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 of State had adopted a policy to permit licensed culling of badgers, which could carry and transmit bovine tuberculosis to cattle. The Protection of Badgers Act 1992 gave the Secretary of State the power to grant a licence for badger culling for the purposes of preventing the spread of disease. The Secretary of State had authorised Natural England to perform that function.
In 2017 the Secretary of State produced guidance empowering Natural England to issue licences, allowing supplementary culling to take place to prolong the disease control benefits achieved by earlier intensive culls. The Judge concluded that the Secretary of State had acted for the proper purpose for which the legislative power had been given, and that in approving the guidance, his actions were to prevent the spread of bovine tuberculosis.
The appellant claimed that the Judge had erred in finding that the question of whether the guidance was lawful turned on the Secretary of State's subjective view of whether it would prevent the spread of disease. He argued that there was no objective or scientific evidence to support the policy, and that the Judge's approach was inconsistent with that of previous case law which commented on the need for "scientific evidence".
The Judge concluded that the appellant had been wrong to suggest that the guidance could only be rendered unlawful if the Secretary of State's true purpose was other than to prevent the spread of disease. There was nothing in the Protection of Badgers Act 1992 which stated the procedure was lawful only if the outcome was certain.
"There was relevant evidence and informed scientific opinion before the Secretary of State. He was entitled to and did act upon the same. For the reasons given this ground of appeal is not made out".
It was confirmed that the Secretary of State had issued lawful guidance in relation to the licensing of supplementary badger culling by Natural England. The guidance was not beyond the Secretary of State's legal power or authority due to absence of evidence. Supplementary culling was untested, but the Secretary of State had been entitled to rely on expert scientific opinion that there was a logical and defensible rationale for licensing it.
The appeal was dismissed.
