The Protection of Badgers Act 1992 commonly know as the Badger Act is probably the UK's strongest piece of wildlife protection legislation.
The act creates a criminal offence which it calls "Interfering with badger setts." which lists five reasons by which it is illegal to interfere with a badger sett.
The precise wording is as follows:
Interfering with badger setts.
A person is guilty of an offence if, except as permitted by or under this Act, he interferes with a badger sett by doing any of the following things--
(a)damaging a badger sett or any part of it;
(b)destroying a badger sett;
(c)obstructing access to, or any entrance of, a badger sett;
(d)causing a dog to enter a badger sett; or
(e)disturbing a badger when it is occupying a badger sett,
intending to do any of those things or being reckless as to whether his actions would have any of those consequences.
In my opinion and in the opinion of many other people the final clause in this section means that it is a criminal offence not just to disturb a badger sett itself but also to disturb (and I quote) "a badger when it is occupying a sett."
Up until very recently this was also the point of view of Britain's largest animal welfare charity the Royal Society for the Prevention of Cruelty to Animals (RSPCA). Indeed this position is still detailed on their website.
They have however recently changed their position with regard to the Badger Act and are insisting that it does not in fact make (and I quote) "disturbing a badger when it is occupying a sett." a criminal offence. If correct the RSPCA's position would substantially downgrade the protection afforded to badgers in the UK in comparison to what they would have had if the law was actually what it says. There is a serious concern that given the respect with which some people hold this organisation their misrepresentation of the law might be adopted by others.
In my opinion what the RSPCA is doing amounts to a back door attempt to sabotage the Badger Act. This blog tries to explain the circumstances that have lead to this situation and to embarrass senior executives in the RSPCA into reversing their position.
Last week I had been reading a number of media reports that extremist animal rights groups were planning direct action against the badger cull. A recurrent theme of these reports was that plans were being laid to try and scare badgers in the cull zones. Possible methods included the use of vuvuzelas, fireworks and even dogs. It seemed to me that any of these methods might have the effect of disturbing badgers occupying setts and could potentially breech the Badger Act.
I mentioned this to a reporter from the Daily Telegraph. Partly because there was an obvious irony in protesters possibly being had up under the Badger Act for trying to stop other people from shooting them.
"..the RSPCA, which opposes the cull, has insisted that it believes an offence is only being committed if the sett itself is disturbed or dug up."
This amounts to a denial that the fifth means of interfering with a sett explicitly listed in the law is even there.
I have contacted the RSPCA since and they have put out a statement from their head of prosecutions. This lists in order four of the five means from the act but simply leaves off the fifth. I use his exact words but add the a b c d to make this apparent:
a) Destroying, or
b) damaging a badger sett,
c) obstructing an entrance to a badger sett (as in physically blocking up the entrance) and
d) causing dogs to enter the sett.
Why have the RSPCA chosen to miss out the final means which explicitly states that disturbing a badger itself is illegal as well as just the sett? It is not just an accidental omission - when I 'phoned them up and quoted clause e) to them they doggedly refused to acknowledge that it was in the law.
To me the reason is obvious they wanted to give the protesters a clear signal that they would not prosecute them even if they did disturb badgers in setts. Effectively the RSPCA is giving people a carte blanche to flout the law.
There is a more worrying side to this. Which is that the Badger Act applies not just to protesters but also to people with an altogether more malign intention. Prior to last week the RSPCA could have prosecuted these people as soon as they even disturbed a badger in a sett.
Now one assumes they will not do so.
The deepest irony in all this is that the cullers themselves may well be disturbing badgers in their setts with the blasts from their shotguns as they slaughter the animals. If their license does not include for such a disturbance and if the RSPCA were not sticking belligerently to its highly tendentious view of the law this might be a route by which it could at least delay the cull.
I have recently received an email from Natural England confirming that disturbing a badger occupying a sett contravenes the Badger Act and crucially with regard to such disturbance they note:
"The disturbance issues raised are not covered by the Licences to kill badgers for the purpose of preventing the spread of disease (bovine tuberculosis)."
What Natural England are saying is that the cullers do not have a license to disturb badgers in their setts either! However the RSPCA appears to be giving them a green light to break the Badger Act too.
If the RSPCA was a responsible organisation they would simply quote the law as it stands and remind everybody that they have a duty to comply with it.
I will email this blog once published to the following high level members of the organisation Gavin Grant, Tony Woodley and Brian May. I very much hope they can change their position and stand up for the Badger Act as it actually is and not a watered down fabricated version.