Foot and Mouth Disease

25 Jun 2002

Lord Willoughby de Broke rose to ask Her Majesty's Government on what basis they believe that the contiguous cull policy carried out during last year's foot and mouth epidemic was legal. ....

Lord Willoughby de Broke's speech in full House of Lords 25 Jun 2002

Foot and Mouth Disease

7.30 p.m.

Lord Willoughby de Broke rose to ask Her Majesty's Government on what basis they believe that the contiguous cull policy carried out during last year's foot and mouth epidemic was legal.

The noble Lord said: My Lords, my reason for introducing this Unstarred Question is that while the legality of the contiguous cull has often been questioned in the House in our debates on the Animal Health Bill and the livestock industry, as well as in the debate on a Starred Question brought forward by my noble friend the Duke of Montrose, we have not yet had a satisfactory answer to the questions put forward.

When challenged as to the legality of the cull, the Minister has given two answers. His most recent answer was in a reply to a Written Question from my noble friend Lady Byford, where he stated:

    "The Animal Health Act 1981 provides for the slaughter of animals which are infected with foot and mouth disease (FMD) or suspected of being so infected and of animals which have been in contact with affected animals or which appear to the Minister to have been in any way exposed to the infection of foot and mouth disease. This is the legal basis of the contiguous cull". -- [Official Report, 20/5/02; col. WA80.]

The Minister has accurately summarised the provisions of the Act but his conclusion is quite wrong. The Act deals very specifically with animals that have been "exposed" to foot and mouth disease, not with the possibility of animals being exposed at some remote time in the future. On the best available scientific evidence, much of it from the Pirbright Institute, which is part-funded by MAFF -- or DEFRA now -- the vast majority of animals slaughtered under the contiguous cull policy could not have been so exposed. That is the clear result of the evidence.

Of course, that is precisely why the Minister introduced the Animal Health Bill, the amendment to the Animal Health Act, to give him the power, which was not given under the Animal Health Act, to slaughter any animal the Minister thinks should be

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slaughtered, whether or not the animal had been exposed to foot and mouth disease. In other words, the power to carry out the contiguous cull.

The Minister also based his assertion that the contiguous cull was legal on two court cases. In his response to a debate on the livestock industry in April, the noble Lord said:

    "Various issues were raised in the debate, the most acute of which was the legality of the cull. I shall cite just two cases: MAFF v Winslade, which we won in the English courts; and Westerhall Farms v Scottish Ministers, which we won in the Scottish courts . . . The legality of the cull is not in doubt". -- [Official Report, 17/4/02; col. 983.]

Again, that conclusion is wrong. Both decisions were badly flawed because of the lack of scientific evidence presented in those court cases.

The real problem with the Winslade case -- and the problem that goes to the heart of the Minister's assertion that the contiguous cull has been tested in the courts -- is that, for whatever reason, not all the relevant scientific evidence was made available. The most persuasive evidence, which was later to blow the Government's case completely out of the water in MAFF v Upton, was two articles written by Dr Donaldson of the Institute of Animal Health at Pirbright. The institute is one of the foremost establishments in the world dealing with foot and mouth research, and Dr Donaldson is an acknowledged expert on the subject.

Dr Donaldson's papers concerned the risk of airborne spread, which was central to the Winslade case. The Donaldson papers confirmed, first, that infected sheep could not spread infection more than 100 metres, even downwind; and, secondly, that intensified clinical surveillance would be an appropriate alternative to immediate culling. It is highly likely that had this evidence been presented to the court, the judge in the Winslade case would have come to a very different decision.

Why was this evidence not available to the court? MAFF was seeking an emergency injunction, and thus counsel for Mr Winslade had only a few hours notice to prepare her case, and Mr Winslade was virtually a prisoner on his farm because he had been served with a movement restriction notice. In cases where applications for injunctions are made and inadequate notice is given to the defendant -- I understand that the relevant time period is three days -- the applicant for such an injunction is obliged under the rules of civil procedure to make full and frank disclosure of all relevant facts, even if they are unfavourable to the applicant's case.

