The National Farmers Union & Anor, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs & Anor

A published policy or guidance setting eligibility criteria does not necessarily promise that every qualifying applicant will receive a licence. Where the statutory scheme preserves a residual discretion, the decision-maker may consider other relevant matters, provided the discretion is exercised rationally and consistently with statute.

A statutory power to direct a delegated licensing body may permit the responsible minister to prevent licensing in a particular area, including for wider political or policy reasons, unless Parliament has imposed a fetter. A legitimate expectation requires a clear and unequivocal promise or representation. Compliance with published procedures, past practice and reasonable assumptions is insufficient. Political and ethical judgments involving competing policy considerations are subject to rationality review, but the weight given to competing factors is principally for the democratically accountable decision-maker.

The claimants challenged a direction issued by the Secretary of State under section 16 of the Natural Environment and Rural Communities Act 2006. The direction required Natural England not to grant a badger culling licence for the Derbyshire part of the proposed Lunar cull area before 1 May 2020.

The claimants contended that the direction unlawfully departed from published policy, frustrated a legitimate expectation, and was irrational because it disregarded compelling disease-control considerations and took account of irrelevant political considerations. The central issues were the legal effect of the licensing guidance, the scope of the Secretary of State’s direction power, the requirements for a legitimate expectation, and the application of Wednesbury rationality review.

1. Claim dismissed. The direction was lawful and the claim failed on all grounds.
2. The Government’s policy was to enable licensed badger culling or vaccination as part of a long-term strategy to eradicate bovine tuberculosis. The guidance stated the requirements for an effective, safe and humane cull, but did not guarantee a licence to an applicant who satisfied them. Applications remained subject to case-by-case consideration and a residual discretion.
3. The Secretary of State could use section 16 of the Natural Environment and Rural Communities Act 2006 to direct Natural England not to issue licences in a specified area and year. The Act imposed no relevant fetter on that power. The direction power enabled the Secretary of State to prevent Natural England implementing a licensing decision which it would otherwise have made.
4. There was no clear and unequivocal promise that the company would receive a licence, or that the guidance identified the only relevant considerations. Past practice, the progress of the application and the conduct of officials supported reasonable assumptions but did not establish a legitimate expectation. The court also observed that, even if such a promise had existed, a bona fide departure on genuine political and policy grounds might have been fair.
5. The Secretary of State had considered substantial factual and scientific material. The decision involved political and ethical value judgments concerning vaccination, culling, public opposition and future policy. The scientific case for licensing was powerful, but it was rational for the Secretary of State to give substantial weight to the risk of killing vaccinated badgers and the wider political consequences of doing so. The weight given to those factors was for her to determine.