Prepared by Simon Leach, of Burges Salmon Solicitors
Tel: 0117 939 2000, Fax: 0117 902 4400; email@burges-salmon.com

        for

British Llama and Alpaca Association (BLAA) and
Campaign Against Unnecessary Slaughter of Alpacas and Llamas (CAUSAL)


FOOT & MOUTH DISEASE  BRIEFING NOTE

PART 1


A.      Legislation


1)      Foot & Mouth Disease Order 1983 (FMD Order)

        Form A  Declaration of an infected place.
        Form B  Withdraws form A.
        Form C  Place of suspected outbreak.
        Form D  Animals exposed to infection.
        Form E  Withdraws form D.

2)      Service of Notices  Animal Health Act 1981 ("the Act")

Service is by hand, by leaving it at the owner's/farmer's home or place of business or by post.

Service of notice is not a pre-requisite to slaughter.  The power to slaughter can be exercised whether or not a notice has been served.

3)      Powers of inspection  FMD Order

The FMD Order includes an express power for a veterinary inspector to enter farms to inspect animals where the veterinary inspector has reasonable grounds to suppose that disease exists or where it is necessary to ascertain whether disease exists.

The vet may examine the animal, take samples and tests.  The owner/farmer must provide reasonable facilities to enable this to take place.

Neither the Act nor the Order state that the vet must be "clean" but he or she must comply with the requirements of any form A or D notice that has been served in respect of the premises.

4)      Slaughter powers  the Act  Schedule 3 paragraph 3

The Minister may slaughter:

        infected animals;
        animals suspected of being infected;
        animals which have been in contact with infected animals; and
        any animals which appear to have been in any way exposed to the infection of the foot and mouth disease.

The Minister does not have to prove that the animals have foot and mouth disease.  Suspicion of infection or suspicion that the animals have in any way been exposed to the infection is sufficient.  Consequently, the owner/farmer is not entitled (under the Act or the Order) to require the Ministry to bloodtest the livestock.

The power to slaughter does not depend upon the Ministry having first served an A or D notice.

5)      The power of entry

There is an express power for the Ministry to enter farm premises to inspect livestock.

There is no express power in the Act for the Ministry to enter farm premises to slaughter livestock with FMD or suspected of having it.  It should be noted, however, that such a power is almost certain to be implied by the Courts.

The Ministry currently accepts that the implied power to enter premises to slaughter livestock does not amount to a power to enter by force in circumstances where the farmer is opposed to that entry.

Where entry is opposed by the farmer the Ministry may seek a Court Order to enter.  If the Ministry obtain a Court Order the owner/farmer may have to pay the Ministry's costs of those proceedings.  If entry is opposed we strongly advise that the owner/farmer should seek legal advice.

6)      Enforcement and offences  the Act

It is an arrestable offence to:

        obstruct or impede; or
        assist in the obstruction

of a constable/Ministry inspector in the execution of his duties under the Act or FMD Order.
Breach of the Act or FMD Order is a summary offence punishable by fine.  For a second or subsequent offence, a prison term not exceeding one month may be imposed in lieu of a fine.

7)      Policy

On the basis of epidemiological advice, a three stage policy has been developed as follows:

First stage:

        All susceptible animals on infected premises are culled within 24 hours of a report of infection, starting with the infected animals.

Second stage:

        All sheep and pigs on contiguous farms are culled within 48 hours of confirmation of the infection subject to the possibility of limited exceptions based on risk assessment [our emphasis].  Cattle on contiguous premises will be monitored and not automatically culled. 

        Note:   There is no express reference to camelids as exceptions.  Therefore MAFF may well take as its starting point that camelids are susceptible animals and the case for an exception will have to be made out either generally or on a case by case basis.

Third stage:

        All sheep and pigs in a three kilometre zone around infected premises in the Solway area of Dumfries and Galloway and in the Penrith area of Cumbria to be culled as soon as possible.

        NB:  the three kilometre zone does not operate outside the areas in the counties referred to above.

8)      Resisting the cull

Each case will turn on its own facts and this note is not a substitute for taking advice in an individual case.

If on the facts of a particular case, the owner/farmer believes his livestock have not been exposed to infection, he should make representations (both oral and written) to the Divisional Veterinary Manager.

Relevant facts will include (but are not limited to) the following:

        The low susceptibility of camelids to FMD and the very low or no risk of camelids as carriers of FMD;   [please see the separate sheet summarising the main points on this]

        Whether the farm is contiguous to infected premises;

        The distance between the livestock units on the two farms;

        Whether livestock are housed;

        Whether there has been any contact within infected animals;

        The time that has elapsed since infection;

        Bio-security measures taken by the farmer;

        Prevailing winds;

        Whether the livestock are pedigree or from a rare breed.

The owner/farmer should consider inviting the Ministry to undertake serological testing for both virus and antibodies.

