The Badger Trust v Natural England

Hearing date and ruling: 16.10.25

Draft judgment: 20.10.25

Approved Judgment

I. INTRODUCTION

This is a judicial review case about badgers. But what I have to decide are an issue about the redaction of documents in judicial review and an issue about whether to change the level of the shielding costs caps which are in place to protect the Claimants. I was able to announce my decisions on both issues at the end of a one-day hearing on 16 October 2025, with reasons to follow as they now do.

Environmental protection is familiar to judicial review Courts. In fact, the reason for existence of each of the four parties in the present case is or includes the protection of the environment. In the context of access to justice by judicial review, it is well-recognised that “members of the public and associations are naturally required to play an active role in defending the environment”: R (Edwards) v Environment Agency (No.2) [2013] UKSC 78 [2014] 1 WLR 55 at §22. “Recognition of the public interest in environmental protection is especially important” and “the environment cannot defend itself before a court, but needs to be represented, for example by active citizens or nongovernmental organisations”: see Edwards at §§26, 28iii. I will need to return to the public interest imperative which arises in the context of access to environmental justice, and why the prospective cost capping rules are deliberately facilitatory.

Judicial review is supposed to be “a speedy audit of the legality of public decision-making”: see R (TPL1) v SSD [2025] EWHC 1729 (Admin) at §86. There are protections within the judicial review process for public authorities. Sometimes, the invocation of those protections ends up slowing down the speedy audit and increasing the costs. That is illustrated by the present case. Natural England is the defendant public authority. It argued that it could administer a clean knock-out blow warranting the refusal of permission for judicial review, either because the modest threshold of arguability was not crossed, or because the case lacked utility by reason of its backward looking focus and plans for less badger culling in future. That invocation ultimately failed. With the benefit of oral submissions at a renewal hearing on 15 May 2025, I granted permission for judicial review. The substantive hearing is scheduled for 2 days in December 2025.

The target for challenge is a decision taken on 3 May 2024, to issue or renew 26 supplementary badger cull licences authorising farmers to kill badgers in the period from 1 June 2024 to 30 November 2024. Judicial review is available for a decision of that nature. But it is always unlikely that the speedy legal audit will be achieved prior to implementation. And it is inherently unlikely that a Court would deal with the case by way of interim relief, because that would mean blocking the implementation without resolving the substantive legal issues. So it is always on the cards that judicial review will be backward looking in this kind of case. That does not undermine the value of the legal audit. Nor is that value necessarily a function of the outcomes of cases. The public interest enterprise of judicial review accountability secures lawfulness. It promotes discipline. It exposes unlawfulness. It promotes public confidence in public authority decision-making.

I granted permission for judicial review because I was satisfied that the claim was properly arguable with a realistic prospect of establishing unlawfulness in public law terms, and securing a remedy. I did not see the backward-looking nature of the case, nor the present policy position as to badger culling, as a clean knock-out blow. The issues are all at large for the judge who deals with the case in December.

Here is something of the nature of the case. Farmers are involved in badger culling pursuant to the licences. The decision whether to issue a badger culling licence raises a question about trying to reconcile (i) the statutory protection of badgers from harm and (ii) the relevant express purpose of preventing the spread of disease. Badgers are a species of animal. But so are cows. Vaccination is a reconciling response. A feature at or below the surface of the case – at least on the Claimants' case – is about farmer confidence and maintaining farmer confidence. This has been linked to the idea of farmer participation in the reconciling alternative of vaccination, to protect both the badgers and the cows, in circumstances where vaccination by teams of non-industry operatives is described as impracticable. Added to all of which are questions about clear evidenced advice, and about whether departure from that advice needed to be – and if so was – for good reason. Into this setting enters the legal idea which featured before me as part of the supposed knock-out blow. The idea was that Natural England is able to make its licensing decisions for “political” reasons. That contention has never been withdrawn. It was said to follow from the idea that central Government – if acting under supervision or intervention powers – would be able to act for broad “political” reasons. All of these were among the jigsaw pieces of a case which I was satisfied was arguable and important and required substantive determination at a substantive hearing.

II. REDACTION

The Courts have in recent years been concerned to see public authority decision-makers redacting the names of officials from disclosed decision-making documents. The issue arose in the present case because of the redactions I encountered when pre-reading for the 15 May 2025 hearing. I forewarned the parties that I wished to understand the justification for the redactions.

Looking at everything I now know, I think the problem which arose was a function of Natural England's virtuous and proper practice of making pre-action disclosure of decision-making documents. It was back on 19 July 2024 that there was a response to the Claimants' pre-action letter. The Legal Services Team provided the decision-making documents, in line with Natural England's duty of candour. They also thought about redactions. The July 2024 letter of response gave what Mr Luckhurst fairly described as a relatively broad-brush explanation. It said:

Certain documents or parts of documents disclosed have been redacted based on public/staff safety, personal information or legal privilege grounds although given that Dr Brotherton and Dr Harmer's names are now in the public domain we have not redacted every instance of their names. With other redactions, for example, within the fox control assessment all protected sites and associated licensed areas have been redacted however we are providing the Licence Annex Bs for all counties which provide details of all protected sites that have been assessed. These Annex Bs will be published along with the new licences (redacted) in due course. Not all other listed documents will be published. Given the very live safety concerns we have about our staff and others in relation to this subject (stemming from past events) we stress the importance of keeping documents disclosed to you, and any names of staff involved in these proceedings, for the purposes of the litigation only .

I see nothing wrong or inadequate in that response at that time. It was a point in time when there were no legal proceedings. The Court was not involved. There was no open justice consideration, just candour considerations. The Claimant's team were able to push back as they felt fit, so far as candour was concerned.

Proceedings were then commenced on 2 August 2024. The previously disclosed documents were filed by the Claimants within their claim bundle. They were not put in evidence by Natural England. Anyone reading the then Judicial Review Guide 2023 at §15.5.2 would have seen this: “When a redacted or edited document is included in evidence, the fact that redactions have been made, and the reasons for them, should be made clear, preferably on the face of the redacted document”. The grounds for judicial review made reference to the fact that within the decision-making documents “names have been redacted”.

When I raised the issue of redaction ahead of the renewal hearing, Natural England responded with promptness and propriety. First, the unredacted decision-making documents were brought to the hearing and provided to the Claimants' legal representatives, against an undertaking of no onward disclosure pending application to the Court. Second, Natural England informed the Court of its wish to make an application for a court order. An application was subsequently made on 23 May 2025. The scope of the redactions has been refined and refocused. It was not possible to deal with an application at the renewal hearing. The parties wished me, as the Judge who had dealt with permission and had raised the concern, to deal with this issue and the costs cap. They were prepared to wait until my diary allowed it.

The culmination of all of this is that Natural England has applied for an order which has the following features and implications. It is not opposed by the Claimants nor by the Secretary of State. It will enable the filing of the unredacted documents, as a confidential (unredacted) bundle,...