FMD legal
issues - some comments and suggestions
Mary Marshall
28 Aug
2003
Dear all,
An important report has recently been published,
and another is in press, discussing some of the legal aspects of the handling of
the UK 2001 FMD epidemic and the implications for current measures of
control. I copy below some extracts from the "The Power to Panic: The
Animal Health Act 2002" and from a BBC report on "Carnage by Computer:
The Blackboard Economics of the 2001 Foot and Mouth Epidemic".
Lest you dismiss these legal issues as an irrelevant sideline, I would
ask you to welcome and value this contribution as a much-needed public form of
"checks and balances" on executive power.
The authors make some
important points, but I disagree with their conclusion that there is "need
for a complete re-examination of livestock rearing practices". I
suggest that the Government does not yet have in place a realistic and effective
disease control policy, and that implementation of such a policy is their
responsibility. Livestock rearing practices are highly dependent on
factors beyond our control, relating to the animals themselves and to the
climate. The regulations which govern livestock rearing practices should
be subject to a consultation and decision making process which is within
our control and which is open and transparent to all who are involved.
I
suggest that, contrary to the author's conclusions, there is a need for a
complete re-examination of the Government's interactions with and support for
those engaged in livestock rearing practices, including the following seven key
points:
1. Open and accessible information to all relevant documents and
consultations, by regular "newsletter" emails to stakeholders and with links to
these documents and consultations from one easy-to-find Defra "newsletter"
website. Some consultation processes are crucial to national and
international disease control and to decisions on what measures are
acceptable. Background information should be easily available, such as
that which would provide stakeholders with a thorough understanding of the EC’s
role in setting out the regionalisation conditions.
Access by
stakeholders to this information needs to be improved; two very different
examples of current shortcomings are provided below:
1.1 The first
example is of inconsistent information provided to different groups of
stakeholders by different groups within Defra. A well-structured website,
organised by topics and cross-referenced, would help to identify and weed out
these inconsistencies at an early stage. The current consultation on "the
definition of "farm animal genetic resources" to meet requirements under the new
EU FMD Directive" involves inconsistent lists from Defra on what categories of
animals would be included: in some documents it is only the major species
recognised by the RBST; in other documents it is based on the SoWAnGR Country
Report which includes other species; and in yet another document on a Defra
website which was brought to our attention by warmwell, "other flocks and herds
of high genetic value, and hefted sheep" are included. It would be helpful
to have a consistent and accessible starting point on which to base the
consultation.
1.2 The second example is of absence of information.
At the highest level, the ultimate source for rules and regulations pertaining
to agricultural practices rests with the OIE, as the international
standard-setting organisation. Only the official delegate, the CVO (or the
national equivalent, as in the US it is the Deputy Administrator of Veterinary
Services, APHIS) can report to the OIE, and even when the OIE investigates
"unofficial reports", it is the CVO who responds. Consequently, input into
the decision making process of OIE depends on each country having a CVO who
informs and consults with stakeholders. This is particularly significant
when objections to change can easily outweigh the lack of response from those
approving change, when such a lack of response may have been the result of
failure to consult with stakeholders. With regard to OIE's recent draft
proposals, including standards governing the safe trade of animals and animal
products and standards for methods of diagnosing diseases of animals and for
testing biological products, such as vaccines, used for disease control
purposes, I invite you to contrast the absence of information from Defra with
the detailed and timely information provided to US stakeholders, and note that
the APHIS website even provides stakeholders with helpful comments to facilitate
effective submissions: http://www.usaha.org/oie/oie12003.html and http://www.aphis.usda.gov/vs/ncie/oie/ .
2. Access by all to non-confidential
comments sent by the public to Defra in response to their consultations.
Currently these are open for inspection only at Defra HQ in London. The
internet publication of the Hutton Inquiry evidence is a model of truly open
access.
3. A revised and updated FMD Contingency Plan which takes into
account individual electronic animal ID and the use of rapid portable virus
diagnostic tests which can and should be linked to an updated GIS database, thus
increasing the chances of prompt identification of an index case and allowing
for real-time management and enabling useful post-epidemic epidemiological data
analysis.
