April 21 ~ Warmwell asks, how on earth can Lord Whitty still make out that the contiguous cull was legal? Testily repeating over and over again that it was, does not make it legal.
The "we won Winslade" argument is fatally flawed. Lord Whitty in Wednesday's Livestock debate 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 that so impressed Lord Justice Harrison in the Grunty 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.The Winslade case lasted a matter of hours. The Grunty case lasted the best part of 2 days.
In a letter that has been on this website since last July, Stephen Smith QC, pointed out in paragraph 25: "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) 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.
(a reminder of what that judgement did to the family)
3 km culls
There is no power in the 1981 Act to create a 'firebreak'. The Ministry has power to slaughter only when it (reasonably) believes that the animal in question has been exposed to the fmd infection. The Ministry cannot slaughter just because it considers it would be in the best interests of animals further away if an animal-free corridor were created around an IP.
. 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.
Sunday Telegraph (april 21 2002) Booker's notebook:
Last week I challenged agriculture minister Lord Whitty's claim to MEPs that the controversial 'contiguous cull', under which millions of healthy animals were killed during last year's foot-and-mouth catatstrophe, had been upheld by the courts. On Wednesday three peers, Lord Monro of Langholm, Lord Onslow and the Countess of Mar, asked Whitty to substantiate his claim. His reply was that the cull was upheld in two cases known as Winslade and Westerhall. "The legality of the cull is not in doubt". When I read this to a senior lawyer involved in the battle over the cull, he was incredulous (his exact word was 'b******s!"). Although the government won those cases, they were resolved on individual circumstances. In no way did they approve the cull in principle. The nearest thing to a legal test was the case of 'Grunty the pig' last June, when Mr Justice Harrison ruled in the High Court that the government had no power to impose a "blanket slaughter policy" and that, under the Animal Health Act 1981, each case must be assessed individually. In other words, wherever the government slaughtered on general principle it was acting illegally. Lord Whitty thus misled not only the European Parliament but also our own.
This strangely casual approach to the truth shown by our agriculture ministers was further illustrated by a saga which began last November when Margaret Beckett based the case for her new Animal Health Bill on a claim that 55 farms around Thirsk had resisted the ministry slaughter policy, 29 of their appeals had been upheld, yet nine were later found to have foot-and-mouth. Following pressure from Lord Jopling, Lord Whitty admitted on December 20 that these figures had been applied to Thirsk in error. They related to the whole of North Yorkshire. In a letter to Jopling on January 10 Elliot Morley further corrected the figures, admitting there had been only 16 appeals from Thirsk and only two farms found infected; and Lord Whitty grudgingly conceded on the floor of the House that the Thirsk farmers had been maligned. Yet, when appearing two weeks ago before MEPs, he without a blush repeated much the same figures for which he had earlier apologised, claiming that in the Thirsk area 27 appeals had been upheld and seven farms found infected. Again he must have hoped that if he repeated his untruths, no one would notice. It is getting rather a habit.