull area relative to the size of the cull area itself … (Note: landlocked areas that are not circular have reduced expected net benefits for their size.)”  Therefore, if the cull area was non-circular and landlocked, the benefit could be expected to be less than 10%. The ‘analysis’ also assumed a cull would be carried out according to RBCT methodology, failing to take into account the implementation of proposals 1 and 3, the different method of killing (shooting of free-roaming badgers), or that an industry-led cull has been less effective than the RBCT.

A member of the public from the Zoological Society of London said: “As the area reduces, there will come a point where the net benefit switches to a net cost … Reducing the minimum area below 150km² is extremely risky.”

The BVZS went further, criticising reliance on “retrospective re-evaluations of the RBCT” which were “based on theoretical assumptions, for the purposes of modelling, that are untested empirically in large scale field trials and should not be given undue weight … The assumptions are only appropriate if the perturbation effects are uniform in the cull zone. It seems highly unlikely that this would be the case due to variation in the natural landscape and the distribution of badgers within it. We therefore consider that the conclusion is drawn on the basis of unsafe assumptions and cannot be relied upon.”

Put simply, the evidence (or lack of it) pointed to no benefit being achieved once the proposals had been implemented – which is, perhaps, why Defra omitted to make any calculations. Many respondents agreed.

“It would be madness to take action which would achieve either a smaller benefit or actually make matters worse,” said one member of the public. “All of these proposed changes will potentially make bTB worse, according to the scientific evidence,” said another. All three proposals “would destroy any scientific basis for the cull,” said a third.

Another respondent (category unknown) said: “Successive changes to the current ‘pilot’ culls have rendered them further and further away from any scientific or policy integrity. They are now so degraded I consider them likely to spread bTB rather than control it.”

It is astonishing that Defra suggested the removal of three out of four criteria, contrary to expert scientific evidence. Defra claimed in its consultation document that “these proposals are not expected to materially affect the benefits of culling on levels of bTB in cattle,”[xli] but this statement was not evidence-based. Defra made no calculations about net benefit or cost and produced a ‘new’ scientific conclusion only in relation to proposal 2 (which the BVZS said was drawn on the basis of unsafe assumptions and could not be relied upon). A complete absence of scientific justification points, logically, to Defra being unconcerned about the proposals’ effect on bTB incidence.

It is difficult to disagree with this ‘not disclosed’ respondent who said: “There is no scientific basis for this … It has become an exercise in killing badgers for the sake of killing badgers.”

Would licences continue to be legal?

Without any evidence to show that culling (post criteria-change) would be beneficial in terms of bTB levels in cattle, and with the lack of evidence pointing to the killing of badgers for a purpose other than preventing the spread of disease, a number of respondents questioned whether the licences would be legal.

“Section 10(1)(g) of the Protection of Badgers Act 1992 allows for the licensing of badger culling ‘for the purpose of preventing the spread of disease’. Therefore any changes to licence criteria should be solely aimed at improving the likelihood of disease being prevented,” said a member of the public. A ‘not disclosed’ was less reserved: “It is logical to conclude that killing badgers in a way which clearly and knowingly departs from the methodologies of the RBCT and goes against expert scientific advice cannot be said to have the purpose of preventing the spread of disease. Therefore I would respectfully question the legality of issuing licences if Defra alters the Guidance to NE.”

An individual from the Badger Trust agreed: “Allowing the culls to continue under the current licensing conditions would be irrational but weakening them as proposed would be both irresponsible and quite probably illegal under section 10(1)(g) of the Protection of Badgers Act 1992.”

“I consider these proposals to be unscientific, unlawful and therefore lacking any moral basis,” another respondent said.

There will be increased costs say the public, police, farmers (and – indirectly – Defra)

A number of respondents mentioned cost as being an important factor, arguing that culling would not be cost-effective and that costs could exceed benefits if the criteria were changed.

Increased costs to police

“Increasing the period of time when culling takes place will require increased policing and increased costs as they will need to extend their patrols as a result of anti-badger cull protestors,” said a member of the public, and this view was supported by police themselves.

“If the cull can go live without time restriction,” said Devon & Cornwall Police, “we could be a position [sic] of providing resources for a much more protracted period.” Dorset Police concurred, stressing the financial cost of this: “Increasing the duration of the culling period would only increase the financial burden to Defra and the Home Office,” it said.  Gloucestershire Police thought that proposal 1 would “cause the police significant resource planning challenges” and that proposal 2 could require more manpower: “At least with larger areas we are able to concentrate resources into that locality – with a number of smaller areas, this would increase the challenge and potentially take more staff,” it said.

