Badgers and bovine tuberculosis: The relationship between law, policy and science: Badger Trust v Welsh Ministers [2010] EWCA Civ 807

Journal of Environmental Law

Volumn 24, Issue 1, 2012, Pages 145-154

  Bishop, Patrick ^a  

^a SWANSEA UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ADMINISTRATIVE SYSTEM; BOVINE TUBERCULOSIS; LEGISLATION;

UNITED KINGDOM; WALES;

ANIMALIA; BOVINAE; TAXIDIINAE;

EID: 84857959587     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqs001     Document Type: Article

References (38)

1. In England, the cost of compensation totalled £63 million in 2009 (DEFRA, Bovine Tuberculosis: The Government's Approach to Tackling the Disease and Consultation on a Badger Control Policy (September 2010) 4); the test and slaughter policy inWales has cost £120 million since 2000 (Welsh Assembly Government Consultation Document, Bovine TB Eradication Programme: Consultation on Badger Control in the Intensive Action Area (20 September 2010) 1)
2. Additionally, the formulation of an action plan for the eradication of bTB is an EU-imposed obligation by virtue of Council Directive 77/391/EEC [1977] OJ L145/44, art 3(1)
3. The suspected link between badgers and bTB was first made in 1971, when a badger found dead on a Gloucestershire farm tested positive for bTB. (R Muirhead, J Gallagher and K Burn, 'Tuberculosis in Wild Badgers in Gloucestershire: Epidemiology' (1974) 95 The Veterinary Record 552). Statutory protection was granted to badgers by virtue of the Badgers Act 1973.
4. EWCA Civ 807; hereafter, the 'Badger Trust case
5. In this context,Warren's claim that conservation has often been considered subservient to the interests of agriculture is apposite: L Warren, 'Conservation - A Secondary Environmental Consideration' (1991) 18 Journal of Law and Society 64
6. The functions of the appropriate Minister under the Act were transferred to the National Assembly for Wales by virtue of the National Assembly for Wales (Transfer of Functions) Order 1999 SI 1999/672, art 2 sch 1
7. The Animal Health Act 1981, as originally enacted, did not list TB as a disease for the purposes of the statute. The Tuberculosis (Wales) Order 2010 SI 2010/1379, art 6 extends the definition of the term'disease'contained in s 88 of the Act to include TB.
8. Personal correspondence between the author and the Office of the Chief Veterinary Officer, Wales (email received 25 August 2011)
9. Animal Health Act 1981, s 21(3)
10. SI 2009 No 2614 (W 212)
11. IAPA is primarily located in north Pembrokeshire, but includes small parts of Ceredigion and Carmarthenshire. A detailed map is available at accessed 15 December 2011.
12. EWCA Civ 807 [83], [107]
13. H Jenkins, R Woodroffe and C Donnelly, 'The Effects of Annual Widespread Badger Culls on Cattle Tuberculosis Following the Cessation of Culling' (2008) 12 International Journal of Infectious Diseases 457
14. Bovine TB: The Scientific Evidence (Independent Scientific Group on Cattle TB 2007)
15. 13n [85]
16. Animal Health Act 1981, s1(a) provides: 'The Ministers may make such orders as they think fitçgenerally for the better execution of this Act, or for the purpose of in any manner preventing the spreading of disease' (emphasis added)
17. 13n [108]. A similar view was taken by LJ Smith [85].
18. Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
19. A Babich, 'Too Much Science in Environmental Law' (2003) 28 Columbia Journal of Environmental Law 119
20. H Doremus and D Tarlock, 'Science, Judgement, and Controversy in Natural Resource Regulation' (2005) 26 Public Land and Resources Law Review 1
21. J Jones, 'Regulatory Design for Scientific Uncertainty: Acknowledging the Diversity of Approaches in Environmental Regulation and Public Administration' (2007) 19 Journal of Environmental Law 347
22. O Houck, 'Tales from a Troubled Marriage: Science and Law in Environmental Policy' (2003) 302 Science 1926, 1928
23. 13n [77]
24. Jones (n 22)
25. D Michaels and C Monforton, 'Scientific Evidence in the Regulatory System: Manufacturing Uncertainty and the Demise of the Formal Regulatory System' (2005) 17 Journal of Law and Policy 17
26. H Doremus, 'Scientific and Political Integrity in Environmental Policy' (2008) 87 Texas Law Review 1601
27. See generally, H Doremus, 'The Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate' (2004) 34 Environmental Law 397
28. The necessity and efficacy of best available science mandates has not gone unquestioned, see W Wagner, 'The "Bad Science" Fiction: Reclaiming the Debate over the Role of Science in Public Health and Environmental Regulation' (2003) 66 Law and Contemporary Problems 63
29. Doremus (n 29) 1631
30. '[S]ubmission to the scrutiny of the scientific community is a component of "good science", in part because it increases the likelihood that substantive flaws in methodology will be detected' Daubert v Merrell Dow Pharmaceuticals [1993] 509 US 579 (US Supreme Court) 593 (Blackmun J)
31. D Tarlock, 'Environmental Law: Ethics or Science?' (1996) 7 Duke Environmental Law and Policy Forum 193, 197
32. n (29) 1620
33. H Jenkins, R Woodroffe and C Donnelly, 'The Duration and Effects of Repeated Widespread Badger Culling on Cattle Tuberculosis Following the Cessation of Culling' (2010) 5 Plos One 1, 5
34. n (1) 2
35. The list of available evidence is available from accessed 15 December 2011.
36. Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, 780
37. Further, R Moules, Environmental Judicial Review (Hart Publishing 2011) 207-209
38. 'Update on measures to tackle Bovine TB' DEFRA News Release available at accessed 16 December 2011.