The Badger Trust, R (On the Application Of) v Royal Society for the Prevention of Cruelty To Animals

The phrase “for the purpose of preventing the spread of disease” in section 10(2)(a) of the Protection of Badgers Act 1992 includes preventing transmission which increases disease incidence, whether the effect occurs inside or outside the licensed area. It does not create a technical or geographically limited distinction between preventing spread and reducing incidence.

Under the Tameside duty, a minister must ask the right question and take reasonable steps to obtain relevant information. That duty did not require a hypothetical revised net present value for a pilot where the relevant cost risk was known and could be addressed through licence conditions. Nor was there a duty to recalculate rejected policy options where cost was not the determining factor. A function authorised to Natural England under a statutory agreement becomes one of its functions for the purposes of statutory guidance and directions.

The claimant challenged the Secretary of State’s decision of 14 December 2011 to adopt a policy under which Natural England could license farmer and landowner groups to cull badgers to address bovine tuberculosis.

The challenge alleged that section 10(2)(a) of the Protection of Badgers Act 1992 did not authorise the proposed policy; that the Secretary of State had failed to obtain or assess necessary cost information; and that she lacked power to issue guidance to Natural England concerning functions performed under a statutory agreement.

The central issues were the construction of the disease-control licensing power, the scope of the ministerial duty to inform herself, and the effect of statutory authorisation under the Natural Environment and Rural Communities Act 2006.

1. Ground 1 failed. Section 10(2)(a) of the Protection of Badgers Act 1992 permits licensing for the purpose of preventing the spread of disease whether the intended benefit is inside or outside the licensed area. In ordinary English, preventing transmission which infects previously uninfected cattle prevents the spread of disease and increases its incidence. The subsection contains no technical scientific distinction between those concepts.
2. The different wording in section 21 of the Animal Health Act 1981 did not justify reading an unstated limitation into section 10. The 1981 Act provides compulsory powers to control diseased wildlife and therefore uses narrower language reflecting the intrusive nature of those powers. Section 10 provides a permissive licensing power directed specifically to badgers. The suggested construction would also create anomalies for trapping badgers for vaccination.
3. Ground 2 failed. The applicable duty, derived from Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, required the Secretary of State to ask the right question and take reasonable steps to acquaint herself with relevant information. She knew that controlled shooting might fail and that cage-trapping and shooting would then be more expensive. She also knew the approximate difference in cost and that licence conditions required funding to cover completion of the four-year cull. A hypothetical revised net present value was not so essential that proceeding with the pilot without it was irrational or unlawful.
4. There was likewise no duty to recalculate the net present values of options already rejected. The choice of the preferred partnership option depended principally on effectiveness and flexibility, not on a single cost assessment. The absence of further calculations therefore did not show a failure to obtain information necessary for a lawful decision.
5. Ground 3 failed. Once Natural England had been authorised under section 78 of the Natural Environment and Rural Communities Act 2006 to perform the Secretary of State’s licensing function, that function became one of Natural England’s functions for the purposes of sections 15 and 16. The Secretary of State could therefore give statutory guidance and directions concerning its performance.
6. The application was dismissed.