It should be noted here that in Defra’s consultation document it said: “Defra, APHA, police forces: We do not expect that there will be additional costs for these bodies as a direct result of these changes as these proposals do not materially impact on the level of bTB in cattle or on the level of policing, when compared to the existing licensing regime.”[xlii]

Clearly, police forces disagreed, but Defra did not take “due account” of their views.

Increased costs to farmers

In the consultation document, Defra said that the proposals “are not expected to generate costs for farmers”[xliii], but this contradicted a statement it had previously made.

It was pointed out by a ‘not disclosed’ (who was against all three proposals) that Defra itself had asserted that smaller cull areas would increase the cost for farmers: “In Defra’s Impact Assessment[xliv],” said the respondent, “it is stated that costs to farmers would be incurred for ‘communication, planning, support, management and administration’ and that ‘significant savings per farmer would be expected in areas above 150km squared’. Therefore, by Defra’s own admission,” continued the respondent, “if the size of the cull areas is reduced, Defra will be increasing the costs for farmers.”

HNV Associates Ltd (the West Somerset cull company) also raised the same point: “Small areas are less able than larger areas to benefit from economies of scale,” as did the National Beef Association, using the identical phrase: “Small areas will not benefit from economies of scale.”

Increased costs to Natural England

The increased costs to NE were also mentioned: “It is obvious these proposals would most definitely increase NE’s workload, designed as they are, to ease the way for a greater number of culling licences to be issued,” said a member of the public.

Defra did acknowledge that costs to NE could increase, but said only that they “may rise marginally.”[xlv] The number of licensed cull areas has increased by 800% since the licensing criteria changes were made.

Vaccinate badgers to reduce cost say police

Respondents also argued that vaccinating badgers was cheaper than culling them. Dorset Police joined this throng, saying: “If there is a need to reduce the Policing footprint and reduce cost I believe this can be achieved if Defra were to consider an extension of the vaccination process already in being in Dorset … whilst the NFU may be displeased, there would be reduced protester activity and confrontation.”

Arguments about costs were dismissed by Defra

No matter whether arguments about increased costs came from members of the public, police forces, a cull company, a farming organisation, or, indirectly from itself – Defra ignored them all.

The proposals were designed to make a cull roll-out far easier

Those against the proposals said that changing the licensing criteria would make the killing of badgers easier and would facilitate the widespread roll-out of culls. Thus they concurred with those who were in favour of the proposals, but viewed this outcome as a negative consequence rather than a positive one.

“The only benefit from the changes that I can see is to make the killing of badgers cheaper and easier for the contractors,” said a member of the High Peak Badger Group, and a Derbyshire Wildlife Trust member accused Defra of wanting to “weaken the licensing criteria to make it easier for you to sweep in a larger scale cull.”

Some respondents thought that proposals 2 and 3 were designed to get round the reluctance by landowners in cull zones to participate in badger culling. “This is another sop to the culling companies who are struggling to establish large enough killing zones,” said a ‘concerned countryman’.

Others provided anecdotal evidence to support this theory: “A former NFU President told me that whilst 40% of the farmers in the Somerset cull zone were keen to cull, the last 30% were very hard to sign up,” said an individual from the Badger Trust, and pro-proposal TBEAG appeared to support this by saying: “It is realistic to get 60% of the land area signed up but the remaining pockets can be very hard work (particularly where institutional landowners are involved).”

TBEAG advises Defra ministers on bTB policy, and, interestingly, Patrick Begg, the National Trust’s Rural Enterprises Director, was in TBEAG at this time[xlvi]. Therefore, while the National Trust was refusing to participate in the culls, its Rural Enterprises Director was part of an influential group pushing for the licensing criteria to be changed to overcome the problem of landowners like the NT opting out.

Other reasons against

General comments about the badger control policy aside, respondents who were against the proposals peppered Defra with additional reasons why the proposals should not be implemented, including concerns about badger welfare and a lack of humaneness, increased risks associated with badger perturbation and the strong possibility of localised extinctions. A lack of faith in Natural England was a common issue that came up time and time again.

No confidence in Natural England’s discretion

Respondents shared a low opinion of Natural England, saying that NE could not be trusted to use its discretion because it had failed, previously, to enforce licence conditions. NE was accused, by members of the public, of showing “bias towards the NFU/and the governments [sic] desire to cull badgers,” of being “devoid of any humanity or conscience,” of having “lost any credibility the organisation might once have possessed,” and of being “there simply to ‘rubber stamp’ Defra decisions.”

