From Pat Innocen's message to the Smallholders' Newsletter at http://www.smallholders.org.uk:
Last week I went to Cardiff to support Janet Hughes in her challenge to the Welsh Assembly on TSE legislation. Janet has been single-minded in her fight against unjust legislation, and I believe it was her efforts last year that eventually stopped the culling of sheep on the Brecon Beacons. She is quite exhausted now, and considerably out of pocket. This case went against her, and has cost her #3255. Nonetheless, she did what she felt she had to do, and I am full of admiration for her courage and persistence. She felt it was important to get a proper legal judgement, which has now been done. At least we know what we are up against.
May I ask you to include this in your next newsletter, with an appeal to help her with costs? Donations can either be sent direct to Janet Hughes at Laurels Cottage, Churchstoke, Montgomery, Powys, SY15 6SR, or cheques payable to Save Our Sheep Appeal Fund. Nationwide Trust Account number reference is: sort code 070093, main - 33333334 account 0863/703 560 350. It would really help her as she has taken all this upon her own shoulders. Thank you so much.
I wish you also a peaceful Christmas and a stressfree, FMD-free 2003.
Notes from the Court Case at Cardiff Court of Civil Justice on 9th December 2002, brought by Janet Hughes.
She was asking for permission for a Judicial Review to challenge the TSE regulations in Wales.
Judge Wyn Williams.
Present: Welsh Assembly barrister Clive Lewis, Welsh Assembly lawyer, Amanda Jones, two wigged clerks of the court and one unknown person.
Supporting Janet: her son Matthew and Pat Innocent, who made these notes.
Janet was told to wait outside, while the lawyers went straight into the Court room.
The judge began by asking Janet how familiar she was with such proceedings. She replied that her knowledge was minimal. The judge said the Welsh Assembly had put in a paper as well as Janet.
Janet said that the TSE regulations were brought in by the Welsh Assembly in May, but they didn't have to follow England in this, which they had done.
It had taken her 2 months to get a copy of the regulations. She was very concerned that the word "suspect" as used in the European regulations had been replaced by the word "susceptible" in the Welsh regulations.
The Welsh Assembly did not debate the regulations because supposedly there had been no time, but she said they had had 2 months to do so. She said the Welsh regulations go beyond the provisions of the European regulations. The European regulations state limitations, and cannot be re-interpreted by individual member states. She believed that this has happened. She was very concerned that if the owner of the animals was away, the regulations allow DEFRA to get a warrant and slaughter them anyway. Since many dwellings were not "only" used as dwelling places, she was concerned that most dwellings would in fact be included in the regulations. This is a frightening situation if the owner is absent, and this provision is not in the EU regulations. Also, the owner is obliged to help the inspector, even to slaughter his own animals, which is too extreme. The regulations say "where the possiblity of infection cannot be ruled out" which is the same as "suspect".
The EU regulations' objective is monitoring animals which go into the food chain, and are made for safety for consumers. There are powers given to inspectors from either DEFRA or the Welsh Assembly to slaughter any TSE susceptible animals on any premises, but the requirements of the EU regulations are for the monitoring of fallen livestock on holdings and as they will be already dead, why does the inspector need powers to slaughter? The regulations include any animals, farmed or not. Cats are susceptible to TSEs. "Livestock" includes horses and fish.
The regulations are in breach of the Human Rights Act, especially when the owner is absent. Even the right to appeal is to the DVM, and not to a court. It is too late for a Judicial Review when the livestock are lost. The science of TSEs is unclear. There is no virus, as in FMD, so there is no sense of urgency.
The Welsh Assembly says the scope of its regulations are limited by the EU regulations, but they are going beyond them. Their powers are too wide. Regarding absent owners, the Welsh regulations are against EU regulations and the Human Rights Act. EU regulations have no definition of "susceptible" animals. She believed the EU regulations to be reasonable.
