OCTOBER 23, 2013
1. Chair thanked everyone for joining the teleconference which had been convened at
Board members’ request to consider the latest developments in relation to the badger cull. The Chair confirmed that a letter had been received from the Badger Trust on 18 October 2013. The Chair reminded the Board that it should not to be influenced by any external pressures. He also reported that he had not met the Secretary of State to discuss recent developments on the cull. The Chair confirmed that there was a decision to be taken today on whether the Board was content for the delegation of the licensing decision to grant a licence to extend the cull in Gloucestershire to remain with the 2
Executive as provided for in the Scheme of Delegation or whether it wished to revoke the delegation and for the decision to be made by the Board.
2. At Chair’s invitation, Andrew Wood, Executive Director Science, Evidence and Advice (AW) proposed the following framework for the discussion.
2.1 First, a general update on the badger culling pilots, and details of the decision he was minded to take in response to the application to extend the culling period in the West Gloucestershire pilot.
2.2 Second, a discussion and Board decision on whether or not to revoke the delegation of the licencing decision. If the decision was to leave the level of delegation unchanged, AW would take the decision. If revoked, AW would remind the Board about the policy framework in which it would have to reach its decision.
2.3 Finally AW would set out the next steps depending on the Board decision.
Update and minded to decision
3. AW reported:
3.1 A new licence had been issued for a three week extension of the culling period in Somerset. The decision had been based on the original policy framework and the additional advice received from Defra including the Chief Veterinary Officer and Chief Scientific Adviser’s advice and the views of the Secretary of State. The supplementary licence for Somerset required the licence holder to increase its cull numbers from just under 60% to 70% of the estimated badger population.
3.2The letter from the Badger Trust’s lawyers had been shared with the Board. Natural England was currently drafting a response to the letter. The Natural England response would be reviewed in the light of the Board’s decisions today.
3.3 In Gloucestershire, approximately 30% of what was now estimated to be the badger population had been culled by the end of the six week period. An application had been received for a new licence which would extend the culling period by a further eight weeks. In considering the licence application AW had considered:
· The policy framework, and further advice from Defra, within which Natural England was asked to take its decision.
· The balance between the risk of any further perturbation effects and potential benefits from any further disease control from further culling. AW advised that the science was uncertain and did not give a definitive answer. A judgement based decision had to be made. The key to Veterinary Officer (CVO).
· Issuing a licence subject to conditions that were practical and achievable.
3.4 AW had considered three options. These were to:
· refuse to issue a new licence;
· issue a licence on the same basis as for Somerset, restating the 70% target and requiring the company to achieve it;
· issue a licence but look for a practicable minimum target that would achieve disease control benefits.
3.5 AW had concluded that a 70% target for an extended cull was not realistic in Gloucestershire even with more contractors and equipment available because the weather and winter lethargy would affect the numbers taken; an 8 week extension would take the cull beyond the 30th November when the open season for cage trapping ends and the experience in Somerset was that the number of active badgers and number culled was diminishing.
3.6 AW referred to the paper that had been circulated to Board members earlier that morning which contained an analysis of the minimum target number. He pointed out that the analysis concluded that around 540 was a practical number of badgers to be culled in Gloucestershire in any extended period. AW also referred to the CVO advice that it was reasonable to expect that the proportion of badgers culled in Somerset in the six week cull period was sufficient to result in a net disease control benefit and pointed out that if a number of about 540 badgers was to be removed in Gloucestershire it would bring the total proportion removed in Gloucestershire close to the proportion culled in Somerset in the six week period. AW advised that he had therefore concluded that there was a balance of advantage in continuing the cull in Gloucestershire and on that basis he was minded to grant a licence to allow the cull to continue.
