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Brian May's Report on Badger Judicial Review 2 - July 2010

Fri 02 Jul 2010
REPORT ON THE NEW BADGER JUDICIAL REVIEW IN WALES - PART 1

Badgers Judicial Review 2 – a report written sitting in courtroom number 5 in Cardiff. This time there are three judges:Lord Justice Pill, Lady Justice Smith, and Lord Justice Stanley Burnton.

“Causing unnecessary suffering”

In this second Judicial Review, now in process in the courtroom around me, as I sit with one buttock on one chair and the other on the one next door, this phrase leaps out at me. I can’t yet hear what the rest of the discussion is about. There is a whole mass of human behaviour which clearly, to anybody with a shred of integrity, falls into the category of ‘causing unnecessary suffering’ - to other sentient creatures, human or otherwise. It ought to be clear, and people who know right from wrong should be putting up their hands to stop it. Yet the people who are causing this suffering, time and time again, find reasons to wriggle out of admitting their crime, and use any power or influence to enable themselves to go on causing the suffering. It applied to the seemingly, to us, indefensible horror of slavery, to bear baiting, to burning witches at the stake … And in 2010 it applies to people who deny that setting a pack of dogs to rip a fox apart is cruel. It could also, in my opinion, apply to a government which orders the killing thousands of badgers under the pretext of fixing a disease problem in farmed animals.

A healthy world is a world in which there is Biodiversity. A huge number of interactive populations of creatures naturally inhabit every corner of this green planet. If we interfere with the abundance and diversity of this vast canvas, we decrease biodiversity, and the resulting imbalances create sickness in the living world. Populations get out of control, whole communities get wiped out, causing repercussions throughout the whole biological sphere.

The antithesis of biodiversity is Monoculture. This is the situation where huge numbers of just one species are artificially concentrated in one area. It is almost always humans who make this happen. It can happen with plants. In the 1930’s, huge areas of the Midwestern USA were planted with just one species of corn. The result was that one species of weevil, normally not a big threat to anything, multiplied out of control and wiped out the entire crop. It was a disaster.

Read more about it here, if you like.http://aboutbiodiversity.org/agbdx/cornblight.html

There are countless other examples of Man’s foolish creation of monoculture bringing disastrous results. Yet we don’t learn.

The farming of cows, the way it has developed over the last hundred years or so, is just the same. Hundreds of cows (and soon thousands) are bred and coralled in a small area, fed the same feed, and attract the same parasites and diseases. They have to be pumped with antibiotics and hormones to keep the diseases in check. This is why Bovine TB became a problem in the UK. The disease reached epidemic proportions by 1950, when cattle were still often bred in urban environments – and then, as this graph shows, following the introduction of compulsory skin testing, and the imposition of strict movement controls on cattle, who were also allowed more room to graze in the countryside, the problem was vastly reduced. By 1970 the incidence of Bovine TB has dwindled almost to nothing. It was at this time that it was discovered that the cattle had infected Britain’s ancient badger population with the disease.

And this is where we come in. At the beginning of the 1980s the incidence of the disease in cattle began to increase. There was disruption to the testing progamme by BSE and the outbreak of Foot and Mouth disease. But the increase in prevalence of the disease was blamed on … the badgers. To this day nobody has been able to prove a mechanism for the transfer of bTB from badger to cow, (though the transference from Cow to Badger is well-documented). And the sudden outbreaks of bTB in areas of Britain hundreds of miles apart cannot possibly be blamed on badgers, who never travel more than 3 or 4 miles from their homes in their lifetimes. Nevertheless, the legend spread among farmers that the badger was the villain – and sections of the farming community (not all, by any means) began screaming for their blood. Until recently the government of both England and Wales resisted pressure to cull badgers, putting a high value on the lives of these ancient and innocent creatures. But, with the recent resurgence of Conservative-thinking politicians to power, backed by organisations linked with the Countryside Alliance, the farming lobby has become all-powerful. In Wales, Elin Jones has already ordered the slaughter of badgers, and in England the same intention has been announced by the new heads of DEFRA, notably Jim Paice. In Wales, the only reason the killing has stalled for a moment is because the Badgers’ Trust has mounted a Judicial Review, challenging the right of the Welsh Assembly to make such a decision. The first JR failed. This is the second, brought about as an appeal against its decision that the Welsh Government acted properly.

