Application for judicial review of badger culling decision refused

In R (on the application of National Farmers Union) v Secretary of State for the Environment, Food and Rural Affairs, the claimant applied for judicial review of the Secretary’s direction to Natural England concerning badger culling.

A group of farmers had involved the second claimant company to apply for a badger culling licence to prevent bovine tuberculosis (bTB) spread within a Derbyshire cull zone. The first claimant trade union supported the company during the process.

Natural England was responsible for issuing badger disease control licences each year. In September 2019, the Secretary directed Natural England, under the Natural Environment and Rural Communities Act 2006, not to grant any licences in Derbyshire before May 2020. She referred to badger vaccination projects within the county and the need to respond to the Godfray independent review of the bTB eradication strategy.

Natural England had been about to grant the company a licence as its zone fell within the top 10 areas identified for a licence, and it had shown it could deliver a cull in compliance with statutory guidance. The claimant submitted that the direction was an unlawful departure from policy, frustrated its legitimate expectation about what matters would be taken into account and that it would obtain a licence if requirements were met, and was Wednesbury unreasonable.

In regards to whether it was an unlawful departure from policy, Parliament had decided that the Secretary should have the power to tell Natural England what to do, and nothing in the 2006 Act restricted the exercise of that power. Nothing in the guidance amounted to a promise that if the relevant area was in the top 10 and fulfilled requirements, a licence would be granted. The claimant also failed to demonstrate that the Secretary had considered immaterial factors or had excluded material factors, therefore not satisfying the Wednesbury unreasonableness argument.

The judge concluded that the Secretary had made a political judgment with regard to the county’s badger vaccination programme, anti-culling lobby and risk of fallout if a vaccinated badger was killed, and her conclusion had not been irrational. The application was refused.

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