The judge asked her to confirm that she thought the Welsh regulations went beyond the objectives of the EU regulations. Janet agreed. He went through her main points again: the Welsh regulations were disproportionate, there is an infringement of Human Rights, it can be argued that ANY animal is susceptible, the regulations are therefore unreasonable. The judge did listen to Janet's argument. There followed a 20 minute break
The Welsh Assembly Lawyer, Clive Lewis said that the Welsh regulations were not unlawful. He said the EU regulations were for the prevention (he stressed this point), control and eradication of TSEs. The regulations are directly enforceable. Section 2 gives member states broad powers to make regulations. Inspectors could not monitor animals unless they have powers of entry. Regulation 78 deals with control and eradication, and the compulsory notification of suspected animals by owners. Regulation 79 says that inspectors can make enquiries. The scope of our regulations is defined by Community regulations. Regarding powers of entry, an inspector may enter premises for a particular purpose, including to slaughter. Regulations 81 and 82 deal with powers to slaughter. Regulation 82 says slaughter may go ahead if the Secretary of State is satisfied that certain conditions are met. A notice of slaughter must be served on the owner or person in charge of the animal. Then the animal will be killed as soon as possible. The powers reflect the magnitude of risk posed to human and animal health. Miss Hughes belittles the risk we are facing. The risk is real. The beef industry has been decimated by these diseases. The concerns cannot be trivialised. The risk is very great. A suspect animal is an animal showing neurological symptoms. The powers are not limited to suspected animals for PREVENTION purposes. The regulations cover other animals as well as TSE suspected animals. The owner is obliged to notify the authorities of a suspected animal. The authorites have powers to take any other necessary measures, which may include all other animals on the holding. If it is not sure that an animal is suffering from the disease, it must be killed because of the risk. Article 13 says that if a TSE is confirmed, all parts of the animal must be destroyed, and all animals at risk shall be killed and completely destroyed. We don't know the pathology of the disease, but the Community requires us to take measures to eradicate it. If cattle are affected, all animals on the holding must be killed. Regarding progeny, we don't know if there is maternal transmission. Powers have been taken for the purpose of the enforcement of EU regulations, but only when the (I think he said Secretary of State, but may have been inspector) is satisfied that it is necessary. There is no doubt that this is lawful under regulation 4.
TSE monitoring is carried out on animals whose mothers have been infected, or have been fed infected feedstuff, or in countries with endemic BSE. Miss Hughes is under a misapprehension regarding the slaughter of susceptible animals. The authorities must have a reason to do so. With regard to Human Rights, the individual is protected from the interference of the State except under Law, the protection of public health or for the economic interest of the country. Regarding proportionality, we are facing very serious threats. The regulations are designed to prevent humans from a horrible death. There is also the fear that animals will be moved and put into the food chain. The powers are justified by the gravity of the risk. The owner of the animal is given notice, given the right to make representation, and then gets compensation. That is sufficient safeguard. Regarding the seizure of computers, there is the need to check records, and to check accuracy, because of possible maternal transmission. The interference by the State is minimal, and the risk is great.
Regarding unoccupied premises, Miss Hughes misreads the regulations. Regulation 4 (4) provides considerable safeguards. Normally officials get consent to enter premises. The official has to swear that certain conditions are satisfied. Regulation 7 states that notice must be given, and also a period to make representation. The idea of dawn raids on empty farms is remote from the truth. The reality is that only a small number of farms will be affected, there are adequate safeguards, and it will only happen when the situation is risky.
The Order was not debated in the Assembly because of extreme urgency - it would not have been until late July (otherwise). No-one challenged this because everyone except Miss Hughes realised the importance of the matter. Mr Justice Lightman said that the faulty nature of the application had become apparent to him.
There was another 20 minute break.
Janet said there was no proven link with sheep to BSE. There is also no proven link between BSE and CJD. She was not challenging the EU regulations, and does not take issue with the objectives.