So here we are. Michael Sharrat, who has made a lifetime study of badgers, sitting next to me, who has kindly offered me the left hand side of his chair, says, “How bizarre it is that this assembly of humans sits in judgment on a whole country’s population of another species.” Yes, these men and women are deciding on the life or death of thousands of innocent animals.

(to be continued…)

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Sat 03 Jul 2010
BADGERS JUDICIAL REVIEW 2 - CARDIFF - PART 2

Firstly, here is a report in the Daily Post, which details the reason why the Welsh Assembly asked for more time to prepare their case – the broadening of the discussion by the Badger Trust’s counsel, to the whole of Wales, effectively introducing a third ground of objection to the government’s decision to cull.

www.dailypost.co.uk/farming-north-wales/farming-news/2010/07/02/badger-cull-in-the-balance-55578-26775162/

Inside the courtroom things are confusing - a lot of our Counsel’s legal language is going over my head. I have a copy of the skeleton argument, though, so I have a rough idea that he is presenting an objection to the ruling of the previous Judicial Review on two grounds, which are about to become three. I reported on the first JR last March - “My Day in Swansea”.

The judges also do not understand some of the terms used in the presentation – and they insist on definitions and clarifications … which are helpful to us, too. There is much discussion over what, exactly, is meant by a ‘breakdown’ – which occurs when one animal fails the skin test, and is pronounced suspected of being infected with Bovine TB – the disease which this whole scenario is about. The skin test is not at all accurate, so very often an animal is pronounced suspect, and is killed, and a post-mortem done and it is discovered it was not sick at all. This is a ‘false positive’ test result. One of the judges asks if there are also false negatives, and the answer is “Yes”. So there are many animals whose flesh and milk DO go into our food supplies – right now. Luckily for us, it’s hard to get TB from eating meat, and the fact that all milk is now pasteurised means that there is pretty much zero chance of getting the disease from milk either. So why is it so crucial that this disease is eradicated? You might well ask. The true answer is … health-wise for humans, it is not important at all. Isn’t that amazing ? So why all the fuss? Well, it’s all about money. The farming laws of Europe dictate that if any herd has had an infected cow in it, the herd cannot be sold in Europe. Yes, farmers might be crying for help, but in fact, it’s not because they are upset about their animals getting sick and having to be killed – but because the value of their herd is at a stroke slashed as soon as there is a confirmed ‘breakdown’. However, there is more. The farming industry is one of the most heavily subsidised industries in Britain. Even if the whole herd has to be slaughtered (which is rare) the farmer is compensated for every loss of income. So, again, why all the fuss? As far as I can see, it’s about The Government being able to show a profit from farming. It does not show good figures if it’s subsidising losses all the time. This is the key bit of emotive propaganda which is used to try to justify culling the poor old badgers. “The Government is spending all this money – it can’t be allowed to go on”. And so on.

Well, one of the judges has just discovered ‘perturbation’. Perturbation, discovered in the ISG (Independent Scientific Group) experiment, in which 11,000 badgers were culled in a number of areas, says that if you kill badgers in a defined area, their social structure becomes disrupted (surprise, surprise) and many of them escape to outside the cull area. This shows up as a very small increase in the incidence of bTB in a ring outside the experimental area, which compensates, in a way, for the very small lowering of the incidence of bTB in cattle INSIDE the experimental zone. We’re talking about 9 per cent in each case … a very small effect. It’s interesting to ask the question (which nobody usually does) – what about the other 91 per cent? If killing the badgers takes away only 9 per cent of the infections, what are the other 91 per cent caused by? And, since this is a much greater effect, why aren’t we tackling this first? ! Why are we killing badgers when, even they ALL die in Britain, we will still be left with a huge 91 per cent bTB problem? Well, ask Elin Jones, or Jim Paice this question, and see what they say!

It’s incredible, too, that the number of cattle killed because of bTB is completely dwarfed by the number killed every year for other reasons. This is truly shocking. In this chart, you can see that by far the greatest number of dairy cattle killed every year are killed because they are found not to be capable of giving birth any more. A similar number are killed because they get mastitis, a disease of the udder (think Monoculture and intensive farming, in cramped conditions). The number killed (by farmers) because of suspected bTB is way down the list … and amounts to an incredible 10,000 out of 300,000 dairy cows slaughtered every year. That’s just over 3 per cent. This is what they want to kill badgers for.

