The Fifth Report of the Public Accounts Committee (external link)

Appendix 1

http://www.publications.parliament.uk/pa/cm200203/cmselect/cmpubacc/487/2070316.htm

Supplementary memorandum submitted by the Department for Environment, Food and Rural Affairs

Question 70: The first mark in paragraph 4.31, "Although 14,000 were accepted, over 3,000 applications . . . were either rejected . . . or later withdrawn". I am presuming in this that a large proportion of these were effectively fraudulent. . . . Can you tell me whether or not any of these farmers who have sought to abuse the system by making false or exaggerated claims have been charged, prosecuted or had any other action taken against them for this particular area?

LIVESTOCK WELFARE (DISPOSAL) SCHEME

  1.  The Livestock Welfare (Disposal) Scheme was a voluntary scheme and producers were free to withdraw animals from it right up to the time of collection without penalty and without being required to give a reason. This flexibility was necessary to ensure that producers were able to take advantage of the increased opportunities for animal movements and marketing as these became available. Investigation of withdrawn applications was not considered a worthwhile investment of resource during the FMD crisis particularly since no payments had been made to the producers concerned. Efforts were rather concentrated on controlling access to the scheme by tightening eligibility checks from the beginning of May and rejecting those that were found ineligible. Of the rejected applications, none led to a fraud investigation. The 46 fraud investigations initiated on the LW(D)S were in the main pursuant to third party allegations, observations concerning the categorization of animals at collection or on arrival at the abattoir, and other information coming to light after slaughter and payment.

  2.  The present position on the outstanding investigations referred to in paragraphs 4.79 and 4.80 of the NAO Report is that one has been completed resulting in the RPA withholding #810, and in another action has been taken to recover #27,000 (though this is being disputed by the producer). Two further cases are under consideration for recovery action (total #66,000) and one case is still being investigated involving #76,500.

Question 132: Take the #50,000 for a Swaledale ram. Has any work been done in that particular case to see what that particular farmer has done to replace that and what the costs involved in replacing it were?

LIVESTOCK REPLACEMENT ISSUES

  3.  Owners were compensated for the value of the stock that was slaughtered. What the owner does with the compensation is entirely their decision. They are not obliged to restock. Information on price paid for replacement stock can only be obtained from the owner who is not compelled to provide it.

  4.  As the majority of farmers are "starting again" they will not be replacing "like with like"—animals will be at different stages in their production or breeding cycle. Thus restocking costs may have little relevance to the compensation paid. Many would have restocked with core breeding stock which is not traded at most markets and would have been bought privately. For those farmers who have restocked, we cannot specify what replacement prices were as again these can only be obtained from each individual farmer who is not compelled to provide it. Indications are, however, that autumn sheep sales might see higher prices for breeding stock, though it is too early to tell.

  5.  The Swaledale Ram referred to in fig 54 of the NAO Report was compensated at its original purchase price of #50,000.

Questions 147 and 151: So you do not know how many of the 59 farmers who had compensation of over #1 million also had insurance claims and you have not bothered to ask? Do you mean you do not even know and you have not even asked whether they were getting insurance as well as compensation?

ANIMAL DISEASE INSURANCE

  6.  The payment of compensation to farmers for the value (taken to mean market value) of animals compulsorily slaughtered, for the purpose of FMD control, is required by the Animal Health Act 1981. Compensation is payable whether or not the owner has insurance to cover the loss of a slaughtered animal.

  7.  A study carried out for DEFRA by Lorien Consulting[13]has revealed that insurance products on the market complement rather than duplicate statutory compensation. The Lorien study reported:

  8.  DEFRA officials have held a series of discussions with representatives of the insurance industry and have found no instances of policies which cover owners for the capital value of their animals. Such cover would be nugatory, given the Government's obligation to pay compensation. Section 34 (5) of the Animal Health Act 1981 states:

  9.  The Curry Commission recommended that Government investigate ways of sharing the financial risk of animal diseases with industry. The Commission suggested that subsidised insurance schemes, or a joint industry-Government levy scheme, were better than the public purse bearing the whole risk. A working group led by DEFRA and comprising representatives of the livestock and insurance industries held a series of meetings earlier this year. Officials have reported to Ministers and a decision on the way forward will be announced in the Autumn.

