(c) Peter Trimming

What Are the Lessons of the Badger Culls for Regulatory Theory? A Response to Comments

Prof David Campbell

In this post, Professor David Campbell responds to some of the issues raised in the discussion which his earlier post on the recent pilot badger culls generated below the line here, and on Twitter.

I am grateful to those who have commented on my views on the badger culls, and, in particular, for the suggestion that the cull (as carried out) might be regarded as a contravention of the Berne Convention on the Conservation of European Wildlife and Natural Habitats.

There are many issues relating to the type of remedy one can expect even if one is successful with a complaint that such a contravention has taken place that I must set aside. I am afraid I anticipate no such success.

The pilot culls were undertaken despite the Humane Society fruitlessly bringing both a domestic action for judicial review and a complaint against the UK government under the Convention. The possibility of bringing such a complaint again would have to rest on what those opposed to the cull believe, in my opinion rightly, is the now proven complete failure of the pilot culls. But as the precise nature of this failure was accurately predicted by a large number of bodies, including the Humane Society, the issues have, I think, been canvassed, and I am afraid I do not think much will change.

The difficulty here is of great interest to the student of public law and regulation, but understanding that difficulty will not, I am afraid, give much hope to those opposed to the cull. The difficulty, in my opinion, is this. The Convention and the English legislation passed to give its provisions domestic effect, The Wildlife and Countryside Act 1981 (and also, in this connection, The Protection of Badgers Act 1992), allow for exceptions to the conservation measures to prevent serious damage to livestock. The possible legal question is whether the culls are reasonable measures under these provisions for exemption. But in this connection ‘reasonable’ has a specific meaning it is important to understand.

The English courts have in general been extremely hesitant to hear arguments about the merits of government policies. The formal law over this effectively requires the government to be acting completely without lawful power or in an utterly irrational fashion before the courts will find its actions unlawful. Now, the government is, in my opinion, acting utterly irrationally. But I think one must, however regretfully, allow that, in this case, this is a matter of opinion. The Secretary of State and the NFU do not, of course, even now admit that the culls have completely failed, and are persisting with them. The English law is, in effect, that these are matters for political debate rather than for the courts. In essence, I think that is, in general, the right view, but unfortunately UK administrative law, which has been very concerned to give a ‘green light’ to government action in the claimed public interest, has often taken this far too far, to the point where that law  is often useless exactly when it is most needed, as, I fear, it will be in this case.

My own hopes for legal action were not high because I can remember the foot and mouth outbreak in 2001. As a colleague and I wrote at the time, this was a case where the government not only acted irrationally but it really did not have any lawful power to carry out the contiguous and 3 kilometre culls. But I was not surprised when the government won all the cases of judicial review brought against it (though, for reasons I won’t go into here, the law did not play an entirely supine role).

David Campbell is a Professor of Law at Lancaster University Law School. He is a leading commentator on the law of contract and commercial law and on forms of public regulation of economic activity. He has previously studied the foot and mouth disease outbreak of 2001.  His most recent book with Linda Mulcahy and Sally Wheeler is Changing Concepts of Contract: Essays in Honour of Ian Macneil (Palgrave Macmillan 2013).

You can find out more about David’s research at http://www.lancaster.ac.uk/fass/law/profiles/david-campbell

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2 thoughts on “What Are the Lessons of the Badger Culls for Regulatory Theory? A Response to Comments

  1. lancslaw Post author

    I am very grateful to Mr Purser for his very insightful and informative comments with which I am in complete sympathy, indeed I personally agree with everything he says. When in my blog I said that the only possible way of getting the pilot culls to work was to involve the armed forces (and even then I didn’t think the culls would work), I meant not only using the army to shoot the badgers but to surveille the sites. In essence, I was trying to point to the ridiculousness of the whole exercise.

    The general context to criticisms of the pilot culls that I am trying to add is that, given the inevitable shortcomings of testing and the size of animal movements, any role badgers play in bTB transmission is irrelevant for the livestock industry itself is overwhelmingly a greater vector of transmission.

    Even in light of this, I remain pessimistic about the prospects of success of legal challenge to the culls. There are two grounds for my pessimism.

