Badger Trust, R (on the application of) v The Welsh Ministers

Under section 21 of the Animal Health Act 1981, “substantially reduce” means a reduction greater than insignificant or trivial. It need not mean almost complete elimination and may be measured against the position that would otherwise have arisen.

“Necessary” means that no reasonably practicable alternative can achieve the required result. A Minister need not know every relevant detail but must know the salient facts. An unincorporated treaty cannot itself impose additional domestic-law conditions on a statutory discretion. Where treaty meaning is uncertain, a clearly tenable view may suffice.

The Badger Trust sought judicial review of the Welsh Minister’s decision under the Animal Health Act 1981 to make the Tuberculosis Eradication (Wales) Order 2009, authorising a non-selective badger cull alongside cattle-control measures.

The challenge alleged material factual errors, failure to consider relevant scientific information, misinterpretation of section 21, failure to establish necessity because vaccination was an alternative, and failure to balance the benefits of culling against the destruction of badgers under section 21 and the Bern Convention.

The central issues were the meaning of “substantially reduce” and “necessary”, the information a Minister must have, and the domestic effect of the unincorporated Bern Convention.

Permission and outcome. Permission to apply for judicial review was granted, but judicial review was refused. The Order remained in force.

1. Information and factual error. Applying Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, the court asked whether the Minister directed herself properly, considered legally relevant matters, excluded irrelevant matters, and took reasonable steps to obtain sufficient information. A Minister need not know every relevant detail, but must know the salient facts. The Minister had been given the relevant evidence and qualifications concerning the duration of the cull’s benefits.
2. Statutory meaning. “Substantially reduce” means a reduction of substance, more than insignificant or trivial. It does not require almost complete elimination. It can include a reduction measured against what would otherwise have occurred, including a slowing in the rate of increase of disease.
3. Application. The Minister was reasonably entitled to regard an estimated 9% reduction in confirmed herd breakdowns as substantial. She was also entitled to conclude that vaccination was not yet a reasonably practicable alternative because its efficacy and timing had not been established through field trials. “Necessary” therefore meant that no reasonably practicable alternative existed.
4. Balancing and treaty obligations. Section 21 contains specified preconditions but does not require a separate balancing exercise between the benefits of culling and the destruction of badgers. The Bern Convention was not incorporated into domestic law and could not itself create domestic rights or duties. Treaty obligations may assist in resolving statutory ambiguity, but the provision was not ambiguous and the claimant sought to add restrictions to a statutory discretion. It was at least tenable that Article 9 did not impose the asserted general balancing obligation.