Appeal against Secretary of State dismissed

The appellant appealed against a decision that it had been lawful for the Secretary of State for Environment, Food and Rural Affairs to issue guidance in relation to the licensing of supplementary badger culling by Natural England.

The Secretary had adopted a policy to permit licensed culling of badgers. The Protection of Badgers Act 1992 gave them the power to grant a licence for badger culling to prevent spread of disease. 

In 2017 the Secretary produced guidance empowering Natural England to issue licences, allowing supplementary culling to take place to prolong disease control benefits. The judge concluded that the Secretary had acted for the proper purpose.

The appellant claimed the judge’s finding turned on the Secretary’s subjective view of whether it would prevent the spread of disease. He argued that there was no evidence to support the policy, and that the judge’s approach was inconsistent with that of previous case law.

The judge concluded the appellant had been wrong to suggest guidance could only be rendered unlawful if the Secretary’s true purpose was other than to prevent the spread of disease. There was nothing in the Protection of Badgers Act to state that the procedure was lawful only if the outcome was certain.

It was confirmed that the Secretary had issued lawful guidance and had been entitled to rely on scientific opinion. The appeal was dismissed.

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