Date: 14 April 2002
Subject: Legality of the "contiguous cull"
Further to our discussions on the above, I have the following points:
1. The legal authority for the government to carry out slaughter in respect of foot and mouth disease control in contained in the Animal Health Act 1981.
2. The specific authority lies in S.31 and Schedule 3 to the Act, the latter stating:
the Minister may, if he thinks fit, in any case cause to be slaughtered-
(a) any animal affected with foot and mouth disease, or suspected of being so affected; and
(b) any animals which are or have been in the same field, shed or other place, or in the same herd or flock or otherwise in contact with animals affected with foot and mouth disease, or which appear to the minister to have been in any way exposed to the infection of foot and mouth disease.
3. Government definitions in respect of the "contiguous cull" policy are set out inter alia in the (MAFF) newsletter of 19 April 2001. The policy, as set out, was to "slaughter as rapidly as possible all susceptible stock found on infected farms and all stock on farms which may have been at risk of having been exposed to the FMD virus. In that context, the government claimed: "Our clear scientific and veterinary advice is that susceptible animals on farms neighbouring a farm where infection has been confirmed are at a very high risk of having been exposed to the infection".
4. The newsletter continued: "It is therefore Government policy rapidly to slaughter all susceptible stock on all premises that are contiguous to a farm on which Foot and Mouth disease is confirmed".
5. By "contiguous" was meant a farm with any of its boundaries which touched the boundaries of an infected premises. If there is a road, railway or river between the farms, this did not stop the farms from being considered to be contiguous. However, geographical features such as woodland, arable and the distance between the stock on the infected premises and the contiguous farm were examples of factors which can be taken into account for representations. On contiguous farms the housed stock were not deemed to be protected from the risk of infection. The type or breed of stock would not be considered as a relevant factor as "the susceptibility to the virus is not materially affected by these factors".
6. In terms of the legality of the policy, the government is relying on "clear scientific and veterinary advice" that "susceptible animals on farms neighbouring a farm where infection has been confirmed are at a very high risk of having been exposed to the infection", thus invoking Schedule 3(1)(b) of the Act.
7. For this claim to be sustained, undoubtedly the Wednesbury criteria would apply in that the government would have to take into account that scientific and veterinary advice which was relevant, and discard that which was not relevant having regard to the (then) known characteristics of the disease.
8. In this context, it is known that the government was relying on input from Prof. Anderson who had devised a mathematical model derived from transmission of human sexual diseases (a single species, direct contact model) and applied it to a multi-species epidemic where the causal organism was transmitted by a variety of mechanisms.
9. On the other hand, there were studies, published in The Veterinary Record on 12 May 2001, which showed that sheep or cattle on infected premises were not likely to spread the virus in the air to neighbouring farms unless hundreds of them had early symptoms or were infected before signs of the disease became apparent. The studies had concluded that the (Anderson, et al) mathematical models that so influenced the government were oversimplistic. The blanket ring culls used for much of the epidemic had been a blunderbuss approach', said Dr Alex Donaldson, of Pirbright. The epidemiologists did not pay sufficient attention to the species involved', he said. They have not taken into account how the species, particularly sheep, behave quite differently.'
10. On the basis of the test of the legality of the "cull" resting upon whether the government could have reasonably assumed, on the basis of scientific information (known at the time), that animals on "contiguous" farms appeared to the minister "to have been exposed to the disease", the question might be determined on the relative validity of the scientific views available, in this case the distinction between the Anderson and the Donaldson views. In that Donaldson is a "world expert" on FMD and Anderson is not, one would expect the Donaldson view to prevail.
11. As to legal challenges, the most relevant is that mounted by Rosemary Upton, of Hill Farm, Stawley, near Wellington, owner of a pig called Grunty' which had starred in the film Babe'. She petitioned the High Court to save him from slaughter. The details are as follows:
On 14 June, a MAFF inspector had ordered Grunty and 11 pedigree sheep to be killed because Mrs Upton had visited another of her smallholdings which had been infected. But Mrs Upton had worn gloves and disinfected her boots and had no physical contact with other livestock for five to six weeks before slaughter had been ordered. The ministry lawyer told the court that it should not intervene. She said the minister had been given the widest powers by Parliament for public health reasons.
