DID MAFF/DEFRA OPERATE ILLEGALLY?
THE CUMBRIA FMD INQUIRY
1. The 3km/Firebreak cull was unscientific, ineffective, caused human and animal suffering on an unprecedented scale and in an atmosphere of lying, bullying, blackmail and coercion. MAFF/DEFRA and the British Government were a disgrace and I may remind you again that the person who “took personal charge” was Prime Minister Blair.
2. In this document, I will analyse why Blair’s 3km/Firebreak policy was illegal under existing UK and probably EU law.
3. A reminder of what Mr Elliot Morley, Under Secretary of State, DEFRA said concerning the 3km cull.
House of Commons Hansard Debates 6 November 2001:
Morley states: “At the present time we do not have powers for a fire break cull. There was the 3km cull in Cumbria BUT that was a VOLUNTARY CULL and people were invited to participate in that. If there was a situation where it was recommended that a fire break cull would be desirable, then it (The Animal Health Bill 2001) gives you power to do that.”
4. Alistair Campbell, Blair`s Press spokesman, in an article commented on the legality of the cull:
Daily Telegraph 27 March 2001 “Firebreak slaughter in disarray.”
”Downing Street admitted it did not have powers to enforce the mass cull of healthy animals. Alistair Campbell, Blair’s spokesman, admitted that there were “practical difficulties” over the establishment of firebreaks around infected farms. He said: “We have to do that with the consent of farmers. The only situation where we can have the powers is where the CVO advises that the entirety of the stock there is liable to be infected.” There were no plans to introduce emergency legislation to take compulsory slaughter powers, as the government hoped to “persuade” farmers to co-operate in the cull.”
5. Lord Whitty in recent Livestock Debate. 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 British courts' and the EU endorsement therefore fully support the comments that I made in Strasbourg and have repeated today. The legality of the cull is not in doubt......My Lords, the contiguous cull was legal. However, it was inhibited and ineffective because we were unable to enter certain premises due to resistance based on the current legal position. “
6. The "Contiguous Cull" - the Smoking Gun
Richard North 27 March 2002
UK Independence Party
There can be no question that one of the most contentious issues during the
FMD crisis was the so-called "contiguous cull", the government's
indiscriminate slaughter of healthy animals neighbouring infected places.
The two central questions, which need to be addressed in this context are
whether the "cull" was scientifically justified and whether it was legal.
The latter question is especially relevant to the European Union because, if
it was not, then payments made under the provisions of EU law would also be
illegal. The European Commission would be under no obligation to refund the
UK for its expenditure and the billions expended would have to be paid-for
completely by the UK taxpayer.
And it was with this in mind that EU Commissioner David Byrne was questioned
during the first evidential session of the European Parliament's public
inquiry on foot and mouth, on 25 March.
It had been anticipated that Byrne - who had been in charge of the EU
response to FMD during the crisis - might have expressed some concern about
the conduct and the costs of the "cull", but, even despite being strongly
pressed, he seemed wholly relaxed about it. He claimed that the "cull" had
been "effective" in ending the epidemic based on specific (or any) scientific evaluation, but on the basis of what
he had been told (the strong inference being that the source of his information
had been DEFRA).
In many ways it was the dog that did not bark. Despite the enormous cost of
the "cull", Byrne seemed quite happy to accept it at face value. He did not
give any indication that he was at all critical of it or even that he was
prepared to examine the issue in any depth. The very strong impression was
that he believed was he was (and had been) told by DEFRA.
The following day was the turn of Nick Brown's, the minister in charge
during the critical period when the epidemic appeared to be running out of control.
When he was asked whether the "cull" had been legal, his response was as
relaxed as had been Byrne's. In a performance described as "turning evasion
and ambiguity into a new art form", he said that he "believed it to be
legal", which is not exactly the same thing as affirming that it WAS legal.
To that extent, West Country solicitor, Alayne Addy's, who gave evidence
after Brown, was helpful, but she did not fully address the issue of
legality under UK law.
In fact, on 20/21 June 2001, there had been a High Court hearing initiated
by Rosemary Upton, of Hill Farm, Stawley, near Wellington, owner of a pig
called 'Grunty' which had starred in the film 'Babe'. She was petitioning the
Court to save him from slaughter.
On 14 June, a MAFF inspector had ordered Grunty and eleven 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.
In this case, the presiding judge, Mr Justice Harrison, ruled that DEFRA was
not entitled to apply a blanket policy of slaughter and had to take into
account specific circumstances. (See Annex B) 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'. (See Annex A). 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.
Although not specifically directed at the "contiguous cull" policy, this
case nevertheless gave a very clear line, to the effect that DEFRA was not
entitled to undertake a blanket slaughter of healthy animals - effectively
ruling out an indiscriminate "contiguous cull". In assessing whether
animals should be slaughtered, DEFRA officials had to take into account all the
This information is very much in the public domain and, initially, I was
puzzled by Mr Byrne's apparent lack of concern about the "cull". However,
reviewing the genesis of the policy, it is clear that it was decided on or
about the 23 March 2001. This date is possible very important because,
between 12-16 March, an FVO mission was in the UK assessing the situation as regards FMD.
