Badger Trust, R (on the application of) v SSEFRA

The power to grant a licence for the conservation of badgers under section 10(2)(a) of the Protection of Badgers Act 1992 is not confined to preventing disease from spreading beyond the licensed area. In the context of disease, “spread” includes increased incidence within the area and transmission from badgers to cattle. The power may therefore support controlled culling intended to reduce bovine tuberculosis. Section 10 provides a voluntary route, distinct from the compulsory destruction powers in section 21 of the Animal Health Act 1981. A change in the scale of the disease since enactment does not justify a narrower construction.

The Badger Trust appealed against Ouseley J’s dismissal of its judicial review claim concerning the Secretary of State’s policy of permitting controlled badger culling in two English pilot areas to address bovine tuberculosis. The first-instance judgment was reported at [2012] EWHC Administrative 1904. The appeal was limited to whether section 10(2)(a) of the Protection of Badgers Act 1992 authorised licences for that purpose. The central issue was whether “preventing the spread of disease” described a geographical limitation or also included reducing disease incidence within the licensed area and transmission between species.

1. Appeal dismissed. Ouseley J was right to reject the challenge to the legality of the proposed licences under section 10(2)(a) of the Protection of Badgers Act 1992.
2. The statutory language did not confine the power to preventing disease from crossing the boundary of the licensed area. In the context of disease, “spread” can denote an intensification or increase in incidence, whether or not over a wider geographical area, and transmission from badgers to cattle. Preventing infection of uninfected cattle therefore constitutes preventing the spread of disease.
3. The legislative history supported no narrower construction. Section 21(2)(b) of the Animal Health Act 1981, and its predecessor section 9(2)(b) of the Agriculture (Miscellaneous Provisions) Act 1976, used narrower wording and were accompanied by compulsory powers of entry. Section 10 of the 1992 Act provided a different route based on voluntary cooperation with landowners.
4. A construction requiring the licensed area to exclude the area where beneficial effects were intended would be strained and artificial. Section 10(2)(b) did not provide an alternative power to trap badgers for vaccination.
5. The court raised, but did not decide, whether section 21 of the Animal Health Act 1981 had been impliedly repealed pro tanto by section 1 of the Protection of Badgers Act 1992, because an order under section 21 might otherwise authorise conduct criminalised by section 1.

Lord Justice Rimer and Lord Justice Sullivan agreed with Lord Justice Laws. The order was: appeal dismissed.

• Court of Appeal (Civil Division): [2012] EWCA Civ 1286 — appeal dismissed.
• Queen’s Bench Administrative Court: Ouseley J dismissed the judicial review claim on 12 July 2012: [2012] EWHC Administrative 1904. The appeal was limited to the statutory-construction ground concerning section 10(2)(a).