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 ECís 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

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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 Ö 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