In the final report of the mission (DG(SANCO)/3318/2001 - MR final),
however, it is recommended that "as a matter of urgency" the UK government:
"consider preventative slaughter in certain circumstances in an attempt to
'get ahead' of the disease...".
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.
This, in turn, raises the intriguing possibility that the Commission was
instrumental in - or at least party to - the adoption of a policy that was,
prima face, illegal - even that the Commission was responsible for the
policy. Had that been the case, it should be unsurprising that Commissioner
Byrne showed no enthusiasm in exploring the matter in front of the EP
That being the case - or at least a possibility - it seems to me that the
Committee would be well advised to explore this issue further, to which
effect there needs to be established:
1. a view as to whether the "cull" was in fact lawful.
2. what precise part the Commission (and its FVO officials) played in the
formulation and/or approval of the policy.
3. what measures the Commission took subsequently to ascertain the legality
of the policy, given the legal and other actions taken in respect of it.
Similarly, in respect of the scientific aspects, it is clear that the
statistical model used to create a scientific justification for the "cull"
was indeed a simulation of the transmission of sexually acquired diseases in
humans. This is important in the context that it was a "single species"
model and took no account of the variability in transmission characteristics
of FMD in and between different animal species. Also, there were and are
very grave reservations about the quality of the MAFF data used for the
model, not least being the accuracy of the outbreak onset data and
distortions in ascertainment.
All of this raises serious questions as to whether the contiguous cull
policy was scientifically valid, which equally should be explored by the Committee.
This makes it essential that the authors of the policy, Professors King and
Anderson, are called at an early stage.
I suggest we have an early meeting between us, on this, to see how we can
7. Mary Critchley, who runs the Warmwell website, discusses this further:
The "we won Winslade" argument is fatally flawed. Lord Whitty in Wednesday's Livestock Debate (See paragraph 5 above) in the Lords cited the Winslade case as proof that the contiguous culls were "legal". But, by omission, the Ministry misled the Court. Judge Mitting in the Winslade case was unaware of the articles by Professor Donaldson, IAH Pirbright,[See Appendix A] that so impressed Lord Justice Harrison in the Upton vs Defra case. Defra had not brought them to his attention - even though Fred Landeg has acknowledged that he had them in draft before they were published on 12th May 2001. This must mean that he had them in late April/early May.
In a letter that has been on this website since last July, Stephen Smith QC [See Appendix B], pointed out:
“The judgments of Mitting, J., on which the Ministry has been wont to place reliance are flawed because the Donaldson articles were not drawn to the Judge's attention (even though the Ministry had had those articles in draft for some time before the hearings in those cases). Nor did the Judge have the benefit of evidence from an expert such as Dr. Sumption, Professors Elwood and Duffus, or Dr. Kitching. Indeed I do not believe that any independent scientific evidence was put before the Court on those occasions. “
"The judgments of Mitting, J., on which the Ministry has been wont to place reliance are flawed because the Donaldson articles were not drawn to the Judge's attention (even though the Ministry had had those articles in draft for some time before the hearings in those cases). Nor did the Judge have the benefit of evidence from an expert such as Dr. Sumption, Professors Elwood and Duffus, or Dr. Kitching. Indeed I do not believe that any independent scientific evidence was put before the Court on those occasions.”
"Our understanding, (from a conversation with Barbara Jordan solicitor,) is that there is a fundamental rule that when you make an urgent application to Court for an injunction without giving the other side proper notice (as happened in Winslade), you must make "full and frank disclosure" of all material facts and matters. But the Ministry never mentioned the Pirbright research into local spread when they made the application in Winslade (20th May).”
“That research was directly relevant to the position the Ministry adopted in Winslade. In short, by omission, the Ministry misled the Court. Why did Mr Fred Landeg not draw the attention of the Judge in the Winslade case to Professor Alex Donaldson's articles? Was it his own decision? Was it a lawyer's? Was it an official's or politician's? In the Grunty case, where this material was brought to the attention of the Judge.”
”See paragraph 14 of Stephen Smith QC's letter:“It is obvious from the transcript that those materials were hugely influential in the Judge's judgment: he describes the articles as being "from a highly respected and authoritative source"; and Dr. Sumption's report as "impressive", and one which "must demand respect". He also said that he was not impressed by the Ministry's dismissal of the two articles as "red herrings".Mr Landeg tried ineffectually to make light of it. It is highly likely that that evidence would have made a significant difference to the outcome of the case. However, it does not actually matter whether it would have made such a difference or not; the decision would not have stood if it had been challenged because that material from the Veterinary Record was highly relevant, was available to the Ministry and had not been put before the Court.”