    First, I think it is proper that judgments about which policies are rational or irrational is treated as a political rather than a legal issue. The standard derived from the English law is very restrictive. A policy is ‘Wednesbury irrational’ if it ‘is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’. However reluctantly, one cannot really say that Mr Paterson and his officials and advisers are not ‘sensible’ in this sense. Wednesbury really restricts the issues to an absence of legal authority or acting in flat contradiction of policies devised under legal authority. I do not think judgements about what is or is not a rational policy maps onto the necessary legal irrationality. Thanks of how many times that government policies could be criticised in the sense that they are bound to fail and so are irrational. Perhaps most major policies could be criticised in this way. I can instantly think of 6 major current policies I would so criticise.

    Proportionality does seem far more promising, and the redundancy of Wednesbury irrationality given the growth of a review jurisprudence of proportionality has been considered many times in the appellate courts. But the English courts in general remain extremely hesitant about this and, in my own opinion they do so because they are concerned about where proportionality will take them. It theoretically does invite the courts to second guess all government policies and, whilst there is an influential body of opinion behind developing such ‘merits review’ (which must in the end involve the courts striking down primary legislation), the Human Rights Act was passed precisely on the basis that it did not give the courts the power to do this. Without going further into the matter, I can only say that the experience of systems which do allow this, of which the US is the only one of which I have a proper knowledge, makes me think the British system is the best. But the practical point is that the English courts generally remain hesitant to review government policies. Immigration is an area where they have sometimes been much less hesitant, and this is leading towards, in my opinion, a constitutional crisis as the Government is passing legislation trying to tell the courts how to decide questions of proportionality in this area.

    Secondly, in my opinion the courts have been so concerned to ‘green light’ government action in the claimed public interest that they have very often not exploited the possibilities they have to strike down dreadful government policies under Wednesbury criteria. I attach a paper in which a colleague and I argued that the government had absolutely no legal power to carry out the contiguous and 3 kilometre culls in response to the 2001 FMD outbreak. Nevertheless, the government succeeded in cases of judicial review. This was, in my opinion, a truly nationally shameful combination of a substantively irrational policy and a disregard of the rule of law. But one must take it, and the attitude it represents, into account when assessing the prospects for legal action now.

    I am sorry that this response to Mr Purser is so discouraging. His points are excellent. I am in one sense pointing to a failure of British public law when I say I would not expect an action based on them to succeed. But I am also, I am afraid to say, pointing to a strength of the British constitution, which does not normally treat these judgements as matters for the courts, and this is the real problem for those seeking to use the courts to oppose these appalling pilot culls.

    Posted on behalf of Prof David Campbell

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  2. Dave Purser

    The body which issues licenses to kill badgers, Natural England, states that, when assessing applications, the “action to be licensed is proportionate to the scale of the problem”. So it’s reasonable to assume that they would have established the level of bTB in the cull zones of W Glos & W Som in order to make this judgement.

    However, when DEFRA were asked for this information via a Freedom of Information Request 5929, they responded by saying this information is not available – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/264860/5929.pdf . So we should be asking how did Natural England judge that the widespread, indiscriminate killing of badgers they licensed was proportionate to the scale of the problem?

    Government statistics held for bovine TB show that the incidence rate of bTB is actually low relative to the number of herds/cattle, despite attempts by the pro-cull lobby to suggest otherwise. For example, although 26603 cattle were slaughtered for bovine TB control in England in 2013, this was out of a total of 5.3million cattle in England during that same period – see Livestock Populations https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/286876/structure-dec2013-eng-06mar14.pdf . This is a loss of half of one percent, far fewer than the number of fallen cattle and those cattle routinely slaughtered for other ailments such as lameness, mastitis, infertility etc.

    The bovine TB statistics are held here – https://www.gov.uk/government/publications/incidence-of-tuberculosis-tb-in-cattle-in-great-britain – and the regional dataset is held in a ‘user friendly’ fashion.

    If we look at the number of herds in England under movement restrictions due to an issue with bTB, 7242 herds were restricted at some point during 2013 out of a total of 53677. In other words, 86.5% of herds in England went about their business unaffected by bTB for the whole of 2013. Even in the West, considered to be a ‘TB hot spot’, 72% of herds went about their business unaffected by bTB for the whole of 2013.

    We can use the statistics available to go down to county level but the format in which the statistics are presented has been changed and is no longer as ‘user friendly’. But it’s still apparent that the level of bTB incidence is relatively low so it’s reasonable to assume this is also the case within the cull zones themselves.

    Current legislation may allow for exceptions to prevent serious damage to livestock but surely it cannot be reasonable, rational or proportionate for a government to sanction the indiscriminate killing of a large number badgers over a significantly large area without first establishing the precise level of damage within that area in order to justify their actions?

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