Badger Trust, R (On the Application Of) v Secretary of State for Environment Food And Rural Affairs

A substantive legitimate expectation requires a representation that is clear, unambiguous and devoid of relevant qualification. Its meaning is assessed by asking how a fair reading would reasonably have been understood by the intended recipients. A general policy, without a specific and pressing undertaking directed to an individual or sufficiently defined group, will ordinarily be insufficient. The court should be cautious before implying an assurance that significantly restricts the executive’s freedom to alter policy, particularly where the assurance is absolute, imprecise, costly or inconsistent with statutory guidance. An assurance that a policy will be reviewed or evaluated before wider implementation does not necessarily promise continuing oversight by the reviewing body.

The Badger Trust sought judicial review of the Secretary of State’s decision to continue controlled badger culling for a second season in two pilot areas. It alleged that published policy had given an unqualified assurance that an Independent Expert Panel would remain in place while wider roll-out remained under consideration, and that culling would not be extended without the Panel’s further conclusions or evaluation.

The Secretary of State accepted that wider roll-out remained in contemplation but did not intend to retain the Panel. The central issue was whether the policy documents, read in context, created the alleged substantive legitimate expectation.

1. Claim dismissed. The policy documents did not give the alleged assurance and therefore did not create the claimed substantive legitimate expectation.
2. A substantive legitimate expectation requires an undertaking that is clear, unambiguous and devoid of relevant qualification. The representation must be understood by a fair reading from the perspective of those to whom it was made.
3. The critical policy passages referred to the first year, the initial six-week pilot and evaluation of its results before any wider roll-out. They did not promise that the Independent Expert Panel would continue beyond that initial period. The statutory Guidance instead contemplated that any problems identified by the pilot would be addressed by the Secretary of State through appropriate changes, including possible amendment of licence conditions or reconsideration of controlled shooting.
4. The court should be slow to imply an assurance which would transfer ultimate control of policy-making from the executive to an outside body. The alleged assurance was expressed in extreme and absolute terms, lacked sufficient precision as to the Panel’s future remit, carried significant public cost, and was difficult to reconcile with the Guidance and the Panel’s own understanding that its remit was limited to the six-week pilot.
5. The legitimate expectation actually supported by the material was narrower: the Secretary of State would consider the pilot evaluation and would not proceed with wider roll-out unless concerns identified by the Panel had been properly addressed. That did not prevent continuation of the existing licensed culls in the pilot areas.
6. Had the alleged expectation been established, relief would have required reconsideration of whether controlled shooting could continue without an Independent Expert Panel of some kind. Natural England was not bound by any expectation created by the Secretary of State; it remained subject to its statutory duties and lawful guidance.

The claim was dismissed.