How might farmers and anyone else go about calling Government to account over the Foot and Mouth crisis?by Philip McGhee, 22, a law student at St Edmund Hall, Oxford. The scholarship is awarded annually by the Lord Chief Justice's former chambers at 1 Crown Office Row, Temple, in association with The Daily Telegraph.
Why call the Government to account? The slaughter during the Foot and Mouth outbreak was unfortunate and distressing for farmers but the loss of livestock did result in compensation - to date £1049m has been paid out. Things, however, are not quite so simple. A farmer whose stock did not contract the disease had to shoulder the extra costs of keeping animals for a prolonged period without the chance to sell at market. The Devon Inquiry called such uncompensated farmers "the forgotten victims".
Those whose livelihoods were dependent on the tourists attracted to the same "closed" countryside that was hit worst by the disease and slaughter found themselves suddenly deprived of income. While periods of grace regarding tax, National Insurance and VAT payments have been granted, individuals in this situation have not received compensation for the losses they sustained. The confusion, contradictory scientific opinion and advice together with heated debate in the media all added fuel to this fire. The end result is widespread anger at the handling of the crisis and a desire to bring Government to account. And people are looking for more than apologies.
Seeking judicial review of Government decisions and policies is one avenue of redress. Broadly, two things must be established: there must be a particular act or decision on which an action can "bite", and a ground of judicial review on which that decision or act can be attacked.
Central to the debate was the decision to hold three separate independent inquiries rather than a full public inquiry. The Government claimed that this would be less costly and take less time; critics claimed that gaps between the mandates of the inquiries would allow evidence and decisions to go free of scrutiny. The rigour of a public inquiry - with its power to compel production of evidence and to call witnesses and oblige them to give evidence on oath - would also be absent. While no legal claim for damages or compensation flows from a public inquiry, both the political pressure it can bring to bear on Government and its cathartic effect on those aggrieved ought not to be underestimated.
There may, therefore, be breach of a legitimate expectation that a public inquiry would be held, which is so unfair as to amount to an abuse of process and so be ultra vires. The Environment Minister, Michael Meacher, announced that "unquestionably, there will be one this time". Following the last major outbreak of the disease in 1967, a public inquiry was held. On a comparable scale, an inquiry was also ordered into the recent BSE crisis.
In the case of R v Secretary of State for Health, ex parte Wagstaff, Lord Justice Kennedy acknowledged some of the benefits of a public inquiry. He also underlined, however, that there must be an unambiguous representation, or a clearly defined practice of holding a public inquiry, to give rise to a legitimate expectation. While no benefit need have been promised, nor any detrimental reliance shown, it is difficult to see how an expectation can be established when it was made clear later by the Secretary of State, Margaret Beckett, that the decision was for the Prime Minister, and that it was always the case - in spite of Mr Meacher's statement - that no public inquiry would be held, with the three inquiries being "more effective and speedier than a lengthy public inquiry". This points away from the required clear and unambiguous representation and suggests that, ultimately, the claim may not be sufficient to make out a legitimate expectation.
The decision to embark on and sustain a policy of mass slaughter in preference to vaccination brings similar issues into play. Scientific advice was given, but such opinion was divided. Claimants may choose to seize on this lack of consensus to argue that the slaughter policy was ultra vires because relevant considerations were not taken into account, or on grounds that there was not sufficient evidence that slaughter was the better policy to pursue. In R v Secretary of State for the Environment, Food and Rural Affairs, ex parte Hughes, however, a "hands off" judicial approach was at work. The court refused the claim, saying that it should be slow to bring a scientific debate into the legal arena and should hesitate to place boundaries around administrative decisions where an authority was faced with a crisis that required urgent action.
Beyond the merits of the slaughter policy, the rigidity of its application has been the source of grievances, not least in Westerhall Farm v Scottish Ministers. In rejecting a claim for review, finding no fetter on discretion, Lord Carloway found "nothing wrong" with a rigid policy. This statement and the result in the case seem to fly in the face of authority that, even with the most inflexible policy, the merits of individual cases should be considered. R v Secretary of State for the Environment, ex parte Brent LBC pointed to the duty always to listen to an individual who "had something new to say". R v Home Secretary, ex parte Pierson held Government policy invalid as an abuse of power, revealing the extent to which the courts have been prepared to pierce the "policy veil" in the past. The deferential approach taken by the court in Hughes and Westerhall seems out of step.
