Langton, R (On the Application Of) v Secretary Of State For Environment, Food And Rural Affairs & Anor

A consultation on proposed administrative guidance need not reopen the underlying policy where the statutory duty to consult concerns guidance and the policy is already at an advanced stage. The consultation must nevertheless be fair, sufficiently informative and capable of eliciting intelligent responses.

A licence to kill badgers under section 10(2)(a) of the Protection of Badgers Act 1992 is lawful where the decision-maker’s subjective purpose and intended effect are preventing the spread of disease. The statute does not require a technical scientific certainty before a rational, evidence-informed policy may be adopted.

Under the Habitats Regulations, an authority must record whether screening is required for nearby protected sites. Relief may be refused where it is highly likely that the outcome would have been substantially the same.

The claimant brought two conjoined judicial reviews concerning the Secretary of State’s 2017 guidance on supplementary badger culling and Natural England’s licences for supplementary and standard culling.

He alleged that the consultation was unlawful, that the policy lacked a lawful basis under section 10(2)(a) of the Protection of Badgers Act 1992, and that Natural England had failed to comply with the Habitats Regulations when assessing effects on protected sites and birds.

The central issues were the scope and fairness of the consultation, the statutory purpose and rationality of the policy, the requirements for habitats screening and assessment, and whether any procedural failures could have made a substantial difference to the outcome.

1. Claims dismissed. The consultation, the supplementary-culling policy and the challenged licensing decisions were not quashed.
2. The statutory consultation duty under section 15(3) of the Natural Environment and Rural Communities Act 2006 concerned guidance to Natural England. It therefore arose when the proposal was fairly advanced and did not require consultation on wider policy questions. Read as a whole, the consultation enabled consultees to oppose supplementary culling, support a do-nothing approach or propose alternatives. The consultation was imperfect but not so clearly and radically wrong as to be procedurally unfair.
3. The Secretary of State was entitled to decide which matters to consult upon and was not required to identify discarded alternatives in the circumstances. The evidence showed that consultation responses, including scientific objections, had been considered. The threshold for an omitted consideration was whether no reasonable decision-maker could have failed to take it into account.
4. The purpose of supplementary culling was to prolong the expected disease-control benefits of intensive culling. That was a proper purpose under section 10(2)(a) of the Protection of Badgers Act 1992. The provision did not impose a technical or specialist scientific test. Given the acknowledged scarcity of direct evidence, the support of the chief scientific adviser and chief veterinary officer, and the commitment to adapt the policy as evidence developed, the policy was not irrational.
5. For habitats assessment, the precautionary principle applied. A significant effect had to be treated as likely where it could not be excluded on the basis of objective information. The claimant had not produced credible evidence establishing a real risk from fox predation or disturbance within the assessed sites. Natural England was rationally entitled to exclude those risks.
6. Natural England nevertheless breached its duty by failing adequately to record consideration of nearby protected sites and whether screening was required. However, it established under section 31(2A) of the Senior Courts Act 1981 that it was highly likely that the outcome would not have been substantially different. The same conclusion would have been reached on the evidence.
7. The licence conditions were integral features of the proposed projects, rather than mitigation measures of the kind excluded at the screening stage by Case C-323/17. It was therefore permissible to take them into account.