4. Simulation exercises to test/evaluate the practicality of
the contingency plans which involve stakeholders and lawyers so that the
practical and legal aspects can be considered. Is there a published
timetable for such exercises?
5. Demonstrable support for the
concerns and problems, especially economic, faced by livestock keepers.
Such support is necessary to ensure their willingness to regularly inspect their
livestock for unusual symptoms and notify the SVS if there is a suspicion of FMD
or other notifiable disease. Livestock keepers are in the front line, and
their cooperation is essential.
6. If there is to be a fundamental
change in livestock rearing practices, consideration should be given to a reform
of the system of disease insurance and veterinary involvement, with a suggestion
to consider the model of the Hachaklait system which has been successfully
operating in Israel for over 80 years. This could provide a model for a
system, ideally partially state subsided. Note that the benefits could include
transfer of cumbersome record keeping from the individual livestock keeper and
holding to the organisation and its vets. For details, see: http://www.chk.co.il/english/Veterinary%20Services.htm
7. Above all, the creation (which is a
requirement in the EU FMD Directive) of "a permanently operational Expert
Group ... to maintain expertise and assist the relevant authority in
qualitative disease preparedness", with assurance that the appointments to this
Expert Group will be undertaken in an open and transparent manner and that the
composition will include international expertise in FMD diagnosis, vaccination
and in relevant new technologies. A written parliamentary question to Lord
Whitty which addresses the creation and composition of the Expert Group will be
tabled by Lord Plumb on September 1st. This includes a list, which is
based on detailed suggestions from David Paton (IAH-Pirbright), of the expertise
required to fulfill the responsibilities specified in Article 78.1-3 of the
Directive, namely expertise in:
- FMD diagnosis
- vaccination as a
control measure
- international developments of relevant new
technologies, in diagnostics, surveillance, electronic ID, vaccines and
anti-virals, and robotics (for lab tests)
- the workings of the state
veterinary service
- animal husbandry practices in the UK, including
commercial and non-commercial, breeds at risk, minor breeds, companion animals
and wildlife
- epidemiology of veterinary infectious diseases
-
epidemiological modelling and cost-benefit prediction
- risk assessment
and risk management
- legal matters relating to disease control
-
environmental controls relating to carcass disposal
- general rural
affairs, including tourism
Mary Marshall
Animal Health Policy
Coordinator
European Livestock Alliance
28 August
2003
~~~~~~~~~~~~~~~~~~~~~~~
From the BBC:
Lawyers damn FMD handling
http://news.bbc.co.uk/1/hi/wales/3184383.stm
"Two Cardiff law professors have described the UK
Government's handling of the 2001 foot-and-mouth crisis as a "panic response"
and "blatant incompetence."
They have also warned that the lack of lessons learned by the government
have meant that there could be another foot-and-mouth disaster waiting to
happen.
Professors David Campbell and Bob Lee conclude in their report
that the handling of the crisis "involved lawless action by a government on such
a scale as to amount to a negation of the basic precepts of the rule of
law". ....
Professors Campbell and Lee state bluntly: "In sum,
stamping out the disease was abandoned in all but name. Mass, almost
indiscriminate killing took place." ...
The paper refers to "blackboard
economics," showing little real understanding of the conditions prevailing in
modern livestock rearing.
And it issues a warning that there has been
little real planning done to prepare for another outbreak.; another disaster
waiting to happen."
This
refers to "Carnage by Computer: The Blackboard Economics of the 2001 Foot and
Mouth Epidemic" - soon to published in Social and Legal Studies academic
journal.
~~~~~~~~~~~~~~~~~~~~
Another report by the same
authors, "The Power to Panic: The Animal Health Act 2002" has been
published in Public Law, Autumn 2003. Although it is not currently
accessible from the internet, reprints can be obtained by contacting the author,
David Campbell (Cardiff Law School, PO Box 427, Cardiff, CF10 3XJ; tel (029)
2087 6101; email campbellid@cardiff.ac.uk). Please also check www.warmwell.com for more
information.
