Department for Environment
Food and Rural Affairs
UK RURAL BUSINESS CAMPAIGN
1. As you are aware, we act for the UK Rural Business Campaign, a nationwide association of businesses which have been adversely affected by the recent foot-and-mouth ("FM") outbreak. These businesses have all suffered loss as a direct result of the outbreak.
A. The UK Rural Business Campaign
2. The businesses span both those associated with agriculture and those associated with tourism. They range from farmers whose animal movements were prevented, but who did not receive compensation because their animals were not slaughtered, to suppliers of animal foodstuffs and agricultural equipment on the one hand, to hotels, public houses and providers of recreational and holiday activities on the other. They include small business and very large businesses; relatively modest losses and very substantial losses. They include tales of great hardship suffered as a result of the epidemic of FM. Some of our clients are widows whose husbands paid the ultimate price by taking their own lives in the face of disaster. Some businesses have survived, but at a great cost; others have not. Although the disease has now been eradicated, its scars remain - no longer on the animals, but on the lives and livelihood of thousands of people. It is these people who have felt constrained to join together to form the UK Rural Business Campaign.
B. Areas of inquiry
3. We have been carrying out extensive investigations into the outbreak of the disease. The evidence we have gathered to date relates to two specific matters: failures on the part of MAFF and/or DEFRA (hereafter referred to as the "Department" - which is to include the relevant departments in Scotland and Wales)to investigate and/or recognise the incidence of the disease in the country despite several opportunities to do so prior to the official confirmation on 20th February 2001; and the failure by the Government to stop all movements of animals for some four days after the official confirmation of the outbreak. We deal with each in turn.
C. Increased Risk of Foot and Mouth
4. As to the former, this must be viewed against the background of a real risk of an outbreak of FM in the UK, as from at least the autumn of 2000. FM was rife in parts of the world and there had been recent outbreaks in certain parts of Europe. Our evidence indicates that the Government appears to have made certain preparations in anticipation of an outbreak. For example, we understand that at the end of November 2000, Mr XXX, a UK timber merchant was telephoned by the Department as to whether he could supply timber if there was an FM outbreak. We also understand that during December 2000 or January 2001 an instruction was sent out by the Department to the Meat Hygiene Service to place itself on a heightened state of alert for FM. (We have information as to other preparations made by the Government which we are still investigating.)
5. It is not clear to us whether these preparations were made pursuant to the existing contingency plan approved by the European Commission by Decision 93/455/EEC or the more recently updated one of July 2000. In either event, such preparations, in our view, evidence the Government's knowledge of an increased risk of the disease reaching the UK and a consequent need for the Department to be on a heightened state of alert to any signs or suspicions of the disease.
D. Missed Opportunities for Detection of the Disease
6. Despite this knowledge and, in any event, the Department missed several opportunities to stop the disease peremptorily at various stages prior to the official confirmation of the outbreak. Mr Jim Scudamore, Chief Veterinary Office of the UK , admitted during an International Conference in December 2001 (as quoted on the DEFRA website) that:
"the disease was present in the country for two to three weeks before it was recognised, and by the time the first case was confirmed it had spread widely throughout the country."
It may well be that the disease was present in the UK even earlier than the time admitted by Mr Scudamore.
7. It now seems fairly clear that the disease first took hold in sheep, although there may have been sporadic incidents of it in other species prior to 19 February 2001 as well. We also know that on 13th February 2001, diseased sheep from Ponteland went to Hexham market where they infected other sheep, thus spreading the disease. Our inquiries have revealed that it was common knowledge in the veterinary and farming communities in January 2001 that there were sheep in various parts of the country which were lame and had sore feet. This was put down to a bacterial infection known as foot rot. More significantly sheep were miscarrying. Such miscarriages, we understand, are a leading indicator of FM. It seems inconceivable that these symptoms were not known to the Department.
8. Yet it appears that, despite the state of heightened alert, any clinical examinations performed by the Department (if such examinations were performed at all) were cursory, and no laboratory tests were carried out to establish whether or not these symptoms were foot rot or FM.
