The Legality of the Contiguous Cull during the foot and mouth crisis.(files open in a new window)
"If you had the powers already, why was there a new Animal Health Bill with new slaughter powers?"From the Public Accounts Committee report into the handling of the Foot and Mouth crisis "...The Department should examine how the contiguous cull was implemented in 2001 and assess its impact and effectiveness, to inform decisions as to whether, and how, a contiguous cull should be used in the event of any future outbreak." We are interested to read this terse recommendation - included in spite of the 155 paragraphs from DEFRA in its evidence: Supplementary memorandum submitted by the Department for Environment, Food and Rural Affairs in which it attempts to answer some of the questions put to it by the Committee.
Questions 43, and 258-261: "The basis for the contiguous culls, particularly in light of the evidence of Dr Donaldson of the Institute of Animal Health in Pirbright to the EU inquiry where he said that there was no justification. What I want to hear and see there is why he is wrong.
Why Professor Roy Anderson in his article in Nature in October 2001 was wrong when he said there were significant biases in the DEFRA contact tracing process.
Next, the legal basis for the contiguous culling. There are four parts to that. First the basis in statute law, presumably the Animal Health Act 1981. I have read it and I cannot see a basis but perhaps you could point one out to me.
Second, in case law. Here I should like you to examine any cases which are deemed relevant but including a mention please of the West Hall and Linslade cases, and particularly in the light of those two cases an analysis of the scientific evidence which was not available to the court in those cases....
Third, the MAFF versus Upton case, the first case people think was based on full scientific evidence. The point I want you to address here is why it was that after the MAFF versus Upton case, the Government did not seek to test the legality of contiguous culling any further.
Fourth, in relation to legal advice, all the legal advice received....Particularly therefore the analysis of the slaughter powers in the new Animal Health Bill. If you had the powers already, why was there a new Animal Health Bill with new slaughter powers?"
There is certainly some record of the intention to cull the 3 km+ zones"There is no paper trail indicating that the Government requested the necessary authorisation from Brussels for emergency measures on a mass scale. ..." (See Telegraph report below from April 13 2002)
BUT - writes Anne Lambourn, "There is certainly some record of the intention to cull the 3 km+ zones
- see EU SVC meeting. Short Report of the SVC (2001/14) Brussels SANCO – E.2(01)D/21089 (pdf file)"
"UK delegation submitted report (see Annex 1) on UK outbreak, as of March 26. In the section "Future controls" (Item 4.4 page 9 of Annex 1) it proposes in southern Scotland and northern England a 3 km cull of all sheep and pigs around all IPs.
In Devon the topography and farm structure "not suited" to a large scale preventive slaughter campaign", "although individual farms or areas could be cleared on a case by case basis". Proposed foot patrols by vets in 3 km areas around IPs. Also kill all Longtown, Welshpool and Northampton market sheep as DCs.
NB: UK application to vaccinate. Approved, but despite this Member States are still convinced that stamping out and movement control are the appropriate measures." (See main text Item 3 page 2)."
"Evidently owing to an editing error, this power was not included in the text adopted...."REPORT (pdf) on measures to control Foot and Mouth Disease in the European Union in 2001 and future measures to prevent and control animal diseases in the European Union (2002/2153(INI)) Part 2: Explanatory statement Temporary Committee on Foot and Mouth Disease Rapporteur: Wolfgang Kreissl-Dörfler 29 November 2002
page 24/77 " The legality of the 24/48 hours contiguous cull was questioned repeatedly...... .......It is not apparent that this is either explicitly permitted or explicitly prohibited at European level. It should however be pointed out that the proposal for Directive 85/511/EEC originally made explicit provision for the possibility of culling FMD-susceptible animals on neighbouring farms. Evidently owing to an editing error, this power was not included in the text adopted. An interpretation of the Directive according to its purpose would nevertheless be likely to conclude that culling on neighbouring farms should be possible. Moreover, the 3 km cull was discussed at the time by the Commission's Standing Veterinary Committee. No objections were made within the Standing Committee on the grounds that this measure contravened EU law. ...."
it should be unsurprising that Commissioner Byrne showed no enthusiasm in exploring the matter in front of the EP committee.(DG(SANCO)/3318/2001 - MR final), recommended (page 22/23) that "as a matter of urgency" the UK government: "consider preventative slaughter in certain circumstances in an attempt to 'get ahead' of the disease...".
Richard North, in his article "Smoking Gun" wrote, "This, in all but name, is (or could be construed to be) a recommendation that the UK carry out a contiguous cull policy. In the manner of things, it is quite likely that this recommendation was conveyed verbally to UK government officials at the end of the mission, to which effect that advice would have been given on or about the 16th March, BEFORE the UK government adopted its policy on 23 March.
(More) See also . (North and Booker "The Great Deception" p394) "By mid March, when outbreaks topped 300 and were doubling every 10 days, the epidemic was so out of control that a new policy was ordered: a "pre-emptive cull" under which millions of healthy sheep, cattle and pigs were to be slaughtered simply to prevent the disease spreading. Not only was this against British law (the 1981 Animal Health Act only allowed the killing of infected animals or those directly exposed to infection). It was 'recommended' by inspectors of the EU's Food and Veterinary Office in Dublin, on a visit to Britain between 12 and 16 March"
Was the Commission party to the UK adoption of a policy that was illegal? Was the Commission itself responsible for the illegal policy adopted - that had to be hurriedly given retrospective legality by the 2002 Animal Health Act?
"What can one say of the mendacity that allows a Minister to say that this represents a policy's being "tested and upheld in the English and Scottish courts"?
The Power to Panic (pdf file) by Professors David Campbell and Bob Lee.
a negation of the basic precepts of the rule of law"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 . ..the government's actions involved a large-scale breaking of existing laws on animal health... " BBC report on "Carnage by Computer"pdf (See also "Lessons Not Learned" pdf)
"....British MEPs accused the ministers of misleading the committee about the legality of the cull,saying British law authorises only the slaughter of infected livestock or those exposed to the disease. By the Government's own definition, the cull covered animals that were not exposed.
The law has never been tested fully in the British courts, though Grunty the Pig was famously saved from execution last year after a judge ruled that the Government did not have authority to carry out "blanket slaughter".
As for EU law, which has primacy, it permits "monitoring and inspection" of contiguous areas up to three kilometres. It does not authorise mass slaughter, and certainly not as far away as 22 miles.
There is no paper trail indicating that the Government requested the necessary authorisation from Brussels for emergency measures on a mass scale. ..."Telegraph April 13 2002
Lord Willoughby de Broke's 5 questionsto Lord Whitty
- The speech in full
Lord Whitty's replies
Lord Whitty's replies examined
Elliot Morley's statement"At the present time we do not have powers for a firebreak cull..".Morley EFRA Committee 6 November 2001