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