NB      Slaughter should only be resisted where there are good reasons to believe that the livestock have not been exposed to infection. Where animals are incubating the disease the scientists suggest that it is not possible to undertake tests to confirm that those animals have been exposed to the virus.  If infected, however, the animals will start to excrete the virus several days before clinical signs appear.  If the animals are found to be infected, sheep and pigs on adjoining farms may be subject to the contiguous cull and cattle will be monitored.

9)      Disclaimer

This briefing note is intended for use by British Camelids Ltd and Mary Marshall.  It may not be relied upon by any other party.  Each case will turn on its own facts and this note is not, and is not intended to be, a substitute for taking advice in an individual case.

 

Prepared by Simon Leach, of Burges Salmon Solicitors
Tel: 0117 939 2000, Fax: 0117 902 4400; email@burges-salmon.com

        for

British Llama and Alpaca Association (BLAA) and
Campaign Against Unnecessary Slaughter of Alpacas and Llamas (CAUSAL)


FOOT & MOUTH DISEASE  BRIEFING NOTE

PART 2


1)      Can MAFF enter property at any time or only at reasonable times and if so, what would be considered as reasonable times?

Under the Animal Health Act 1981, and the Foot and Mouth Disease Order 1983, in theory, MAFF can enter the property at any time. 

In practice, they are entering during daylight hours.  Owners cannot assume that reasonable times means 9.00am - 5.00pm.  It could be early morning, e.g. 8.00am or late afternoon/early evening, 7.00pm  8.00pm

2)      Can entry be gained if the owner or a representative of the owner is not present to give permission? 

Again, in theory, the answer is yes.

Under the Act MAFF have a power of entry although as explained in Part 1 above, they interpret that as meaning they do not have the power of forcible entry.  If the owner or an authorised representative of the owner opposes entry, then MAFF should not enter.

3)      What documentation should be presented to those in charge of the animals?

It is likely that MAFF Inspectors, Trading Standards representatives, will be carrying proof of identification but that is not a legal requirement under the Animal Health Act.

4)      In what circumstances can entry be refused, and what sections of the Act (the Acts)/ Regulations should be quoted?

Entry can be refused in all circumstances and as we understand MAFF policy, if an owner refuses entry, officials are advised to withdraw and MAFF will then consider seeking an injunction to gain entry to the premises.  The owner is not obliged to give reasons for refusal.

5)      Does MAFF have to be able to prove that stock is infected before issuing instructions to cull?  (Is visual inspection sufficient, or can the owner demand a blood test, and a consequent delay to wait for results before cull?)

i)      MAFF does not have to be able to prove that stock is infected before exercising the discretion to cull the livestock.  The Minister can slaughter on suspicion of the animals being infected with foot and mouth disease and "which appear to the Minister to have been in any way exposed to the infection of foot and mouth disease".  This is wide enough to cover the period when the animals are incubating the virus (at that stage, blood tests will not help).

ii)     The Minister's conclusion on whether or not animals "have been in any way exposed to the infection" is based on veterinary and epidemiological advice.  Details of the existing policy are set out in Part 1 of the Briefing Note.

iii)    Visual inspection can be sufficient.

iv)     The owner does not have the right to demand a blood test.

v)      MAFF could ask the owner of a camelid to prove that it is not infected. 

Under the current policy in Cumbria (which is based on veterinary/epidemiological advice), where there is a cull of sheep within 3 kilometres of an infected premises, if the owner objects to the cull, the owner has an opportunity to have serological testing and make representations to MAFF with reasons why the stock should be exempted from the cull.

6)      Must MAFF obtain the owner's consent in writing before culling?  Is there a standard consent form? 

No, MAFF does not need to obtain consent in writing before culling and we have not seen any standard consent form.

7)      What is the position of an owner who refuses to accept the culling of a camelid before the result of a blood test have been received?

In this situation, MAFF may decide to apply to the court for an injunction allowing them to enter the land to cull the camelid.  Although the Animal Health Act does give MAFF the power of entry, they do not regard it as a power of forcible entry.

8)      Would such a refusal have any effect on compensation terms?

No  it is clear from the Act that compensation goes hand in hand with slaughter.

9)      If at some later date the animals were to become infected, would the initial refusal have any effect on compensation terms?

No, for the reasons given in 8 above.

10)     How can an owner ensure that attending MAFF staff including vets will not bring infection onto the premises?  As part of this:

i)      Can they demand a certificate of cleanness?

ii)     How would cleanness be defined?

iii)    Have owners the right to insist that MAFF staff wear surgical masks, surgical gloves etc if they need to examine the mouths of animals?

iv)     Can an owner insist that he/she opens the mouths of Camelids so that the vet only has visually to examine the animal, hence avoiding the need for physical contact?