Some key
extracts (prepared by Mary Marshall) from the report:
The Power to Panic:
The Animal Health Act 2002
By David Campbell and Robert
Lee
Cardiff Law School and ESRC Research Centre for Business
Relationships,
Accountability, Sustainability and Society
(B.R.A.S.S.)
During the foot and mouth disease (FMD) epidemic of
2001, the government engaged in ultra vires action on a huge scale, for
it had no power to slaughter perhaps the majority of the 7 million animals it
nevertheless did slaughter in the course of the "contiguous cull" which became
the core of its disease control policy. By passing the 2002 Act, the
government has effectively acknowledged that this was so, for that Act seeks to
make precisely that which was ultra vires in the past legal in the
future, in complete disregard of the compelling reasons for the previous
withholding of such powers.
What is remarkable is that this contempt for
legislative control of executive action is being shown for no good
reason; the government has no better an idea of what it will do with its
extended powers than it had when it first exercised them ultra vires...
By passing the 2002 Act, the government, rather than review the flaws in its
policy that led to ultra vires action on this huge scale, is avoiding any
lessons to be learned by purporting to give itself the legal power to repeat its
mistakes. The assumption that legislation at least aspires to implement sensible
policy does not apply to the 2002 Act. It is legislation which
intentionally gives a power to panic.
Slaughter during the 2001 F.M.D.
epidemic
The principal domestic legislation establishing the regime
for control of livestock diseases, including FMD, in force during the 2001
epidemic was The Animal Health Act 1981 ("1981 Act"). Section 31
introduces Sch.3 dealing with slaughter for disease control purposes...As was
argued during the epidemic, nowhere more clearly than in a widely circulated
opinion given by Stephen Tromans (on which we have drawn heavily), this
provision did not authorise the contiguous cull carried out in 2001.
Paragraph 3(1)(a) requires infection or suspicion of infection as grounds of
slaughter and paragraph 3(1)(b) requires exposure to the disease, particularly
but not exclusively by contact with infected animals or, through the concluding
sweeping up clause, suspicion of exposure. The contiguous cull went far
beyond this. In its typical form, it involved the slaughter of all animals
on premises which shared a boundary with a premises where livestock were
suspected of being infected. The word "contiguous" may be a misleading
description of this procedure. In this context, contiguity might be
expected to imply (suspicion of) a chain of infection, but the cull proceeded in
the absence of any such chain; contiguity meant simply sharing a boundary.
In Cumbria and Dumfries and Galloway, animals were culled even on premises which
did not share a boundary but were contiguous in an even more stretched sense in
that they were within a three kilometre radius of a premises declared
infected......
These formal procedures, devised by a new, hastily
convened scientific group with little or no relevant epidemiological,
agricultural, or, indeed, regulatory experience, the FMD Science Group, were the
product of abstract mathematical modelling which took no heed of concrete
information about the likelihood of transmission of the disease beyond the
original suspicion of infection. The instances of suspicion were
themselves generated by a process for identifying infection which was thought
highly questionable at the time, partially because of the immense pressures on
the State Veterinary Service, which has turned out to be wrong in 30 per cent of
cases. And, we repeat, around each case of suspicion (justified or not),
much wider culling on the basis of mere contiguity took place. In the end,
though the epidemiological data collected in the course of the culling is so
questionable that it is impossible to be precise, it seems certain that
considerably more than half of the 7 million animals culled were uninfected, the
result of what has been called "postcode slaughter" or "carnage by
computer". The contiguous cull "did not depend on ...epidemiological
groundwork to identify dangerous contacts" but was a policy which abandoned
slaughter on (suspicion of) infection for slaughter to create an enormous
"firewall" around any premises alleged to be infected.
In his capacity as
Under-Secretary of State for Environment, Food and Rural Affairs, Lord Whitty
had responsibility for securing the passage of the 2002 Act, and in the course
of debate he did tell Parliament that "the legality of the [contiguous cull] was
never in question". However, the legality of the cull was not merely
always questionable but, as a matter of fact, was always questioned. Lord
Whitty himself admitted this in evidence he gave to the Lessons to be
Learned Inquiry on the very same day he maintained the opposite in
Parliament, and in his evidence to that Inquiry the Chief Veterinary Officer
stated that from the outset the three kilometre cull was feared not "likely to
be legal".