The judge said that the EU regulations state at the beginning "in view of the magnitude of risk..."
Janet said this was for animals for human consumption. Why do the regulations cover all animals, whether farmed or not? If they are not for consumption, there is no danger at all.
The judge said the regulations are only for defined purposes, and it was not necessary to spell it out every time.
Janet pointed out that there are hefted sheep, especially in Wales, which are left for a length of time on common land many miles away from their owners. Representation is needed on both sides. Where will these notices be served in these cases? There is no safeguard there. Someone could omit to give a notice. Why the urgency? Regarding susceptibilty, she said she was not the only one - the House of Lords was very concerned about this word. The Welsh Assembly had plenty of time to debate - the regulations (EU regs 999/2001) came out in May 2001. The Assembly Agricultural Committee had requested a debate but it was refused.
The judge said that the Agricultural Committee accepted that the regulations could come in by Executive Procedure. No-one objected. He said this was a powerful argument.
Mr Lewis said Miss Hughes was confusing a number of things.
The judge said Miss Hughes had asked permission to apply for a Judicial Review. Mr Justice Lightman had refused this as he said there was no substance in the complaints made. Miss Hughes then put in more evidence to him. The summary of her complaint is that the Welsh regulations are unlawful under primary legislation, there is a considerable difference between susceptible and suspected, and the change is unlawful, whether the Animal Health Act 1981 is relevant as it is not enabling legislation - that is the European Communities Act 1972. The Welsh Assembly may implement or enable (there was a lot of legalese in this vein that went over my head here - sorry)..( section 2 (b) of the ECA 1972 confers wide-ranging powers. Primary legislation is deliberately wide-ranging. Regulations are made within it. Miss Hughes says they go beyond the objectives. He quoted an extract from the preamble of 999/2001 - the objective is to protect human and animal health from BSE, and its prevention, and the magnitude of the risk was stressed. Scientific opinion on TSEs includes the need to monitor BSE and scrapie. There is no definition of a susceptible animal. An animal can be killed for laboratory examination by the competent (sorry - could not stifle hollow laughter here. Pat) authority. It was intended to include animals in a wider class than "suspected" - Mr Lewis is right. The Welsh legislation is within the enabling powers, and is therefore lawful. An inspector may make any enquiry, and may enter premises, and take measures and has powers relating to - this is not inconsistent with or outside the EU Act. The judge said he was in disagreement with Miss Hughes. Susceptible/suspected animals - this is authorised by primary legislation, and he said he would not go through each point. Regarding incompatibility with the Human Rights Act, the exemption is in accordance with Law, in the economic interests of the country, and the interests of health. Proportionality and balance must apply. He again quoted the preamble of 999/2001 and the magnitude of the risk. He said there was the need to safeguard humans from significant risk. Miss Hughes says the regulations go beyond what is necessary. Regarding absent owners, the powers are exercised in defined ways and include safeguards: they must be authorised by a JP on sworn information. By these laid-down procedures, the regulations prevent the infringements of Human Rights. The power is proportionate. (He mentioned the word draconian several times in relation to the powers of entry in the absence of the owner/occupier and said that as he found those draconian powers proportionate it therefore followed that he would find all the other powers proportionate). Such other powers are also justified. The Welsh Assembly did not act unreasonably. There is no realistic prospect that a Judicial Review would succeed. The application is doomed to failure. He refused permission to bring proceedings.
Mr Lewis immediately asked for costs of #3255, as it was the second case Miss Hughes had brought.
Janet contended that the Assembly did not have to be there today, but she had to put her case to the judge.
The judge said it was very common in such cases for them to attend, and Miss Hughes knew the risk she was running with respect to costs.
Janet said she had wanted a proper legal judgement.
The judge said she was making a challenge to important legislation. The Welsh Assembly did not have a choice but to attend in an important matter. It is reasonable to make an order of costs.
The hearing lasted about 3 hours in total.