Prof David Campbell
In responses to excellent comments made on an earlier blog about the pilot badger culls, I have given it as my opinion that the prospects for successful judicial review of those culls are poor. This opinion is based on the nature of judicial review and is not in any way a substantive defence of the culls or the policy of ‘eradicating’ bTB that lies behind them. This policy is irrational in every sense other than the sense which guides judicial review, and the culls have been so completely a failure that I do think their continuation in their present form, and certainly their extension in that form to other parts of the UK, could be subject to successful judicial review. The definition of insanity attributed to Einstein – of repeating the same action in the expectation of a different result – has become very clichéd, but this is only because, as with all the clichés one cannot avoid using, it is profoundly true. To go on with these pilot culls without very substantially amending them, or to extend them in their present state, would, in my opinion, invite judicial review that had a real prospect of success.
I am of course merely speculating, but I think that the Secretary of State, Mr Owen Paterson, will have received advice to this effect and that this lies behind his decision to postpone the extension of culling and to stress that the pilot culls are being persisted with only in order to ‘perfect’ the method of culling. It is in this light that concerned individuals and organisations opposed to the culls have expressed horror as public debate has focused on the fact that, simultaneously with the pilot culling, DEFRA has been conducting trials (in which no animals were involved) into the gassing of badger setts as an alternative method of culling. I must confess that I do not see the force of the criticism that DEFRA has done this in secret. Keeping the location of the trials secret is a defensible security measure. And consideration of the use of gassing was clearly a part of the process of policy formulation that led to the pilot culls. It was most recently part of the major statement of the eradication policy in April this year. In Parliament Mr Paterson has repeatedly referred to gassing. In a reply to a question from Ms Caroline Lucas of the Green Party on 10 October of last year he said that ‘gassing was under consideration, but we will not use it unless it is proven to be safe, humane and effective’. The use of these words, here and extensively elsewhere, gives me grounds to believe that judicial review might play a more useful role if gassing was actually about to be implemented.
The public debate about gassing has been highly influenced by the views of Anne, the Princess Royal, who, in an interview broadcast on the BBC Countryfile radio programme on 6 April, claimed that the ‘most humane’ way of culling badgers is to gas them because ‘the way it works … is that you go to sleep, basically’. Princess Anne was, of course, an extremely distinguished equestrian and what it is impossible to avoid knowing about her private life leads one to think that she has a humane attitude towards animals, though she has been excoriated for having quite the opposite since airing these views. For those, such as myself, who are in principle prepared to countenance the culling of wildlife in order to improve the welfare of livestock, the shortcoming of Princess Anne’s views is that they are wholly representative of the thinking behind the culls and the eradication policy in being completely unrealistic. It must, however, be said that a lack of realism when advocating a policy of killing wild animals is a disgrace. One has a duty to know what one is talking about when advocating a measure of this sort.
I cannot from the reports of her interview I have obtained even be certain which method of gassing Princess Anne was advocating. It appears that it is carbon monoxide that DEFRA is trialling. But as she refers to past experience of gassing, it is likely that she had in mind hydrogen cyanide, used by the then Ministry of Agriculture, Fisheries and Food in the decade after badgers were first identified as a vector of cattle infection in 1971. What does seem to be the case from the reports of her interview is that she somehow envisaged the killing of animals under very controlled conditions akin to laboratory conditions. A badger is placed in an airtight environment, the appropriate concentration of gas is introduced, and it is arguable that the badger can then be said to ‘go to sleep, basically’. The sometimes distressing accounts of gassing experiments I have read give me no confidence that suffering is never caused to animals exposed to the ‘right’ concentration of gas even under laboratory conditions, but let us accept Princess Anne’s claim for the purpose of argument.
The point is that that claim is irrelevant to the issue. Culling by gassing will not be conducted under very controlled conditions. The assumptions that underlie the pilot culls – that it is possible to accurately identify the number of badgers in an area and then within a necessarily short time humanely kill 70% of them by shooting– are simultaneously ridiculous and horrible. But they seem almost sensible by comparison to the assumptions that might lead one to think that gassing badger setts will be humane. The size and topography of these complex structures will not be known and they are not, of course, airtight even after they have been stopped up. The way in which gas causes death differs widely with small variations in the degree of concentration to which an animal is exposed. In these circumstances it will be impossible for DEFRA to give any publicly credible guarantee that badgers will be killed humanely by gassing.
