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Can 'Public Interest' protect Britain's wildlife?
8th August 2014
Last week the Upper Tribunal of the Royal Courts of Justice ordered Defra to release key information about the badger cull based on a 'public interest' argument, writes Lesley Docksey. Could this judgment open a new era of transparent and accountable government?
Private interests do not have the right to govern our lives - or the existence of all other life in these islands ... 'public interest' means our interest.
All governments, no matter how often they insist we live in a 'democracy', prefer to act in secret.
It is, apparently, 'in the public interest' that we do not know what they do in our name.
In reality, the secrecy is there to either hide what could well be illegal or because the disclosure of the facts would be highly embarrassing to those involved.
They are for instance adamant that the United Kingdom has, in ex-Foreign Secretary David Miliband's oft-repeated words "never been complicit in torture".
Except that, despite denials, we always have been - and if this is an area you have never explored, I suggest you read Ian Cobhain's book Cruel Britannia, an eye-opener if ever there was one.
In 2010 the Court of Appeal ruling compelled the government to disclose what MI5 knew of Binyam Mohamed's treatment in Guantánamo Bay.
The government response? The 2013 Justice & Security Bill which allows secret courts where the complainant or suspect cannot even find out what security evidence is held against him.
Those interested in the arms trade, military matters and the fall-out from such actions as the invasion of Iraq have become very familiar with government efforts to hide what was said or done - witness the delayed Chilcot Inquiry report while more than one Cabinet Secretary fought to prevent publication of certain documents.
Far too often 'public interest' gives way to the interests of a powerful few. Such undemocratic secrecy prevailed in the government policy of badger culling, supposedly designed to eradicate bovine TB in cattle. Policies are formed not for the public good, but to appease vested interests or, in the case of badger culling, buy their support.
As Dominic Dyer of the Badger Trust told The Ecologist, the badger cull was something that both the National Farmers Union and Countryside Alliance wanted, in return for which they would back the Conservatives in the 2010 election.
Unknown is how much input the NFU would have in forming that policy.
In May 2012 the Badger Trust put in a Freedom of Information (FOI) request relating to the 2010 development of the government's badger cull policy. To quote the Trust:
"Unknown to the Badger Trust, these documents related to the involvement of the NFU on a secret project board set up to explore essential aspects of the Government's policy. Defra refused to disclose the Risk and Issue Logs (RILs), which demonstrate the project board's hidden assessment of the risks associated with developing a farmer-led badger cull prior to the Minister's decision on introducing the policy."
Following Defra's refusal the Trust appealed to the Information Commissioner who ruled that Defra should release the documents. Defra appealed to the First-tier Tribunal. Unusually the case was transferred directly to the Upper Tribunal. Such a move would argue that Defra and the government were worried about the outcome. How right they were.
After two days of Defra trying to defend its case - that it was in the 'public interest' to keep things secret - in the face of strong arguments from both the Trust and the Information Commissioner, the Tribunal ruled that it was in the public interest to disclose the documents. It was "not persuaded" by Defra's arguments.
The Information Commissioner's Office had this to say:
"Striking the right balance between openness and accountability and the need to make sure policy makers have a safe space for free and frank discussion is often a difficult judgement to make. However, given the considerable public interest in this issue we ruled that the information should be disclosed. We are pleased that in this case the Tribunal has found that the ICO got the balance right."
The public would agree that policy makers should have a safe space for discussion. For the government to provide a 'safe space' for undisclosed vested interests to ensure the policies suit them is another matter entirely.
A move towards transparency?
It was a welcome victory for more transparent government, a position now upheld more often by the judiciary, considering some of the rulings they have produced in the last few years against secret government.
Perhaps, as lawyers, they are becoming tired of government ignoring laws or rewriting laws to suit themselves. And they must surely be tired of Ministers and civil servants defying and/or appealing against rulings handed down by the judges.