8. From the Farmer's Guardian - April 26 2002:
Food and Farming Minister Lord Whitty has again been forced on the defensive over the legality of the contiguous cull employed during foot and-mouth outbreak. Giving evidence to the European Parliament's foot-and-mouth inquiry earlier this month, he said the cull had been carried out with EU approval and that its legality had been tested in the courts. These comments were challenged in debate in the House of Lords last week by a number of peers. The Countess of Mar asked Lord Whitty to give precise reference to the EU approval ' as the relevant directives make no mention of the slaughter of animals not exposed to disease.'
"Will he also tell us who are the relevant court cases?" she said. In response, Lord Whitty reiterated his claims that the contiguous cull is not in doubt," he said. "However it was inhibited and ineffective because we were unable to enter certain premises due to resistance bases on the current legal position."
He cited two cases which the Government won. MAFF v Winslade and Westerhall Farms v Scottish Ministers.
"The British courts and the EU endorsement therefore fully support the comments that I have made in Strasbourg and have repeated today" he said.
The Earl of Onslow said, however that a more relevant case involved Grunty the pig in June 2001.
"Mr. Justice Harrison, ruled that DEFRA was not entitled to apply a blanket slaughter policy and had to take specific circumstances into account. He ruled that the animals had shown no signs of disease and that it was sufficient that they were monitored and tested," he said. ” There would seem to be no power of a blanket contiguous cull policy."
The indications are therefore that there has been no legal challenge that supports the Minister's contention that the contiguous cull was legal. On the face of it the (EU) directive appears to authorise only testing and examination.
Journalist and commentator Richard North, who works in the European parliament, says there is an 'urgent need' to determine whether the contiguous cull policy was legal in the context of UK and EU 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.
It would also mean that the EU commission would not be authorised to reimburse payments made by the UK Government to farmers or the costs associated with the policy, he said.
9. From the Warmwell website April 13 2002:
"The European Parliament has a specific mandate to determine if the cull violated EU law. It has written to the European Commission requesting a clear legal response."
In a remarkable article in today's Telegraph, we read, " British ministers were on the ropes in Strasbourg this week trying to justify the mass slaughter of four million non-infected animals during last year's foot and mouth outbreak. Lord Whitty, minister at the Department for Environment, Food and Rural Affairs, told increasingly sceptical Euro-MPs that the contiguous cull was "absolutely legal and approved by the European Union".....' For a telegraph journalist to report that the Euro-MPs were increasingly sceptical is significant.
He continues: " ..... Elliot Morley, let slip a major statement of policy at the hearings on Monday night, one that is likely to cause fury in Westminster. He admitted that the Government would ignore Parliament if it blocks the Animal Health Bill, which gives Defra draconian powers to slaughter livestock with no right of appeal and restricts civil liberties.... "
This is language that we never thought to see in a leading newspaper and we are impressed. The article, well worth reading in full, continues, "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....."
10. But remember:
Between 12-16th March 2001, the European Commission recommended to MAFF and Blair`s government (DG(SANCO)/3318/2001 – MR Final).
9.1 To the competent Authorities of United Kingdom“ It is recommended that the following actions be taken as a matter of urgency - “consider preventitive slaughter in certain circumstances in an attempt to “get ahead” of the disease, and to reduce the weight of infection to which animals are being exposed.
”The response from the CA (DG(SANCO)/3328/2001 – MR Final):
“As identified during the current mission: A widespread policy of slaughtering susceptible animals on neighbouring, and at risk premises had been introduced. It was noted that this had not been consistently applied in the areas visited, and that, during the mission, the CA announced changes to this particular requirement, which would allow an easing of previous practice.”
11. NOTES FOR PRESENTATION TO EU FMD COMMITTEE TUESDAY
26 MARCH 2002. Alayne Addey, Solicitor.
7 This is a brief overview of the slaughtering of healthy livestock on farms adjoining an Infected Premises. In England this policy was called “the contiguous cull”, and in Devon it led to the slaughter of all healthy livestock on over 1000 adjoining premises – affecting cattle, sheep, pigs and goats. The policy was very unpopular.
7 There were four main problems:
1. The first problem for everybody - farmers and officials - was the sensible meaning of the words ‘contiguous’ and ‘adjoining’. Sometimes, livestock were several kilometres away from an outbreak but were included because there was a shared farm boundary with a block of ‘off-land’ belonging to the owners of the Infected Premises.
2. The second problem was the assumption that the disease would automatically spread 360* out around from an outbreak - regardless of the wind direction or physical features – for example: hills, valleys, woodland, motorways and rivers.
3. The third problem was the basis in law – which was then, and is still, ‘doubtful’. The EU Directive requires livestock on adjoining premises to be inspected or sampled, with regard to the configuration, location and possibility of contact.
4. The contiguous cull did not follow the Directive. Instead, farms were systematically cleared of livestock using a discretionary power in English law. The Animal Health Act allows the Minister to ‘take any animal which appears to him to have been in any way exposed to the virus’.
5. We argued that the English law did not correctly reflect the EU Directive. The UK government’s response was that the EU Directive set a minimum set of procedures - they were not limited to those and could lawfully adopt additional measures.
