Wild Justice & Anor, R (on the application of) v Natural England

Would the following matters have constituted irrelevant considerations for the purposes of NE’s decision-making under s.10(2)(a) of the Protection of Badgers Act 1992, if they had been taken into account by the decision-maker: [i] The consequences of not issuing the SBC licences for NE’s relationship with Defra and the Animal and Plant Health Agency. [ii] The consequences of not issuing the SBC licences for NE’s “wider relationships within the farming community” across NE’s “Green Farming and Fisheries and Resilient Landscapes and Seas portfolios”. [iii] The fact that NE, rather than Defra, would be liable for the costs of compensation claims that could be submitted by members of the farming industry. [iv] The apparent need to make a decision by the end of April 2024 in order to avoid “jeopardising the timeline agreed with [farming] companies” and the fact that there would be “questions raised by the NFU and companies both to NE and Defra” if SBC licences were not issued before 15 May 2024. [v] The consequences of not issuing the SBC licences for NE’s budget and the fact that this could result in staff layoffs and “wellbeing issues and work-related stress” among NE’s employees.

The reference-point is the case of R (NFU) v Secretary of State for the Environment, Food and Rural Affairs [2020] EWHC 1192 (Admin) [2021] Env LR 1. That was a case where NE was satisfied, applying s.10(2)(a) and the criteria in the Secretary of State’s statutory guidance (issued under s.15 of the 2006 Act), that a licence was appropriate. The Secretary of State had stepped in with a s.16 direction vetoing its grant. An identified consideration in the decision to make the s.16 direction (see NFU at §66iv) was that “the proposed cull was highly controversial and faced substantial public opposition” and “there was a risk that public opposition could spill over into more sustained protest and in turn constrain the Government’s future policy options”. The direction was lawful, on the basis that the s.16 power was wide enough to cover a situation in which the Secretary of State has decided “for wider political reasons” that licences should not be issued in circumstances in which NE would otherwise have issued them (NFU at §82).

The two questions which arose out of NFU for the present case were: (a) would the Five Considerations fall within this broad scope described in NFU to be permissibly relevant to the s.16 direction-giving power; and (b) is there a key distinction between, or rather a close equivalence between, the Secretary of State’s s.16 direction-giving power and NE’s s.10(2)(a) decision-making function.

The Claimant’s pleaded judicial review grounds acknowledged that the Five Considerations “might” fall within the scope of NFU “wider political reasons”, which “issue does not arise here”, submitting that there was a key distinction between the Secretary of State’s s.16 direction-giving power and NE’s s.10(2)(a) decision-making function. The Secretary of State’s pleaded “broader interpretation of s.10(2)(a)” involved taking the broad scope of s.16 described in NFU and then reading it across to s.10(2)(a). It was, pleaded the Secretary of State, fundamentally misconceived to suggest a distinction between s.16 and s.10(2)(a). NE agreed, pleading that the Claimant’s suggested distinction was completely wrong in principle.

Mr Streeten for the Secretary of State maintains that there is equivalence between those permissible relevancies in the Secretary of State’s s.16 direction-giving power and NE’s s.10(2)(a) decision-making function. His argument on that ultimately rests on: (i) the duty not to exercise one statutory power to frustrate another by defeating a restriction within it, (ii) the fact that s.10(2)(a) powers are themselves Ministerial powers which NE only ever exercises for the Secretary of State; and (iii) the absurdity which would arise if the Secretary of State could, by direction to NE, achieve an outcome not open to the Secretary of State as the licensing decision-maker. Mr Wolfe KC does not say that the Secretary of State could use s.16 directions to defeat a restriction within s.10(2)(a), but he does maintain that there is a key distinction between exercising the s.10(2)(a) power and what Secretary of State may take into account, as policy-maker, charged with powers to give statutory directions (s.16).

In the end, as I saw it, everybody was agreeing on five things. First, that a case involving exercise of the s.10(2)(a) power must start with, and turn on, the analysis of that power. Second, that the judgment in NFU is not reasoned on the basis that the s.16 directions power operates with an equivalence of scope and permissible relevancies as the s.10(2)(a). Third, that caution is needed in this area, as to the meaning and scope of “political” considerations as permissible relevancies. Fourth, that resolving the scope of s.16, the scope of “wider political reasons” in NFU, and the interrelationship between s.16 and s.10(2)(a) would not be a necessary stepping stone in order to decide the legal issue of whether the Five Considerations were legal irrelevancies in the making of Dr Harmar’s May 2024 decision. That means none of this is a stepping stone to deciding the Would-If Question. Fifth, no party was inviting the Court to give an advisory declaration on permissible relevancies under the s.16 power; nor on the interrelationship between s.16 and s.10(2)(a).

The Claimants accept that, in making the impugned decision, NE did not in fact have regard to the Five Considerations. But they maintain that the answer to the Would-If Question is yes, and they invite the Court to make a declaration to say so.