Lord Whitty also maintained in Parliament that "the operation
of the cull was tested and upheld in the English and Scottish courts". He
based this opinion on the outcome of two emergency applications ....
This
work [A.I. Donaldson et al., "Relative Risks of Uncontrollable (Airborne)
Spread of FMD by Different Species (2001) 148 Veterinary Record 602] was brought
to the court's attention in the penultimate case MAFF brought, Upton (June 21,
2001), and it is possible to speculate why Upton was such a serious
reverse for MAFF ....
In sum, it has been claimed, that there were at
least 200 occasions on which MAFF failed to proceed or withdrew from proceedings
in connection with occasions of resistance to the cull. From all this, it
is reasonable to conclude that MAFF had so little confidence in its position
under the 1981 Act that, after a number of reverses, it was no longer prepared
to test that position in the courts if it could avoid doing so. The
picture is of a number of cases, each best confined to its facts, in which MAFF
defended on grounds of suspicion of infection a slaughter policy which had
ceased to be based on such suspicion, and, having met with uneven success in
doing so, even though it was highly selective in deciding which cases to fight,
it eventually abandoned the attempt. This surely calls into question the
ministerial claim that this represents a policy's being "tested and upheld in
the English and Scottish courts"?
However this may be, the government,
rather than rely on the hazards of litigation, has turned to Parliament to
resolve the issue to its satisfaction. The government had to take very
considerable pains to secure the passage of the 2002 Act. Though
unsurprisingly encountering no difficulty whatsoever in the Commons, the
original Animal Health Bill was roundly denounced in the Lords and the
government suffered a number of defeats there. The eventual passage of the
legislation was the product of the government's strenuous use of its Commons
majority. Enduring those pains was pointless if the contiguous cull was legal
under the previous legislation, as was repeatedly pointed out in the Lords'
debate. In spite of maintaining the legality of what had been done, Lord Whitty
introduced the 2002 Act as an attempt "to clarify - and extend - the powers
relating to slaughter" given by the 1981 Act, and so "correct" "a major defect
in the powers ...available" by preventing "the spread of a disease, as distinct
from dangerous contacts or exposure in the strict sense. The issue was
made clearer in the consultation document on the Bill issued by
DEFRA:
Part 1 of the Animal Health Bill provides new powers to
slaughter
wherever the Government considers this to be necessary to prevent
the
spread of FMD. This differs from existing measures in that it provides
for
the possibility of culling animals in a wider range of circumstances than
is
at present possible … providing for slaughter on preventive
grounds,
rather than on the existing grounds of being affected with
disease,
suspicion of being so affected or in any way being exposed to the
disease.
Slaughter under the 2002 Act
Section 1 of
the 2002 Act amends the 1981 Act by adding: "(c) any animals the Secretary of
State thinks should be slaughtered with a view to preventing the spread of foot
and mouth disease." It is impossible to interpret this as anything other than a
complete discretion to kill any animal the Secretary of State believes it
necessary to kill in order to eradicate an outbreak of FMD.
The real
novelty in the 2002 Act comes in Part 3, which gives extensive powers to enforce
compliance with the now legal slaughter power through procedures which give the
opportunity for livestock owners to present their case a much lower priority
than the perceived need for haste in slaughter.
Panic and policy
formulation
To understand the concrete use to which this now legal
slaughter power might ever be put, one must understand why the contiguous cull
took place.
The contiguous cull was a panic response when MAFF, having
lost control of the situation, found itself in uncharted territory. As its
contingency plan did not envisage the failure of localised stamping out, MAFF
had made no provision whatsoever for "a serious and extensive outbreak,
including a worst-case senario", and the government undertook huge scale
firewall culling when it came to believe that the contingency plan had
completely failed. The extent to which the firewall was what might
properly be called a deliberate decision remains a matter of extreme contention
which the official inquiries have done little to quiet. All its key
components - the three kilometre circle, the 24/48 hour disposal scheme, the
refusal to vaccinate, etc. - were improvisations produced by panicked
decision-making which will never be fully understood. To the extent that
the contiguous cull was a deliberate decision, it was used because it was
believed that actual tracing of the diseae had become impossible and therefore
it was necessary to "get ahead of the disease". In the words of Professor
Anderson, leader of the FMD Science Group, the contiguous cull was a
"draconian", "blunt tool", used because, as "the epidemic [was] not under
control", there was "a crisis in which it was unfortunately the only tool
available". In the restrained description of the DEFRA Select Committee: "[t]he
contiguous cull was a response to a desperate situation, not a pre-mediated
response to a known, assessed risk."