6. We disagreed and asked for inspections and blood-testing, as per the EU Directive, instead of automatic slaughter. Quite often inspections occurred, but not testing. So, in order to prove that their livestock were healthy and had not been ‘exposed’ to the virus, some farmers purchased test kits and tested their livestock on the farm themselves. These test kits are available from two suppliers in the UK. The test kits are technologically complex, but are easy to use and cost around 9 euros each.
7. The fourth problem was the application of the policy to the farmers. I regret to report to this committee that the policy was mostly implemented at a local level by a mixture of intimidation and coercion, with an element of blackmail. There was a lack of information and a secrecy about the exact terms of the policy, and this led to extensive confusion.
8. Farmers were contacted by telephone and told that they were adjoining an outbreak and that their healthy livestock had to be slaughtered. They were told that they would receive good compensation. They were not given information that would help them to make ‘an informed choice’.
9. Some farmers agreed to co-operate, but many refused – very often because they were located some distance from the nearest outbreak, and had been isolated and ‘in quarantine’ since February. These farmers were told that if they did not agree now and if their livestock later caught the disease, then they would not receive compensation and they would face criminal prosecution for spreading the disease.
10. In practice this was a very effective threat and worked to persuade many farmers to have their healthy livestock slaughtered, because no farmer wanted to spread the disease to his neighbours, and no farmer could afford to lose his livestock and not be paid for them.
11. Farmers who refused to co-operate were contacted by a government veterinary official who tried to persuade them not to appeal, but eventually – if he could not make them change their mind – he told them that they had 4 hours to submit an appeal. Very often this 4 hours deadline occurred during evenings or weekends.
12. Farmers found it very difficult to produce an effective appeal, because they did not know the appeal criteria and they had no access to impartial help or advice.
13. Most farmers who did lodge an appeal within the 4 hours time limit reported that it was rejected. They may have raised good points, but were told that their appeal could not succeed because there was no discretion- nobody had any choice - the slaughter was ‘regrettable but compulsory’.
14. We complained that this ‘in-house’ appeals system did not comply with Article 6 of the new Human Rights Act which, in English law, requires ‘fair and independent appeals procedures’.
15. The only option for a farmer was to repeat his appeal and rely on the ancient English law of trespass to prevent slaughter by refusing to allow officials onto a farm for anything other than inspections or testing.
16. In mid-April, the government announced that adjoining farmers could ask for ‘local veterinary risk assessments’ to decide whether or not there was a risk of ‘exposure to the virus. This good policy initiative followed exactly the EU Directive – but it did not work in practice, because when an inspecting vet reported back that there was no real risk of exposure, he was over-ruled by the central disease control team who insisted on slaughter.
17. The UK government were unwilling to test their policy in the English courts. I am aware of only 15 cases brought by the government against farmers - 11 of these were withdrawn and only 4 had a hearing in the High Court - 2 were successful and 2 were lost. The judges concentrated on the level of risk and exposure, as required in English law. They did not analyse the legality of the policy against the EU Directives, which was very disappointing.
18. There is now a debate as to whether this indiscriminate and systematic slaughter of healthy livestock was justified. Many vets and scientists in all disciplines have objected to it, saying there is no credible scientific or veterinary basis. As to the legal basis, the UK government published a document in November 2001, which confirmed that there was no general power to slaughter healthy animals on adjoining farms under English law, nor was there any such power in the EU Directives.
12. Finally, the most telling piece of evidence available. The final nail in the coffin of those perpetrators who invoked the 3km cull. I need not comment.
Extract from Lobby Briefing 10 Downing Street on 29 March 2001:
Asked if any thought had been given to extending the powers that the Government might need beyond the contiguous farms policy and for the 'cordon sanitaire', the PMS said no. He pointed out that with regard to the 3km firebreak area in the south of Penrith, as we had said earlier in the week, there had been farmers in that area who were against a slaughter policy. Discussions were continuing with them on this matter. Pressed further, the PMS said that we were not looking at taking any powers at this stage. There was no need to do so as we were not going ahead with the 'cordon sanitaire' at this time. Questioned as to whether we could force a farmer to have his herd slaughtered to implement a cordon sanitaire, the PMS said that if we were to reach that position, we would hope that we would have got there through persuasion.
Asked about the legal position, the PMS said that if the Chief Vet decided that animals had to be destroyed either as high-risk contact or as diseased contact (animals on contiguous farms), then they could be destroyed under disease-control measures. In terms of the 3km cordon sanitaire, there was a difference inasmuch as the animals would be culled to act as a firebreak. Consequently, legislation would be required to take that forward should farmers decide they did not want to allow their animals to be killed. The PMS underlined that we were not going down that route at this stage.
13. It appears the game is over! The 3km cull WAS illegal. Many questions must now be asked. Cumbria wants answers and quickly.
14. I have attempted to show in these short notes the history of the cull, evidence of the extent of the confusion to farmers and rural dwellers, MAFF, veterinary surgeons and the general public. I also examined its legality.