4 In response to the Chair’s invitation for questions and observations, the following issues were discussed.
the weight being given to the advice from the CVO, whether there was a need for further independent advice and whether this was available;
the meaning of “having regard to” in relation to the published Guidance and the further CVO and CSA advice that had been received from Defra in light of the evolving picture from the pilots;
· Natural England’s role in considering the licence application; and whether it was part of its role to consider the efficacy of the pilot. The Board were advised that it was the Executive’s view that this was a matter for the independent panel;
· the fact that the current circumstances departed from those of the Randomised Badger Culling Trial (RBCT) and it was difficult to predict, therefore, what the disease control benefits would be;
· the fact that parts of Gloucestershire had not been accessible during the 6 week cull period due to protester activity but that plans were afoot to facilitate culling in these areas if the cull period was extended; and
· the number of badgers that needed to be culled to achieve, according to the CVO’s advice, a disease control benefit and what would happen to monitor progress.
4.1 AW advised that Natural England’s responsibility was to take a view on whether there should be an extension to the culling period in Gloucestershire in light of the application that had been made. Based on the evidence, the published Guidance and the CVO’s advice that was available the judgement to be made was whether extending the cull would lead to a benefit in disease control when weighed against the effects of perturbation.
Individual Board Members made the following comments as part of this debate.
4.2 Catherine Graham-Harrison (CG-H) expressed concern about the weight being given to the advice from the CVO and expressed the view that independent advice should have been sought. AW advised that Natural England had to have regard to the CVO’s view and that Natural England did not have the equivalent veterinary expertise. AW also commented that in the timescales available it was not possible to source other independent advice and that in any event the CVO was there to provide impartial advice.
4.3 David Macdonald (DMac), Manager of Regulation Delivery,said that on the basis of his experience, his personal opinion was that the CVO’s advice that killing further badgers would lead to better disease control was not easily reconciled with the evidence. He was also puzzled by the omission of mention of the Reactive treatment of the RBCT which offered an instructive example of the consequences of killing about 30% of the badgers, the situation created by the trial thus far in Gloucestershire. Therefore, he concluded that in his opinion the CVO’s advice was a less than perfect basis for deciding upon the likely consequences for disease control by extending the trial. DMac also commented that the current circumstances were novel and departed from the RBCT to such an extent that it was hard to predict the likely outcome but that insofar as the evidence of the RBCT could be extrapolated it led him to the opinion that an extension of the culling period in Gloucestershire was unlikely to lead to disease control benefits. He referred to the evidence base from the RBCT where the reactive cull (30% badgers culled) had led to a net worsening of the incidence of Bovine TB, and the proactive cull (70% of badgers culled) that had led after several years to a small net gain in the rate of increase of the disease. He identified the question that needed to be addressed as being: what was the tipping point between 30% and 70% to achieve a net gain? He was told that the number achieved in West Somerset was approximately 58% and that the CVO advice had been that it was reasonable to expect that this was sufficient to achieve a net disease control benefit. DMac asked how this number had been calculated and was told that Natural England had asked Defra the question but received no answer. DMac did not feel that the CVO’s advice had been helpful in this regard. Furthermore in DMac’s view the tipping point was, on the basis of the RBCT experience, likely to be higher the longer the culling period was prolonged and worse as winter progressed.
4.4 Doug Hulyer (DHu), Director Regulation, asked for further clarification on the account taken of the RBCT results in the decision making process. Officers confirmed that in reaching their decision they had taken account of the Policy and Guidance set by Defra and the supplementary advice from the CVO and the views of the Secretary of State that had recently been received. They confirmed that they had also taken into account the RBCT evidence. They stated that the proposal to grant a licence was based on judgement because of the different circumstances from the original RBCT. Officers also commented that the RBCT reactive trials were not directly comparable because they were undertaken where there were known Tb herd breakdowns and that was not the case in Gloucestershire and therefore it could not be said that you would get the same negative results as in the RBCT reactive trials.
4.5 At this point Dave Webster, (DW) the Chief Executive, left the meeting.
4.6 The Chair commented that he understood the cull had been patchy in Gloucestershire and he asked if that had an impact on the decision. AW confirmed that this had been considered as had the measures that it was proposed would be put in place if the cull period were to be extended. Officers’ advised that during the 6 week period part of the Gloucestershire culling area had been inaccessible due to protester activity. The range of measures agreed to allow increased access during any extension was noted by the Board.