Inside the courtroom, then, for the whole morning, we are quibbling about the meanings of words, the fine points of law concerning how much consultation the Welsh Assembly should have gone through before making a decision, and whether the improvement to be gained from a cull is 9 per cent or 6 per cent. Outside the courtroom, in my mind’s eye, I see this little drama in perspective – small and puny in context with the glaring monstrous crime about to be committed, by these few people, with piles of paper in front of them, all hinging around small issues of law. They talk about the gain in monetary terms, and they talk about ‘balance’ of the deed of killing against the value gained. What price can you put on the life of just one innocent badger? Nobody seems to care. Or perhaps it’s because the law does not allow them to make this an important issue. The guidelines are already laid down. The badgers are a protected species, until the government decides they are a pariah.

Oh … did I say “innocent” badgers? Some of these people here, and some very extreme people commenting on farming websites would argue against that. They say, “They cause disease in our cattle … they are guilty! – kill them – kill them all ….” But no … guilty they are not. Even if their existence now contributes a small amount to the spread of the disease, it was, and is, completely OUR fault. OUR intensive farming methods allowed the disease to proliferate, out negligence allowed it to spread to the badgers, and apparently to deer and voles too, we hear recently …. So soon governments will be advocating killing ALL our wildlife, it seems. A small voice asks “If animals get sick, cattle or badgers, should we not be trying to cure them, or at least make them feel better? No. Our solution, because farming is completely for human benefit, is KILL. We kill them ALL.

For God’s sake, am I the only one who thinks this, to any decent person, without the need for proving it in court … is … WRONG?

(To be continued …)

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Sun 04 Jul 2010
BADGERS JUDICIAL REVIEW 2 - CARDIFF - PART 3

I left off at the end of the morning session in Cardiff, at which point I was feeling pretty down. It seemed to me that the judges had pretty much pulled all our guy’s arguments into pieces which didn’t fit so well any more. A quick sandwich and a lot of ‘well, whatever’ faces from the ladies and gentlemen who have turned up, like me, to sit on the sidelines and do virtual cheerleading. We all troop back into the courtroom, and – thanks to a kind clerk – I have a chair! Hurrah. I can hear better now too.

Our chap is doing a final round-up of the case. The subject of 9 per cent comes up again – no-one can quite figure out what it refers to … and then the fact is mentioned that Elin Jones’s proposed culling operation is a ‘trial’. SO this is some kind of scientific experiment?! Well, if this weren’t so serious, there would be a big laugh at this point. Firstly the experiment has already been done – 11,000 badgers died in order that scientists could come to a clear conclusion that culling cannot work as a control for bTB. Secondly, there is no way this can be an experiment. The Welsh Assembly’s package is a mixture of methods – culling, testing, plus mostly voluntary controls on movement of cattle. And there is no control group – no place set aside for comparison – to show what would have happened if the ‘experiment’ had not been done. And there is, incredibly, no plan, as far as we can see, to actually tabulate and process the results anyway! No post-mortems on badgers to see how many of the poor sods actually HAD the disease before they were gunned to death. So there is no way on God’s Earth that this experiment can yield any meaningful information for the future. So - if it’s not an experiment – then what is it?

In fact there is no EVIDENCE that this proposed cull will produce ANY benefit at all. It is all “Well, we think it will, and it will persuade the Farmers that we are doing something”. OK – I added the last bit on. But it sure seems that way. Does the majority of Welsh voters want this to happen? I doubt it. But the farmers have the whip hand … they hold the aces – the people in high places who want their vote.

There is a brief return to the meaning of the word “Breakdown” as applied to a discovery of infection in a herd (“is one cow enough?” – is a suspected infection enough, or does it have to be confirmed?” and so on. But now a much more important question of semantics comes up. The law apparently says (and I’m paraphrasing) that the Government can go ahead and start killing a protected species (badgers in this case) as long as they can demonstrate that they will effect a ‘significant’ improvement in the control of a disease in a farmed animal. So is 9 per cent significant? Or is it 6 per cent? And – really – these are only estimates anyway, since the ISG experiment – which is the one they are all quoting – was done in different conditions anyway.