The Donaldson papers were published in the British Veterinary Record on 12th May, but had been seen by senior MAFF officials in late April. The Winslade case was heard on 22nd May, so there was plenty of time for the ministry to have put that scientific evidence to the court. Why was this crucial evidence not made available to the court? Was it because of simple incompetence, or was it deliberate? Why was I told in a Written Answer from the Minister that the Ministry had complied with the civil procedure rules when submitting evidence in the Winslade case?

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The critical importance of this scientific evidence was shown in the Upton case in June last year -- the case of Grunty the pig, as it is known -- when it led to the judge finding against MAFF, refusing it the right to appeal and awarding costs to the defendant. The Minister shakes his head, but all he has to do is to read the transcript of the trial to see that that is what swayed the judge, Mr Justice Harrison, in that case. Thus, in the absence of that scientific evidence, the Winslade decision cannot possibly be viewed as authoritative and certainly cannot be taken as the bedrock case which legalises, once and for all, the contiguous cull.

The Westerhall case, the second of the cases referred to by the Minister, gives even less support to his contention that it legitimises the contiguous cull. That decision was given on 25th April, before Dr Donaldson's papers had been published -- although, again, it is likely that senior MAFF officials had seen that evidence. Dr Donaldson's research is, after all, part-funded by MAFF so they would certainly have seen drafts. In any case, the Westerhall case was dealt with as a three-kilometre cull case. Without the benefit of the Donaldson scientific evidence, again it is extremely doubtful whether the Westerhall case can be cited as justifying the contiguous cull policy.

The real bedrock case -- if the Minister is looking for a bedrock case for or against the contiguous cull -- was the Upton case, where Dr Donaldson's scientific evidence was produced by the defending solicitors. This won the day for the defendants and, as I said, costs were awarded against the ministry with no right of appeal. The proof of that pudding is that following the decision in the Upton case -- the first case based on correct science -- the ministry, when faced with a legal challenge on the contiguous cull, almost invariably backed down, confining itself to blackguarding the farmers and lawyers concerned.

The contiguous cull was a vastly expensive and unnecessary disaster. As Dr Donaldson said last week when giving evidence to the EU inquiry:

    "There was no justification for the 3Km or the CC policy, which were both novel and untested".

When giving evidence at the same inquiry, Professor Fred Brown, also recognised throughout the world as an expert on foot and mouth, who used to be head of the Pirbright Institute before moving to America, said that,

    "the barbaric conduct in Britain last year was a disgrace to humanity".

It now appears that that "barbaric conduct" was not sanctioned by law and that the legal bases which the Minister cites as justifying the contiguous cull in fact do nothing of the kind.

I conclude by asking the Minister to answer the following simple questions. First, whether he accepts that relevant scientific evidence was not put before the court in the Winslade case, even though that evidence was available to and read by the ministry. Secondly, why that evidence was not put before the court in the Winslade case. Thirdly, whether that evidence had been received before the decision in the Westerhall case. Fourthly, whether he now accepts that those

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decisions would not have gone the ministry's way had that evidence not been suppressed. Fifthly, and finally, can the noble Lord say why the ministry never fought a case for an injunction to enable a contiguous cull to proceed after the decision in the Upton case?

If the Minister is unable to answer these questions today, perhaps he will at least undertake to write to me and put a copy of his answers in the Library of the House.

Lord Whitty's replies to the five questions may be read here.

