Protected status of badgers

Badgers are a species (Meles meles) protected by law in the UK, a protection that was first given in 1973 in response to the animal’s long history of persecution through hunting, baiting, and digging. Today, in England and Wales, the key species-specific protections are primarily contained in the Protection of Badgers Act 1992. Sections 1 to 5 of this Act contain a number of criminal offences:

• Section 1(1) provides that it is an offence to kill, injure or take a badger (or to attempt to do so).
• Section 2 provides it is an offence to cruelly ill-treat a badger (including the use of badger tongs) and to dig for a badger. It also contains limits on firearms that may lawfully be used to exceptionally kill badgers (see exceptions below).
• Section 3 prevents intentional or reckless interference with badger setts.
• Section 4 prevents the selling or possession of live badgers.
• Section 5 prevents the marking, ringing, or tagging of badgers.

The protection afforded to badgers is not absolute. Section 6 sets out some general exceptions relating to the tending of injured badgers, merciful killing, unavoidable action, and scientific experimentation. Further specific exceptions are contained under sections 7 to 9.

Finally, section 10 provides for the grant of licences that authorise acts that would otherwise be unlawful under sections 1 to 5. This is explained further below.

As for the position in Scotland and Northern Ireland, provisions largely analogous to the above exist under the 1992 Act as amended by the Wildlife and Natural Environment (Scotland) Act 2011, and the Wildlife (Northern Ireland) Order 1985, respectively.

The licensing regime

Under section 10, the power to grant licences can be exercised by both “the appropriate conservation body” and “the appropriate Minister”. In England, this means Natural England and the Secretary of State respectively (ss.10(4)(a) and (5)(a)). [i] Natural England is the statutory conservation adviser to the Government in England.

Under subsection (1), Natural England may grant a licence:

• (a) for scientific or education purposes or for the conservation of badgers,
• (b) for the purpose of zoological gardens or collections,
• (c) for the purpose of ringing and marking,
• (d) for the purpose of development,
• (e) for the purpose of preservation or investigation of a schedule monument, and
• (f) for the purpose of criminal investigation.

Under subsection (2), the Secretary of State may grant a licence:

• (a) for the purpose of preventing the spread of disease,
• (b) for the purpose of preventing serious damage to land, crops, poultry or property,
• (c) for the purpose of agricultural or forestry operations, and
• (d) for the purpose of drainage works.

Under subsection (3), either Natural England or the Secretary of State may grant a licence for the purpose of controlling foxes in order to protect livestock, game or wildlife.

Any such licences above may specify conditions that must be complied with.

Further, there is a presumption against the grant by the Secretary of State of licences under subsections (2)(b), (c), and (d) unless he/she has been advised by Natural England as to the circumstances appropriate for grant following consultation (s.10(6)).

There is the power for a granting authority to revoke a licence at any time (s.10(8)), but a licence shall not be unreasonably withheld or revoked (s.10(9)).

Pausing there, three points are worth noting about the respective licence-granting powers held by the two licence-granting authorities: first, the grant of any licence must attach to specific purposes set out in the legislation; second, these statutory purposes applicable to the two authorities are not entirely coincident; and third, a reasonableness threshold expressly applies to the decision to grant or revoke a licence.

Particularly of note to the second point is subsection (2)(a), which provides for culling licences for the purpose of preventing the spread of disease. It is, of course, this provision that has formed the focus of the controversy in recent decades.

This is prima facie a power to grant exercisable only by the Secretary of State. However, by sections 78(1) and 83 of the Natural Environment and Rural Communities Act 2006, the Secretary of State may by agreement authorise Natural England to perform a function belonging to the Government. By an agreement having effect from 1 October 2006, Natural England was so authorised to exercise the licensing function under s.10(2).

What is more, under section 15 of the 2006 Act, the Government must give guidance as to the exercise of this licensing function. Natural England must have regard to this. The latest version of this guidance is dated May 2021.