There is nothing within the Animal Health Act that provides for any of this as a matter of law.  There is no right to demand a certificate of cleanness or to insist that MAFF staff wear surgical masks, gloves etc. 

This needs to be approached in a practical manner.  Vets may well accept constructive suggestions from owners  for example, the owners should open the mouths of the camelids or pick up feet.  However, the owner does not have the right to insist on this and the MAFF Inspectors do have a power to inspect the animals and take samples under the Foot and Mouth Disease Order 1983.

11)     If blood samples are taken, is the owner entitled to have an independent test carried out?

Again, there is nothing in the Act which entitles the owner to ask for an independent test.

In practical terms, the owner can ask the vet for further samples which the owner can have tested.

12)     If so, where can they obtain details of laboratories willing and able to carry out such tests?

At the moment, no laboratories in the UK save for Pirbright are testing blood samples.

13)     If the test is positive, has the owner the right to a second test before a cull is carried out? 

The owner has no right to a second test.  The owner can ask for a second test but in the absence of any evidence to suggest that there is a problem with the first test or it has been carried out inaccurately, MAFF are almost certain to refuse any request for a second test.

14)     Should such tests be repeated after 14 days to ensure that a negative first result is still negative after a reasonable period for incubation?

Again, there is no right to have such tests repeated, although MAFF may want to carry out further tests as part of any monitoring and testing procedure that they adopt.  This needs to be discussed with the vet(s) concerned.

15)     Does MAFF have a duty to make the results of such tests available to owners or the owners' vet including the type (name) of the test done and the laboratory involved?

Again, MAFF does not have a duty as such under the Act but in practice, owners will be told of the results and if the owner asks, will probably tell you the type of test done.  The laboratory involved will be Pirbright.

16)     As there are several tests available, can an owner insist that additional tests are used if the MAFF standard test shows a positive result?

No, the owner cannot insist that additional tests be used if the MAFF standard test shows a positive result.  The owner can suggest an additional or alternative test but if MAFF says the result is positive, the owner can expect MAFF to proceed on the basis of that test.

17)     Do these tests have to be identical with those used by MAFF or can other internationally accepted tests be used, e.g. if an ELISA test is positive, can the owner ask for a confirmatory glutenation test?  Can a test kit (administered by a vet) be used on the farm?

In part, see the answer on 16 above.  Although a test kit could be used, it is again important to understand the width of the discretion that the Minister has.  One comes back to the words "in any way have been exposed to the virus".  While the animal is incubating the virus, test kits will not tell you if the animal has FMD.

18)     Can an owner of non infected stock ask for individual risk assessment and can the owner challenge any apparent unreasonableness in such an assessment?

Yes, the owner can ask for an individual risk assessment and in practice that is what happens.  If the owner thinks there is any apparent unreasonableness in such an assessment, then the owner is entitled to make further representations to the Divisional Veterinary Manager at the MAFF Regional Office.  If they are not successful, then the owner is left with refusing consent to entry on the farm or a challenge through the Courts.

19)     Does the existence of antibodies where there are no clinical signs prove the need for culling?

As we understand existing MAFF policy, (which is again based on the scientific advice they have received as to the circumstances in which animals may have been exposed to the virus) MAFF's answer is yes.  This is an area of some doubt and the owner should ask for scientific evidence to support any decision to cull where antibodies are detected rather than the virus.  In summary, the owner would then be left to argue there were no good veterinary reasons for culling and that issue will turn on expert evidence.  However, if the animal has antibodies, MAFF will argue that it has been exposed.

20)     Should all camelids on the premises be tested?  If some are tested positive and some negative, are there any grounds for seeking to exempt the negative ones from slaughter until a second test has been taken say 14 days later?

The arguments for exempting the negative ones from slaughter would be scientific and based on the low susceptibility of camelids to FMD and perhaps more importantly, to their extremely low risk/risk free status as carriers.  However, the argument that MAFF are likely to mount in response is to say that those camelids that tested negative are likely to have been exposed to infection.

21)     Would it help if the animals could be kept in separate batches in separate areas of the farm?

This may assist in certain cases.  It is not possible to give a blanket answer to this question.  It will depend on the facts of each case, the numbers of camelids exposed or not as the case may be, and importantly, what facilities are available on the farm, such as sheds, barns etc and the size of the farm etc.

22)     In cases where MAFF agree to quarantine the camelids, what facilities can they reasonably demand and for what period?

Again, it will be a question of fact and degree and looked at on the individual circumstances of each case.  It would also depend on location and whether or not there are other neighbouring farms.  Again, the scientific evidence as to low susceptibility to FMD and low risk/risk free status as carriers will be crucial.



In an emergency situation
the CAUSAL solicitors will take on individual cases
for a fixed charge of £200.
Contact Simon Leach at
Burges Salmon Solicitors, tel: 0117 939 2000