15. The answer we would all like to know, is, why was there this confusion?
16. A telephone call I made to Mr Roy Hathaway, Head of FMD, Page St. resulted in his making this astonishing statement :
“The voluntary element of the cull was solely used to describe those farmers who were willing, and probably anxious, to give up their sheep to the cull. He pointed out that the 3km cull had always been compulsory. This was backed up by the Chief Veterinary Officers affidavit to the effect that the animals concerned had been exposed to FMD.”
When I asked why Mr Elliot Morley had told the Agricultural Select Committee on November 6th 2001, the day Hathaway circulated his memo, that the Government did not have powers to enforce a “firebreak” cull and that the 3km cull in Cumbria was “voluntary”, Hathaway remarked that persons more “elevated” than Mr Morley had got it wrong!
17. I firmly believe that Mr Blair, on hearing the Government’s Chief Scientist state that the epidemic was out of control and predicting that affected farms would be greater than 4,000 by June, caused him to panic. Blair’s mind was firmly on the General Election. Remember Blair was discussing his election plans during his 2-day visit to Stockholm; unfortunately for the Prime Minister, this discussion was caught on national TV. His mind was clearly not on the FMD crisis in the UK. On his return he took “personal control” and ordered the cull of millions of animals. This cull was to be extended to all parts of Britain.
18. Blair was at this stage told that the government had no legal powers to conduct the cull. It was therefore at this stage that the term “voluntary” was hatched as a means of obtaining the consent of farmers to conduct the 3km cull in Cumbria. Can you imagine Blair and his government trying to introduce “emergency powers” at the same as planning an election?
19. I firmly believe that the decision to conduct the 3km cull was a purely political one. The policy had no scientific merit at all. The spin being produced by Ministers desperately attempting to justify this obscene policy has been phenomenal. So desperate were they to protect Blair, that even seasoned Ministers like Morley and Whitty have been willing to lie.
20. Without an Open and Independent Public Enquiry, whereby, Ministers, Civil Servants and others, are made to give evidence under oath, we may never, at least for some time. Learn the truth of the 3km cull. However I believe the following questions should be asked:
' What was the precise date that the CVO, Scudamore, signed his affidavit confirming that animals within 3km had been exposed to FMD?
- The government had no legal rights to conduct the cull so was this affidavit signed retrospectively?
- What scientific evidence that FMD was spread to 3km by vehicular, human and stock movements? Why only 3km? This is apparently absolute rubbish but is convenient as the airborne spread of FMD is minimal.
- The EC strongly recommended pr-emptive culling. But, who actually made this decision?
- Why Did Mr Elliot Morley lie to the House and the public? Why has Blair not demanded his resignation? Did Blair authorise this lying?
- When did Blair realise that he did not have the legal power to conduct the cull?
- Why did many Ministers and Civil Servants lie about the implementation of the cull?
- Why was there so much confusion concerning the cull amongst Ministers and Civil Servants?
- Why Mr Blair, did you allow the bullying of many thousands of farmers during the implementation of this obscene illegal policy?
It is in the interests of Cumbria and the United Kingdom that we should be given these answers.
Relative risks of the uncontrollable (airborne) spread of FMD by different species
The modellers did not define the mechanism of 'local' spread , but assumed that it would happen as a statistical probability.
Furthermore, the infectivity and transmission parameters used by the modellers were based on an average hypothetical species.
Given the very wide variation between different species in terms of the quantities of virus excreted ,their susceptibility to infection ,and the routes by which they are likely to be infected, the modelling of the spread of FMD using an average species is an over-simplification, and in certain circumstances would generate inaccurate forecasts.
The results presented in this short communication indicate that, when disease is diagnosed and movement control is fully implemented around an infected premises, the animals on contiguous premises should not be at risk from uncontrollable spread, that is, from airborne spread, unless
(a) there are pigs or very large numbers of cattle or sheep on the affected premises with early clinical signs
(b) the concentration of virus in the plume was at the same or higher concentration than the threshold concentration required to infect them
Under those 'ideal'circumstances for airborne spread, the species at risk downwind would be sheep and cattle. Pigs under a plume would be unlikely to be at risk since very high doses of airborne virus are required to infect them (Donaldson and Alexandersen 2001).
The action taken on contiguous premises should, therefore, be determined by the species at risk on those premises. In the case of sheep which may have been exposed to an infectious plume of virus, culling would be justified since FMD in that species is often mild or inapparent (Donaldson and Sellers 2000) and so clinical surveillance would be of limited value in determining whether a flock was infected or not. For cattle, intensified clinical surveillance would be an appropriate alternative to immediate culling, since FMD in that species is easily recognised and any cases should be quickly identified and eliminated before there was a risk of infectious plumes of virus being generated.
For pigs, provided that the possibility of any dangerous contacts had been eliminated (see below),on-going clinical surveillance would be appropriate but no other special actions would be justified.
The action taken should be guided by the species at risk, the local circumstances and whether clinical and/or serological surveillance is appropriate.
