Political considerations & scientific considerations: where should the balance be struck?

Fri, 12 Jun 2020

The case of R (National Farmers Union) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWHC 1192 (Admin) is a pertinent reminder of the way in which political considerations can lawfully affect the exercise of public law power. It is timely in the midst of the current Covid-19 public health emergency, where judicial review challenges to the Government’s decision to ease the lockdown restrictions are increasingly being contemplated.

 

The facts

This case concerned the practise of culling badgers to prevent the spread of bovine tuberculosis. Specifically, the issue before the Court was whether it was lawful for the Secretary of State to direct Natural England, in September 2019, not to grant any badger culling licences in Derbyshire before 1 May 2020. The direction was made pursuant to section 16 of the Natural Environment and Rural Communities Act 2006.

At the time the direction was issued, Natural England had in fact been on the cusp of granting the licence, which would have covered a specific cull zone in Derbyshire and Staffordshire. One of the Claimants was a company that had been set up by a group of farmers solely for the purpose of applying for such a licence. On the face of it, they had satisfied Natural England that they had met all the requisite requirements to warrant the grant of the licence. The direction from the Secretary of State, which essentially amounted to a veto preventing the grant of the licence, therefore came as a rather unfortunate last-minute volte face.

The Claimants brought a claim for judicial review on three main grounds: (1) that the direction was an unlawful departure from policy; (2) that the direction frustrated a legitimate expectation; and (3) that the direction was Wednesbury irrational.

The decision

Whilst Mrs Justice Andrews noted the ‘disappointment, frustration and bewilderment’ the Claimants must have felt when the licence was not granted at such a late stage, she held that the decision to issue the direction refusing the licence was lawful, and dismissed all three grounds of review.

This case note will focus on the reasoning of the judgment in relation to the third ground of review—that the direction was not Wednesbury irrational.

One of the reasons for the Secretary of State’s decision to issue the direction was because she did not want to commit to a four-year cull in an area where there was also a flagship vaccination project being trialled nearby as an alternative to the policy of culling. The Government wanted to reconsider its policy on culling, and how the interface between culling and vaccination might work in the future: see [47] and [66].  

It was accepted by Andrews J. that, had the decision been taken purely on scientific grounds, the advantages to be achieved in terms of disease control by allowing the cull to go ahead in Derbyshire ‘plainly outweigh[ed]’ the consideration that a few vaccinated badgers (in the other programme operating close by) might be culled in the process [93].

Two factors demonstrated the strength of the scientific evidence in favour of granting the licences: First, neither the Chief Veterinary Officer nor the Chief Scientific Adviser advanced any scientific justification for maintaining the status quo, and the Chief Veterinary Officer warned that to do so would actually risk making the position worse and allow the disease to spread in an area which already had one of the highest incidences of bovine tuberculosis in the country [93]. Secondly, the relevant Minister was well aware that the area of the vaccination project was some distance away from the boundary of the proposed cull area, and because the pockets of vaccinated areas within the cull area were so small, only fewer than 20 vaccinated badgers would have ever been potentially at risk of being culled [92].

Nonetheless, the proposed buffer zones designed to mitigate the effects of any cull could not guarantee that a vaccinated badger would not be culled by accident in the process. This is where the political considerations came into play. Three are noted:

  • First, the prospect of a vaccinated badger being culled by mistake—and the political fallout if it did—was felt to be too high a political price to pay. The Prime Minister himself had taken an interest in this issue, and the specific sensitivities in Derbyshire: see [47] and [95].
  • Secondly, any licence, once granted, would have lasted for four years, whereas the effect of not granting the licence simply put the position on hold for a year, which allowed time for the government to continue to consider the combined policy of culling and vaccination going forward, and how it was going to operate: [96].
  • Thirdly, Derbyshire was said to be a county with a particularly substantial vaccination programme and a particularly vocal animal-rights and anti-culling lobby. As the Minister and the Secretary of State appreciated, permitting a cull to take place in Derbyshire was liable to inflame local and national tensions, and in turn risked limiting the Government’s future policy options: [97].

Ultimately, Andrews J. held that:

The decision was a difficult one which involved the exercise of complex political and ethical value judgments of a type which are quintessentially matters for the democratically accountable decision-maker. The weight to be given to the various competing factors was a matter for the Secretary of State, and whereas a scientist undoubtedly would have weighed those factors differently, that does not make the decision irrational.

In short, however compelling the case for permitting the licence to be issued might appear, there were countervailing political considerations which legitimately led the responsible decision-maker to conclude that no licence should be granted in Derbyshire for that year.’ (See [98]-[99], emphasis added.)

When it is for the public law decision-maker alone to decide which considerations are material, and which are not, Andrews J. reinforced (at [86]) the principles set out in R(Khatun) v Newham LBC [2005] QB 37 per Laws LJ at [35], and the more recent restatement in R(DSD) v Parole Board [2018] EWHC 694 (Admin) [2019] QB 285 at [135]-[141]. In short, unless a factor is so obviously material or immaterial to the decision that no rational decision-maker could have ignored it (or taken it into account, or minimised its significance, as the case may be), the choice of relevant factors, and the weight placed upon them by the decision-maker, cannot be impugned by the Court.

Comment

The way in which political considerations can legitimately weigh in the balance of the exercise of public law power, and ultimately lead to a decision which runs counter to the scientific advice received, is a very topical issue. The recent attempts to obtain the scientific evidence provided to the Government in the midst of the Covid-19 crisis, and the tension that has been reported between scientists and the Government as to when to lift the lockdown and social distancing measures, are examples of this.

Any challenge on the basis of rationality to such decisions will of course depend on the facts of each case, and this case note does not seek to pre-judge the merits one way or the other for such potential challenges.

For other statutory schemes of decision-making such as planning, it would not be possible to transpose the approach taken in the NFU case since ‘material consideration’ has an established meaning within the Town and Country Planning Act 1990, and the issue of what is a material consideration is a matter of law for the court to determine: R (Wright) v Forest of Dean District Council [2019] 1 WLR 6562. But the judgment of Andrews J. in this case does highlight the prima facie reluctance of the courts to stray into the political arena and second-guess the weight placed on material scientific considerations by Government Ministers. Sometimes, political considerations can, it seems, lawfully outweigh the scientific in certain schemes of decision-making.

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