R (Langton) v Secretary of State for Environment, Food & Rural Affairs [2019] EWCA Civ 1562

R (Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWCA Civ 1562 concerned an unsuccessful challenge by a scientist and ecological consultant to the Secretary of State’s decision to publish guidance on supplementary badger culling following intensive culls conducted over at least four consecutive years. The Lord Chief Justice, Lord Justice Singh and Lady Justice Nicola Davies dismissed the appeal.

Mr Langton, a member of the Badger Trust and Fellow of the Royal Society of Biology, brought judicial review proceedings challenging the Secretary of State’s decision of 19 July 2017 to publish guidance to Natural England on licences to kill or take badgers for the purposes of preventing the spread of bovine tuberculosis under section 10(2)(a) of the Protection of Badgers Act 1992. Sir Ross Cranston, sitting as a Deputy High Court Judge, dismissed the claim on 15 August 2018. The appellant sought permission to appeal on three grounds, but Leggatt LJ granted permission only on ground 2, concerning whether the guidance was ultra vires, and ground 3(d), concerning an alleged breach of the Conservation of Habitats and Species Regulations 2010.

The background involved long-standing concerns about bovine tuberculosis as a serious animal health problem in England requiring the destruction of infected cattle at considerable cost. Badgers can act as a wildlife reservoir for bovine tuberculosis which they transmit to cattle. The Randomised Badger Culling Trial conducted between 1998 and 2007 concluded that although badgers contributed to significant bovine tuberculosis in some parts of the country, no practical method of badger culling could reduce its incidence to any meaningful extent and several culling approaches might make matters worse. The trial found an estimated 23 per cent reduction in cattle tuberculosis incidents inside proactive cull areas during the lifetime of the trial, but a 25 per cent increase in the two-kilometre ring outside proactive areas. The report hypothesised that both infected and uninfected badgers disturbed by culling began to range more widely, thereby coming into contact with infected and uninfected badgers both within the cull boundaries and the surrounding area and increasing the disease burden, an effect known as perturbation. Subsequent analysis found that once culling was halted the beneficial effects were greatest immediately after it ended but declined over time and were no longer detectable four years after the last annual cull.

The Government published its bovine tuberculosis eradication programme in July 2011. The document proposed a package of measures including a proposal to pilot the controlled shooting of badgers in areas with a high incidence of bovine tuberculosis. In December 2011 the Government published its policy on bovine tuberculosis and badger control in England. The Randomised Badger Culling Trial demonstrated that the benefits of culling persisted far beyond the culling period, with the negative effects disappearing within 12 to 18 months after culling stopped. Among the measures proposed was the licensing of annual pilot culls over a six-week period for four years to test the effectiveness of culling. Culling would need to remove 70 per cent of the badger population in the first of the four years of a licence. To implement the policy, the Secretary of State issued guidance to Natural England in 2011 as to licences to take and kill badgers in identified areas. In 2012 Natural England granted licences to cull badgers in two initial areas, Gloucestershire and Somerset. Analysis of the results from the post-Randomised Badger Culling Trial period to March 2013 demonstrated that following the completion of an intensive cull, the disease control benefits achieved would likely diminish over time, being eliminated after 7.5 years.

Between May 2015 and December 2016 Defra conducted a review of its approach to licensing the culling of badgers which included how strategy should be developed in areas where an intensive cull had been implemented. By 2016 the culls conducted in Gloucestershire and Somerset would be into their fourth year and there was a need to consider how the expected disease control benefits achieved by those culls could be maintained. Following the review, a recommendation was made to the Secretary of State, subject to consultation, to give guidance to license supplementary culling. The basis upon which the recommendation was made included the conclusion of a successful intensive cull lasting at least four years which was predicted to significantly reduce the badger population with the result that there would be a reduction in cattle tuberculosis incidents within the cull area to persist for at least 7.5 years following the last cull, however the benefit declined over time and would return gradually to pre-cull levels. It was recommended that with a view to preserving those benefits, licensing supplementary badger control was preferable to an alternative policy of taking no further badger control measures until oral bait badger vaccine was ready, which was not expected for many years and during which time ground would be lost in combatting bovine tuberculosis. The chief veterinary officer and chief scientific officer had advised that there was a clear disease control rationale in keeping the badger population at the level achieved at the end of an effective intensive cull and that an appropriate form of ongoing licence population control would be beneficial in this area. As to that rationale it was noted that there was international evidence that supported long-term wildlife culling to control a tuberculosis wildlife reservoir but there was limited direct evidence from England about the effect of ongoing badger removal after several annual intensive culls and the approach had not been used before. Despite the lack of direct data from England, maintaining the badger population at the level achieved by an intensive control operation was considered to be a defensible, logical disease control approach, as it would maintain the reduced rate of infection achieved in the badger population and would reduce the potential for infectious contacts between badgers and cattle. The Secretary of State was informed that the proposed approach was untested and that individual licensing decisions would have to be made by Natural England on the basis of good evidence and subject to an evaluation of its effectiveness.

