On 21st February 2020 the Save Me Trust, represented by Mr Simon Farrell QC, applied to the High Court to intervene in the ongoing Judicial Review challenge to the Government’s decision to suspend badger culling in Derbyshire. The case follows a claim by the National Farmers Union against the Secretary of State for the Environment, Food and Rural Affairs and Natural England after the Government put the brakes on plans to issue licenses to cull badgers in the county. Derbyshire has one of the most active vaccination programmes in England, while badger culling has not been authorised in the county since 2005. Had the planned cull gone ahead it would have significantly undermined the well-established vaccination programmes operating in the area. Save Me Trust therefore support the Government’s decision to suspend the cull. We have filed expert scientific evidence from Professor Rosie Woodroffe with the Court and have asked for the opportunity to put forward submissions that will emphasise the need to move away from culling towards non-lethal methods of controlling bovine TB. The case will be heard on 1st April 2020.
Our Submissions to the courts
The Queen on the application of (1) NATIONAL FARMERS’ UNION and (2) T & G STONE LIMITED v SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS and NATURAL ENGLAND
Re: CO/4817/2019- Application for Permission to Intervene Pursuant to CPR 54.17
1. The Save Me Trust [hereafter “SMT”] seeks the permission of the Court to intervene in these proceedings, which are listed to be heard by the Court on 1 April 2020. The nature of SMT’s interest in the proceedings and the scope of the proposed intervention are set out below.
2. SMT seeks permission to intervene by way of written submissions and the filing of a single witness statement1 only. The limited nature of the intervention sought is reflected in the draft order which is appended to this document.
3. In order to assist in the preparation of its submissions, SMT has instructed counsel Mr Simon Farrell QC of 3 Raymond Buildings and Mr Ben Isaacs of 7 Bedford Row Chambers.
4. SMT would not seek any order as to costs and it is not anticipated that any order for costs would be sought against it. The intervention should have no effect upon the length of the proceedings and no effect upon the orders made for costs.
5. The order granting the Claimant permission to claim judicial review is dated 17 January 20202. Application was made on behalf of SMT pursuant to CPR Statements of Case and Court orders, which were duly received on 14 February 2020. The application to intervene has therefore been made as promptly as possible.
6. Owing to the tight timetable3 and the need to make this application promptly, SMT is yet to formally seek the consent of the parties to this application to intervene. A copy of this application and the statement of Ms Woodroffe will be sent to all parties at the same time as being lodged with the Court. We shall update the Court with their responses as soon as they are received.
SMT’s Interest in the Proceedings
7. SMT is a national charity founded by Dr Brian May and Ms Anne Brummer. It has received numerous awards in recognition of its services to UK wildlife4. Its aim is to improve animal welfare in the United Kingdom. It represents the concerns of a sizeable proportion of the population concerned by the culling of badgers. SMT also recognises the burden that bTB places on the welfare and well-being of farmers and their families. Indeed, it works closely with many farmers whose herds are affected by the disease.
8. SMT is committed to non-lethal disease control measures. It must be emphasised that that commitment is not only based on consideration of what is humane. SMT strongly believes that the decision whether or not to cull badgers must be informed by evidence as to the likely outcomes. Accordingly, our commitment is informed by robust scientific evidence. In support of its campaigning activities SMT therefore commissions independent scientific research on the subject of bovine TB (bTB), with a particular focus on the effectiveness of badger vaccination as a disease control measure. It also funds and administers vaccination projects, such as the Badger & Cattle Vaccination Initiative (BACVI), which engages with farmers, government and stakeholders to find a sustainable and effective path for the reduction of bTB in cattle and wildlife.
9. As per §10 of the Claimant’s Statement of Facts and Grounds, the First Defendant’s stated reason for the Direction issued to the Second Defendant was that “the SoS intends to consider further the relationship between the operation of culling and vaccination for the purpose of preventing or controlling the spread of bovine TB…”. That is precisely the issue to which much of the research funded by SMT is directed and the focus of Ms Woodroffe’s evidence.
10. For those reasons, SMT is particularly well positioned to report on the latest scientific thinking on the interactions between badger culling and badger vaccination, and to voice the concerns of those in society who are in favour of moving towards non-lethal disease control measures.
The proposed intervention
11. SMT seek to advance submissions focussed on Ground 3 of the Claim, by which the Claimant’s plead that the Secretary of State’s decision was irrational. SMT support the Defendant’s submission that there was good reason for its decision, namely the desirability of moving away from culling to non-lethal disease control measures.
12. SMT notes the Claimant’s reliance on the fact that the guidance issued by the Secretary of State does not identify vaccination as a relevant criterion in deciding whether to grant or reject a licence to cull badgers (for instance, § 11 of the Claimant’s Grounds). SMT’s global submission is that any strategy for eradicating bTB which does not factor in vaccination is short-sighted and doomed to fail. The government must therefore be afforded the opportunity to examine the relationship between the two disease control measures. SMT note the observation at §14 of Mr Justice Johnson’s Order of 17 January 2020 that it is possible that the matters of which the Claimant’s complains may continue to influence future decision making. On behalf of SMT it will be submitted that, indeed, vaccination must influence future decision making.
13. SMT would wish to draw the Court’s attention to the following points in particular:
a) Independent scientific opinion suggests that culling close to vaccinated land is very likely to reduce the ability of badger vaccination to prevent the spread of disease. To date, the only badger culling conducted in the county of Derbyshire occurred as part of the Randomised Badger Culling Trial (RBCT), in the years 2000-2005. By contrast, vaccination started in Derbyshire 2014, and has continued and expanded each year since then. If the cull were to go ahead it would therefore undermine the impact of the vaccination programs that have been operating in the county;
b) Extending the cull to Derbyshire could impede scientific progress towards a better understanding of the effectiveness of vaccination. The impact of badger vaccination on cattle TB can be measured only through large-scale studies. No such large-scale trial has been conducted to date. The Godfray Review emphasised the immediate need for such a trial. Derbyshire has one of the most active vaccination programmes in the country. Extending the cull to the county risks interfering with efforts to robustly evaluate vaccination as a tool to reduce cattle TB;
c) Culling would have a significantly negative impact on the effectiveness of vaccination and on our ability to reliably evaluate vaccination efforts even if proposed 200 metre “buffer zones” were adopted. Very recently published research (2019) indicates not only that on average roaming extends to more than twice that distance, but also that culling disrupts roaming behaviour, substantially increasing average badger movement. There is now a strong body of evidence to suggest that a 200m separation between culled and vaccinated areas would be completely inadequate;
d) The government’s long-term aim is not to reduce cattle TB but to eradicate it. Culling badgers cannot eradicate M. bovis. In fact, it increases the prevalence of infection in badger populations, helping the disease to persist even when badger numbers are low. Vaccination is far more likely to contribute to TB eradication. It is also cheaper than culling, more humane, and less environmentally damaging.
14. In conclusion, SMT has a clear interest in these proceedings. We are a reputable charity supported by well-established experts in the field of badger vaccination. The form and nature of the proposed intervention will have no effect upon the costs of the litigation and negligible effect upon the length of the proceedings in Court, if any.
15. It is hoped that the submissions of SMT can assist the Court in arriving at its conclusions in a case which gives rise to significant public interest, but is also of genuine importance to vaccination efforts in Derbyshire and the move towards non-lethal disease control generally.
16. For all of the above reasons, SMT respectfully seeks the permission of the Court to intervene in this case. A copy of this letter is being sent to all parties to seek their views on the application contained in this letter.
CEO, Save Me Trust