  10.  A parallel review is under way on the rates of compensation payment for compulsory slaughter. Any changes to the current system must continue to comply with the Human Rights Act 1998, which incorporates the European Convention of Human Rights into domestic law. In particular, Article 1 of Protocol 1 of the Convention states that:

  "(1)  Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

  (2)  The proceeding provision shall not however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

  The view of DEFRA lawyers is that in most foreseeable circumstances, slaughter of animals under the applicable legislation, for disease control purposes will be considered by the courts to be a deprivation of property, provided for by law. Under the human rights legislation, the payment of compensation will be an important factor in determining whether or not the right balance has been achieved between the rights of the individual, who has been deprived of his property, and the public interest of animal disease control.

  11.  DEFRA does not hold information on whether any of the 59 farmers who received payments of over #1 million had insurance. In view of paragraphs 6-8 above, DEFRA does not consider that it is worthwhile to ask the farmers for this information. However, if the Committee still wishes the Department to obtain this information, we could write to the farmers but we cannot compel them to disclose what insurance they had at the time.

Questions 164-169: Mr Osborne referred to one set of lessons you should have learned from the Northumberland report on the 1967-68 outbreak. . . . That report recommended that senior valuers be appointed to monitor. The Department's standing instructions—instruction not guidance—for veterinary staff envisaged the appointment of senior valuers but in the event no steps were taken by the Department to appoint such valuers until July 2001; that is 33 years later . . . . Why did the Department have it as a standing instruction if it was no use?

APPOINTMENT OF SENIOR VALUERS

  12.  The Northumberland Report refers to senior valuers being appointed within areas to help secure uniformity in valuations. A role for senior valuers outside a disease outbreak was not foreseen, though as the NAO Report states the appointment of senior valuers during an outbreak was envisaged.

  13.  The extent of the 2001 FMD outbreak was such that in many areas the demand for valuers was high. In discussions with the Central Association of Agricultural Valuers it was acknowledged that many valuers would have been used for FMD valuations—identifying suitable, senior valuers would not be straightforward.

  14.  The immediate concerns during the outbreak were to eradicate the disease. Attention was more on simplifying the valuation process rather than adding to it. Standard valuations were introduced and this procedure would have no role for senior/monitor valuers.

  15.  Standard valuations did not provide the solution hoped for by Ministers. Discussions on senior/monitor valuers with CAAV in May/June did not reach a conclusion. The Department approached ADAS in early July and subsequently appointed two ADAS livestock advisers to provide advice on compensation valuations, arbitration cases, "guide" prices and market information.

  16.  The Department is in discussion with the CAAV once more with the aim of setting up arrangements identifying senior valuers and a clear role for them.

  17.  The Department is working with the NAO and the European Commission to review the valuation situation and learn the lessons for improved arrangements for the future.

Questions 196-198: How many deaths in terms of the increase in dioxins in the atmosphere are estimated to have occurred due to you burning all these cattle? What was the increase in dioxin levels in the areas around these pyres? Did it breach acceptable World Health Organisation levels? Can you provide some numbers, either now or in a note, on whether people can safely live round these burning cattle?

DIOXINS FROM PYRES

    There have been a number of Government sponsored reports and other information dealing with emissions of air pollutants arising from pyres and the health impacts of these. Two comprehensive reports entitled `Effects on health of emissions from pyres used for disposal of animals' published 24 April 2001 and `An update on risks to health of emissions from pyres and other methods of burning used for disposal of animals', published 22 November 2001, are available on the Department of Health FMD guidance web pages: www.doh.gov.uk/fmdguidance/

  19.  These reports were produced by a group involving the Department of Health, DEFRA (DETR), the Food Standards Agency, the Environment Agency and AEA Technology. The first of these reports was produced very rapidly, before the results of the measurement campaigns had been analysed and assessed. The second report incorporated these results and assessments. One key fact to emerge was that the first report, which erred on the side of caution, overestimated the emissions of dioxins from pyres by a large amount. Another report of relevance is that published in December 2001 by the Environment Agency entitled `The Environmental Impact of the FMD Outbreak: an Interim Assessment' and available from www.environment-agency.gov.uk

