Protecting badger setts: Where law and science clash

This article examines the definition of a badger sett under the Protection of Badgers Act 1992 which is: ‘any structure or place which displays signs indicating current use by a badger’. In McLintock v Harris 2015 SLT (Sh Ct) 26 the Sheriff held that ‘current use’ required the sett to be ‘in use at the present time’. This narrow interpretation is analysed against other case law and the Parliamentary intention taken from Hansard during the passage of the Badgers Act 1991. It concludes that the Sheriff’s interpretation accords with Parliament’s intention. A review of the scientific literature on how badgers (Meles meles) use their main and secondary setts shows that setts which are not in ‘current use’ under the statutory definition, are used in rotation as an important part of badgers’ behaviour throughout the year. It is concluded that the statutory definition does not provide adequate protection for setts which has implications for badger welfare. The Nature Conservation bodies’ former licensing guidance used a wider interpretation of ‘current use’ in line with scientific literature; however, a more cautious approach is now being taken. The authors examine the scope for judicial review of the Nature Conservation bodies’ approach to the statutory definition. They recommend a definition that would protect badgers’ welfare but conclude that with the present controversy about the bovine tuberculosis cull, strong lobbying will be required to get the Westminster or Scottish Parliaments or the Welsh Assembly to amend the definition.