Lord Whitty's answers examined

  (a)       Whether I accept that the relevant scientific evidence was not put before the Court in the Winslade case, even though that evidence was available to and read by the Ministry?   
The answer - after all the defensive rigmarole  - is that he does.  That was the question asked.
However there are comments to be made about his obfuscating waffle.   In his answer, Lord Whitty 's remark that the  "Donaldson article constitutes only a single element in the whole panoply of factors debated and considered by Government experts in formulating the epidemiological justification for the contiguous cull."   is not relevant - but it is interesting.
He says this now  in order to try to justify the rightness and legality of the contiguous cull - but the fact still remains that the Ministry had evidence that was relevant which it did not disclose. It chose not to disclose it.  Lord Whitty's  claim that such evidence was a "red herring" was the same made by Fred Landeg in the Upton case.  Mr Justice Harrison was not impressed. Mr Justice Mitting didn't get the chance to say he was not - since Maff chose not to disclose the evidence (Maff had received the article in draft form but the Defence was not yet aware of it).
In the Winslade case, whatever the Ministry evidence actually was, local official's  grounds for deposing that the cull should proceed was, according to Lord Whitty,  "largely as a result of the very close proximity of some of the Winslade animals to the animals in the contiguous infected premises". 
However, the language of  the Winslade judge, Mr Justice Mitting,  shows the tenuousness of the possible contact:  " has not been established whether the sheep which tested positive were the ones who grazed in the adjacent field"....."does not exclude the possibility that the disease has been transmitted to the Defendant's cattle, for instance by air through the hedge from sheep  who may well have been grazing in the adjacent field "  ... "do not exclude the possibility of risk to sheep not immediately adjacent to the Defendant's farm but within half a mile of it." 
None of this suggests that the local official's "facts" included any proof of nose to nose contact or person to animal contact or vehicle contact.  Had they done so there is surely no doubt that the judge would have referred to them. So much for Lord Whitty's other vectors.
 As far as what Mr Justice Mitting did say is concerned, the scientific conclusions of the Pirbright team led by Donaldson -  evidence which had been in the Ministry's possession for "some weeks" prior to publication -  is in the highest degree relevant.  This particular strain of FMD virus does not spread on the air beyond a few metres let alone half a mile.  Pirbright had told the Ministry this before the paper was published in the Veterinary Record on May12th,  and both Kitching and Donaldson had disagreed strongly with the modellers and with Prof King's Scientific Committee about the justification for the contiguous cull back in March. 
When Lord Whitty claims that "it is the view of the Government experts that in determining whether animals have been exposed to infection no potential route of transmission can be ruled out."  -  he is referring not to Foot and Mouth experts but to Prof King's Scientific Group.  Scientists they were but experts they were not.   The only experts in the disease were Donaldson and Kitching.  They both strongly disagreed both with the contiguous cull ;policy and with the flawed science upholding it. 
(What he says about other forms of transmission apply even more to the Upton case.  But the "relevant scientific evidence" about airborne spread was the deciding factor in the Upton case  - which wasn't even a contiguous cull case but a Dangerous Contact case.  The Ministry thought they were on even stronger ground for an injunction to be granted since they thought that  their case with regard to DCs where there had been actual contact with an Infected Premises was unassailable. )
(b)       Why that evidence was not put before the Winslade case?
He didn't think it was "appropriate nor necessary
Again - this was the line taken by Fred Landeg - who, once the cat was out of the bag,  made the point that the evidence from Donaldson and Sumption was based on scientific experimental evidence rather than practical experience in the field.  It's interesting that Paul Kitching's evidence to the EU does give evidence collected from practical experience in the field, in South Korea and Japan.  (  )
Mr Landeg called the evidence a red herring (just as Lord Whitty does with regard to the Winslade case)
We should remember that the judge's actual words in his summing up were: "I am bound to say that I am not impressed by Mr Landeg's dismissal of the two articles as red herrings because, if Mrs Upton's evidence were accepted, then airborne transmission is a relevant consideration and secondly, if the conclusion were that the animals were infected the second article is directly relevant to whether or not the disease was likely to be transmitted to neighbouring livestock.  It seems to me that those two articles are not red herrings.  They are relevant to the case."
Even more so then would they have been relevant to the Winslade case

(c)       Whether that evidence had been received before the decision in the Westerhall case?

 The article was seen in draft some weeks previous to publication

"Some weeks" is long enough. It was in the Ministry's possession and they chose not to disclose it.

(d)       Whether I now accept that those decisions would not have gone the Ministry's way had that evidence not been suppressed?

 I repeat what I said during the debate and reiterate what I have stated above.  We have never suppressed  the Donaldson report.  We have always been as open as possible about the advice received by the Government during that period.  I do not accept your argument.

 What Lord Whitty says here just cannot hold water.  "Advice received by the Government" might well have been bandied about on all possible occasions but the Pirbright research does not fall into that category.  The repetition that "it was not suppressed" does not change history.  If it was not disclosed,  the semantics of the word "suppressed" are hardly important.