  20.  We would not anticipate any extra deaths from the increased amount of dioxins in the atmosphere from the pyres.

  21.  The Government's independent expert advisory committee, the Committee on the Toxicity of Chemicals in Food, Consumer Products and the Environment (COT) has recommended a Tolerable Daily Intake (TDI) for dioxins of two picograms per kilogram body weight per day.[14] The TDI is the amount of a chemical contaminant which can be taken in daily over a lifetime without appreciable health risk. Assessments by the Department of Health and by the Food Standards Agency indicate that emissions of dioxins from the pyres were unlikely to result in substantial increased intakes of dioxins either by inhalation or from consuming food from areas near the pyres, and that it was unlikely that anyone would have exceeded the TDI for any substantial period as a result of these emissions. Therefore, emissions of dioxins from the pyres are not considered to have posed a risk to health.

  22.  Air quality monitoring has been undertaken by AEA Technology (on behalf of DEFRA) and by the Environment Agency.[15] The primary aim of the monitoring by DEFRA was to determine pollutant concentrations in communities close to the pyres. The monitoring undertaken by the Environment Agency covered both monitoring in communities and in areas closer to the pyres to better assess the overall impact of the pyres on air quality. Air monitoring for dioxins around pyres was carried out in Sennybridge (Powys, Wales), in Galloway, in Holsworthy and Okehampton (Devon).

  23.  The Environment Agency Report of December 2001 concluded that dioxin concentrations were "comparable with background urban quarterly concentrations but much lower when converted to a quarterly average."

  24.  The Department of Health Reports assessed the levels in the vicinity of pyres as follows:

  25.  The Department of Health Report compared these levels with those which have been observed by AEA Technology around the time of Bonfire Night:

  26.  The Food Standards Agency undertook analysis of dioxin concentrations in food, soil, herbage and silage samples taken from farms and food producers close to pyres. They consider that "the available results show that the pyres have posed no additional risk to health through the food supply". "Concentrations of dioxins in all samples of milk analysed are all within the expected range for these foods or comparable with the concentrations in the appropriate food group from the 1997 Total Diet Study." The reports of this work are available on the FSA website (www.food.gov.uk)

  27.  The WHO have recommended a "Tolerable Daily Intake" (TDI) of dioxins of 1-4 picograms per kilogram body weight per day. WHO has not set an air quality guideline for dioxins. Since the TDI is the amount of a chemical contaminant which can be taken in daily over a lifetime without appreciable health risk, it is unlikely that exposure to short-term peaks would lead to any effects when averaged over a lifetime.

  28.  There are two main routes of uptake of dioxins into the body, via inhalation and via food (ingestion). The first Department of Health report in April 2001, based on modelling of the emissions from a "generic pyre" burning 250 cattle equivalents per day, concluded that "the concentrations of dioxins at 2km from the pyre are not predicted to give rise to intakes via inhalation above the TDI for dioxins", and "the additional dietary exposure from the consumption of foods from animals raised in areas affected by dioxins from the pyres is not expected to be associated with adverse effects on health."

  29.  In November 2001, the Committee on Toxicity (COT), which advises the Food Standards Agency and the Department of Health, reduced its recommended TDI to two picograms per kilogram body weight per day. The second Department of Health report on pyres revisited the earlier advice, recognising that in the interim the COT had changed the TDI, and that the monitoring data around the pyres had been assessed leading to the conclusion that the earlier modelling work had significantly overestimated the emissions of dioxins from the pyres. The second Department of Health report concluded "Dioxin levels were overestimated in the previous report but even these overestimated levels were not considered to be of major concern."

  30.  In order to assess the effects on the TDI via ingestion, the Foods Standards Agency took samples of soils, vegetation, and food from around a wide range of pyre sites and at a range of distances from the pyres. A comprehensive description of the process and a detailed presentation of the results are given in the second Department of Health report. The overall conclusion was that "Levels of dioxins in soil, herbage and food were mostly within the expected range and/or similar to levels at control farms."

  31.  Moreover, the report concluded that "the previous recommendation regarding the monitoring of dioxins around large pyres prior to the reintroduction of cattle has been superceded and no longer applies. In the light of the monitoring results on dioxins in milk, the Food Standards Agency has concluded that the precautionary advice issued previously—that people who consume whole milk and whole milk products only from animals within 2km of pyres may wish to vary their diet to include milk and milk products from other sources—is no longer necessary."