However, on 22 June 2001, Mr Justice Harrison ruled that DEFRA was not entitled to apply a blanket policy of slaughter and had to take into account specific circumstances. He had been particularly impressed by the scientific evidence which had been submitted on behalf of the plaintiff which indicated that even if the animals turned out to be infected, bearing in mind the number of animals and the distance they are away from neighbouring animals, there would not be a risk to neighbouring livestock'. He ruled that the animals had shown no sign of the disease and it was sufficient that they were now monitored and tested. Justice Harrison refused DEFRA leave to appeal and awarded Mrs Upton costs, leaving the government with an estimated bill of #40,000.
12. Although this case applied to what the DEFRA considered a "dangerous contact", rather than a "contiguous cull", the key element of the judgement is that the minister had no powers to order a "blanket policy" of slaughter. He had to take account of specific circumstances. In this context, where Schedule 3 of the Act authorises slaughter "in any case", the wording of the Act seems to support this contention, to the effect that, if the power relates to "any case", a judgement must be made in respect of each and every case. There would indeed seem to be no power for a blanket "contiguous cull" policy.
13. Turning to EU law, the operative instruments are Council Directive 85/511/EEC as amended by Directive 90/423/EE, and Council Decision 90/424/EEC (on veterinary expenditure).
14. In respect of Directive 85/511, Article 5 is relevant, wherein it is stated:
(2) "all animals of susceptible species on the (infected) holding shall be slaughtered"
(4) "the competent authority may extend the measures provided for in paragraph 1 (which authorises the taking of samples and the carrying out of examination) to adjoining holdings should their location, their configuration, or contacts with animals from the holding where the disease has been recorded give reason to suspect possible contamination".
15. On the face of it, the Directive appears only to authorise testing and examination of animals on contiguous premises, not their slaughter. This is effectively endorsed by Article 8 which requires surveillance to be maintained on holdings where "foot and mouth disease could have been introduced from other holdings".
16. However, within Council Decision 90/424/EEC, Article 11(4) states:
Without prejudice to the measures to be taken in the context of the common organization of the market to support the market, the specific financial contribution under this Decision shall be equal to 60% of the costs incurred by the Member State in:
(a) compensating owners for:
(i) the slaughter and destruction of animals,
(ii) the destruction of milk,
(iii) the cleaning and disinfection of holdings,
(iv) the destruction of contaminated feedingstuffs and, where it cannot be disinfected, contaminated equipment,
(v) losses incurred by farmers as a result of restrictions imposed on the marketing of livestock and pasture-fattened animals as a result of the reintroduction of emergency vaccination, in accordance with the penultimate subparagraph of Article 13 (3) of Directive 85/511/EEC;
(b) where applicable, the transport of carcases to processing plants;
(c) any other measures which are essential for the eradication of the outbreak of the disease.
17. Particular reference might by paid to (c) above, as to "any other measures", which would appear to indicate that there is provision for measures additional to those set out specifically in 85/511. However, for any such "additional measures" to be eligible for compensation, the Article goes on to state that the Commission shall, in accordance with the procedure provided for in Article 41 (of 90/424), define their nature. This requires an application to the Standing Veterinary Committee and approval by the Commission by way of a Decision. Of the many Decisions promulgated by the Commission during the FMD epidemic, none appear to apply to the UK's contiguous cull policy.
Questions and implications
18. On the basis of the above, there is an urgent need to determine (and for the EP Committee to decide) whether UK government's contiguous cull policy was legal within the context of UK law and whether it was authorised under the terms of Decision 90/424/EEC. If the policy is shown not to be legal under UK law, it has significant implications in that, being an illegal act, farmers and others who have suffered as a result could then be entitled to consequential losses. In the latter event, this would mean that the Commission would not be authorised to reimburse (any part of the) payments made by the UK government to farmers, or any of the costs incurred in implementing the policy.
If you have any queries on this, please do not hesitate to contact me.