NE enters a general caveat, that it is dangerous to seek to identify legal irrelevancies in the absence of seeing the reasoned decision in which regard is had to them. NE also makes a specific point, which is that timing (Consideration [iv]) could be permissibly relevant, if for example it related to avoiding a damaging regulatory gap or aligning to a culling season. The Claimants do not – as I see it – disagree with those points about timing, put in that way. They also acknowledge that timing (Consideration [iv]) could permissibly have been relied on within the Decision Document, if the point had been put in that way. NE then does not contest that if Dr Harmar had had regard, in the decision which he made, to Points [i], [ii], [iii] or [v], these would have constituted legal irrelevancies. But it does not follow that they would have vitiated the decision in law. That would depend on materiality and the application of the HL:NSD (highly likely: not significantly different) test in s.31(2A) of the Senior Courts Act 1981.

The Secretary of State agrees with NE on all of this. Mr Streeten told me in his oral submissions that the Secretary of State was abandoning his pleaded case and no longer relied on the pleaded grounds (see §7 above) that the Five Considerations were considerations to which the decision-maker was entitled to have regard; and that, even if they had been taken into account by NE, that was lawful.

There is no jurisdictional bar. The advisory declaration is within the Court’s jurisdiction, as a recognised phenomenon: see De Smith’s Judicial Review 9^th ed. §18-043 and fn.123-124. References (see fn.123-124) to a jurisdiction “used sparingly” and only “in exceptional cases” (R (SSJ) v Parole Board [2025] EWHC 472 (Admin) at §28) do not equate to an exceptionality test. The guiding principle must be the one identified for cases which become academic in the sense of being overtaken by events, namely whether “there is a good reason in the public interest”: R v SSHD, ex p Salem [1999] 1 AC 450, 457A. The examples given in Salem of “a discrete point of statutory construction arises which does not involve detailed consideration of facts” and “where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future” are examples only.

The HL:NSD test (Senior Courts Act 1981 s.31(2A)) is not a jurisdictional bar either. True, a declaration is a form of relief (s.31(1)(b)). The HL:NSD test was enacted to ensure that judicial review is purposeful, which reinforces the caution to be exercised when determining academic questions (see SSJ at §31). But s.31(2B) does not exclude an advisory declaration, nor constrain it to cases of proposed or anticipated public authority action with a future “outcome”. If it were necessary, certified exceptional public interest (s.31(2B) and (2C)) is available to cover a case where there is good reason in the public interest for an advisory declaration.

There is ample good reason, in the public interest, for the advisory declaration in the present case. In identifying legal irrelevancies the Court is applying an objective legal standard and deciding a question of law. The question arises out of a concrete factual scenario, involving a real decision. The only hypothesis is to posit Dr Harmar having accessed the Nexco Briefing Note and having taken into account the Five Considerations within it. The issue arises at the end of judicial proceedings, for which permission was granted, at a substantive hearing where NE and the Secretary of State are before the Court, and where all parties are prepared and able to assist the Court. That means granting an advisory declaration will not stand as any encouragement to others to bring future claims based on hypotheses.

The Advisory Declaration would provide clarity where there has previously been confusion. It would be of significance for future decision-making. And it is especially important in the context of any future decision applying evaluative criteria which is finely balanced. All of this in a context where the Court has already recognised that challenges are unlikely to be capable of being litigated before licences have run their course: see R (Badger Trust and Wild Justice) v Natural England (No.1) at §4.

The nature of the issue is hypothetical. The Would-If Question involves adopting a hypothetical premise. It is also a false premise. The decision-maker did not have regard to the Five Considerations. Courts do not in general decide hypothetical questions (R (Rusbridger) v Attorney General [2003] UKHL 38 [2004] 1 AC 357 at §35). Judges do decide points in the alternative, often because the case may go on appeal. They do also say things which are obiter. But all of that is part of the proper judicial role when deciding concrete, non-hypothetical cases.

The nature of the issue does not involve the Court deciding the lawfulness of past or proposed action of a public authority. First, because the Five Considerations were not in fact taken into account by NE. Second, because there is no proposed action by NE involving the Five Considerations being taken into account. Third, because taking into account a legal irrelevancy is not, automatically, unlawful. Rather, the common law has always insisted on public law errors being material. That is distinct from the discretionary refusal of relief. It is distinct from statutory materiality, for the refusal of relief, under the HL:NSD test. The judicial review Court decides questions of lawfulness of public authority action or proposed action. The perils of declarations in the absence of a finding of unlawfulness are illustrated by R (Bell) v Tavistock and Portman NHS Trust [2021] EWCA Civ 1363 [2022] PTSR 544 at §69 and R (Richards) v Environment Agency [2022] EWCA Civ 26 [2022] 1 WLR 2593 at §§57(2), 81, 86.

The nature of the issue is nothing like a short point of pure statutory interpretation. There are obvious reasons why such a point may be a proper candidate for resolution by advisory declaration. Such issues are clean, not fact-specific or case-specific, and apt for universal application based on a binding decision of the Court. L, M and P is a good example. Here, the Would-If Question does not even dovetail with the legal questions about what “wider political reasons” means in relation to s.16 direction-making, and about equivalence between s.16 direction-making and s.10(2)(a) decision-making. Nor, in my view, are they short points of pure statutory interpretation.

