.           The "Contiguous Cull" - the Smoking Gun

Richard North        27 March 2002
Research Director
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, 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 (Note: See also warmwell page on the unsatisfactory nature of Lord Whitty's replies to Lord Willooughby de Broke's questions on legality)

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
relevant circumstances.

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.  (  Note: See Val Lusmore's evidence to the Inquiries)

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.