(e)       Can I say why the Ministry never fought a case for an injunction to enable a contiguous cull to proceed after the decision in the Upton case?

Turning to the remaining points covered in your letter, as you are aware the case covered in your second point was a Dangerous Contact case.  DEFRA’s expert did not consider airborne transmission to be a relevant factor because, on the facts, DEFRA considered there to have been direct contact in this case i.e the transmission of infectious material by the defendant from an infected premises to her animal.  The judge, however, found that on the evidence, he was not satisfied that direct contact had occurred and that is why the animal in question was exempted from slaughter.

This is where Lord Whitty has been very badly briefed by someone who has not read Mr Justice Harrison's summing up properly.  What won the case for Rosemary Upton and Stephen Smith was the fact that the judge wisely decided that - even if the animals had been infected by transmission of infectious material by the defendant from an infected premises to her animal - there was no risk to surrounding farms.  If Mrs Upton's own animals turned out to have been infected (which of course they were not, remaining healthy and happy to this day)   then "bearing in mind the number of the animals and the distances they are away from neighbouring animals, there would not be a risk to neighbouring livestock" (page 18 G)  He went on  "Bearing that in mind and the fact that nine days have now passed since 12th June during which time there has been monitoring and happily thus far no sign of infection and that there is only a further five days before the maximum incubation period will have expired, it seems to me that there is much to be said for the alternative of monitoring and blood testing which Mrs Upton offered in the first place......I bear in mind also what happened when, unwittingly, there was a MAFF vet at Hill Farm and it turned out he had been on infected premises some few days before as a result of which the matter was dealt with by monitoring over a period."..."that is the proportionate response to the situation in which we now find ourselves" (page 19 )


Similarly when Lord Whitty says "In response to the third point in your letter, the judge in the Upton case specifically confirmed the lawfulness of MAFF’s slaughter policy albeit in relation to dangerous contacts." he is presumably referring to Mr Justice Harrison's tactful " I would wish to make it clear that it (the rejection of the injunction) is in any way to be taken as a criticism of the action that was taken by MAFF at the time."  But the judge went on to say " In my view they acted understandably in the way they did on the 16th June on the basis of information that was then available..." (page 20)


For Lord Whitty then to say "His comments are nevertheless relevant to the lawfulness of the contiguous cull policy as the second is an off-shoot of the first and both are dependant on exposure to infection as the trigger for the lawful exercise of the slaughter powers under paragraph 3(1) of Schedule 3 to the Animal Health Act." is pure wishful thinking.  The judge may have been tactful but he was NOT "specifically confirming the lawfulness of the slaughter policy albeit in relation to Dangerous Contacts - let alone was he confirming the lawfulness of the contiguous cull - as it seems Lord Whitty here realises. Had the judge been doing that he would most certainly not have awarded costs against the Ministry.  Lord Whitty cannot answer the question about why there were no further challenges following this disaster for MAFF - because there is no answer.  They had had their fingers burned.  They may well have realised that the evidence from Donaldson and Sumption was such dynamite that no challenge could possibly succeed - but they showed no desire to put it to the test.

MC 22 July 2002

"At the present time we do not have powers for a firebreak cull.."

Morley EFRA Select Committee 6Nov 2001

See Question and Answer 8

Below is extract from evidence given by Elliot Morley to the EFRA Select Committee on 6 November 2001.  Question and Answer 8 are particularly revealing. Obviously the firebreak cull took place in Dumfries and Galloway as well. The description by Morley of the Cumbria 3 km cull being voluntary is misleading, as all farmers who refused were then sent a letter stating that as they had refused to have their animals killed, their farms would be reclassified as Dangerous Contacts, and would be slaughtered out as a consequence. Committee on Environment, Food and Rural Affairs

Minutes of Evidence Examination of Witnesses (Questions 1-19)




