We would be grateful for your consideration of the following.
It is our contention that the proposed changes to the Animal Health Bill are neither a proportionate or rational response to the perceived risks of onward transmission of the cited diseases. We believe the powers vested in this legislation far exceeds the measures necessary to control such diseases. We submit the Amendments should be rejected on the following grounds:
PREMATURITY
Until the outcome of the three planned inquiries into FMD have been determined such legislation is premature.
In particular, the Royal Society Inquiry, in its Call for Detailed Evidence, has specifically sought to address such issues as; how the disease was spread, how good were the models in predicting the spread of the disease, how reliable were the adopted diagnostic practices in identifying the presence of the disease and, most importantly, ‘how effective is culling?’ to control the disease.
Furthermore, the Royal Society Inquiry addresses whether current control methods are compatible with modern ethical views and the prevailing socio-economic climate.
Of great importance, in relation to the proposed amendments, is the fact that the Royal Society is also addressing the alternatives to culling as a means of controlling the disease.
Given that the proposed legislation provides even greater powers to the Ministry for slaughter without demonstrated justification, to adopt this legislation before the findings of the Royal Society Inquiry is not only premature, but pre-empts the purpose, validity and function of the Inquiry.
To progress this legislation, prior to the findings of the Inquiry, could also result in many legal challenges, if it is demonstrated that the provisions of the Bill are not commensurate with either the risk of disease spread or alternative control measures. Such outcomes could well be the findings of the RS Inquiry.
LACK OF JUSTIFICATION
The justification for the Ministry to require additional powers to direct slaughter has not been proven.
As detailed in our previous submission, none of the Contiguous Culls, with which we were involved in opposing, resulted in positive cases of FMD.
Unless and until the results of laboratory tests on Infected Premises and Affected Premises are published, Ministers’ statements, that those who opposed contiguous culls caused the disease to spread, cannot be accepted.
If claims are to be made, for example by the Minister in the House at the 2nd reading, that in the Brecon Beacons delaying the cull caused the disease to spread, then the lab test results of the IP's and the Contiguous culls must be made available.
There needs to be precision as to which premises, what infection and what opposition is being prayed in aid of this contention. It needs to be demonstrated where the disease was present and whether delaying the cull was the reason for the spread – or whether the disease was spread by other agents, if at all, or whether it had already been transmitted.
It is our understanding that, of the 118 Infected Premises in Wales, 41 farms showed negative results on laboratory testing. Also, we understand that not all of the remaining 77 farms were lab tested. Given that clinical diagnosis in sheep cannot be relied on the incidence of the disease may have been even less than the figures indicate.
Furthermore, the Infected Premises in Wales resulted in a further 493 farms being slaughtered, and again no lab test results have been made available to determine whether any of these farms had the disease and if it was necessary for them to be slaughtered.
It should be noted that we understand the laboratory testing at Pirbright would have detected the disease if it was present. As detailed by Paul Kitching – former head of Pirbright Animal Health Institute.
Until this evidence has been produced it would wrong to base this draconian legislation on an unpublished, unproven and untested rationale.
EXISTING LEGISLATIVE POWERS
Without hard evidence to substantiate the need for the proposed legislation there can be little justification for the Government to seek additional powers to direct slaughter.
During the 2001 UK FMD epidemic the existing legislation provided a means of directing slaughter which, for those who firmly believed their animals to be healthy, took immense courage and application to oppose.
Those that did so did not undertake the matter lightly and the trauma and stress which it caused them cannot be overstated. So many appeals did not result in court cases, as in many cases a risk assessment demonstrated that the likelihood of the disease being present did not exist and the Ministry dropped the case.
Where appeals did proceed to the Courts it appears that overall there was a 50:50 chance that the Judiciary tended to view the Government’s behaviour was reasonable in the circumstances, those circumstances being one of emergency.*
Ref: Barbara Jordan, Solicitor, Ross on Wye and Bristol – who advised clients in the Forest of Dean cases – view of those cases taken to court throughout the UK.
What is important to note is that many of the Contiguous culls were directed long after any incubation period and when it was quite clear that animals had not contracted FMD – hence the owner’s belief that their animals were healthy.