Among the respondents who referred to evidence, this member of the public spelled out why NE should not be given ‘discretion’:

“No evidence Natural England will exercise discretion. Nothing in the supporting documents to this consultation, or in any of the previously published documentation relating to the three cull areas, provides evidence of NE’s ability or willingness to intervene in the culling operations. NE is already meant to assess the licensed culls on an ‘ongoing basis’. What evidence there is from 2013-2015 indicates that NE’s response to ineffective culling is simply to offer lengthy extensions.”

A farmer agreed with this view, stating: “Your proposal to give Natural England case by case discretion on termination would, with predictable pressure from contractors, result inevitably in further extensions becoming the norm for the majority of zones, effectively legitimizing and regularizing a vague, sloppy, unscientific approach.”

This negative assessment of NE is shared by one of the ‘ministers’ in A People’s Manifesto for Wildlife (published in September 2018) who said: “NE are not fit for purpose … This once-effective independent advisory body has been rendered impotent, but also sometimes presents a significant handicap to conservation in England … NE, the custodian of the wild natural environment in England, is financially crippled, ethically compromised, and rudderless.”[xlvii]

This ‘ethically compromised’ status was alluded to by Defra’s former Deputy Chief Veterinary Officer, Alick Simmons, who said of NE in a recent tweet: “Anyone with a conscience has been disappeared.”[xlviii]

A sham consultation

Several respondents were deeply unimpressed that the licence criteria changes were even being proposed.

“I am a scientist,” said a member of the public. “If you cannot get one credible independent scientific expert to support the move, why ask the question? Why consult? I am disappointed by this sham consultation. Everyone involved should be deeply ashamed of themselves.”

Another member of the public had no doubt that political expediency was behind the proposed licensing changes: “This consultation is engineered to try to push through a purely political agenda devoid of any shred of scientific credibility. The aim? To kill as many badgers by any means to appease the leaders of the NFU and most pointedly The Countryside Alliance and the Shooting lobby.”

Cynicism (which turned out to be spot on) was exhibited by two other members of the public, who felt that the responses would be ignored by Defra:

“I am deeply suspicious of the motives behind this ‘consultation’, as this government has a record of ‘consult but ignore’,” said one, while the other was more sarcastic: “Do the badgers have any Weapons of Mass Destruction? Maybe you could re-work the reports a bit. I’d take this a lot more seriously if I thought there was any risk that you had any intention of taking any notice.”

A political motive was also identified by a member of Herts and Middlesex Badger Group, whose desperate sadness was evident in their response: “There is … a drain on the local population who are having to live with this misery on their doorsteps, seeing the badgers they have loved for years being shot for political gain.”

Reluctance of Defra to provide information on the consultation


Defra displayed considerable reluctance to provide information on this consultation, when asked for it under the Environmental Information Regulations (EIR), which is similar to the Freedom of Information Act. A complaint had to be taken to the information commissioner (IC), and it took a two-year battle to effect the disclosure of the information – by which time Defra said it could not find some of it.

The IC said that Defra had incorrectly relied upon six different regulations to withhold information and had breached three different regulations of the EIR. In an unusual move, the IC upbraided the government department in her decision notice, saying that she had “found Defra’s assistance and cooperation during this investigation unsatisfactory and significantly below the level of cooperation she would expect from a public authority of this size and resource.”[xlix] She spoke of “repeated delays” and “failed promises”[l] which had “frustrated the Commissioner’s investigation and made its completion particularly difficult and laborious.”[li]

“The Commissioner wishes to place on record in this decision notice these issues in the hope that it will prevent a similar situation occurring again with another request or investigation,”[lii] she ended.

A lack of transparency, the breaching of regulations, a failure to cooperate, and the use of methods which delay and discourage do not inspire confidence that this government has a healthy regard for democracy.

 The licensing criteria changes were unjustified

The secretary of state’s ‘decision’ to change the cull licensing criteria led to an extensive roll-out of the culls. These changes made no sense in terms of disease prevention or reduction and Defra’s only ‘evidence’ was swiftly and adeptly dismissed by the BVZS.

When asked for their opinion, hundreds of people duly gave it, and the overwhelming majority of these were opposed to badger culling, with 92-94% against the proposals themselves. The argument against the proposals was weighty and convincing, contrasting with the argument for the proposals, which was flimsy and feeble. Respondents homed in on Defra’s ‘assumptions’ and non-existent evidence, and Defra admitted, latterly, that it had made no calculations about a resultant impact on bTB incidence. While wildlife and welfare organisations, representing millions, voiced their opposition, many farmers and farming organisations either failed to respond or had no qualms about missing the deadline or submitting short, badly written responses.

