Animal Health Act 1981 (Amendment) Regulations 2005
The noble Lord said: My Lords, I trust that these regulations will not be contentious as their purpose is straightforward and serves only to confirm existing policy without altering that policy.
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The regulations allow England and Wales to comply with one particular part of the UK's legal obligations in Council Directive 2003/85/EC on the control of foot and mouth disease (FMD). They make a minor amendment to the Animal Health Act 1981 to bring it into line with the requirements of the directive. Therefore they are made under Section 2(2) of the European Communities Act 1972. Under that Act, we have the option to make such regulations by negative or affirmative resolution procedure. We have chosen to make these regulations by affirmative resolution as we feel that it is important to give Parliament the opportunity to debate these proposals.
After the 2001 outbreak, a new European directive was adopted, taking into account recent scientific and technical developments and the experience gained by the UK in eradicating FMD. It has the important benefit of ensuring a common approach to disease control across the European Union.
Articles 10(1)(a) and 16(1)(a) of the directive require all member states to slaughter FMD-susceptible animals, including cattle, sheep, pigs and goats, kept on premises confirmed as infected with FMD. The Secretary of State's existing powers to slaughter animals to prevent the spread of FMD are discretionary. They are contained in Section 31 of, and paragraph 3 of Schedule 3 to, the Animal Health Act 1981. Therefore, to comply with the directive, the regulations before your Lordships today amend Schedule 3 to the 1981 Act to insert a duty on the Secretary of State to slaughter any susceptible animal kept on premises where FMD is confirmed.
I stress that this new duty to slaughter applies only to infected premises and does not extend to any other types of premises, such as dangerous contacts or suspect or contiguous premises. In these cases, the Secretary of State retains full discretion to slaughter, vaccinate or place under observation, as justified by the scientific position and veterinary risk of disease spread. Furthermore, these regulations do not change the Government's FMD control policy, which has always been to slaughter susceptible animals on infected premises. This is due to the very high level of risk from such premises and the need to stamp out disease as rapidly as possible.
Articles 15(2) and 18(1) of the directive also set out a number of limited exemptions to this duty of slaughter for different types of premises where the animals involved merit special treatment, and these exemptions are also transposed by the regulations. In these cases, the Secretary of State would retain the discretion to slaughter and, apart from separate production units, would still do so except in exceptional veterinary circumstances where animals were completely separated from any infected, or potentially infected, animals.
Although relating specifically to one of the exemptions, new paragraph 2A(7) of the regulations provides an indication of the type of stringent biosecurity and separation that would have to exist to prevent slaughter. Infected premises where the discretion to slaughter remains include laboratories,
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zoos, wildlife parks and other similar places where animals are kept principally for the display and education of the public. It also includes premises where rare breed animals or animals for research purposes are kept, and separate production units.
As I said, these regulations deal only with a very small part of our obligations under the directive. Two other statutory instruments have been prepared implementing the rest of the directive, including the detailed general controls during an outbreak and enabling vaccination to take place. Vaccination will be considered from the very start of an outbreak as an adjunct to the basic policy of slaughter on infected premises and dangerous contacts. These statutory instruments are unrelated to the regulations at hand, except that they contain the definition of "infected premises" for the purposes of when the duty to slaughter is triggered.
Confirmation that premises are infected must be arrived at by a veterinary inquiry involving sampling unless the Chief Veterinary Officer believes that the premises are epidemiologically linked with other premises which have already been declared to be infected by sampling. Then disease can be confirmed on clinical grounds to ensure that action can be taken quickly to stop the spread of disease.
Both these SIs were published in draft for a full 12-week consultation period in June and they are still in the final stages of legal checking. They will be laid before Parliament shortly by the negative resolution procedure.
In conclusion, the new duty to slaughter contained in the regulations does not change the Government's policy in relation to slaughter or the use of other disease control options and it will not make any practical difference to the number of animals that are killed. That will be based on scientific and veterinary advice on the circumstances at the time, with the objective of stopping the spread of disease as quickly as possible.
None of us wishes to see a return of the awful scenes of 2001. Therefore, we now have in place a high degree of disease preparedness, including increased readiness to vaccinate. This is allied with tighter controls on illegal imports, the permanent movement standstill, where livestock cannot move again for six days—20 days in the case of pigs—after moving on to any premises, and the immediate nationwide movement ban at the start of an outbreak. The regulations before the House today are a tidying-up exercise to ensure that our domestic legislation is in line with the directive. I commend them to noble Lords. I beg to move.
