Will the Pembrokeshire badger cull stay halted?

In a welcome judgement from Lord Justice Pill, Lady Justice Smith and Lord Justice Stanley Burnton the badger cull in Wales has been halted.

The appeal was brought on three grounds:

The judge erred in holding:

(1) That 'substantially reduce' in section 21(2)(b) of the 1981 Act meant simply a reduction that was 'more than merely minor or trivial'; and

(2) That, once it arose, the discretion to make an order under section 21(2) could lawfully be exercised without considering the balance between the extent of the benefit to be gained in terms of disease reduction and the extent of the killing of wild animals required to achieve it.

And that the Ministers erred in law in

(3) Making an Order for the whole of Wales having consulted on the basis of an IAPA and on the basis of evidence which at most supported culling in an IAPA.

All three Judges agreed on point (3) and the cull was halted, but the following paragraph was added due to the majority decision in the Badger Trust's favour on points (1) and (2)

72. I add this paragraph because a statement by the Minister on 5 July 2010 has been brought to the attention of the court. Whether further consultation would in any event be necessary I leave open but, on the view of the majority in this court, as it appears in the following judgments, it is not open to the Welsh Assembly Government immediately to make a fresh Order in the same terms but covering only the IAPA and to proceed forthwith with a badger cull there.

It would appear that limiting the order to the IAPA ("Intensive Action Pilot Area") would largely deal with the first ground too:

85. However, I do not think that this conclusion makes the Minister's position as difficult as might appear. If the Minister focuses on the effect of a cull within a specified area, she will be entitled to take the higher figure of reduction relevant to the area itself and to disregard the adverse effect on the area outside the cull area. That reduction would plainly be greater than 9% and might well be a reduction of substance. The adverse perturbation effect on the area outside the cull area would no doubt be a matter which the Minister would have to take into account when exercising her discretion (a matter to which I am about to come) but I do not think it needs to be brought into account when the threshold requirements are considered.

Which leaves only consideration of the benefit of a cull against the killing of the badgers.  Sadly even this doesn’t seem insurmountable – although the scientific evidence is clearly against them

111.The requirement of a balancing exercise is easily satisfied, and I would have expected the Minister to have served evidence leading the Court to conclude that she had indeed concluded that the benefits of a cull in the IAPA outweighed the harm involved in the cull of badgers. Had she done so, this ground would have failed.

Given that the future of Elin Jones the Rural Affairs Minister is now being question over her failures in this issue I suspect that she will have sorting this out quite high up her list of priorities. 

While the halt to the cull is great news (especially for the badgers of course) I won’t crack open the champagne just yet.  I suspect a determined minister could have it back on track fairly rapidly, especially with the Assembly elections coming up.  I hope I’m wrong though.

Update


 According to the report on Wales Online

The decision means that an estimated 2,000 badgers within the 111-square mile pilot area are safe – at least until October.

Any amended Order must be laid before the National Assembly for at least 21 days before it comes into force, and there is a 40-day period during which AMs may table a motion to annul it.

Given that the National Assembly is in recess from Friday this week until September 19 it will be months before the fresh order can be put in place.

I suspect that with the support the cull has within the Assembly they'll restart as soon as possible.  I still hope I'm wrong.