Badger Cull and the Bern Convention

Opponents of the UK’s badger cull (the mass slaughter of a protected species to allegedly control bovine tuberculosis, a disease of cattle – see waronwildlife.co.uk/?s=badger+cull for articles and podcasts), often say that the cull could cause ‘local extinction’ which would be against the terms of the Bern Convention, of which the UK is a member.

In fact, the Badger Trust, Born Free and the advocacy group Eurogroup for Animals, lodged a complaint against the British government under the terms of the Bern Convention in December 2019. The Shadow Environment Secretary Luke Pollard also wrote to the Bureau of the Bern Convention in early September this year claiming the Government was “in breach of its international obligation to protect vulnerable wildlife” adding “there is no scientific or ethical justification for continuing with the cruel and unnecessary badger cull”.

 

Which begs the question: what is the Bern Convention? Why do campaigners believe it might be used to protect badgers from culling – and why has the Convention actually now allowed the government to continue the cull?

Like all EU conventions the text is wordy, broken down into Articles, and is riddled with exceptions. While we are not legal experts here at The War on Wildlife Project, here is an overview as we understand it…

 

The Council of Europe’s Convention on the Conservation of European Wildlife and Natural Habitats, known as the Bern Convention, was adopted in Bern, Switzerland in 1979, and came into force in 1982. An interesting history of the Convention can be found here.

It is a binding international treaty/legal instrument in the field of nature conservation, covering most of the natural heritage of the European continent and extending to some States of Africa (and is not to be confused with the 1886 Berne Convention for the Protection of Literary and Artistic Works).

The convention sets out four goals:

  • establishing minimum protection for all wild species of flora and fauna;
  • strengthening protection for those which are at particular risk, with special regard to migratory species;
  • protecting the habitats of wild species of flora and fauna and safeguarding natural habitats in danger of disappearing;
  • promoting co-operation between contracting parties in the field of nature conservation, and more particularly in respect of species and habitats whose conservation requires international co-operation (with particular importance again attached to the conservation of migratory species).

Fifty countries and the European Union are signed up to the Convention and are legally committed to “promoting national conservation policies, considering the impact of planning and development on the natural environment, promoting education and information on conservation, and coordinating research“. The UK Government ratified the Bern Convention in 1982 and the obligations of the Convention are transposed into UK law by means of the Wildlife and Countryside Act (1981 as amended), Nature Conservation (Scotland) Act 2004 (as amended), Wildlife (Northern Ireland) Order 1985, and the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985.

 

Badgers and the Bern Convention

Badgers are included on Appendix III of the Bern Convention which lists the ‘PROTECTED FAUNA SPECIES’ not included on Appendix II (which lists ‘STRICTLY Protected Fauna Species’). ​

Under Article 7, Parties to the Convention are committed to taking appropriate and necessary legislative and administrative measures to ensure their protection, and to regulate any exploitation in order to keep badger populations out of danger.

However, Article 9 allows exceptions to the provisions of a number of articles of the Convention, and in particular derogations in respect of:

a)    prohibited activities in respect of the strictly protected species listed in Appendices I and II; and

b)    the use of non-selective means of capture and killing and the other means prohibited in Article 8, in respect of the species listed in Appendices II and III.

There are exceptions to the exceptions (it’s a legal document so of course there are). Article 9 applies only when there is no other satisfactory solution and where the action will not be detrimental to the survival of the population (which “should be based on current data on the state of the population, including its size, distribution, state of the habitat and future prospects“).

 

The complaint

Campaigners claim that by licencing the killing of over 100,000 badgers between 2013 and 2020 and expanding the cull to take in new zones in 2020 (contrary to apparent promises made after the publication of the Godfray Review which concluded that badger culling is not the solution to lowering TB in cattle – read ecologist Tom Langton’s expert analysis in The Ecologist) which could mean the deaths of another 60,000 badgers, the government appears to be threatening the ‘survival of the population’.

As Dominic Dyer, the CEO of the Badger Trust put it in September last year, the expansion of the culling zones could result in the killing of over 50,000 badgers in the next two months, pushing this protected species to the verge of local extinction in areas of Britain it has inhabited since the ice age”.

This would appear to be contrary to the aims of the Bern Convention and explains why campaigners went down the Bern Convention route.