When Princess Anne told Countryfile that ‘most of the people who did it in the past will tell you that gas is a much nicer way of doing it’, she will have pictured the corpses of badgers unearthed near the mouths of their setts after gassing, which no doubt did appear to be the bodies of animals asleep. Much nicer indeed than picturing a badger subjected to the torture of trapping or blasted by a gun or rifle of sufficient size to have a good chance of killing the creature quickly. But Princess Anne did not consider the way in which many of these badgers will have died. She seems to recall neither the harrowing evidence about these deaths gleaned from the past experience of gassing to which she refers, or of the fact that that evidence led to gassing’s abandonment. She did not consider the badgers deeper in the sett, or the badgers which escaped, which were left seriously injured, perhaps sustaining brain damage, by being exposed to a sub-lethal but toxic concentration of gas, and which then live out what remains of their lives in this state. She did not consider the particular issues raised by the inevitable killing of uninfected badgers or the many other mammals – including mice, weasels, voles, cats and martens – which share badger setts.
As I have said, to the extent that one can form a belief, I myself believe that Princess Anne has a humane attitude towards animals. That she nevertheless can advocate a policy with the deplorable consequences of gassing is confirmation of the main lesson of regulatory theory, that virtue is not enough. If one advocates a policy without a realistic evaluation of the chances of its being successfully implemented, then that one is well-intentioned should not shield one from criticism of one’s foolishness, and in this case, as it will lead to the inhumane treatment of animals, such foolishness turns the virtue into wickedness. I regret the necessity of criticising Princess Anne in this way. But she is a figure of public importance who has chosen to publicly express views which give succour to the NFU (which has rushed to praise those views) and DEFRA.
Princess Anne appears, as I have said, to have forgotten something that Mr Paterson surely knows, even had it not been repeatedly pointed out in the current public debate, which is that the experience of the inhumanity of gassing in the 1970s led to it being abandoned in 1982. The use of gas has never been able to be adequately justified. There have been at least half a dozen major reviews of the effectiveness and humanity of badger culling since 1980. All were prepared to countenance the use of gas, and, in my opinion, they largely took far too relaxed a view about the standards of effectiveness and humanity that should be required of any such undertaking. (I personally find it chilling that these reviews largely looked with equanimity upon the frequent or even usual necessity of returning to gassed setts days afterwards in order to kill any surviving badgers, though the justification of the cull was of course that those badgers would quickly receive a lethal dose). But these reviews furnished evidence that gassing could, to say the least, very easily be inhumane and that its effects are, to say the least, extremely difficult to assess, and it has not been proceeded with for that reason.
The failed pilot culls were meant to test the effectiveness of controlled shooting because this was thought far preferable to gassing, which the Independent Scientific Group which reported to DEFRA in 2007 thought to be ‘out of the question’. In light of the experience of the culls as actually implemented, a chastened Lord Krebs, whose own lack of a sense of realism led him to advocate these culls, has now told the House of Lords that they have been a ‘crazy’ ‘pointless exercise’. Unless there is a major development in the technology of gassing, to turn to gassing from the preferred method of shooting, which itself has led to a disgusting spectacle, would be irrational in a way that I think judicial review could catch. That shooting has turned out to be just as stupid and cruel as Mr Paterson was told it would be does not make gassing one jot better.
It will be recalled that Mr Paterson said that it was DEFRA’s policy that gassing would not be used ‘unless it is proven to be safe, humane and effective’. I am afraid that all of these words give DEFRA far more wiggle room than so many would like them to do. But there is a limit. I believe that, under proper questioning by able and informed counsel insisting upon a justification of gassing in the practical circumstances in which it would actually be used, DEFRA would be unable to prove that it had reasonable grounds on which to believe that gassing would be humane. I say this fully conscious of the difficulties of judicial review I have mentioned in my earlier responses, which it would be very foolish not to think could lead to DEFRA surviving such review.
It is entirely open to Mr Paterson explicitly to seek from Parliament powers to kill badgers inhumanely (and to amend international commitments accordingly). But I confidently predict he would not do so because he would be unable to justify his proposals to the electorate if, instead of continuing with the misleading statements he has made about the culls and the eradication policy, he had to clearly describe those proposals. He may even himself be revolted by them if he had to look them in the face. If the public law of the UK can force such clarity – essential to democracy but essentially long absent from DEFRA’s conduct of livestock disease control policy – upon Mr Paterson, then continuing with these appalling culls will be impossible without the extensive use of the armed forces.
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