  1. Minister, we are grateful to you for coming at very short notice to talk about this Bill. I think it was first mooted when the Secretary of State was answering questions in the House only a couple of weeks ago and then it has taken material form very rapidly and, once it did take material form, it appeared to be really rather wider than I had originally thought and it seemed to me that it was therefore the job of this Committee to investigate the reasons behind it and what was in this Bill. I regret that we are going to second reading because it does not enable us to do a proper pre-legislative scrutiny. I do not imagine that there is any way in which the Government are not going to go ahead with it on Monday but at least what you say will go straight onto the Internet so that people will be informed when we come to debate. Can we start with what is always my favourite piece of paper with any legislation which is the explanatory notes, which I always find of such a density and compression that the Bill itself is easy reading by comparison. Could I draw your attention to paragraph 4, "The Bill supplements existing powers under the Animal Health Act 1981 to slaughter animals to control the spread of FMD by allowing animals to be slaughtered wherever this is necessary for disease control reasons. At present, only animals which are affected or suspected of being affected with the disease, have been in contact with affected animals, or exposed to the disease may be slaughtered." Why on earth might you want to slaughter anything else?

  (Mr Morley) I can certainly answer that one! May I begin by saying that Brian Dickinson from our legal department is sitting next to me and he may want to comment on some of the legal aspects if you wish to raise that. May I also begin by saying that I want to make it very clear to the Committee that the Committee should not read into this Bill anything which might suggest that the Government are taking a definitive position on any method of disease control. What we are looking for is maximum flexibility in terms of the range of options that can be applied in different circumstances at different times. I, for one, certainly believe that, in relation to the scale of this outbreak, there might be a case for reviewing that and of course --

  2. I am sorry to interrupt but, under your existing powers, had the Government then decided to do a ring vaccination, was it doubtful about whether you would have powers to slaughter a vaccinated animal subsequently?
  (Mr Morley) I think we would have power to slaughter the vaccinated animals but what we did not have is the power to pay compensation. Chairman, you can obtain power to do that by going to the Standing Veterinary Committee of the European Commission and you get emergency orders through the European Union. We would however prefer to have these powers ourselves so that it is very clear about what we can and what we cannot do. Of course, vaccination was considered on a number of occasions in relation to this outbreak. However, the scientific advice that we had was that it was not effective in the circumstances in which we find ourselves. These are all issues that we are going to have to look at and I am sure you will look at them.

  3. We are going to deal with the substantive issue, whether vaccination is a good idea or a bad idea.
  (Mr Morley) I very much welcome that.

  4. As far as the Bill is concerned, it enables you then to pay compensation if you go down that route.
  (Mr Morley) It does. Incidentally, it also deals with problems of people who are resisting teams to come onto farms to do vaccinations. We have power to vaccinate but this Bill, as you know, also deals with obstruction and access. Of course, we were not vaccinating in this outbreak but we did have obstruction and delay on such things as serology which did cause, for example, a 14 day delay in Devon and other parts of the country.

  5. May I just come back to that question -- and I acknowledge that I did interrupt you -- when I asked you what animals might you want to slaughter. The Bill actually talks about whichever animal the Secretary of State thinks should be killed. What animals might the Secretary of State think should be killed?
  (Mr Morley) Do you mean what species or in what circumstances?

  6. Both. The Bill would enable you to go in and slaughter budgerigars.
  (Mr Morley) No, it would not, Chairman. In fact, I noticed that there was some press commentary that, under this Bill, we were going to slaughter hamsters, goldfish, budgies, dogs, cats and rabbits, and I want to make it absolutely clear that this Bill only relates to farm animals and susceptible animals and it relates to the actual wording of the Act. It relates to animals defined in section 87 of the Animal Health Act 1981 and, unless the context requires otherwise, animals means cattle, sheep and goats and all other ruminating animals and swine, so other species are not covered by these wide incoming powers and I want to make that point clear now.

  7. Minister, the phrase that I just read to you was, "At present, only animals which are affected or suspected of being affected with the disease, have been in contact with affected animals, or exposed to the disease may be slaughtered."
  (Mr Morley) That is right.

  8. What else might you want to slaughter?
  (Mr Morley) Not other species. What I think this refers to is if veterinary advice was for a fire break cull, for example. At the present time, we do not have powers for a fire break cull. There was the three kilometre cull in Cumbria but that was a voluntary cull and people were invited to participate in that. Basically, if there were a situation where it was recommended that a fire break cull would be desirable, then it gives you powers to do that..."

Minutes of Evidence