Defra produced no evidence that Liz Truss’s decision was informed by the responses (as was promised), and it is clear from the responses that Defra did not take due account of, or give genuine and conscientious consideration to, the consultation outcome, as stipulated by Aarhus and the Sedley requirements.

Science was cast aside and a strategy to prevent the spread of disease was abandoned while the aim of killing badgers more easily, and in far greater numbers, was pursued.

“Despite the veneer of the licensing process,” said one shrewd respondent, “I am very concerned that the hidden agenda behind all three of these proposals is the virtually uncontrolled killing of badgers. This is a dreadfully damaging approach, not only for badgers but for farming and wildlife as a whole.”

It is also very damaging for our democracy, where the people should, rightfully, participate in decisions, rather than having decisions foisted on them by an oligarchy.

Were the proposals at “a formative stage, when the views of the decision-maker are only tentative or provisional upon the outcome of the consultation process”[liii]  (a Sedley requirement) or were they predetermined?

For a government department guilty of “repeated delays” the breakneck speed with which Defra moved to change the licensing criteria was remarkable. In just ten weeks, it read, considered, collated, analysed and summarised responses[liv], took account of “experiences of a third year of badger control in Somerset and Gloucestershire and the first year of badger control in Dorset”[lv], progressed from ‘tentative views’ to a firm decision, produced the Summary and the revised Guidance, advised its secretary of state to ‘agree’ and tipped the wink to NE, the NFU, and farmers (in Devon at least) that the criteria would be changed.  This period of vigorous activity and the timing of the TB ‘communications moment’ (on the day the House of Commons adjourned for its Christmas recess[lvi]) suggest that Defra was working to a tight schedule and that proper consideration of the responses, or a decision to reject the proposals, simply did not fit into it.

Were the changes made purely to remove obstacles?

In 2011, before Defra had decided to go ahead with the policy, the CLA was clearly confident that the National Trust would allow culling on its land. In a letter to Caroline Spelman (the then environment secretary), William Worsley, the CLA president, said: “It would be particularly useful, if, in the first instance, licences could be granted to a number of the big institutional landowners, such as the National Trust, the Church Commissioners and the Duchies.”[lvii] However, as it turned out, the National Trust would not play ball (the other landowners mentioned have neither confirmed nor denied whether they are involved).

TBEAG referred to the reluctance of “institutional landowners” in its response, and it was reported in the Farmers Weekly on 3 September 2015 that a Devon farmer “described the sign-up process as ‘challenging’ because the National Trust – one of Britain’s biggest landowners – still refuses to allow cullers on to its land.”[lviii] Thus, perhaps it was this reluctance by the National Trust, along with the cull’s unpopularity generally – with landowners including farmers – that led to Defra launching this consultation and removing the strict criteria, because it was the only way it could achieve an extensive roll-out of the cull.

While this is speculation, it is a credible theory, not least because of the high number of badger cull zones in Devon. Six out of ten of the newly licensed cull zones for 2018 were in Devon[lix], bringing the total for the county to twelve. Two licences in 2016 and four licences in 2017 were issued to this county[lx] – all after the licensing changes had been made. Natural England has refused to provide details of the specific location or size of cull areas along with number of participants or percentage of land that is accessible or within 200m of accessible land (despite the public being entitled to be given this information), so we are left to wonder.

Culling is a dead cert to be a dead loss

Badgers are a native, legally protected species and yet they are being massacred in these culls in their tens of thousands. Furthermore, this killing is being carried out according to licensing criteria that have been enfeebled, by the government, to such an extent that “preventing the spread of disease” as a purpose (according to the law[lxi]) is no longer credible. Indeed, recent data have confirmed the futility of culling.

Data released in 2018 show that killing badgers is not working

The government was warned, by a number of respondents, that changing the licence criteria would have a negative effect, wiping out any chance of achieving disease control benefits. Unsurprisingly, this prediction has been borne out.

After analysing data released by the government in September 2018, senior vets and animal welfare experts challenged claims by the farming minister, George Eustice, that the culls were working. In an open letter to the Observer, the vets and experts said: “The data upon which Mr Eustice bases his statement provide no evidence whatsoever for his claimed ‘reductions in TB cases in Somerset and Gloucestershire’.”[lxii]

They also expressed reservations about Defra’s method of analysis, and said: “Put simply, there are approximately the same proportion of bTB affected herds now, as there were before culling started. Badger culling has not resulted in a decrease in bTB in cattle in cull zones, for the prevalence remains unchanged. Any statement made to the contrary is simply not true.”[lxiii]Mo

reover, recent data suggest that the incidence and prevalence of infection among cattle herds in the Gloucestershire central cull zone, which has now been subject to six years of culling, is rising significantly[lxiv].