4.7 David Hill (DHi) commented that he had an open mind as to the way forward. He recognised that a 70% target may not be achievable in Gloucestershire and that it was necessary to find the right balance. He was more concerned to know if pressure had been applied to force the Executive to reach this decision. AW confirmed that no pressure whatsoever had been applied.
4.8 AW explained that it was important that the Board understood that any decision taken had to be taken having regard to the policy framework that existed and that if the Board wanted to depart from the Department’s advice then in doing so the Board could not take account of immaterial considerations such as Natural England’s reputation. DMac asked if confidence in achieving disease benefit was a material consideration. AW confirmed that it was. DMac repeated that he personally did not have that confidence.
4.9 In response to a question about what would happen if cull numbers were not reached AW advised that Natural England would be informed of the numbers of badgers being culled and if a licence was granted it would require weekly reporting of culled numbers. These reports would be assessed and the practicality of achieving the cull re-assessed. AW confirmed that if Natural England formed the view that too few badgers were being culled it had powers to revoke the licence. DMac commented that he found it hard to understand how further trials could be licensed following the failure of the licence holders to meet the original criteria and the lack of evidence on the disease consequences of extensions.
4.10 Both Joe Horwood (JH), Head of Legal Services, and Nigel Reader, (NR), Principal Specialist, Species Regulation commented that they recognised the difficult position with regards the science and not knowing for certain what the tipping point was where disease control benefit was certain but, having listened to the comments that have been made and recognising that it was clear that Gloucestershire may not achieve the 70% target they felt that the proposal that AW was making was the right one. JH further commented that he was concerned about monitoring the cull once it started again to ensure that Natural England had a protocol for deciding whether to revoke any licence granted.
Consideration of the delegation of the licensing decision
5.1 The Chair invited AW to set out the position.
5.2 AW confirmed it was the Executive’s view that this was a decision for AW but recognised that the Board could decide to remove the decision from AW. He identified the options available to the Board:
(i) to leave the delegation unchanged;
(ii) to revoke the delegation in order to take a decision on this licence application;
(iii) to revoke the delegation in so far as it pertains to anything further in relation to the West Gloucestershire pilot;
(iv) to provide for all licensing decisions in respect of Bovine TB to be taken by the Board;
(v) to revoke the delegation of all wildlife licensing decisions to officers. AW advised the Board not to take this course of action as it was undertaken currently by 80-90 staff handling approximately 10,000 licence applications each year. His advice was that these were not decisions that needed to be taken at Board level.
5.3 AW assured Board members that they would be supported in their additional responsibilities if a decision was taken to revoke any delegation to officers.
5.4 The Board decided by a majority that it did not wish to remove the decision from the Executive.
5.5 In considering the question of whether this particular or any future licensing decision should be retained by the Board the following matters were discussed and agreed:
· The Scheme of Delegation had delegated wildlife licensing decisions to officers. Whilst decisions would normally be taken at adviser level AW had decided that on this occasion, in light of the controversial nature of the decision, the decision would be taken by himself as the relevant Executive Director. This was in line with the guidance underpinning the Scheme of Delegation.
· The clear expectation and normal approach was for the Executive to take decisions delegated to it by the Board and that the Board would stand behind those decisions.
· It was perfectly proper, and in line with the recently revised Scheme of Delegation guidance, for the Executive to consult the Board on controversial decisions such as this.
· If the Executive was not minded to refer the decision to the Board the Board still had the powers to remove the decision from the Executive and take the decision itself.
5.6 The Chair referred to the fact that Will Cockbain (WC) was unable to attend the teleconference but had sent a text to the Chair in which he had indicated his support for extending the cull. In discussion other Board members put forward the following individual observations.
