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Citation: [2023] NIKB
The Facts
On 24 March 2022, the Department for Agriculture, Environment and Rural Affairs (DAERA) made the decision to implement a non-selective cull of badgers as part of its strategy for controlling bovine tuberculosis (bTB) within Northern Ireland. This decision was made in reference to a consultation that took place in July 2021, which included releasing a consultation paper to the public and asking for their views on how best to eradicate bTB among other things. However for the sake of this case, only the part of the consultation that dealt with badger intervention was discussed. There was also much reference within the March 2022 decision to a submitted business case, this was disclosed to the court and the parties; however this was not disclosed to the public. This cull would involve the controlled shooting (often referred to as ‘free-shooting’) of wild badgers and would be non-selective i.e. infected badgers and healthy badgers would be killed. It was to be delivered and paid for by farmer-led companies. The cull was due to begin in November 2023.
Northern Ireland Badger Group (NIBG) and Wild Justice (WJ) raised issue with this approach. In response to the consultation NIBG stated that there was no quantified research that would support the claim that badgers transmit bTB to cattle. They even quoted a section on DAERA’s website which agreed with this statement. In short. The applicants contended that bTB is spread by and between cattle and that there is limited (if any at all) evidential basis for the suggestion that badgers materially contribute to the infection of herds. The applicants therefore submitted that the most efficient way to manage the spread of bTB within cattle would be to use cattle-based control methods instead. It was also stated that the open shooting of badgers was not the ‘only option’ available to DAERA, and that there were a number of more humane methods that could be used instead. They advocated for the use of the ‘Trap, Vaccinate, Remove (TVR)' programme, which involved trapping wild badgers and testing them for bTB. If they were free from the infection, they would be vaccinated and released, but if they were infected then they would be humanely killed. This approach had been taken by the department in a research project during 2014-2019 and provided successful results. Open shooting had also been shown previously to be ineffective in killing badgers immediately; some badgers once shot took up to five minutes to die, whilst many would only be injured and could escape.
The Law
The public law requirements in respect of consultations carried out by public authorities, as to proposal which affect the rights and interests of others, are well established. These requirements are referred to as ‘the Gunning Principles’, which came about following the case of R v North and East Devon Health Authority, ex parte Gunning (1985) 84 LGR 168. The principles were then re-affirmed in the case of R v north and East Devon Health Authority, ex parte Coughlan (2001) QB 213; the principles can also be referred to as ‘the Coughlan Principles’.
These principles are:
(1) the consultation must be undertaken when the proposals are at a formative stage;
(2) there must be sufficient reasons given for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;
(3) adequate time must be afforded for this; and
(4) the product of the consultation must be conscientiously taken into account when the decision is taken.
These principles have been discussed at length within caselaw, which centres on the fact that to be lawful, a consultation process must be fair. The Gunning Principles represent elements of what fairness requires; however, this is a highly context-specific question, depending upon the facts and context of the particular case. In some circumstances, fairness may require that interested persons are consulted not only upon the preferred option but also upon arguable yet discarded alternative options.
Under Article 13(1) of The Diseases of Animals (Northern Ireland) Order 1981, DAERA may provide for the destruction of a wild animal population within an area, where a disease, other than rabies, exists within the population of wild animals, which can be transmitted to livestock within the area, and where the destruction of the wildlife population is necessary to reduce the risk or eradicate the disease in livestock. Article 13(2) states that any order must specify the area to which any order will relate and Article 13(3) allows for methods of destruction that would in other circumstances be deemed unlawful be used if the method is deemed to be the most appropriate.
The Wildlife Order (Northern Ireland) 1985 provides protection to badgers and their setts. Under Article 10(1) of this order, a person will be guilty of an offence if they intentionally or recklessly kill, injure or take a badger. It is therefore generally an offence to have a badger (either alive or dead) in one’s possession or control. Article 10 does not apply to anything done for the purpose of preventing the spread of disease or for the purpose of preventing serious damage to livestock, if done under or according to a licence granted by DAERA.
The Welfare of Animals Act (Northern Ireland) 2011 makes it a criminal offence under Section 4(1) for a person in certain circumstances to cause unnecessary suffering to an animal. Whether or not the suffering is unnecessary is to be determined having regard to a number of considerations set out in section 4(3).
