Badger Trust, R (on the application of) v Secretary of State for the Environment, Food & Rural Affairs & Anor

A substantive legitimate expectation requires a representation or promise that is clear, unambiguous and devoid of relevant qualification, together with a specific undertaking directed to the relevant person or group. A policy document must be construed as a whole. Language referring to a first-year pilot and later roll-out does not, without more, assure the continuing role of an expert panel in subsequent years. Missing detail does not itself destroy clarity, but the threshold remains rigorous. A statutory body bound by ministerial directions but required only to have regard to ministerial guidance cannot be bound by an expectation created by the minister alone.

The Badger Trust sought judicial review of the Secretary of State's decision to continue licensed controlled-shooting badger culls in Somerset and Gloucestershire after the Independent Expert Panel reported shortcomings in effectiveness and humaneness, while leaving open the possibility of wider roll-out. The Trust alleged that the Secretary of State had promised that the Panel would remain in place and that no wider roll-out would occur without its evaluation or advice.

Kenneth Parker J dismissed the claim, holding that no legitimate expectation of that nature existed: [2014] EWHC 2909 (Admin). The appeal concerned the construction of the Policy and related materials and, alternatively, whether any expectation could bind Natural England in exercising the licensing function under the Protection of Badgers Act 1992.

Disposition. The appeal was dismissed unanimously. Bean LJ gave the reasons, with which Christopher Clarke LJ and Davis LJ agreed.

1. Legal threshold. A substantive legitimate expectation requires a representation or promise that is clear, unambiguous and devoid of relevant qualification, together with a specific undertaking directed to the relevant individual or group. The requirements stated in R v Inland Revenue Commissioners ex p MFK Underwriting Agents Limited [1990] 1 WLR 1545 remained rigorous. Paponette v AG of Trinidad and Tobago [2012] 1 AC 1 showed that missing detail or undefined terms do not necessarily prevent clarity, but it did not dilute that threshold.
2. Construction of the Policy. The Policy had to be read as a whole. References to piloting referred to the six-week cull in the first year in the two pilot areas, not to the entire four-year licensing period. The Policy contained no clear, unambiguous and unqualified assurance that the Independent Expert Panel would continue after its evaluation of the first year or that wider roll-out would require its further advice.
3. Other documents. The earlier consultation material, later correspondence, Hansard answers and the pleading in earlier proceedings did not alter the Policy's meaning or supply the alleged assurance. The Panel's own report was not conclusive on construction, but its description of its remit as limited to the initial six-week period supported the court's conclusion.
4. Natural England. In any event, Natural England was a statutory body corporate. Under the Natural Environment and Rural Communities Act 2006, it had to comply with directions but was required only to have regard to guidance. Any expectation created by the Secretary of State could therefore not bind Natural England in exercising its licensing function. This was alternative reasoning.
5. The Secretary of State's public-interest argument did not need to be determined. The appeal was dismissed.

1. Court of Appeal (Civil Division): appeal dismissed.
2. Administrative Court: Kenneth Parker J dismissed the judicial review claim, holding that the Trust had no legitimate expectation of the alleged nature: [2014] EWHC 2909 (Admin) .