MAFF lost even bureaucratic control
of the epidemic, which was transferred to the Cabinet Office Briefing Room
(COBR) - the ad hoc committee which is convened to deal with national
emergencies such as the possible terrorist threat immediately after September
11, 2001, in the deliberations of which the Prime Minister took a leading
role. Slaughter on (suspicion of) infection required locally sensitive
implementation. The contiguous cull, in which up to 100,000 animals were
being slaughtered per day, posed logistical problems which could only be met by
centralised command.
It did indeed prove to be the case that the combined
forces of the apparatuses of the UK state, including its army, wielded by COBR
had a greater capacity to kill domesticated animals than FMD to spread, at least
once animal movement restrictions were in place, and DEFRA has claimed this as a
success. But, to state the obvious, if this was a success, one would not like to
see a failure.
It is vital to recognise that it was a set of
circumstances which MAFF did not understand then and DEFRA does understand now
that caused the epidemic and therefore the cull to stop when it did. The animal
record and epidemiological information available to MAFF was so poor that the
course of the epidemic or even the numbers of infected animals will never be
known with reasonable accuracy. As we therefore do not even know the real nature
and extent of the epidemic, the role the cull played, even if it is properly
assessed as a firebreak, is extremely unclear; it is not even agreed that it
played any positive role. Of course, if one kills all the animals,
one stops the epidemic. Reasonable policy, however, must work out where
the cost-effective point comes before this, but the 2002 Act represents the
abandonment of the effort to do this. It purports to legitimate a power to cull
which, as it has no formal limits, need not stop at 10 million animals. Indeed,
it is difficult to see why in a future epidemic which does not stop as soon as
the 2001 epidemic and in which stamping out without vaccination is used again,
DEFRA will be able to avoid exceeding the 10 million figure, incurring and
imposing even greater costs and, in particular, repeating the horrible
cruelty.
Slaughter on reasonable suspicion was possible under the 1981
Act; the 2002 Act makes legal what a panic-stricken executive did in excess of
the reasonable. There is, of course, no epidemiological practice that can guide
a power to slaughter on this basis, for it is done, precisely, in the absence of
reliable epidemiology; and so the executive will no more be able to exercise it
sensibly now than it did when that exercise rightly was ultra
vires.
Conclusion
Had the Lords been able to
defeat the Animal Health Bill, the Government would have been obliged to
acknowledge the need for a complete re-examination of livestock rearing
practices in order to bring the risk of FMD that those practices create within
the parameters of realistic, humane and fair disease control policy.
The
most pernicious consequence of the 2002 Act is that it gives the illusion of
being able to control FMD in the absence of any serious attempt to confront the
risk attaching to current livestock rearing practices.
By taking to
itself the vast slaughter power under the 2002 Act, the government has
effectively said it is prepared to bear (and cause others to bear) the costs of
dealing with a risk of FMD which it is making no serious attempt to limit. But
the notion of bearing an unlimited risk is nonsense. When another epidemic
occurs, DEFRA will find that there are limits to what it can do. The 2002 Act is
an arrogant refusal to discuss those limits, which will become evident only when
another serious outbreak again produces panic. Comforted by the illusion
of infinite regulatory capacity fostered by its ability to pass legislation like
the 2002 Act, the government is paying little or no attention to the
restructuring of the livestock industry that would make it unnecessary to panic.
This is no merely formal mistake but, bearing in mind the horror of what
happened in 2001, a simply shameful failure. Hayek saw executive contempt for
the rule of law not only as deplorable in itself but as a bar to rational policy
formulation. The passage of the 2002 Act is very strong evidence indeed for his
views.
ENDS