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The High Court (Griffiths J) has handed down a judgment dismissing a challenge to the Secretary of State’s most recent policy statement regarding the culling of badgers for the purpose of controlling the spread of bovine tuberculosis.

By a policy statement published in March 2020, the Secretary of State indicated that the culling of badgers should continue for the time being as part of the strategy for the eradication of bovine tuberculosis but that culling should be phased out in the future. The claimant challenged the policy on the basis that the Secretary of State had failed to comply with his duty under s. 40 of the Natural Environment and Rural Communities Act 2006 (“NERCA”) to have regard to the purpose of conserving biodiversity in formulating the policy. 

In an important judgment concerning the scope of the duty under s. 40 NERCA, Griffiths J dismissed the claim, holding that the duty was not engaged in the circumstances of the case. In particular, (i) the Secretary of State had considered the ecological effects of badger culling when first implementing the badger culling policy in 2011 and (ii) the most recent policy statement did not effect any change to the existing policy other than by expressing an intention to phase it out. Griffiths J further found that, if there had been any breach of the s. 40 NERCA duty, it was highly likely that the outcome would not have been substantially different such that he was bound to refuse relief in any event under s. 31(2A) of the Senior Courts Act 1981.

The full judgment can be found here.

Hanif Mussa and Tom Coates represented the Secretary of State for Environment, Food and Rural Affairs.

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