  32.  The Department of Health Report also concluded that "Decisions on whether to graze or restock land close to pyre sites should be based on advice on preventing the spread of FMD. The Food Standards Agency has advised that where heavy contamination of land was found restocking or grazing of land should not be carried out. The Agency has not found any evidence of such contamination but have not received all the results from their testing programme. Further guidance will be provided if heavily contaminated land is found."

  33.  The assessment of the likely impacts on public health from dioxins released from the pyres has been given above. In terms of the other pollutants released from the pyres, the Department of Health Reports on Monitoring of Public Health referred to above state that "levels of pollutants were either lower than air quality standards or within the range of urban background levels."

Question 232: Earlier in response to Mr Howarth you were talking about the people who provided services during this outbreak... you did not get the chance to expand about under-invoicing. Could we have note on the amount of under-invoicing which took place?

UNDER-INVOICING BY CONTRACTORS IN THE FMD OUTBREAK

  34.  DEFRA received over 200,000 invoices in connection with FMD. The financial and management accounting systems of many contractors were overwhelmed by the scale of the FMD outbreak and the resultant number of invoices and supporting documentation that those systems were expected to generate. The Department is aware of five cases (although there may be more) where contractors have claimed they have under-invoiced.

  35.  These contractors claim that their financial records indicate (often several months after services have been delivered) that they could or should have charged for services but have in fact not done so. In some of the cases it has been the work of DEFRA's forensic accountants that has identified the apparent under-invoicing. DEFRA's payment policy is to pay contractors the monies legitimately due to them for work commissioned by DEFRA. The claims of any contractor with regard to under-invoicing would be subject to forensic examination by DEFRA's forensic accountants.

  36.  The total value of unpaid disputed invoices relating to FMD is substantial —not less than #70 million. On current knowledge the value of under-invoicing is less than 1% of the monies being withheld from contractors whilst forensic examination of their accounts is concluded.

  37.  In cases where contractors have claimed they have under-invoiced, these claims will be part of the resolution of the overall commercial dispute with the contractors concerned. From information held centrally we are unaware of any cases where under-invoicing is not part of the overall forensic examination and financial reconciliation of the contractor's account.

  38.  DEFRA has no interest in holding back payments legitimately due to contractors. Given the substantial amounts of public money involved and DEFRA's public responsibilities, it is duty-bound to carry out a proper investigation of contractors' accounts with DEFRA before authorising payments. Substantial resources have been committed to carrying out this exercise as quickly as possible.

  39.  It has been and remains DEFRA's intention to ensure that invoices submitted by contractors and suppliers for payment by DEFRA relate to valid work requested by DEFRA to combat the outbreak and are supported by valid supporting evidence. We will continue to facilitate the payment of supplier and contractor invoices based on a clear and complete audit trail.

Question 255: I should like you to write to the Committee about a number of things. The first is illegal imports. I counted 11 areas, there maybe more, a very thorough note on that would be very helpful.

ILLEGAL IMPORTS

  40.  The Government published an action plan on illegal imports on 28 March for 2002-03 following discussions with stakeholders.

  41.  Since May there has been further progress made to implement the plan. Information is also available on the DEFRA Illegal Import website which can also be accessed via the DEFRA home page www.defra.gov.uk

Questions 43, and 258-261: The basis for the contiguous culls, particularly in light of the evidence of Dr Donaldson of the Institute of Animal Health in Pirbright to the EU inquiry where he said that there was no justification. What I want to hear and see there is why he is wrong. Why Professor Roy Anderson in his article in Nature in October 2001 was wrong when he said there were significant biases in the DEFRA contact tracing process. Next, the legal basis for the contiguous culling. There are four parts to that. First the basis in statute law, presumably the Animal Health Act 1981. I have read it and I cannot see a basis but perhaps you could point one out to me. Second, in case law. Here I should like you to examine any cases which are deemed relevant but including a mention please of the West Hall and Linslade cases, and particularly in the light of those two cases an analysis of the scientific evidence which was not available to the court in those cases.... Third, the MAFF versus Upton case, the first case people think was based on full scientific evidence. The point I want you to address here is why it was that after the MAFF versus Upton case, the Government did not seek to test the legality of contiguous culling any further. Fourth, in relation to legal advice, all the legal advice received....Particularly therefore the analysis of the slaughter powers in the new Animal Health Bill. If you had the powers already, why was there a new Animal Health Bill with new slaughter powers?