Several questions arise from the presentation of the instrument. As the Explanatory Memorandum very kindly mentions and as the noble Lord has drawn to our attention, full implementation of the directive requires that two other instruments will be brought into force at the same time as these regulations. Given that, what is the point of having this statutory instrument until we have a definition of "infected premises" on the statute book along the lines of that kindly provided by way of illustration to your Lordships' Committee on the Merits of Statutory Instruments? Is it not possible that this statutory instrument could make the situation worse? The Government currently have the discretion to slaughter animals in an outbreak of foot and mouth disease, as defined in a way that we currently understand the term. However, once this measure is on the statute book, they will no longer have the power of discretion that they had but will be compelled to slaughter on premises where the concept of infection has yet to be defined. There is wonderful scope there for lawyers to argue that the criteria for action have not been set and perhaps to delay any action being taken.
There is also an interesting element in the wording of this instrument in that, in spite of removing the Government's discretion to slaughter, as the Minister pointed out, it tries to define circumstances in which it might be possible to regard some animals as having been isolated. It is not stated that the Government have this power, having had the power of discretion up to this point. How many times did the Government find that premises were sufficiently isolated in the previous outbreak to allow animals not to be slaughtered under the contiguous cull rulings that were brought at the time?
The draft definition of "infected premises" outlines a considerable number of incremental steps in arriving at the conclusion that premises are infected. The Minister stated that the Government now have a detailed foot and mouth strategy in place, but those in the livestock industry, myself included, would be interested to know at which of those incremental steps the Government would have the power and even the intention to impose a general movement ban within the United Kingdom and not just an export ban, as was imposed at the last outbreak of foot and mouth disease for several days before the general ban was implemented.The Countess of Mar: My Lords, I, too, am grateful to the Minister, for his explanation. I accept that the regulations implement the directive, but it is very unfortunate that Defra has put the cart before the horse by publishing this instrument before the publication of those on vaccination and other aspects of the directive.
This amends primary legislation in a way that, I understand, is inoperable. The statutory instrument still does not make clear, as the noble Duke said, whether potentially infected premises will be confirmed on grounds other than clinical. During the 2001 UK epidemic there was widespread misdiagnosis of foot and mouth disease, as is apparent from Written
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Answers to Parliamentary Questions, at considerable cost to the Treasury. To depend heavily for disease control upon clinical diagnosis alone in the event of further incursions of the foot and mouth disease virus would suggest that we have not learned many lessons from the 2001 epidemic.
We knew at that time that rapid diagnostic, pen-side tests were available. What progress has been made in field-validating these tests for use in future epidemics? I am pleased that the Government are prepared to exercise discretionary powers in relation to laboratories, zoos, wildlife parks and places keeping rare breeds and other animals kept for scientific research. However, that raises other scientific points of interest. If this discretionary approach is possible, why can the Government not exercise similar powers in other areas, for example, based upon species susceptibility? In relation to alpaca and llama, it is known—and I quote directly from the research paper—that,
Similarly, if a farmer can demonstrate excellent biosecurity over a long period, is there any reason why there should not be an extension of discretionary powers to slaughter, thus enabling the Exchequer to make further savings? There really is a need for a bit more lateral thinking to target the effort, both scientifically and economically.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for introducing the statutory instrument. I join other noble Lords in expressing disquiet that we are being asked to discuss this regulation, when it seems to me, and the Committee on the Merits of Statutory Instruments, to be the third in a series of three. The Minister is shaking his head, but the reason it is difficult to discuss this one first is that it does not bring in vaccination issues, to which the noble Countess referred, and it would have been much easier to discuss these regulations in the light of vaccination.
Nevertheless, I appreciate the need for clarity. If there are any lessons to be learned from the foot and mouth outbreak, from which we all suffered, it is that clarity and speed are of the essence. My main worry concerns the designation of separate production units, because in the report of the 6th Standing Committee in another place from 8 December, the Minister's said that infected premises were those premises that were confirmed by the Chief Veterinary Office as having the disease present. He says:
"It would not be possible to designate separate production units. That designation has to depend on the circumstances at the time, what animals are kept and where, the biosecurity of the premises and the nature of the outbreak of the disease".—[Official Report, Commons, Sixth Standing Committee on Delegated Legislation, 8/12/05; col. 9.]
I appreciate that the nature of the outbreak might be variable, but surely more forward planning on what constitutes a separate production unit and what farmers might expect in an outbreak would be helpful. The best recent example of that has been the lack of
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planning apparent from the fact that, until last month, there was no register of poultry keepers. That is incredible, considering that avian flu has been around for the past two or three years. The Government should make an effort to do more work on what the separate production units might consist of so that if we are faced with another outbreak, speed and clarity can be achieved.