The Claim
The central plank of NIBG and WJ's challenge was an alleged failure to conduct a proper and lawful consultation namely:
That DAERA failed to disclose adequate information in the course of the consultation to permit properly informed response; and,
that the Minister failed to give conscientious consideration to the product of the consultation in some respects.
DAERA and the Minister had referred heavily throughout their March 2022 decision to a business case that had been submitted to them, which outlined the options available to them and the pros and cons of each option. This business case however was never disclosed to the consultees.
NIBG and WJ also submitted that the Minister had not been told in detail why NIBG and other consultees had objected to their proposed option, i.e. that the Minister had not been fully informed as to the inhumanness of the open shooting.
Northern Ireland Badger Group and Wild Justice were represented by David Wolfe KC and Blinne Ní Ghrálaigh, who were instructed by Leigh Day and Phoenix Law.
The Defence
DAERA relied heavily on evidence that the health problem presented by bTB was a very serious one, including the fact that close to 10% of all herd keepers within Northern Ireland were subject to some form of restriction. It submitted that any approach to eradicate bTB had to address all factors of disease spread and maintenance.
DAERA submitted that NIBG and all other consultees had been involved in the consultation process for many years prior to the 2021 process, which was considered in the Ministers March 2022 decision. DAERA also submitted that business cases are not normally published and that there was a risk, in the event that the lengthy business case, that consultees would lose focus on the relevant material.
DAERA also submitted that the Minister had been told about the relevant information in responses that NIBG and other consultees had submitted, as this was covered by the responses given by another organisation The Ulster Wildlife Trust (UWT). The Minister had also met with UWT in person to discuss the response. The Minister therefore had properly considered their objections to the proposed option of non-selective open-shooting.
The Defendant was represented by Tony McGleenan KC, Philip McAteer and Laura Curran who were instructed by the Departmental Solicitor’s Office.
The Judgment
The Judge held that there was no unfairness in the Minister not being told that NIBG and others shared particular concerns, which had been raised by other groups with a similar outlook. The Judge felt that this amount of detail was not necessary for the Minister to be able to make his decision. A summary report had been given to the Minister where it was made clear to the Minister that all environmental organisations that responded were against the option that had been chosen.
The Judge, however, held that whilst the Defendant had identified a clearly preferred option, it declined to provide consultees with the analysis underpinning its selection of that option and therefore the applicants (and other consultees) were not provided with a fair opportunity to respond in sufficient detail. For example, the business case was central to the Defendant's thinking and to the basis for its selection of open-shooting as the preferred option, as such it should have been provided. There was no proper reason for concealing the detailed analysis which lay behind the selection of this option from those who were to be consulted.
The Judge also held that DAERA had failed to conscientiously consider the product of the consultation exercise, in that the Minister ought to have been advised, but was not, of the evidential basis upon which a number of the consultees contended that the Defendant's preferred option represented an inhumane option which would give rise to unnecessary suffering.
The application for Judicial Review was therefore granted. The Judge also quashed the Defendant's decision to implement a non-selective cull of badgers by way of controlled shooting as part of DAERA'S bTB eradication strategy. All other aspects of the Strategy remain unaffected by this decision. The Judge did however also make it clear that this judgment was to deal with the procedural fairness of the process conducted to date, and nothing in the judgment should be read as any comment upon the substance of the options under consideration, which is a matter for DAERA.
Commentary
This case highlights the importance of procedural fairness, and puts the onus on the government department to provide all necessary information when seeking responses from consultees.
It had been discussed at length throughout the case that one of the biggest concerns raised by consultees had been the inhumanness of DAERA’s proposed option of the open-shooting, especially when there was very limited scientific evidence to support such an activity. Scientific evidence had yet to show any quantifiable link between badger culling and the spread of bTB to livestock, and instead supported cattle-based intervention programmes over that of badger-based.
The case also shows that a balance needs to be struck between the most efficient option for intervention and the most humane option. Since the Minister had not been provided with the evidential support that was contained within the consultees responses, he had therefore not been able to fully consider whether the proposed option was humane.
Advocates for Animals hope that this case will encourage government bodies to increase their levels of transparency when it comes to consultation practises and will also encourage government ministers and decision makers to consider a consultees response in more detail.
Getting advice
This post is not legal advice and should not be relied on as such. If you require legal advice on animal protection laws please contact info@advocates-for-animals.com.