9. Moreover, there was a further opportunity to detect FM in sheep at the point of export. The Department vet has to confirm that he has "examined" the animals which show no sign of disease. In late January and early February 2001, there were traditionally large exports of live lambs to France in preparation for the Muslin festival of Eid held in early March. We have evidence that, after the outbreak of FM had been confirmed in the UK, the French authorities discovered FM antibodies in sheep on a farm in France. These sheep had been shipped out of the UK on 31 January 2001.
10. We deduce from this that, as there was no FM in France, the antibodies could only have come from the UK. Moreover, it is clear that, had the UK authorities carried out any proper examination as they should have done, they, like the French authorities, would have discovered antibodies which would or should have led to further investigation. Instead, it would appear, export certificates were signed without the necessary checks being carried out.
11. We also have evidence that on 6th or 7th February 2001, a female vet working for the Department, who may have been Spanish, suspected and/or diagnosed a case of FM in a pig at the abattoir of XXX Limited in XXX, XXX, but may have been persuaded that it was swine fever or some other disease. In any event, we understand that she ordered all the stock of animals, extending to cattle as well as pigs, to be slaughtered, which order seems inconsistent with swine fever. We are not aware that any tests were carried out to eliminate or confirm FM despite this vet's initial diagnosis.
12. We also refer to the incident concerning Mr XXX in October 2000 to which we have already referred in our letter of 16 April 2002.
E. Events after the Official Confirmation on 20th February 2001
13. FM was first officially diagnosed on 19th February 2001 in pigs at Cheale Meats, Essex and it was officially confirmed the next day. However, it was not until 17:00 hours on 23rd February 2001 that nationwide movement restrictions were imposed. During this four day period the disease was able to spread throughout the country.
14. We refer again to the live lambs being exported to France for Eid. We have evidence from Mr XXX, a farmer and sheep agent in North Wales, that he was in France when he learned of the outbreak of FM in the UK. Realising that the export of animals would be stopped, and that his business would be affected, he contacted the Department officials and advised them to kill all the animals that had been accumulated by agents and dealers at the points of export as there was insufficient feed available for the large numbers of animals assembled. Contrary to this advice, and in total disregard of the effects of their actions, the Department told the dealers to redistribute the sheep among various farmers through the country so that they could be fed. Thus, accordingly this is what happened. Given that some at least of these sheep were likely to have been infected, this action only exacerbated the spread of the disease at a time when all possible precautions should have been taken.
15. It has always been the Government's case that the source of the epidemic was an infected pig at a farm run by Mr XXX. If this was the case, which is not accepted, it is surprising to say the least, that our evidence indicates that the Department permitted the livestock haulier, who had delivered the allegedly infected pigs to Cheale meats, to drive around in the same van which allegedly transported those infected animals without the van being ordered to be disinfected. In so doing animals were transported around the country in an infected van presumably spreading the disease.
16. Article 1 of Commission Decision 2001/145/EC of 21st February 2001, provides provided as follows:
"Without prejudice to the measures taken by the United Kingdom within the framework of Council Directive 85/511/EEC, the United Kingdom shall ensure that:
1. no live animals of the bovine, caprine and porcine species and other biungulates move between those parts of its territory listed in Annex I and Annex II;
2. no live animals of the bovine, ovine, caprine and porcine species and other biungulates sent from or through those parts of its territory listed in Annex I and Annex II to other parts of the Community.
Derogating from the provisions in the first paragraph the competent authorities may authorise the direct and uninterrupted transit of biungulate animals through the areas listed in Annex I and Annex II on main roads and railway lines."
Both Annex I and Annex II refer to the United Kingdom.
17. In our view, subject to the derogation from Article 1(2) provided, Article 1 (1) immediately prohibited the movement of live animals within the UK as well as imposing the prohibition on exports to other parts of the Community (Article 1(2)). Contrary to this Community Decision, and unlawfully, the Government appear not to have imposed such a restriction on movement for a period of a further forty-eight hours, during which time the disease was free to spread through the UK.