THE CONTIGUOUS CULL

Development of Policy

  42.  FMD is a highly infectious disease. The strain (pan-Asiatic type O) in this epidemic is particularly virulent. Virus may be excreted by an infected animal before signs of infection (typically lesions around the feet and mouth) develop. There is a massive release as lesions develop and for several days afterwards.

  43.  The key to controlling a highly virulent, highly infectious, short incubation period virus such as the FMD virus is to prevent the virus being excreted by infected animals. Rapid action is required.

  44.  The policy at the beginning of the outbreak was to cull:

  45.  This culling policy was in addition to other measures, including controls on the movement of live and dead animals; controls on the movement of people and objects from IPs and DCs; cleansing and disinfection of people, vehicles and other equipment.

  46.  In mid-March the daily number of new cases was continuing to increase. Epidemiological advice was that the key methods of transmission were through animal, human, mechanical or air borne transfer between neighbouring farms. On the basis of this epidemiological background, it was DEFRA veterinary advice that susceptible animals on farms neighbouring (ie contiguous to) a farm where infection has been confirmed would have been exposed to the infection of FMD. Veterinary advice was that culling susceptible animals on contiguous farms was vital to prevent further onward spread of the disease. Thus, the contiguous cull policy was adopted. In implementing this veterinarians had to be satisfied that premises were, in fact, contiguous (geographical factors such as a significant area of woodland located in the area separating premises, could affect this) and that in implementing general policy, particular animals had, in fact, been exposed to infection.

  47.  In late April and in the light of the developing disease situation, it was possible to introduce further flexibility into the policy and the areas of discretion for local veterinary judgement were broadened. The following exemptions from the contiguous cull were adopted:

  Such livestock would be subject to regular veterinary inspections.

The Scientific, Epidemiological and Veterinary rationale for the Contiguous Cull

  48.  The veterinary justification for the contiguous cull is set out in full at paragraphs 101-115 below. This, as well as the epidemiological and scientific underpinning for the policy is summarised in paragraphs 50-53 below.

The scientific basis

  49.  In mid-March, different modelling groups, including from different University institutions, and the Government's Chief Scientific Adviser all agreed that the number of cases per day would increase unless further action was taken. The veterinary view as informed by epidemiological advice was that susceptible animals on premises contiguous to an IP would have been exposed to infection and posed a serious risk of spreading the disease further. It was necessary to get ahead of the disease: that is to say, to act very pro-actively because livestock shed virus before showing clinical signs.

The veterinary and epidemiological basis

  50.  Pigs are the most infective species due to the large amounts of virus they produce. Virus can then be spread downwind by aerosol dispersal. Cattle and sheep produce similar quantities of virus, though much less than the amount produced by pigs.

  51.  Sheep are a particular problem when infected with FMD. Clinical symptoms of FMD in sheep can be difficult to spot and the infected flock can therefore act as a "virus factory" for a prolonged period of time as the virus moves from sheep to sheep whilst remaining undetected.

  52.  The FMD virus was spread by direct contact between infected and non-infected animals, by air, or in or on materials such as urine, milk, semen, vesicular fluid or faeces which themselves can be found in or on hay, farm equipment, clothes etc and as a result are spread by the movement of animals, people, vehicles and possibly wildlife.

  53.  The epidemiological evidence was that the disease was spreading rapidly, including in the immediate vicinity of IPs by air and by animal and people movements. This led veterinary experts to conclude that premises holding susceptible animals that neighboured an IP had been exposed to the virus. Given that the single most important consideration for effective control and eradication was quick identification and slaughter, it was considered that the cull of animals on contiguous premises should proceed.

Lawfulness of the Contiguous Cull Policy

  54.  The policy of culling animals on holdings contiguous to a site on which FMD had been confirmed was lawful both under UK and EU law.

Legislative framework

  55.  The principal domestic legal instrument governing the eradication and prevention of the spread of animal diseases is the Animal Health Act 1981 ("the Act"). It is under this Act that the Foot-and-Mouth Disease Order (SI 1983 No1950 as amended), has been made. This Order provides specific rules which enable the control of FMD.

  56.  It is through the powers contained in these provisions that the UK is able to give effect to EU requirements for the control of FMD as contained in Council Directive 85/511/EEC, as amended.

