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

A statutory power to license wildlife control for disease prevention does not require a prescribed scientific study or certainty of outcome unless Parliament has imposed such a requirement. The decision-maker may rely on informed expert opinion drawn from the available evidence, including where the proposed policy is untested, provided the decision is rational and capable of monitoring and adaptation. A challenge is not confined to improper purpose; ordinary public-law rationality controls remain applicable. A more restrictive statutory regime cannot be applied without regard to statutory differences. An appellate issue overtaken by revised assessments will ordinarily not be determined where a ruling has no practical utility and no exceptional circumstances justify hearing it.

The appellant challenged guidance issued by the Secretary of State concerning supplementary licensed badger culling. The guidance was given under the Natural Environment and Rural Communities Act 2006 in relation to licensing powers under the Protection of Badgers Act 1992. Sir Ross Cranston dismissed the judicial review claim: [2018] EWHC 2190 (Admin).

Permission to appeal was limited to whether the guidance was ultra vires because it lacked an adequate evidential basis, and whether licence conditions could be considered at the screening stage under the Conservation of Habitats and Species Regulations 2010. The latter issue was argued in light of People Over Wind. The central questions were whether scientific certainty was required and whether the screening issue remained suitable for appellate determination.

1. Permission and Ground 1. The appeal was confined to grounds 2 and 3(d). The appellant could not reintroduce, within ground 2, a consultation point for which permission had been refused and which had not been the subject of a renewed application.
2. Ground 2. The court rejected the contention that the lawfulness of the guidance depended solely on the Secretary of State’s subjective purpose. The proper statutory purpose under section 10(2)(a) of the Protection of Badgers Act 1992 was necessary, but the decision also remained subject to ordinary public-law controls, including rationality and relevant considerations.
3. Section 10(2)(a) did not prescribe the nature or quality of evidence required. It reflected a field of developing scientific knowledge. The Secretary of State was rationally entitled to rely on informed expert opinion based on the available evidence, despite the policy being untested. Scientific certainty was unnecessary where the policy was logically justified, monitored and capable of generating further evidence. The proposed choice between supplementary culling and doing nothing, together with the timing imperative and absence of a viable alternative, provided relevant context.
4. The approach in Badger Trust v Welsh Ministers [2010] EWCA Civ 807 concerned the materially more restrictive power under section 21(2) of the Animal Health Act 1981. It did not require the same evidential approach under section 10(2)(a). No impermissible or irrational inference had been established.
5. Ground 3(d). The issue had become academic. Natural England had made new, area-specific and fact-sensitive assessments in accordance with People Over Wind. A ruling would have no practical utility. The exceptional circumstances identified in R (Zoolife) v Lambeth LBC [2007] EWHC 2995 (Admin) were absent. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal. [2019] EWCA Civ 1562.
• Queen’s Bench Administrative Court: Sir Ross Cranston dismissed the judicial review claim. [2018] EWHC 2190 (Admin).