F. The Claims
18. It is self-evident that FM is a highly infectious disease. It is for this reason that there exist provisions of both European and national law to ensure its early detection and to control any known outbreak. In the European context, we refer in particular to the obligation on Member States to notify both the Commission and other Member States of confirmed cases of the disease within 24 hours (Article 3 of Council Directive 82/894/EEC); to Council Directive 85/511/EEC setting out minimum Community controls to be applied in the event of outbreaks or suspected cases of FM; and to the obligations to make checks at the place of despatch to another Member State pursuant to Council Directive 90/425/EEC. At national level we refer to the implementation of these provisions in the Foot-and-Mouth Disease Order 1983, the Animal Health Act 1981 and the Animals and Animal Products (Import and Export) (England and Wales) Regulations 2000.
19. We do not propose to lengthen this letter with a detailed citation of the relevant provisions. Suffice it to say that there exist under both national and European law clear obligations on Government inspectors:-
19.1 to ascertain whether or not the disease exists with all reasonable speed where the veterinary inspector has received information or has reasonable grounds for suspicion of the disease, such reasonable suspicion including a clinical examination of the animal in question;
19.2 where he has reasonable cause to suspect the disease to prohibit the export of the animal; and
19.3 to inspect the animals for FM at other venues such as abattoirs.
20. Such matters are not discretionary, but mandatory and operational obligations.
21. The evidence that our clients have uncovered so far indicates that the Department were negligent in relation to both the detection and also the control of the disease. Their failures set out above amount also to breaches of statutory duty, breaches of European law and of Article 1 of Protocol 1 of the ECHR. More particularly, it is likely that the above failures are indicative of misfeasance in public office.
22. The reality is that the Department ignored obvious signs of the disease prior to the official confirmation of it. Had they not done so, the disease could have been prevented or at least contained as it was in France. Moreover, even when it was detected, the dilatory response to the outbreak in failing to stop animal movements for four days very considerably widened the spread of the disease. As a result, many more farmers and other businesses incurred unnecessary loss.
23. In the light of the above, we notify you that, in the absence of any adequate offer of compensation by the Government, it is our intention to issue proceedings on behalf of our clients and to seek both a group litigation order pursuant to CPR Part 19 and pre-action disclosure pursuant to CPR Part 31.16.
G. Pre-Action Disclosure
24. Our inquiries are, of course, continuing but, in the spirit of the CPR and in an endeavour to resolve the matter and save costs, we write at this juncture to seek pre-action disclosure from you directly. As you will see, we have defined the issues narrowly, but certain documents are clearly relevant. We are not seeking general disclosure of how the outbreak was handled, but limit our request to the period before the outbreak and the first four days thereafter. We now set out those documents which we seek from you (including, where appropriate the relevant departments in Scotland and Wales):-
24.1 The original and any subsequent contingency plan(s) in place prior to 24th February 2001, including the revised plan of July 2000, and all documents and internal memoranda relating to the reasons for the revision in July 2000.
24.2 The instruction sent by the Department to the Meat Hygiene Service in December 2000 or January 2001.
24.3 All documents and internal memoranda relating to preparations, both internally and with third parties, to take effect in the event of an outbreak of FM, made between July 2000 and 20th February 2001.
24.4 All documents and internal memoranda relating to any communication of an increased risk of FM from the Department to government inspectors or other vets or similar officials working for or on behalf of the Department.
24.5 All reports made by the Department Inspectors in January and February 2001 relating to the abattoir of XXX in Staffordshire.
24.6 Any internal memoranda or documents or reports, including export health certificates and reports from abattoirs made by inspectors, veterinary staff or others, including members of the public, relating to suspicious, reported or other alleged incidents of reportable disease in cattle, pigs or sheep in the period July 2000 to 20th February 2001, including that of Mr XXX referred to above.
24.7 All documents relating to the re-distribution of sheep from points of export between 19th February and 23rd February 2001.
24.8 All documents and internal memoranda relating to the decision not to stop the movement of live animals until 23rd February 2001.
We should be grateful for an indication as to your willingness to disclose these documents within the next 14 days, although we appreciate that assuming you do agree to their disclosure, you may need some more time to actually produce the documents.
Copies of this letter are being sent to the Welsh and Scottish Assemblies by way of demand to them too.