Powers of slaughter

  57.  Powers of slaughter for the purposes of disease control are set out in the Act itself and, in the case of FMD, are conferred by section 31 of, and paragraph 3(1) of Schedule 3 to, the Act. These provide as follows:

  3.—(1)  The Minister may, if he thinks fit, in any case cause to be slaughtered:

  58.  Paragraph 3(2) of Schedule 3 to the Act provides for the payment of compensation for animals slaughtered under paragraph 3(1) of that Schedule.

  59.  These slaughter powers were exercised during the FMD outbreak of 2001 as follows.

  60.  First, the Department slaughtered animals which were "affected" with FMD. These were animals which were considered, on clinical examination, to be exhibiting clinical symptoms of the disease, or in relation to which laboratory tests had yielded positive results.

  61.  Animals "suspected of being so affected" with FMD were also culled. These included animals which were slaughtered before the results of the laboratory tests were received but which would have been displaying ante-mortem clinical signs suggestive of FMD. Thus, whether or not "suspect" animals ultimately yielded positive laboratory results, they may be slaughtered pursuant to paragraph 3(1)(a) of Schedule 3 to the Act.

  62.  Animals which were or had been "in the same field, shed or other place or in the same herd or flock, or otherwise in contact with animals affected with Foot-and-Mouth Disease" (dangerous contacts) were also slaughtered, under the provisions of the first limb of paragraph 3(1)(b) above.

Contiguous cull

  63.  The last limb of paragraph 3(1)(b) (the words emboldened in paragraph 57 above) provided the basis for the slaughter of animals under the contiguous cull. This was because veterinary and epidemiological advice (see paragraphs 50-53 above and 101-115 below) was that animals in premises contiguous to infected premises had been exposed to infection and thus needed to be culled in the interests of disease control. Again, the lawfulness of the slaughter of an animal under this power is not affected by a later negative result from a blood test.

  64.  The decision to target animals on contiguous premises was made in the light of the epidemiological evidence that the virus was spreading rapidly, including in the immediate vicinity of infected premises by air, but also by factors such as people and animal movements. It was considered that all premises holding susceptible animals that neighboured (ie were directly contiguous to) infected premises had been exposed to the virus within the meaning of the last limb of paragraph 3(1)(b) of Schedule 3 to the Animal Health Act 1981.

  65.  On 23 March, epidemiological studies by the Imperial College, Edinburgh confirmed that the most important tool in the prevention of the spread of disease was culling within 24 hours from report and confirmation and the second most important intervention was the culling of animals on contiguous premises within 48 hours. These findings were supported by the Chief Scientific Adviser. The single most important consideration for the control and eradication was thus quick identification and slaughter.

  66.  This was the gist of the veterinary/scientific underpinning to the exercise of the slaughter powers under the contiguous cull. The animals were slaughtered because they came within the ambit of paragraph 3(1)(b) as animals which "appeared to the Minister to have been in any way exposed to infection". The Minister had before him expert opinion that animals on premises contiguous to infected premises were exposed to infection, and they were therefore lawfully slaughtered in accordance with the Act. Where animals are slaughtered pursuant to the powers under the Act, the Minister shall pay compensation for those animals under paragraph 3(2) of Schedule 3 to the Act. It follows therefore that the compensation payments were also lawful.

Subsequent negative blood samples

  67.  For animals to be lawfully slaughtered as having been "exposed to infection" within the meaning of the legislation, a subsequent blood sample confirming the existence of old/active infection is unnecessary. It is sufficient that the Minister is of the view that the animals have been exposed to infection for the slaughter powers to be triggered and for these powers to be exercised lawfully. In relation to animals on contiguous premises and basing himself on expert opinion, that was the Minister's view. It is in any event the case that many blood samples from animals on contiguous premises were positive. Furthermore, even where samples delivered negative results, it cannot be assumed in every case that this was confirmation of absence of infection; one significant reason for this kind of result may have been that the sample was taken at a very early stage in the development of disease so that antibodies were not yet detectable.