The Secretary of State accepted the recommendation and decided to consult on the proposal to license supplementary culling in areas where an effective intensive cull had already been carried out. In December 2016 Defra published its consultation. Mr Langton responded stating that he was opposed in principle to supplementary culling for reasons which included the fact that it would not result in disease control benefits. He expressed concern at the misleading way data were presented in the consultation document and that the document did not explain the significant departure from the guiding methodology in the Randomised Badger Culling Trial. Culling badgers after a four to five-year period of intensive culling was said effectively to create an indiscriminate general licence to cull for such areas based on unevidenced disease control benefit. Other responses including from the Zoological Society and the Badger Trust stated that there was no evidence to support the proposal of supplementary culling.

Following receipt of the responses a submission was made by Defra to ministers in June 2017 stating that these supplementary culls maintain disease control benefits in an area after completion of the four-year intensive culls. Based on evidence-led advice from the chief veterinary officer and chief scientific adviser, a consultation had been conducted. The submission stated that in the absence of deployable non-lethal methods of badger control, and without supplementary culling, the benefits of intensive culling would cease after about seven years. It explained that the majority of consultation responses opposed culling in principle, and that those that addressed the specific consultation questions did not provide evidence to change the proposal on which consultation had been undertaken. On 3 July 2017 the Secretary of State agreed to the recommendation that supplementary badger culling be introduced. On 19 July 2017 the Secretary of State published the guidance.

The judge below found that there was sufficient information overall to satisfy the Secretary of State’s consultation duty. The purpose of supplementary culling was to try to preserve or extend the disease control benefit. It was not inappropriate to refer to the chief veterinary officer’s view when both he and Defra’s chief scientific adviser supported supplementary culling. It was not surprising that there was an absence of information from the intensive culls, given that they were only coming to an end. As to how the Secretary of State addressed the consultation responses, for unlawfulness the appellant would have to establish that a matter was such that no reasonable decision-maker would have failed in the circumstances to take it into account as a relevant consideration. In the judge’s view none of the matters the appellant raised fell into that category. The responses received to the consultation, including those from the Zoological Society and those like Mr Langton’s opposed to supplementary culling, were considered by officials within Defra and factored in prior to the final decision, even when not mentioned in the summary of responses. The points raised by those such as Mr Langton and the Zoological Society had been considered over the years prior to the consultation and in some cases rejected in favour of supplementary culling, which was seen as a logical extension of the existing policy. The fact was that the Secretary of State knew that supplementary culling was untested.

On ground 2, the judge considered the words of section 10(2)(a) of the Protection of Badgers Act 1992, which permits licences to be granted for the purpose of preventing the spread of disease. The judge held that the purpose of the Secretary of State’s policy of supplementary culling was that it would prolong the expected disease control benefits of the intensive culling. That disease control purpose was expressly stated in the December 2016 consultation document, was evident in the internal discussions within government before its publication, and was confirmed in the witness statements of Professor Boyd, Defra’s chief scientific adviser, and Mr Gibbens, the government’s chief veterinary officer. Thus the Secretary of State acted for the proper purpose for which the legislative power in section 10(2)(a) was conferred. In approving the policy on supplementary culling, and guidance to Natural England, his actions subjectively, and judged by their intended effect, were to prevent the spread of bovine tuberculosis. Both Defra’s chief scientific adviser and the government’s chief veterinary officer considered that supplementary culling had a logical and defensible rationale, which was to maintain the reduced weight of infection achieved in the badger population at the end of an intensive cull. The scarcity of evidence about supplementary culling was acknowledged in the December 2016 ministerial submission and made clear in the consultation document. When the international evidence was put to the Secretary of State, it was that it supported the longer-term control of a tuberculosis wildlife reservoir. Both the Secretary of State’s chief scientific adviser and the government’s chief veterinary officer were in support. Against this background a policy of maintaining a reduced badger population through supplementary culling could not be said to be irrational when coupled with the commitment to change tack as evidence became available.