Background history

To begin with a few basic facts:

• bTB is a chronic infectious disease of cattle. Infection results in cattle having to be destroyed. It is acknowledged to be a serious animal health problem in England due to the potential socio-economic costs on farmers and the Government.
• Badgers are a known vector capable of transmitting bTB. They are also, as mentioned above, an animal to which Parliament has chosen to confer protection owing to a history of persecution.

The decision as to whether (and if so, how) to manage bTB by culling is necessarily a policy judgment, involving the balancing of financial, political, as well as ethical concerns.

Underlying this decision, of course, is the body of scientific evidence to inform a decision-maker about a key question: how effective is badger culling as a means of controlling bTB? This beguilingly simple question does not lend itself to an easy answer – rather, it prompts a list of further enquiries: How prevalent is bTB in badger populations? How much do badgers contribute the infection of cattle? What impact does culling have on (infected) badger populations? Whilst there have been considerable attempts at data gathering to answer this key question, e.g. randomised trials, pilot schemes, etc. it is fair to say that there has not always been clear consensus on the conclusions that should be drawn from such data.

It is not possible in the space of this blog post to detail the lengthy and complicated policy history. It is, on any view, a devastating one: according to the Government, the past decade has seen over 278,000 cattle compulsorily slaughtered and over 230,000 badgers killed. This has cost taxpayers more than £100 million per year.[ii]

To highlight a number of key events:

• Following the Randomised Badger Culling Trials conducted between 1998 and 2005, the Government took no immediate decision to pursue a culling policy in the 2000s.
• In 2011, the new Government published its policy on bTB and badger control in England, which marked the beginning of licensed culling. This policy committed to eradication of bTB as the ultimate goal. At the same time as the announcement of this policy, the Government also issued guidance to Natural England on its licensing function under s.10(2)(a).
• In 2012 and in accordance with the guidance, Natural England granted licences to cull in two pilot areas, Gloucester and Somerset.
• In 2014, the Government announced its intention to extend culling to additional areas.
• 2017 saw the introduction of supplementary badger control (explained below), a policy which was continued in 2018.
• In 2021, the Government announced a shift away from culling and towards badger vaccination, increased cattle testing, and work to develop a cattle vaccine.

Since the 2021 move towards an exit strategy from culling, the Government in 2024 announced its intention to end all culling by the end of this Parliament. The Government remains committed to the eradication of bTB in England by 2038.

Previous challenges

There have been a substantial number of challenges, brought by different parties, targeting various aspects of the licensing mechanism. Within the English context:[iii]

• The Langton cases: these were three separate applications for judicial review, all brought against the Secretary of State for Environment, Food and Rural Affairs and Natural England.
• Langton 3 ([2021] EWHC 2199 (Admin)) was a challenge to a 2020 policy document, “Next Steps”, on the basis that the SoS had breached a statutory duty to have regard to the purpose of conserving biodiversity. This was dismissed.
• Langton 2 ([2019] EWHC 597 (Admin)) was a challenge to Natural England’s decision to grant certain licences which extended to Sites of Special Scientific Interest (‘SSSI’). Against the 45 SSSIs at issue, the Court acknowledged that the claimant “has had some limited success” but refused declaratory relief on the basis that Natural England was willing to take remedial action ([130]).
• Langton 1 ([2019] EWCA Civ 1562; on appeal from [2018] EWHC 2190 (Admin) was a challenge to the Government’s 2017 guidance relating to supplementary culling. This was dismissed both at first instance and ultimately on appeal.
• National Farmers Union v SSEFRA [2020] EWHC 1192 (Admin) was a challenge to a 2019 direction issued by the SoS to Natural England requiring it not to grant any licences in Derbyshire before 1 May 2020. The Court ultimately found this direction to be lawful.
• Badger Trust v SSEFRA [2014] EWCA Civ 1405; on appeal from [2014] EWHC 2090 (Admin) was a challenge to the 2014 Government decision to continue culling in the two pilot areas (see above) and to hold open the possibility of a wider roll out. This was brought on the ground of legitimate expectation. Neither the Court at first instance nor on appeal found the requisite assurance to sustain a claim.
• Badger Trust v SSEFRA [2012] EWCA Civ 1286; on appeal from [2012] EWHC 1904 (Admin) was a challenge to the initial 2011 policy to proceed with the pilot culling. This challenge was dismissed.