Unlawful activity requires police investigation

A wealth of evidence disputes Defra’s claim that its farmer-led culls are for the purpose of preventing the spread of disease. Getting rid of the licensing criteria that provided justification (albeit tenuous) to cull, ignoring the warnings about the impact this would have, disregarding data that showed no benefit, and – at the same time – falsely claiming success, are the actions of a government department that has lost its moral compass.

‘Badger control’ is looking less like a policy and more like a conspiracy – with the wholesale slaughter of badgers its one and only goal.

Badgers are protected by law, and that law should be respected, observed and upheld – which is why, instead of escorting cull contractors, or sending in drones to observe protesters, police would be better advised to knock on the door of Number Ten.

NB: Consultation responses were disclosed by Defra between 2016 and 2018 in relation to RFI 8146 and RFI 8279.



[iii], para. 5

[iv] , Article 6(8), Article 7, Article 8

[v] , para. 19


[vii] ibid

[viii]Full title: Summary of responses to the consultation on Guidance to Natural England on licences to control the risk of bovine tuberculosis from badgers

[ix] Full title: Guidance to Natural England: Licences to kill or take badgers for the purpose of preventing the spread of bovine TB under section 10(2)(a) of the Protection of Badgers Act 1992

[x] Letter from Defra, 30 March 2016, in relation to RFI 8146

[xi] Email (redacted) dated 3 December 2015 from policy official to private secretaries of Liz Truss and George Eustice. Cc’d to private secretaries of Lord Gardiner and Rory Stewart, and cc’d to Clare Moriarty and unidentified others.

[xii] ibid


[xiv] Letter to Defra, 21 January 2016, in relation to RFI 8061

[xv] Email (redacted) dated 3 December 2015 from policy official to private secretaries of Liz Truss and George Eustice. Cc’d to private secretaries of Lord Gardiner and Rory Stewart, and cc’d to Clare Moriarty and unidentified others.

[xvi] Spreadsheets, showing biosecurity monitoring visits for 2016 & December 2015, supplied by Natural England, 20 October 2017, in relation to RFI 3337


[xviii] Spreadsheets, showing biosecurity monitoring visits for 2012-2015, supplied by Natural England, 26 May 2016, in relation to RFI 3337

[xix] , para. 8(b)

[xx] Letter from Natural England, 10 March 2014, in relation to RFI 2375


[xxii] Spreadsheet, showing biosecurity monitoring visits for 2012-2015, supplied by Natural England, 26 May 2016, in relation to RFI 3337

[xxiii] Letter from Defra, 30 March 2016, in relation to RFI 8146

[xxiv], para. 1.5

[xxv] Letter from Defra, 10 January 2018, in relation to RFI 8146

[xxvi] Defra said in a letter, 31 January 2017, in relation to RFI 8146 that 1,394 responses were received (rather than 1,378: the figure given in the Summary of responses).

[xxvii], p.145

[xxviii], p.147

[xxix] Letter from Defra, 10 January 2018, in relation to RFI 8146

[xxx] Letter from Defra, 13 June 2016, in relation to RFI 8279

[xxxi],%20EA-2014-0094,%200160,%200234,0311.pdf, para. 119



[xxxiv], p.9

[xxxv], p.ii

[xxxvi], p.8

[xxxvii], p. 47

[xxxviii] Letter from Defra, 30 March 2016, in relation to RFI 8146

[xxxix] ibid


[xli], para. 5.11

[xlii], para. 5.14

[xliii], para. 5.13

[xliv], para. 6.8

[xlv], para. 5.12


[xlvii], p.27


[xlix], para. 159

[l] ibid

[li], para. 161

[lii], para. 162

[liii], para. 22

[liv], paras. 4.6 & 4.5

[lv], para. 3.1


[lvii] Letter, 6 May 2011, from William Worsley to Caroline Spelman MP. Disclosed by Defra on 30 October 2013 in relation to RFI 5855.



[lx], paras. 3.2 & 3.3

[lxi], section 10(1)(g)


[lxiii] ibid

[lxiv] Ongoing analysis of data from the cull zone using Defra’s online bTB mapping tool