The implementation of the 48-hour contiguous herd culling policy has resulted in the slaughter of hundreds of thousands of animals and created severe disposal problems. The potential benefits of culling all animals on all contiguous premises within 48 hours should be weighed against the likelihood that many of the contiguous premises did not contain infected animals, the impact of having to dispose of the resultant animal carcases and the diversion of very limited veterinary resources and support staff from surveillance activities.
Veterinary Record, May 12,2001
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5th November 2001
Animal Health Bill
You have asked me to comment on the fmd aspects of the Bill published last Wednesday. For ease of reference I shall set out my thoughts in numbered paragraphs.
1. 1. Much has already been written on the Bill, and doubtless much more will appear shortly. I perhaps approach it from a different perspective than the approach many others take, because my thoughts are coloured by the experiences I had over the summer as the adviser and advocate/potential advocate to several farmers threatened with foot and mouth culls, most notably Rosemary Upton with the remnants of her Portland sheep flock and Grunty the Kune Kune pig.
2. 2. I have not been involved to date with any claims for compensation (the people I was acting for taking the view either that the question of compensation was simply not an issue because they did not see their animals as a commodity, or that the compensation likely to be offered could never be sufficient for their pedigree flocks). I do not propose, therefore, to address the provisions which seek to reduce the compensation payable to farmers in certain circumstances. This is, however, a significant further issue which a consideration of the whole Bill would have to examine closely.
3. 3. During the course of the cases in which I was involved it was pointed out to the Ministry that in our view it did not have the power to do what it was proposing to do/in many other cases had actually done, especially in two respects. Those respects were, first to effect forcible entry onto a farmer's premises with a view to the slaughter of the susceptible livestock on those premises: we said that if the farmer did not consent to entry for that purpose, the Ministry had to go to court to obtain an injunction to enable it to enter lawfully. Secondly, to slaughter animals merely because they happened to be present on premises which shared a boundary with infected premises (so called "contiguous premises"); it followed from this, we said, that the Ministry did not have a general power to slaughter animals even further away from infected premises (i.e. power to carry out a cull of susceptible animals on all farms within a specified geographic radius of those premises, e.g. a 3 kilometre cull). There was certainly no power to compel farmers to accept the slaughter of their livestock in order to create a "firebreak".
4. 4. The Ministry did not fight any of these arguments in court (at least not with us) once we had raised them (an earlier contiguous cull had been sanctioned by the Court in a case in which neither I nor Burges Salmon, my instructing solicitors, had been involved, but we submitted that the decision in that case was fundamentally flawed because the Ministry had not brought to the attention of the Court on that occasion the scientific research which it had itself sponsored which raised serious doubts about the possibility of airborne spread of the disease).
5. 5. On several occasions, I or colleagues in Chambers were standing by to attend court the next day to resist the grant of an injunction to enable a contiguous cull to take place, but the Ministry called off the application at the last minute, opting instead for "testing and monitoring". I am not aware of any of the animals thus tested and monitored subsequently being diagnosed as having caught the disease.
6. 6. Rosemary Upton's case, according to the Ministry, was even more serious than a contiguous premises case. It was, it said, a case where Rosemary was a dangerous contact, and it was adamant that Rosemary's remaining animals would have the disease and therefore had to be destroyed as quickly as possible. Rosemary had throughout offered the Ministry the opportunity to blood-test her animals to check its strenuously asserted belief, an opportunity which was rejected. Happily, after hearing argument over the course of 3 days in all, the High Court was satisfied that the right way forward was the testing which Rosemary had all along been offering. The Ministry's application for an injunction was dismissed and it was ordered to pay all Rosemary's legal costs. In due course the tests came back negative, and as far as I am aware Grunty is still munching her way through Rosemary's orchard, and the sheep remain alive.
7. 7. Rosemary did not behave irresponsibly; she did not contribute to the spread of the disease; and she was not a danger to any of her neighbours. The only thing she held up was the Ministry's misconceived plan. The plan was misconceived because the Ministry did not carry out a reasoned analysis of the risk which she posed, and because, and this was crucial, it dismissed as a "red herring" the results of carefully constructed experiments into the risk of airborne spread of the UK particulate of fmd by acknowledged experts, experiments which the Ministry had itself sponsored. Important mistakes were clearly made, in other words, but not by Rosemary or those acting on her behalf or by any other farmer; they were made by the Ministry itself. The High Court Judge would hardly have ordered the Ministry to pay all Rosemary's legal costs if he considered that she had been behaving in a dangerous or irresponsible way.
8. 8. I have little doubt that we would have established that similar mistakes were being made by the Ministry in the other cases where we were instructed to resist a cull, but which for whatever reason did not come to court.
9. 9. The new Bill appears to have been designed in large part to garner for the Ministry the powers which it was asserting to farmers it already had but which we and many others - had pointed out were lacking. That, it may be thought, is the way with government: if the executive wishes to do something and lacks the power to do it, it is free to take such power through the parliamentary process, so long as it can persuade a sufficient number of people engaged in that process to support it.