I was worried about the way our counsel’s arguments were being received. But when he finally winds up and sits down to reorganise (quite noisily!) his boxes of paper, and the counsel for the Welsh Ministers stands up, a new scenario unfolds. The judges seem even more critical of his arguments than of our guy. In fact they occasionally smile before delivering a withering question which he can’t answer. At first there is a quibble over whether the Minister’s judgment is being questioned here – or is directly a question of whether she considered the balance of effects or not. Counsel say yes, but unfortunately (for them) there are some phrases in their report which indicate that they didn’t consider it necessary. The one which says they propose to ‘kill as many badgers as possible’ emerges as something which looks like it will make them vulnerable. The judges do not let WAG Counsel wriggle out of any of this.

One of the judges reminds us, “If a species of wild animal is culled to the point where there are not many left, the species can then regenerate” (the implication being that this might be OK). This sets me thinking. Suppose we were talking about human animals. Just because the human race is rather good at regenerating, would that justify, say the killing off all the people in Kensington because they were carrying an infection? The suffering and death of even ONE animal matters. I hold it self-evident that every creature is worthy of respect. And a decent life and a decent death. But to the people who make the laws in this country, this is evidently not something they believe. The other flaw in the argument that regeneration might make this particular cull OK is that, if there are any left after this carnage, but there has been no programme of vaccination, they will regenerate with the same, or worse, prevalence of the disease than before. It’s baffling to me that Elin Jones does not understand this. THERE IS NO COMPONENT OF VACCINATION IN ELIN JONES’S PUBLISHED PACKAGE! I drew a small set of three pictures, representing the situation before, during, and after a cull in a defined area, like these people are proposing. Maybe I can show this here … its like “Culling for Dummies”. The judges discuss this. Suddenly the whole scenario of culling is exposed for the ineffectual policy it really is.

Counsel for the Welsh Ministers is now asking for a 2-week hiatus, to prepare a case to answer the fact that there is a new ‘tilt’ to the Badger Trust’s argument. The judges say they plan to deliver judgment this Monday in London. And they’d prefer not to wait. They question Counsel on the fact that they understood this was a matter of urgency for them since they wanted to start the killing as soon as possible. But Counsel still says they need at least 2 weeks … they’d prefer a month! They say they’ll think it over, but meanwhile the case continues. More discussion about 6 per cent or 9 per cent. Nobody seems clear on this (neither am I! But it is not something I think is so important) . More arguments about what ‘substantial' means, but this time it’s about what it means to the judge presiding over the first Judicial Review thinks it means – rather then the law. It’s more and more words.

One of the judges at this point wakes everybody up. She says, “Why would Elin Jones, in setting forth the policy for culling, use the word ‘eliminate’, when all they needed to do was achieve a ‘substantial reduction’? She’s right. Perhaps the Welsh Government ARE at fault, simply because they reached for more power than they needed to. I find myself hoping that this ultimately loses them the case, and saves thousands of badgers.

Now two statements from the judges, who sit in flank positions, seem to speak very loudly. One says, “ I am not sure that, in normal parlance, a 9 per cent improvement, set against a 100 per cent, qualifies as 'substantial'".

The other says,” Did Parliament, in drafting this law, intend to give Ministers the power to make a native wild animal EXTINCT, to achieve something less than a substantial improvement in the prevalence of a disease in Farm Animals? The word Extinct has not been heard before in this JR, and it produces quite a shock in the room. One might have expected our Counsel to use this word, in an emotional appeal, but in fact to hear it uttered by a judge, highlighting the fact that in claiming the power to extend the ‘trial’ to all of Wales, they were in fact giving themselves the power to make the badger extinct in Wales.

So the objections to the way Elin Jones has behaved look like they are justified at this point.

I will try to finish this off tomorrow, before you all fall asleep !

But I’ll append my diagram. Which shows very simply why culling without vaccination cannot ultimately improve the health of badgers – and hence of cows too. And in any case any improvement is almost negligible compared to the benefits of proper husbandry of cattle, and strict movement restrictions. And of course all this is in addition to the fact that culling of this ancient, innocent and precious wild creature is cruel and immoral.

(To be concluded … )

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Mon 05 Jul 2010
BADGERS JUDICIAL REVIEW 2 - CARDIFF - PART 4

Firstly, if you are interested in the vaccination discussion going on right now in ENGLAND, please take a look at this article in the Farmers Guardian. The main story, in which a contractor says it was becoming too expensive to mount the vaccination programme which has just been cut to a fraction of its former scope as planned by Hilary Benn, is quite interesting. But even more interesting are the comments below … a very informed discussion of the real prospects. More and more I notice that the comments following articles on the Net are a valuable source of ideas, out there in the public area.

www.farmersguardian.com/home/livestock/badger-vaccination-project-was-too-expensive/32909.article

OK. OK. Last part of 'My Day in Cardiff': the rest of the afternoon session.