Although the judicial review Court applies objective legal standards to decide whether there is unlawful action by a public authority, it does not follow that the Court is “clarifying the law on a particular issue” (Richards at §81). The Court may be “clarifying the law” when it decides whether a public authority has misunderstood the statute. But deciding whether something was an obviously immaterial consideration in the context of a particular decision made in particular circumstances is not necessarily “clarifying the law”. Still less is it doing so, in the public interest, in a case where the consideration was not even taken into account. Added to which, it is all ultimately a fact-sensitive case-specific exercise (cf. R (Langton) v Environment Secretary [2019] EWCA Civ 1562 [2019] 4 WLR 151 at §60).

The answer to the Would-If Question is not in substance contested by any party. Nobody is really disagreeing with the Claimants (see §14 above). As Mr Luckhurst points out, this feature of the present case gives traction to the observations in R (Bus and Coach Association Ltd) v Secretary of State for Transport [2019] EWHC 3319 (Admin) at §§39, 66-67. In that case the parties were jointly inviting the Court to rule on the proper interpretation of a statutory provision, on which they agreed. The Court declined (§67), saying that the essential function of a court of law is to decide disputes between parties in particular cases (see §39).

I cannot give substantial weight to the fact that permission for judicial review was granted and the case has progressed to a substantive hearing. Permission was granted as an audit of the legality of public decision making, because there was an arguable claim for establishing unlawfulness (§12 above). Mr Luckhurst is right to point out that permission to amend would be needed to change the shape of the claim. The pleaded claim is what attracts permission for judicial review. New points may be permitted. But the Court retains the same sort of case-management control as it had at the permission stage. That is why applications for permission to amend the grounds for judicial review are conventionally approached by applying an arguability filter. I do not think permission for judicial review could have been appropriate, had the issue in the case been to pose the Would-If Question. On that basis, nor would permission to amend have been appropriate, had it been sought.

It is relevant that there is no joint request by the parties to decide the hypothetical issue and give an advisory declaration. Joint invitations can be relevant (see eg. L, M and P), but the Court will not always accede to them (see eg. Bus and Coach).

Finally, and standing back, the advisory declaration would give a remedy to a party who brought a claim squarely based on a claimed unlawfulness, which claim could not succeed, by taking one of the grounds and reversing the actual facts. I can test that by asking whether I would expect to make an advisory declaration in favour of a public authority, based on a claimed lawfulness which could not succeed, by taking one of the grounds and reversing the actual facts.

This was always a backward-looking legal audit, to elicit a ruling on whether “wider political reasons” – focusing on the Five Considerations – were permissibly legally relevant. That legal question was ultimately agreed between the parties, after shifts in NE’s position, in a way which was only settled on 3 December 2025 in NE’s skeleton argument. I consider that this was a responsibly brought challenge by environmental NGOs raising an important point the answer to which changed and was agreed late in the day. The position could and should have been accepted by NE from the outset, instead of pleading the opposite. The two other grounds for judicial review were linked. As I see it, they were also secondary. Given what NE ultimately accepted, the position which it originally pleaded is likely to have been found by the Court to have been wrong, had it mattered. That would have vindicated the bringing of the claim.

In the end, it was not right for the Court to get involved. What made it inappropriate for the Court to give a declaration, reflecting what the parties actually agreed, was that the factual premise for a ruling from the Court was removed by NE’s evidence. But that was only at 6 November 2025. To say that the Nexco Briefing Note was not before Dr Harmar was an oversimplified assertion. In fact it was an annex, deliberately provided for him, in the Cover Note for his decision-making. What resolved the factual position was the witness evidence that (a) he never clicked on the link to access the annex and (b) the Nexco Briefing Note was not discussed at the meetings between Dr Harmar and Mr Slater. That was not made clear until 6 November 2025. The Claimants at that point made the responsible decision not to maintain their claim as to the legal audit. Their belated pursuit of an advisory declaration was ambitious, and it failed. Normally that would be reflected in a costs order, for costs after 6 November 2025. But, on the particular facts of the present case, this has to be balanced against the other relevant points.

It has turned out that the costs after 25 April 2025 – more than 6 months earlier – could all have been avoided. Leigh Day wrote a letter “without prejudice save as to costs” on that date, offering to agree not to pursue the claim, if NE agreed that there should be no order as to costs. The Claimants, reasonably in my judgment, wanted to ensure that the materials in the proceedings would be accessible in the public domain. The reason given by NE for refusing to agree was an insistence that the Claimants should be liable for the entirety of NE’s reasonable costs incurred to date. That choice of position by NE has not been vindicated. It has not been shown that, as things then stood, the claim would have failed. It is also a striking position for NE to have adopted, for what at that stage were costs of £5.8k. These circumstances means that the costs after 25 April 2025 could all have been avoided. And NE had been warned that the correspondence would be relied on in relation to any later costs dispute. The case could have been stopped, on a reasonable and fair basis, even when NE was maintaining a position on the permissible legal relevance of the Five Considerations which it later withdrew, and even before the evidence which demonstrated that they had not been taken into account. Stepping back, this and the other considerations balance out, and the just order is no order as to costs.