To quote Mrs Jordan
"There was certainly no national experience by animal owners that Courts were likely to support them in the face of what the Government characterised as Foot & Mouth emergency. This being the case, the recent experience makes it very difficult to see why the Government should need to take to itself yet further powers enabling it to interfere with farming and cull animals."
Without clear evidence to the contrary and given that current measures provided the means to challenge opposition, as and when necessary, there can be no need to further extend existing legislative powers.
WERE THESE AMENDMENTS DRAWN UP TO DEAL WITH BSE IN SHEEP?
We call upon the Standing Committee to determine whether these measures were prepared when it was considered that BSE may have moved into the sheep population.
It would appear that the legislation was being drawn up while the experiments to detect BSE prion in sheep brains was being undertaken. Given that those experiments have now been discounted, due to lack of experimental protocol in their execution, and it has became apparent that the material under investigation may have been contaminated with cattle material, the need for this legislation is premature.
In addition it will be a significant period of time before the results of further research and investigations are known and there is still a great deal of work to be done in this regard.
At the current time there is no evidence to suggest that BSE is present in the sheep population and therefore there is no need for speculative legislation now. In the event that BSE is later demonstrated to be present in the sheep flock then legislation should be introduced at that stage and detailed to respond to the level of risk it poses.
IS THE PROPOSED LEGISLATION PROPORTIONATE, RATIONAL & REASONABLE ?
We submit that for legislation to be effective it must be proportionate, rational and reasonable. It is our contention that the risks posed do not require the draconian measures now proposed, nor do they constitute a proportionate, rational or reasonable response.
Furthermore, at a time when there is a manifest lack of trust between many farmers and the Ministry as a result of BSE, FMD and other contributory factors, it is vital that the Government ensures that any legislation is seen to meet these criteria.
There is considerable unease that the Ministry has not acted responsibly or reasonably in exercising its existing powers. The manner in which it undertook some of the veterinary inspections and culls has given rise to immense distrust and concern. There were many witnessed accounts that the existing legislation was enforced with unnecessary, threatening and intimidating force. Indeed in the Forest of Dean we have video footage which clearly demonstrates this.
The additional powers of access, and those granted to the Minister to cull "whether or not those animals are affected or suspected of being affected with Foot and Mouth, whether or not they have been in contact with affected animals or whether or not they have been exposed to infection and also cases where animals have been vaccinated.", far exceed the measures needed to control the disease.
Without scientific justification, referring to published papers and scientific information, there is no clear rationale for this legislation.
It appears that it is only necessary for the Minister to ‘think’ the animal has been exposed to the disease to direct slaughter. (See explanatory notes to AH Bill – Point 10)
It would seem incumbent on natural justice to ensure that in ‘thinking’ that an animal has been exposed to disease there must be grounds to support this ‘thought’. The decision must still be capable of being demonstrated as proportionate, rational and reasonable.
To establish a precedent in legislation that it is only that a Minister ‘thinks’ something which then gives legitimacy to act appears to run counter to any concept of natural justice or the test of reasonability.
CONCLUSIONS
We call upon the Standing Committee to urge the Government to drop this legislation.
It is premature and pre-empts the appointed Inquiries into FMD, particularly the Royal Society Inquiry.
There has been no firm evidence produced to substantiate the claim that opposition to cull caused the disease to spread.
Similarly, there has been no scientific evidence produced that such measures are a necessary and legitimate means of controlling the disease. In fact the contrary would appear to be the case, in that many of the Infected Premises are not proven to have had the disease and also resulted in many other farms being slaughtered unnecessarily.
The legislation appears to have been prepared to deal with the situation of BSE in the sheep flock. This is a scenario which has not developed and thus such legislation is not required at this time.
Finally, the provisions of the Amendments are not a rational, proportionate, reasonable response as a means of controlling the disease, The foundation of the legislation based on a Ministers ‘thoughts’ without any need to substantiate this ‘thought’ is neither credible or tenable.
In view of the foregoing observations this legislation should be rejected.
Yours sincerely
Janet Bayley
On behalf of National Foot & Mouth Group
Peter Woods
On behalf of Vets for Vaccination
21 NOVEMBER 2001