One of the judges now makes the first allusion that I have heard all day to the Berne Convention, which actually seems to be the original reference for this crucial word ‘substantial’. But in effect, the judges' comments seem to indicate that they have heard enough evidence on the first two ‘grounds’ of dispute, and are eager to get into the third ... the question of whether Elin Jones’s cull is limited to an ‘experimental’ area, or has the power to extend to an eradication of badgers in whole of Wales.

I am distracted by a print-out of comments in the Farmers Guardian. I imagine they get embarrassed in the same way I do, reading the extremism which finds an outlet on their site. These comments from the violent fringe of farming look very similar to the ‘trolls’ who have sullied our own site. They are angry, jingoistic, sadistic, as if these people watched too many Rambo films and got confused between commies and badgers. They scream for the blood of these small creatures, in exactly the same tone as those who call foxes vermin and advocate ‘wiping them out’. Their language is reminiscent of the worst organisations in history who victimised certain nationalities – it is a fascistic tone. It seems that many of the people who want to be free to kill foxes also want to be free to kill badgers – some of them are already, totally illegally, taking this into their own hands. Maybe in truth they get pleasure from killing ANYTHING. I now have a collection of books which make the strong connection between violence to animals, and violence to humans. Yes, is seems the fox question and the badger question, although they arise from different roots, are interlinked, from the bottom level of spades and clubs and guns, all the way up to the top level, to politicians in power, in Wales and in England. This is why this court case has much more far-reaching potential for influence than it might seem. The whole world will be watching to see if this government will be able to pull off this sledgehammer move in the face of public opinion. Perhaps this will be what people will look back on as the moment when the tide of cruelty turned – perhaps it will begin in Wales, right here. Every time I step into this arena I hear from farmers at the other end of the spectrum who, privately, say they will not stand for the eradication of wildlife – who, like us, want to see for their grandchildren a countryside filled with healthy wild animals.

The judges return to the question of the ‘Third Ground’. Counsel for WAG says they really can’t assemble their case until they’ve had time for consultation. The judges retire to discuss this privately, and after five minutes, return to declare that they will allow just one week for the Ministers to rebuild their case, and summarily declare the session over, to be resumed next Wednesday. [Now Tuesday 13 July]

As we begin to leave, just as I’m thinking that I’d like to speak more with the opposition, I am approached by a legal advisor chap from the opposing side who would like an autograph. It’s a strange jolt back into the other life I lead. All that rockstar stuff is forgotten while I’m wrestling with animal matters. I take the opportunity to ask for an introduction to Christiane Glossop, the chief Vet Officer for Wales and the key expert voice behind this whole scheme. She kindly agrees to a chat, and we steal a few minutes which for me are the most interesting and challenging of the whole day. I don’t want to abuse what was essentially a private conversation, but I feel it was a productive moment. If nothing else, she convinced me that she is not the Wicked Witch of the West that she has often been painted, and I think I convinced her that I am not some weekend joyrider pop star. I brought up the moral and scientific issues, and CG told me that, as a vet, she DOES care about decent treatment for the badgers, as well as fulfilling her duty to do the best she can for the cattle in her care. I showed her my hastily drawn culling diagram, pointing out that culling without vaccination was absolutely incapable of lowering the prevalence of TB in badgers. She answered that they ARE considering a vaccination programme. I must have looked shocked, because this has never been made public. I commented that this news might make a big difference to the way the courtroom felt about the Ministers. She said, “Please take this news with you”. The problem is that her intention is to bring in vaccination AFTER the cull. I immediately quarrelled with this, on all the grounds that I’ve set out earlier in this report. I suggested that she would get support from many quarters if she agreed to put vaccination first. Dr Glossop said … “I can tell you we will think about it.” Which I regarded as cause for cautious optimism.

Probably a good place to pause. The clock ticks, and the executioner fingers his axe. I am praying the Welsh will not stand for this carnage. And that the world will listen.

Bri

My good friend J-A has asked me to remind us all that, of course, the judges are stuck with the wording of the Badgers Act – they cannot remake the legislation, they can only interpret it.

BRIAN MAY
July 2010 

 

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