Although the Badger Trust has won this case, there is a further hearing in October to address important wider issues such as clarifying the legal exceptions relied on by DEFRA to keep the Board's assessment of the risks under wraps. We still don't know what the final outcome will be (though it is likely Defra will try and rewrite the rules) nor has the full judgement yet been published but, as the Trust says:
"This places the Badger Trust at the forefront of potentially ground-breaking developments in environmental information law, which will assist other NGOs like themselves to ensure greater transparency and scrutiny of controversial environmental decision-making within Government."
In the meantime, we can look forward to another legal action of the Trust's - the Judicial Review which will be heard in the High Court on 21st August, when the Trust will be challenging Defra over its failure to put independent monitoring and assessment in place for this year's culls.
What will the Upper Tribunal ruling mean?
The Upper Tribunal ruling could open up a whole can of questioning worms, all wielding FOI requests, and hopefully all underpinned by genuine 'public interest'. Just based on the initial judgement in favour of the Badger Trust, here are some possibilities to ponder on:
The British Veterinary Association will not be supporting the Badger Trust's Judicial Review action. But can it now justify its backing of future culls, when the Trust's pursuit of the Risk & Issue logs has made it clear that Defra prefers to implement the opinions of the NFU rather than listen to truly independent scientific advice?
All decisions about the design, preparation and operation of the badger culls can be questioned to see how much input the NFU and other non-government interested parties had.
How much of the text of the 'Best Practice Guidance', under which the culling contractors were to operate (and often in practice ignored), was written with the help of the NFU or others?
How much of the training of the culling contractors was designed solely by the contracting companies, with no reference to independent ecologists and wildlife experts?
Will the police now have to make public any occasion before, during and after badger culling, when they are collaborating with, being pressured by or 'advised' by the NFU or the culling companies?
This ruling does not just involve the badger culls and the NFU.
All government wildlife and environmental policies should be properly examined for the influence of interested parties (many of which are in government), whether those are people who simply like killing wildlife or big businesses seeking to override the inadequate protections we have in place.
We should question who pressures Defra into considering giving one or two pheasant-shoot owners licence to trap buzzards and destroy their nests while calling it a study (cancelled after a public outcry) on how to control buzzards, or refusing to ban a poison used to illegally kill raptors.
How did grouse moors win subsidies? Why did Natural England abandon its plan to ban peatland bog burning on the (grouse-shooting) Walshaw Moor Estate and withdraw from its prosecution of the estate for alleged environmental damage? Both the RSPB and the campaign group Ban the Burn have asked the EU Commissioner to investigate Natural England and Defra for "probably unlawful activities".
Is it right that the Prime Minister can veto a rise in shotgun licence fees when it is costing the police (and the taxpayer) far more to issue the licences than gun owners are charged?
How do mega-rich landowners ensure that they get EU subsidies based on the acreage of their huge estates, when that money should properly go to the smaller, and struggling, farmers?
Handled correctly, this one decision could open the door to far more transparency in government.
Any legislation covering wildlife, ecology and environmental controls on land or within our waters, coming before Parliament could include as a matter of public interest how much of that proposed bill has been drafted solely by government departments and what other parties have advised them.
Where energy policies are concerned, the public could demand access to details of meetings between fracking companies and the Department of Energy, let alone hidden meetings with the nuclear industry. Policies governing pesticide and herbicide use or GM crops could be publicly examined for the input from biotech companies such as Monsanto and Syngenta.
Private interests do not have the right to govern our lives - or the existence of all other life in these islands. In a small way this ruling has made that clear. At the very least, for the sake of balance and public interest, government policies should allow equal input from those who oppose the vested interests.
But we have to make that opposition very clear. We have to demonstrate that we are many and that 'public interest' means our interest.
Eventually we might reach the happy point where government's door is not open just to a self-important and favoured few but to all those who voted the politicians into power and who pay their wages.
The Badger Trust should be highly praised for doggedly (or badgeredly) pushing this case. It has cost them - these actions don't come cheap. But the ruling has given us a tool that we should grasp with both hands.
It has created a turning point - a slightly open door that we all should, in Dominic Dyer's words, keep pushing at until public interest wins and the door is fully open.
Lesley Docksey is a freelance writer who writes for the Ecologist on the badger cull and other environmental subjects.
See her other articles for The Ecologist.
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