If there is one common thread that can be found throughout these cases, it is that the Courts have at every turn been careful to define the limits of review. The judgments are replete with statements emphasising what the decisions are not about: the merits or otherwise of badger culling. In the words of Mr Justice Griffiths (Langton 3, [3]): “…That is ultimately a policy question; for the public and professionals to debate, and for policy makers and politicians to decide. The role of the court is to scrutinise decisions and policy making within the limits of judicial review, on limited grounds such as irrationality or lack of due process. The fundamental decisions on the underlying controversies are not made by this court; nor should they be.”

The current live challenge

The most recent application for judicial review concerns a number of supplementary badger cull licences that were issued and renewed by Natural England in May 2024. These licences authorised culling from 1 June 2024 to 30 November 2024.

A supplementary licence is one of the three types of culling licence issued by Natural England. According to the guidance, the purpose of culling here is to prevent the recovery of the badger population in an area, following the completion of annual culling that has lasted at least for four years under a Badger Disease Control licence.

The claim for judicial review has been brought by Badger Trust and Wild Justice. Following a renewal hearing in May 2025, permission was granted by Fordham J for the claim to proceed on all three grounds, namely:

• Ground 1: Natural England unlawfully exercised the statutory power to issue licences to kill badgers for the improper purpose of maintaining farmers’ confidence in the Secretary of State’s policy, rather than for the narrower (and proper) purpose of “preventing the spread of disease”.
• Ground 2: Natural England had considered arguments that were legally irrelevant to its decision on whether to issue the licences. These included the consequences of the decision for its relationships with Defra and the “farming community”, and for its own budget and the wellbeing of its staff.
• Ground 3: Natural England failed to provide adequate and rational reasons as to why the licences should be issued after its Director of Science had advised that there was no scientific justification for issuing the licences.[iv]

This case has resulted in a preliminary issues determination on (i) the redaction of documents and (ii) the raising of Aarhus costs caps, in which Fordham J approved the confidentiality ring arrangements between the parties and rejected Natural England’s application to vary costs caps (Badger Trust v Natural England [2025] EWHC 2761 (Admin)).

So far as observations can be made about the claim at this stage, the challenge as to improper purpose under Ground 1 appears to be unexplored territory from previous challenges and decisions, and the prospect of head-on engagement with the statutory wording of s.10(2)(a) is no doubt an interesting one. Needless to say, as the Court is once again asked to adjudicate on this controversial topic, it will, much like in previous instances, steer clear of any suggestion of entering into the arena of policy debate.

The substantive hearing is listed for 2 days on 16 and 17 December 2025.

Jeffrey Chu is a barrister at Francis Taylor Building.

Charles Streeten is instructed in the upcoming judicial review for the Secretary of State. Michael Fry and David Graham were involved at earlier stages of the proceedings for the Secretary of State and Natural England respectively. None have had any involvement in the drafting of this post.

 

[i] Wales: this means the Natural Resource Body for Wales and the Secretary of State respectively. Scotland: the power is conferred to the Scottish Ministers or such other person to whom the power is delegated. In Northern Ireland, the power is exercised by the Department of the Environment.

[ii] Government to end badger cull with new TB eradication strategy - GOV.UK

[iii] There have also been legal challenges in the Welsh context: see Badger Trust v Welsh Ministers [2010] EWCA Civ 807; on appeal from [2010] EWHC 768 (Admin).

[iv] Legal challenge against badger culling licences given green light to proceed.