10. 10. Things, however, are not so simple. The UK Government is not completely free to legislate in any way it thinks fit. It has to have regard to the fundamental rights of its citizens which are to be found in the European Convention of Human Rights. The Human Rights Act 1998 was designed to give effect to the rights and freedoms guaranteed under the Convention, and make those rights and freedoms directly enforceable in UK Courts. You will have noticed a certificate of compatibility with the Convention which the Minister has placed on the front-sheet of the Bill. This too is a process required by the 1998 Act, and it is of course very important that careful consideration is given to the question lest the process becomes a rubber stamp.
The Human Rights Act 1998
11. 11. The following are the principal relevant effects of the 1998 Act:
/(a/) (a) legislation must be read in such a way that it is compatible with the rights guaranteed under the Convention, wherever possible (s. 3);
/(b/) (b) where it is not possible to read legislation in a way which is compatible with rights guaranteed under the Convention, the Court has power to declare that the legislation is incompatible, and thus in practice force the Government to rethink (s.4);
/(c/) (c) public bodies (including the Courts as well as Ministries) must not act in a way which is incompatible with Convention rights (s.6).
12. 12. The bringing into force of the 1998 Act has, however, had an even more profound effect than one might have thought from reading those principal aims. The introduction into English law of the Convention rights has brought with it the jurisprudence built up over many years in the decisions of the European Court of Human Rights, and that is changing in a dramatic way the relationship between the courts and the executive. The House of Lords (in its judicial capacity) in a decision given earlier this year indicated that the scope for challenging an exercise of executive power under the Convention was significantly greater than has hitherto been the case under English law. In particular, it may now be possible to challenge a Minister's decision to exercise power in a particular way by asserting that that way is not a proportionate response to the problem with which the Minister is faced. This, indeed, was the approach taken by the judge in Rosemary Upton's case: he said that he thought it was at least arguable that the proportionate response was not to move immediately to the slaughter of Rosemary's animals, but first to carry out the tests which Rosemary had suggested be carried out to determine whether the animals were infected.
The European Convention on Human Rights
13. 13. There are, it seems to me, three principally relevant provisions, viz. Article 6(1) ("Right to a fair trial"), Article 8 ("Right to respect for private and family life, home and correspondence") and Article 1 of the First Protocol ("Right to property"). As you probably don't have access to these provisions, I shall set out the relevant parts:
In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ...
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 1 of the First Protocol
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest..."
The new power to enter premises and slaughter without consent
14. 14. From my perspective, this is perhaps the most deeply worrying of all the new provisions, when seen against the background of what happened in Rosemary Upton's case. Clause 7 of the Bill enables a Ministry official (termed an "inspector") to gain forcible entry onto premises to inspect and if necessary slaughter animals, so long as he has obtained a warrant to do so from a magistrate; a magistrate may grant such a warrant if he or she feels that there are reasonable grounds for the inspector to enter the premises, admission has been refused or a refusal is to be expected, and notice of an intention to seek a warrant has been given to the occupier (it seems that this latter condition may be by-passed in cases of urgency).
15. 15. There is no scope in this proposal for the fair and public hearing which Article 6(1) of the Convention requires. The application to the magistrate will be made by the inspector in the absence of the farmer, and will not be a public hearing.
16. 16. Such a warrant can be expected to be enforced immediately by the inspector backed up by the police/army, and the farmer's animals will be destroyed. There will be no practical scope for the farmer to point out to a Judge that the Ministry may be mistaken (as it undoubtedly had been in Rosemary Upton's case), still less that the Minister may be proposing to exercise his/her powers in a way which is not proportionate or is incompatible with any other Convention right.
17. 17. In short, the inspector and the magistrate will have determined the civil rights and obligations of the farmer without any fair or public hearing, with no legal or practicable possibility of an appeal, in a way which cannot be described as anything other than final. To cap it all, the farmer will commit an offence if he refuses admission to his premises to an inspector without lawful authority or excuse (proof of which is to lie on him, not the Minister).
18. 18. Thus, instead of being able to present his case to a Judge at a fair and public hearing, the farmer's premises will have been entered forcibly, his animals will have been destroyed, and he will likely be a criminal.
19. 19. I find it very difficult to see how this proposed process can properly be said to be "compatible with the Convention rights". It is well settled that the phrase "the determination of his civil rights and obligations" in Article 6(1) should receive "a broad interpretation ... The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations" (per Lord Clyde in R (Alconbury) v. Secretary of State for the Environment, Transport and the Regions a decision of the House of lords in its judicial capacity given earlier this year.)
20. 20. It may be that the Ministry considers that the continuing ability to seek judicial review of any decision to enter or to invoke the new entry power or to slaughter will provide sufficient judicial control for the purposes of Article 6. That, however, is quite impracticable. The experience of the Rosemary Upton case and other cases is that the Ministry acts with great speed and its attendance at premises with police and army back-up can be very intimidating. If it obtains the power to override a refusal of consent to enter and/or a power to arrest the farmer in the process of effecting forcible entry, the chances of a lawyer being instructed to make an application for an interim injunction are practically nil. I note that there is no proposal in the Bill that the Minister should give to the farmer, say, 24 hours' notice of an intention to effect forcible entry to slaughter animals, so as to enable the farmer to take advice and, if necessary, apply for permission to move for judicial review and seek an interim injunction.