Lawfulness of the Contiguous Cull under European Community Law

  68.  It has been confirmed by courts in the United Kingdom that the provisions of Council Directive 85/511/EEC, as amended, were not intended to constrain national Governments from taking steps additional to those contained in the Directive where they were deemed necessary to eradicate disease (see Westerhall Farms v Scottish Ministers—judgment of 25 April 2001 and Winslade v MAFF —judgment of 22 May 2001). It follows that as the contiguous cull was considered necessary for the eradication of disease, it is compatible with that Directive. The Commission of the European Communities was at all times aware of the detail of the UK's culling policy and approved of the approach. Indeed, the recitals to the Commission Decision permitting a programme of vaccination in parts of the UK specifically acknowledge the existence in the UK of the contiguous cull policy.

  69.  In Westerhall Farms v Scottish Ministers, the Scottish Court of Session considered an application for interim relief by the owner of a farm seeking judicial review of a decision to slaughter its livestock pursuant to the 3km policy (in relation to which the test for lawful slaughter was also exposure to infection as it was with the contiguous cull). Neither the 3km (or contiguous cull) methods of stamping out are expressly envisaged by the Directive. Nevertheless, the court rejected the argument put forward by the farmer that the Community instrument provided a "comprehensive and exhaustive code limiting what national Governments are entitled to do to prevent the spread of Foot-and-Mouth Disease".

  The judge stated that:

  70.  Very similar arguments in relation to the contiguous cull's compatibility with Community Law were advanced by the defendant in MAFF v Winslade in the English Courts. As in Westerhall Farms v Scottish Ministers, they were rejected, the English judge wholly endorsing the view of the Scottish Court (see paragraph D, page 7 of the judgment in MAFF v Winslade).

Rationale for the Contiguous Cull Policy —implementation in practice and the exercise of discretion

  71.  As can be seen from the section on policy development above and paragraphs 101-115 below, the contiguous cull policy was adopted on the basis that the prevailing scientific and epidemiological view was that in the fast moving disease situation that existed in the early months of the outbreak, culling of animals on all contiguous premises was the most effective way to limit onward spread of FMD and thus to get ahead of the disease.

  72.  This was because the epidemiological evidence available at the time demonstrated that the virus was spreading rapidly including in the immediate vicinity of infected premises. It was considered that all premises holding susceptible animals that "neighboured" (ie were contiguous to) an infected holding had been in some way exposed to infection and thus needed to be slaughtered in accordance with paragraph 3(1)(b) of Schedule 3 to the Animal Health Act 1981.

  73.  This did not mean that the animals on those premises were deemed to have contracted the disease. Indeed, epidemiologists considered that some exposed animals might not go on to develop FMD: the problem was that there was no way of telling which of the animals on the exposed contiguous premises would and which would not. However, by the time an animal has contracted FMD, it is likely that it would have spread the disease to yet more animals. Thus, to minimise the spread of disease it was considered important to cull all exposed animals before they had the opportunity to pass the disease on.

  74.  The policy therefore did not depend on the diagnosis of developed disease but rather, on the identification of exposed animals. Consequently, when the policy was adopted, it was considered of the essence that it be applied quickly and systematically. In the view of the scientists and epidemiologists, the single most important consideration for effective eradication and control was quick identification and slaughter.

  75.  Nevertheless, some areas of the policy inevitably gave rise to issues relating to its application in specific cases. Individual consideration was given to these at a local level. In some cases, for example, this involved a local review of whether premises were, in fact, truly contiguous to an infected holding. This could have arisen, for example, because areas on each of the holdings to which animals had access were separated by a physical obstacle such as woodland, road or railway. In other cases, animals on either or both of the holdings in question had been permanently housed and so the owners of animals on the contiguous holding argued that his particular animals had not been exposed to disease. These matters were reviewed and considered by the veterinarian at local level and in some cases, were also referred to experts at HQ for further consideration.

  76.  From the inception of the contiguous cull policy on the 23 March 2001, it was also the case that representations from farmers on these matters were heard by way of review: in effect, an informal appeal. Nearly all of these were dealt with by the local MAFF Divisional Veterinary Manager but some, again, were referred to HQ for further examination. This demonstrates that whilst disease control considerations required vigorous enforcement of the policy, it was not so rigid that individuals were not afforded the opportunity to argue for an exemption and that such exemptions were granted in appropriate cases.