On appeal, the appellant contended that the judge had concluded that section 10(2)(a) is met where the Secretary of State’s purpose subjectively, and judged by its intended effect, was to prevent the spread of disease, thereby treating the question solely as one of improper purpose. The appellant accepted that the Secretary of State’s express purpose was to prevent the spread of disease but submitted the guidance was ultra vires section 10(2)(a) for other reasons, in particular because there was no objective or scientific evidence to support the policy of supplementary culling, only opinion. The appellant accepted that the judge considered whether the decision to give the guidance was unlawful as a result of other public law error, but contended that there was no evidential basis for the conclusion that supplementary culling would serve the purpose of preventing disease. The appellant submitted that scientific evidence means scientifically proven, not that an experiment has shown some benefit. The appellant relied on the authority of Badger Trust v Welsh Ministers [2010] EWCA Civ 807, in which Smith LJ had said at paragraph 77 that the consideration of whether the destruction of members of a wild species is necessary to eliminate or reduce the incidence of a disease in animals must be based on scientific evidence. Hunch and anecdote would obviously not be sufficient, nor would impermissible extrapolation.

The Court of Appeal rejected the appellant’s contention that the judge found that the guidance could only be rendered unlawful if the Secretary of State’s true purpose was other than to prevent the spread of disease. The judge considered whether in acting as he did under his statutory power the Secretary of State’s actions were otherwise flawed in public law terms and concluded that the Secretary of State acted rationally in a public law sense. The judge considered the evidence in the context of the public law rationality test. There was no substance in the first limb of this ground of appeal, namely that the judge treated the issue solely as one of improper purpose.

The Court of Appeal also rejected the second limb of the appellant’s case, that the guidance was ultra vires due to an absence of evidence. Section 10(2)(a) of the Protection of Badgers Act 1992 does not specify the nature or quality of the evidence necessary to support the grant of a licence for the purpose of preventing the spread of disease. This reflects the fact that this is an area of developing scientific knowledge. The wording of the section allows for consideration of relevant developments, practical and scientific. The development of policy to combat bovine tuberculosis followed the results of the Randomised Badger Culling Trial which identified the need to maintain a reduced rate of infection in the badger population at the end of an intensive cull. Further reporting and analysis were performed involving relevant experts. The evidence before the Secretary of State was that the disease control benefits achieved at the conclusion of an intensive cull were known to decline over time and would be eliminated over a period of 7.5 years. If no further action were taken in areas that had undergone an intensive cull, bovine tuberculosis was bound to spread. At the time the decision was made and the guidance was given, no viable alternative option to supplementary culling had been identified for maintaining or preserving the disease control benefits achieved at the conclusion of an intensive cull. The Secretary of State was faced with a choice between trying supplementary culling or doing nothing.

The court noted there was a timing imperative for the Secretary of State in that intensive culls undertaken in Areas 1 and 2 would conclude by 2017. If supplementary culling were to be licensed, the evidence demonstrated that it ought to take place immediately following the conclusion of an intensive cull. Direct evidence on the effect of supplementary culling could not be obtained without undertaking supplementary culling in an area which had completed an intensive cull. The Secretary of State and the judge accepted that supplementary culling was untested. However, before the Secretary of State were the scientific judgments of the chief veterinary officer, Defra’s chief scientific advisor and other experts from specialist agencies. These acknowledged the limited evidence available but concluded that there was a logical and defensible rationale for the licensing of supplementary culling and recommended that it should be licensed. The court agreed that the Secretary of State was rationally entitled to rely upon such independent and informed scientific opinion, based as it was upon an analysis of available evidence, in arriving at the decision which he did.

The court observed that by its very nature, scientific knowledge is a developing concept. Contrary to popular thinking, scientific knowledge cannot always deliver certainty. Experts may not know that a specific experiment will achieve an identified result, but based on their experience and expert knowledge they are properly able to conclude that an experiment is logically justified on the information available. In the circumstances of this case, what was proposed was an adaptive process which would be monitored. The monitoring and the results would be used to evaluate the effectiveness of the activity which would add to existing knowledge of the effect of supplementary culling as a means of controlling the spread of disease. There is nothing in section 10 which states that the procedure is lawful only if

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