When the Badger Trust, Born Free Foundation, and Eurogroup for Animals jointly submitted their joint complaint against the UK government to the Bureau of the Bern Convention, they claimed breaches on the following grounds:

Breach of Article 7:

● There is clear evidence to show that the measures undertaken by the UK government for the exploitation of badgers jeopardizes the population concerned.
● There is clear evidence to show that the exploitation is not adequately monitored by the UK government.
● The exploitation of badgers has a negative impact on other species that are protected by the Convention.

Breach of Article 8:

● The exploitation of badgers is indiscriminate, and capable of causing local disappearance of the population.

Breach of Article 9:

● The UK government has failed to choose the most appropriate alternative, among possible alternatives, and has failed to be objective and verifiable in its reasoning for this decision.
● The UK government has failed to base the policy on current data on the state of the population, including its size, distribution, state of habitat and future prospects.
● The UK government has failed to demonstrate that the measures undertaken involving the exploitation of badgers is in place to prevent serious damage to livestock.
● The UK government has failed to submit biennial reports to the Secretariat in connection with the exceptions The complaint documents can be found on the Council of Europe ​website​.

 

Supporting evidence

The Badger Trust, Born Free and Eurogroup for Animals also provided additional evidence in support of their complaint (firstly in March 2020 and again in July 2020).

This included:

Evidence refuting the UK government’s consistent claim that badger culling is resulting in significant disease control benefits.
Evidence demonstrating the likely scale of undetected infection among cattle, resulting from the poor sensitivity of the current testing regime and the impact of increased cattle testing intensity on reported bovine TB incidence and prevalence in cattle, which is currently being blamed on wildlife.
Evidence for concerns over badger population viability resulting from the continued use of ‘controlled shooting’ as the primary method of culling.
● Strong evidence that the current system of risk pathway identification and reporting, which identifies badgers as the default likely source of infection for cattle herd breakdowns in the absence of other evidence, is deeply flawed and biased towards justifying the current policy.
Evidence of serious biosecurity breaches on cattle farms and Approved Finishing Units, which could be exacerbating the spread of bovine TB among cattle, and could place some farms in breach of badger cull licencing criteria.
The failure of government to promote badger vaccination as a viable, non-lethal, and effective alternative to badger culling, in spite of its promises to phase out badger culling in favour of vaccination in its response to the Godfray Review published in March 2020. ​

 

The results

The Convention considered the complaint last month but has not upheld it, it seems partly because the government’s response claimed that the badger cull policy “had been developed by experts“, partly because of an exception in Article 9 of the Convention which permits contracting parties to make exceptions to the requirements in Article 7 if it prevents “serious damage to livestock”, and partly because there appears to be “no current cost-effective alternative to reducing the spread of Bovine TB“. Badgers can therefore be killed to protect the dairy industry.

The government has often relied on Article 9, but the ruling that there is “no current cost-effective alternative” is interesting. We can’t discover where this is listed as something the Bern Convention should consider, and it’s tempting to ask anyway just how expensive (compared with culling and losses to the industry which are covered by us the taxpayer) it would be to tighten up farm bio-security measures and develop a proper cattle track and trace system [Oh, right, yes, we’re not very good at that are we…]? The Bureau did however take note that “the Strategy is being revised and suggested that, in the future, intensive culling would be replaced by vaccinations, testing and other less-intensive measures“.

The Convention has at least decided to put the complaint on ‘stand by’ in order to monitor developments on the badger cull policy over the next ten months. Both the British Government and the complainants have been requested to provide further information and views on the number of badgers killed, the areas of England under culling licences, and monitoring measures in place on the results of the policy by 31 July 2021.

 

What next?

The Badger Trust, while disappointed, is going to continue to put pressure on the UK government. It has responded to the Convention’s decision by saying that “It’s becoming increasingly clear that a number of Bern Member States share our concerns on the impact of the badger cull policy and that the British government is failing in its obligations to protect this species…Environment Ministers from Member States have already indicated that they will sign a letter to the Bern Convention, supporting our concerns on the impact of badger culling on the population level of the species in England, and we intend to build this supporting coalition further in the months ahead.”

 

Whilst not aimed at the Bern Convention itself, Wild justice (whose request for a judicial review into the shooting of badgers during the cull on humaneness grounds was turned down by the UK government) has a petition calling on the government to ban the shooting of badgers immediately. The petition went live in September and as of writing has already gathered over 64,000 signatures (and a mealy-mouthed response from Defra).

Wild Justice petition 13:45 15/Oct/2020