Northern Ireland Badger Group and Wild Justice's Application
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 25 October 2023 |
| Neutral Citation | [2023] NIKB 117 |
| Court | King's Bench Division (Northern Ireland) |
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Neutral Citation No: [2023] NIKB 117
Judgment: approved by the court for handing down
(subject to editorial corrections) *
Ref: SCO12305
ICOS No: 22/027327/01
Delivered: 25/10/2023
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
KING’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY THE NORTHERN IRELAND
BADGER GROUP AND WILD JUSTICE FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF THE DEPARTMENT
FOR AGRICULTURE, ENVIRONMENT AND RURAL AFFAIRS
___________
David Wolfe KC and Blinne Ní Ghrálaigh (instructed by Phoenix Law) for the Applicants
Tony McGleenan KC, Philip McAteer and Laura Curran (instructed by the Departmental
Solicitor’s Office) for the Respondent
___________
SCOFFIELD J
Introduction
[1] There are two applicants in these proceedings: the Northern Ireland Badger
Group (NIBG), an independent voluntary group, established in 2006 and based in
Belfast, which works to promote the conservation, protection, welfare and better
understanding of badgers in Northern Ireland; and Wild Justice, a not-for-profit
company which advocates on behalf of wildlife, including badgers. The respondent
is the Department of Agriculture, Environment and Rural Affairs (DAERA) (“the
Department”), encompassing the Minister who was responsible for and in charge of
that Department at the relevant time (“the Minister”).
[2] The primary target of the proceedings is a decision of 24 March 2022 – set out
or evidenced in a statement made by the Minister that day and in a ‘Bovine
Tuberculosis Strategy for Northern Ireland’ published by the Department the
following day (“the Strategy”) – to implement a non-selective cull of badgers as part
of the Department’s strategy for controlling or eradicating bovine tuberculosis (bTB)
in Northern Ireland. The proposed cull will involve ‘controlled shooting’ (also
sometimes referred to as ‘free shooting’) of free-roaming badgers, delivered and paid
for by farmer-led companies.
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[3] The central plank of the applicants’ challenge is an alleged failure to conduct a
proper and lawful consultation in relation to the impugned aspect of the Strategy. In
turn, there are two strands to this case: first, that the respondent failed to disclose
adequate information in the course of the consultation to permit properly informed
response; and, second, that the Minister failed to give conscientious consideration to
the product of the consultation in some respects. Leave to apply for judicial review
was previously granted in relation to the ‘adequacy of information’ point. The
‘conscientious consideration’ point was dealt with on a ‘rolled-up’ basis at the
hearing.
[4] The applicants also have a separate issue in respect of the way in which the
Department intends to proceed. The Minister indicated an intention to do so by way
of the making of one or more orders pursuant to Article 13 of the Diseases of
Animals (Northern Ireland) Order 1981 (“the 1981 Order”). The applicants contend
that a statutory pre-condition of the exercise of the power conferred by that
provision is demonstrably not met (because, to make such an order, the Department
must be satisfied that destruction of badgers is “necessary” in order to eliminate or
substantially reduce the incidence of bTB in livestock in the area; and, the applicants
assert, the Department has not even purported to be satisfied that there is no
reasonably practicable alternative way of dealing with bTB in Northern Ireland).
However, this element of the challenge was stayed at an earlier stage of the
proceedings in favour of resolving the consultation issue first. If the decision in
relation to the proposed wildlife intervention element of the Strategy is unlawful for
want of proper consultation, it will require to be taken again. If not, the Article 13
question may come back into focus; but it would be more appropriate to deal with
that issue when the making of such an order was in prospect. The respondent
undertook that it would make no such order unless and until the applicants had
been given notice of its intention to do so, providing sufficient time for them to have
recourse to the court should they wish to do so.
[5] The application was initially pursued with a degree of urgency but, in the
event, the respondent Department also undertook that no badger cull would begin
until November 2023 at the earliest. In those circumstances, the urgency in the case
dissipated to a considerable extent. Indeed, in light of the present absence of an
Executive and sitting Assembly, it is probably unlikely that any order under the 1981
Order would be made at this point in any event.
[6] The applicants have been at pains to emphasise that the challenge in these
proceedings is not a challenge to the respondent’s wider and overall consultation,
nor its view that action is required to tackle bTB in Northern Ireland; nor to any
other measures (not involving badger culling) which are to be pursued as part of
that process, many of which are uncontroversial.
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[7] Mr Wolfe KC appeared for the applicants with Ms Ní Ghrálaigh; and Mr
McGleenan KC appeared for the respondent with Mr McAteer and Ms Curran. I am
grateful to all counsel for their helpful written and oral submissions.
Factual background
The impugned decision
[8] The applicants’ principal evidence has been provided by Mr Richard Rendle,
who is the founder of NIBG. The applicants have also filed evidence from the
second applicant, Wild Justice, provided by its founder and director Dr Ruth Tingay,
although it is accepted this organisation did not take an active part in the
consultation process which is the primary focus of these proceedings; and from an
organisation called Born Free, a charity registered in England which campaigns for
compassion and respect towards wild animals, which was a respondent to the
consultation. Mr Rendle takes as his starting point the announcement of the
impugned decision on 24 March 2022. On that date the then Minister gave an oral
statement to the Agriculture, Environment and Rural Affairs Committee of the
Northern Ireland Assembly (“the Committee”). A written copy of this statement
was issued by the Department contemporaneously.
[9] The Minister’s statement indicated that the respondent Department was going
to introduce a programme of badger intervention in areas of high bTB incidence.
This was initially to be done through a cull of badgers, which would be achieved
through a non-selective cull using controlled shooting as the predominant badger
removal method. A non-selective cull is one in which it is acknowledged that both
bTB infected badgers and healthy badgers will be killed. Para 36 of the Minister’s
written statement includes the following statement:
“Following this consideration I have decided that the most
cost effective and practical way forward is to implement a
limited cull of badgers in specific intervention areas where
there is a high incidence of TB breakdown and a high
density of badgers.”
[10] There had been a consultation which preceded this decision – discussed in
further detail below – and also, as appears from the Minister’s statement, a business
case. In the course of his statement, the Minister also said (at para 35):
“I want to assure you that I have considered the options
presented to me, the scientific evidence, the experience of
other jurisdictions, the robust analysis of the necessary
business case, the responses to last summer’s consultation
environmental reports.”
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