Finally, the Minister said that the other two measures would be introduced by negative procedure. Why was this one introduced by affirmative procedure? The instrument on vaccination, which I would have thought merited an equal amount of debate, will be introduced under the negative procedure.
Lord Bach: The answer to that last question is that this amends primary legislation, whereas the others do not. I am surprised to be criticised for the Government having chosen to introduce a particular statutory instrument by affirmative rather than negative resolution. One of the other two does not have to come before Parliament at all.
I shall do my best to answer all the questions. I am grateful to all noble Lords who have spoken. There are three statutory instruments because they represent incompatible powers and parliamentary procedures. We want to use domestic powers, where possible, so that most of the directive is implemented by order under the Animal Health Act. Those powers are not sufficient for vaccination under the directive, so there is a second statutory instrument. We have used the affirmative procedure because it amends primary legislation. For that reason we need a third statutory instrument.
The noble Duke asked why we had laid the instrument now. The amendment will not apply anyway until the other statutory instruments are in place, and we have laid this early to allow for a quicker transposition with a longer lead-in time for debate.
Lord Bach: No, my Lords, it is this instrument. Infected premises are those that are confirmed by the Chief Veterinary Officer as having disease present under the veterinary definition set out in the FMD directive. That confirmation must be arrived at by a veterinary inquiry involving sampling, unless the CVO believes that the premises is epidemiologically linked with another premises that has already been declared to be infected by sampling. In that case alone, disease can be confirmed on clinical grounds by examining the animals. That ensures that action can be taken quickly to stop the spread of disease when the original case has been confirmed by sampling. In short, that is the
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definition of infected premises. They do not change as a consequence of the statutory instrument that is to come.
I was asked about the directive's policy on the contiguous cull. The directive anticipates that such a policy may be pursued and specifically provides for a preventative eradication programme. There is no need to change UK legislation, as the powers necessary to slaughter susceptible animals that are contiguous to confirmed infection already exist in the Animal Health Act 1981. Our policy is, first and foremost, the slaughter of susceptible animals on infected premises and their dangerous contacts. In addition, emergency vaccination would also be considered as part of the control strategy from the start of any outbreak. That does not rule out the possibility of a contiguous cull if circumstances and our modelling showed it to be necessary.
On movement bans, we already have the power to put in place a national movement ban at the time of the confirmation of the first case. The noble Countess, Lady Mar, asked about the exceptions to the slaughter duty. Those set out in the regulations are precisely those laid out in the directive. Making further exceptions would under-implement the directive. She asked about PCR testing. The FMD directive requires that diagnostic tests and standards must be at least as stringent as those in the OIE manual. The directive also allows the Commission to adopt more stringent tests and standards than those in that manual. That has not been done, but if it were, the Commission tests would become the new benchmark and replace the standards.
The Countess of Mar: My Lords, it is coming up to five years since the foot and mouth disease outbreak. If that has not been done, can the Minister say why not? I remember the late Fred Brown coming over from America and telling us that they were using the tests in America. Why has that not been done in this country in the past five years?
Lord Bach: My Lords, perhaps the noble Countess would be good enough to let me finish the answer that I was giving to her query. Tests not in the OIE manual or adopted Community standards are explicitly allowed, but only if they are shown to match or exceed the sensitivity and specificity standards in the manual or Community standards, whichever of the two are the most stringent. Defra is working with its veterinary advisers to study the efficacy of PCR testing. Should it be concluded that it meets those standards, we could use it under the new legislation. However, the directive permits us also to confirm disease by a link to an existing outbreak on clinical grounds alone to control disease fully in a fast moving situation. I understand that the legislation allows PCR testing, if approved. The noble Baroness, Lady Miller, asked about separate production units. We need to take account of the situation at the time. Farmers can change their facilities and how they farm from them.
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The Duke of Montrose: My Lords, I am grateful to the Minister for giving me the opportunity to come back on this matter. There is a very good list of the criteria that are used in building up a picture of infected premises which includes taking samples and sending them off for testing. One of the problems that we had in the last foot and mouth disease outbreak was that there was a delay between the samples being sent off and the results coming back. We would like to know that that delay is minimised under the current arrangements. There may be a question about whether the early results from a test would trigger stock movement or whether one has to wait until one has the full results of all the tests.
Lord Bach: My Lords, the answer is the former of those two. It can be minimised in the way that the noble Duke would prefer. I hope that I have answered the queries that have arisen out of the debate.