Arguments based on infringements of rights bestowed by the European Convention on Human Rights, incorporated into domestic law by the Human Rights Act 1998, may also be used to call the Government to account. Under Article 1 of the First Protocol, the peaceful enjoyment of possessions is protected. The slaughter policy in particular clearly impinged upon property rights. If claimants can show that the damage or removal of their property was not justified in the public interest, then that Government action will be a breach of their human rights and illegal. This avenue may be particularly useful for those whose livestock was slaughtered under the much-questioned policy of "contiguous" culling. The caveat once again, however, is the public interest exception in Article 1 that may be enough to dispose of a claim.
The courts have quite clearly reacted to protect the State from an opening of the "floodgates". Policy decisions may be scrutinised closely in the context of prisoners" rights (ex parte Pierson), but here the courts appear reluctant to place behaviour outside the protection afforded by the public interest exceptions. Sir Thomas Bingham MR, in R v Ministry of Defence, ex parte Smith, demonstrated the courts' wariness of merits review and reserve regarding decisions with a high policy element when he said "the greater the policy content of the decision, and the more remote the subject matter of the decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational". The policy issues here seem to place the chance of successful judicial review claims in some jeopardy.
If this is the case, a further avenue to explore is action in tort. Action for breach of statutory duty under X v Bedfordshire CC would require an intention to create a private-law cause of action in the relevant legislation, which may be difficult to construct. Osman v UK questioned "blanket immunity" on public policy grounds for authorities in negligence (as a breach of Article 6 ECHR), but subsequent cases such as Z v UK seem to suggest immunity is permissible, so long as the policy is properly scrutinised.
A further, and tempting, avenue is the Parliamentary Commissioner for Administration. Not strictly bringing Government to account on legal grounds perhaps - no formal procedure, no legal sanction - but the possibility of substantial ex gratia payments following a report may be enough to attract claimants' attention. As happened after the Barlow Clowes affair, the Government might escape admission of liability and having to accept any critical findings, but individuals might secure much-needed compensation without cost to themselves. Constituents need only to contact their MP and request that the "Ombudsman" be called upon to investigate a particular decision for maladministration.
The assessment here of the chances of success in claims for judicial review and other actions may err too much on the side of caution. If attention is paid to the actions that have already reached the courts, however, the prospects seem bleak. Ultimately, remedies like the Ombudsman appear more realistic in bringing Government to account on a basic level, securing some remedy for those aggrieved. Uncertainty surrounding legal action centres on the high policy content of the decision-making that is necessarily at the heart of a large-scale nationwide crisis.
How the courts are to deal with this is unclear. Between a rock and a hard place, if they overturn policy they stand accused of usurping Governmental functions; if they stand back, they will be accused of allowing Government power free rein. In essence this is a constitutional debate between the executive and the judiciary that farmers and others will care little about. It might pay not to be too technical with regard to how the remedy comes, so long as it comes.
But no such remedy has come so far - least of all from the judgement in R (Persey) v Secretary of State for the Environment, Food and Rural Affairs, recently handed down from the High Court. It seems that the judiciary feels it has little choice but to let Government off the hook, effectively putting the lid on any further judicial review claims. Lord Justice Simon Brown observes that the handling of the crisis - or at least the decision to hold separate and private inquiries rather than a public inquiry - falls within the bounds of legality, even if it was not necessarily "right". In the face of this powerlessness, the Government is answerable only at the ballot box for the decisions it has taken.
The judges were Robert Seabrook, QC; Philip Havers, QC; and David Foskett, QC, all of 1 Crown Office Row; Prof Dawn Oliver of University College, London; Prof Allan Buckwell, Chief Economist, Country Land and Business Association; and Joshua Rozenberg, Legal Editor, The Daily Telegraph. http://portal.telegraph.co.uk/news/main.jhtml?xml=/news/lawreports/lawrep00.xml&sSheet=/news/lawreports/ixnlaw.html