The new general power to slaughter
21. 21. Clause 1(1) of the Bill gives the Minister an additional power to slaughter:
"any animals the Minister thinks should be slaughtered with a view to preventing the spread of foot-and-mouth disease"
22. 22. It is proposed that this additional power should fit in immediately after the other three circumstances in which the Minister already has power under the Animal Health Act 1981 to direct a slaughter, viz. where an animal is infected, where an animal has in some way been in contact with the infection (whether through other animals or inanimate objects) or where in the belief of the Minister an animal has been exposed to the infection.
23. 23. Thus the proposed new power is a power to slaughter animals note not just fmd susceptible animals - which are not infected, which have not been in contact with the infection in any way, and which the Minister does not even believe have been exposed to the infection.
24. 24. This is, therefore, a power of quite extraordinary breadth. One wonders what the perceived need for such a power can possibly be. The Ministry's Explanatory Notes (said to be designed "to help inform debate" on the Bill), give no clue at all.
25. 25. I have thought of one possible circumstance where the present slaughter power may be thought with some justification to be inadequate. That is a situation where, although it cannot presently be said that there has been exposure to the infection, there is good reason to believe that exposure will occur in the very near future. For instance, the infection may have occurred in an area which at times also contains a sizeable wild deer herd. Wild deer are of course no respecters of the boundaries of adjacent premises, and may move across several farms during the course of one night. If there is scientific evidence that deer movements may contribute to the spread of the disease, one might think that the slaughter of animals on farms where such movements may occur might be reasonably necessary, unless the susceptible animals on those farms can be protected by adequate bio-security (for instance by being housed, or protected by deer fencing, so that they do not come into contact with land over which the deer may have crossed).
26. 26. Such a perceived gap in the legislation cannot, however, be what the Ministry is thinking of filling with the new power, because if it were it would be cast in much narrower terms. It would talk of the Minister having reason to believe that exposure to the infection was imminent.
27. 27. The concern is that the Ministry is instead set on a course of obtaining for itself powers to create animal-free rings around infected premises or areas, whether those rings be on the basis of contiguity or geographical distance. Alarm has been expressed about this idea because the fear from which it stems (that neighbouring animals contribute to the spread of the disease) has not been scientifically tested, still less proven, and that the experience of those who have successfully resisted culls has generally been that the animals saved have not subsequently contracted the disease. Others have commented that it seems very odd that the Government should seek to rush through Parliament its desire to have such a power when there has not been a new fmd case for over a month and, perhaps even more significantly, when none of the Enquiries it has so far set up has reported.
28. 28. The Human Rights Act issues to which the proposed new power gives rise appear to me to be as follows:
/(a/) (a) To the extent that the new power encroaches on the Article 8 right to respect for an individual's private life, is it "necessary ... in the interests of national security, public safety or the economic well being of the country ... or the protection of the rights and freedoms of others"?
/(b/) (b) As an exercise of the new power would undoubtedly deprive an individual of the peaceful enjoyment of his possessions, can that deprivation be said to be "in the public interest"?
/(c/) (c) Would an exercise of such a power be a proportionate response to the perceived problem?
29. 29. Because the Ministry has not explained how this proposed new power can be compatible with the Convention, still less addressed questions such as those identified in the previous paragraph, assessment of the certificate of compliance is not easy. Suffice it to say, however, that given the powers of slaughter which the Ministry already has, I am not at present convinced that the new power is compatible with the Convention.
30. 30. I am, however, clear that it is strongly arguable that the combination of the wide new general power of slaughter and the new power to override a farmer's objections to a cull without the farmer having any practicable opportunity first to present his case to a Court, is not compatible with the Convention. If a wide power of slaughter is enacted there will be an even greater need for the Courts to be able to review the actions of the Ministry, because the capacity for mistake, abuse, or even a disproportionate exercise of the power will be so much greater.
31. 31. There is one further point that I should perhaps mention in the context of the proposed new slaughter power and proportionality. If the Government's desire is to maintain a disease-free zone around an outbreak, the obvious (and significantly cheaper) way to achieve that would be to inoculate all the susceptible animals in the buffer zone against the disease. The Government did indicate earlier in the outbreak that it favoured a policy of vaccination but did not implement that policy for political reasons. It now seems distinctly odd that the Government should be advocating a policy at the other end of the spectrum as a means of combating the disease. When the Government is itself prone to oscillations between such extreme positions within the course of a few months, one would have thought that the mature way to react to the question would not be to rush into legislation, but to wait for an independent enquiry which has heard all the relevant scientific and factual evidence and reported in a dispassionate way.
I am sorry I have written at such length, but I hope the thoughts I have expressed are helpful and at least alert you to some of the legal issues which arise on the two aspects of the Bill I have mentioned.