5.7 CG-H contrasted the Board retained authority for Sites of Special Scientific Interest decisions with delegation for cases such as this. She commented that the view outside Natural England seemed to be that such decisions should be, and indeed were, those of the Board. She was concerned that there would be an assumption that this licence decision would be made by the Board.
5.8 Andy Wilson (AWil), Secretariat, questioned the need to remove the decision from the Executive as he felt the decision could simply be escalated to the Board by the Executive as had previously been debated.
5.9 NR, Chair of the Audit and Risk Committee, confirmed that he was content with the process of escalation and the offer to the Board on where the decision should rest. He also commented that with a SoD in place and working well, the Board always had the option to reverse delegation levels, and that in the current circumstances he saw no reason why this process needed to be changed. He had confidence that contentious cases would be brought to the Board’s attention as was happening here.
5.10 JH and DHi, both commented that if the decision was being taken within the policy framework then the analysis takes you to the same point that the Executive had reached. Their view was that the decision should be left with the Executive and if they were minded to grant a licence then that decision should be supported.
5.11 DMac also commented on the fact that if the decision was being taken within the policy framework and on the basis of the CVO advice the Board could only reach the same decision making it pointless to rescind the delegation. AW advised that in fact it was possible to construct an argument for any one of the three options that he had outlined at the beginning of the meeting and as part of that analysis you had to balance the risk of perturbation against the disease control benefits.
5.12 CG-H’s view was that all decisions relating to Btb licensing should be taken by the Board. AWil stated that he agreed with CG-H that the decision should be a Board one, but believed it was not feasible to take a sound decision on it at this teleconference.
5.13 In terms of follow up action the Chair and NR (in his capacity as ARC Chair) agreed to discuss ways of providing further clarity over the SoD and a process for bringing contentious issues to the Board.
6 AW thanked the Board for its decision and stated that it now fell to him to reach a decision on whether to grant a new licence to allow the cull to continue in Gloucestershire for 8 weeks. AW confirmed that having listened to the Board‘s discussion and considered all the points that were made, and taking account of all the advice and Guidance that Natural England had received, he remained of the opinion that a licence should be granted to extend the culling period for a further 8 weeks in Gloucestershire with a minimum target being set of 540 badgers to be culled in the 8 week period.
6.1 DMac asked for his sense of ill ease to be recorded in light of his particular position of having worked professionally in this area. He commented that AW had identified that the main source of evidence for reaching the decision had come from the CVO advice, which in DMac’s view was not comprehensive. He was deeply concerned that ‘advice’ from Defra officials should have such a determining effect on the decision. He stated that whilst fully understanding and respecting arguments that led to the decision, he had personally arrived at the conclusion that an extension in the culling period would not lead to a worthwhile gain for farmers. Some other Board Members also expressed their unease. CG-H asked that it be recorded that she remained unconvinced by the case made that the granting of the new licence was likely to result in achieving a cull level that would lead to an improvement in outcomes in respect of the incidence of bovine tuberculosis. DHu also expressed unease, noting that the decision of officers, and therefore of the Board, had been limited by the policy framework set by Defra and the advice of the CVO. Personally, he was totally convinced by, and in agreement with, the opinion and advice of David MacDonald, the Chair of NE’s Science Advisory Committee and wished this to be recorded in the minutes. AWil said that on balance – and aware that all information was in front of the Board – he believed the evidence suggested that the request could make control worse and thus disagreed with the Executive decision.
7 A reply would be sent to the Badger Trust’s lawyers. Board members would receive a copy.
8 The licence would be issued that day including the insertion of a novel condition to provide weekly reports to be used to monitor progress.
9 Communications would include:
· The outcome of the Board’s discussion would be communicated in the minutes.
· A press statement would be made and the decision shared with staff and key partners.
· 10 In response to requests for clarification about information in the public domain, it was confirmed that the advice Natural England had received from Defra had been placed in the House of Commons library and therefore was effectively already in the public domain.
Chair closed the meeting by recording the Board’s thanks to officers who were working under extreme pressure but with great diligence.