  77.  In total, there were 584 appeals against slaughter. Five hundred and thirty four of these were either against the 3km or contiguous cull policies. Three hundred and thirty six of the 534 were upheld and 198 rejected. Of the 198, over 50 became potential applications by DEFRA for injunctions as a result of objections by farmers to the contiguous cull and their consequent refusal to allow DEFRA officials entry onto premises for slaughter purposes. Of these, four formally came before the Courts. These were:

  78.  Additionally, there was an application for an injunction in a direct contact (DC) case: MAFF v Upton, and there were two judicial reviews: R v Kindersley ex parte MAFF and Westerhall Farms v Scottish Ministers. In the first case, the applicant sought to challenge the 3km policy but he withdrew before hearing and agreed to pay full legal costs to MAFF. In the second, the petitioner attempted a challenge of the 3km cull in Scotland but failed.

The Case Law

  79.  It is to be noted where an individual is seeking to establish that the Minister is operating an unlawful policy the appropriate vehicle by which to challenge that policy is by way of judicial review. Although it was open to any individual to do so, no judicial review was ever brought against DEFRA challenging the lawfulness of the contiguous cull policy. A single challenge (Kindersley) was mounted in an attempt to overturn DEFRA's 3km policy but this was withdrawn. In Scotland, a judicial review was brought against the 3km cull (Westerhall) but the grounds of challenge advanced by the petitioner (the policy's incompatibility with Community Law and ECHR rights; its over-rigid application in practice and the absence of a hearing and adequate reasons for the decision to cull) were all rejected by the Scottish Court of Session.

  80.  The cases which were decided by the courts in England were not judicial reviews; they were injunction proceedings. These were proceedings commenced by DEFRA in cases where farmers resisted entry by slaughter teams, in which DEFRA sought an order from the High Court compelling the farmer to allow entry for the purpose of giving effect to the contiguous cull.

  81.  As can be seen from the above, the lawfulness of the contiguous cull is dependant on the view of the Minister (as advised by appropriate experts) that animals on contiguous premises have in some way been exposed to infection. The expert view was that they were so exposed. Thus, the policy was lawful. However, it was always the case that individuals could argue for an exception from the application in practice of the policy if they could demonstrate that in their particular circumstances exposure to infection had, exceptionally, not occurred. Of the injunction proceedings relating to the contiguous cull which came before the courts (four in all) the defendant succeeded in resisting the contiguous cull in one case only: MAFF v Willmets. This was because the court found, as a matter of fact, that the premises were not after all contiguous and that a significant period had elapsed from confirmation of disease on the IP in question. In the event, the exemption became academic as the animals on Mr Willmet's farm developed the disease shortly after the court hearing and were quickly slaughtered as "affected" animals.

  82.  If the contiguous cull policy had been unlawful ab initio, all the cases which were heard would have fallen at the very first hurdle on grounds that the policy was outwith the governing statutory powers. The fact that in the cases of Willmets and Upton (the latter in any event being a direct contact (ie a DC) not a contiguous cull case) the defendants succeeded in resisting an injunction on the specific facts of their cases did not mean that the policy was unlawful.

  83.  In Willmets the Willmets premises were found not to be contiguous and since the policy did not extend to those premises the judge refused an injunction. The judge nevertheless endorsed the contiguous cull policy and noted that it would have been plainly satisfied had the Willmets premises been contiguous (p 5 paragraphs B and C of the judgment).

  84.   Upton did not concern the application of the contiguous cull policy but was in fact a dangerous contact case. In that case the judge (p14 of the judgment) specifically confirmed the lawfulness of MAFF's slaughter policy in relation to dangerous contacts. His comments are nevertheless relevant to the lawfulness of the contiguous cull policy as the latter is an off-shoot of the former and both are dependant on exposure to infection as the trigger for the lawful exercise of the slaughter powers under paragraph 3(1) of Schedule 3 to the Act Thus, neither Willmets nor Upton support the proposition that the contiguous cull policy was unlawful.

DEFRA action following MAFF v Upton

  85.  It has been suggested that after the decision in MAFF v Upton "the Government did not seek to test the legality of the [contiguous] cull again".

  86.  In answer to this, it should be noted firstly that the Government has never sought to "test the legality" of the contiguous cull—it is satisfied that it is lawful both under domestic and Community Law. The injunction proceedings referred to in the preceding paragraphs were aimed at compelling resistant farmers to allow DEFRA officials entry to premises for the purposes of conducting that cull. Secondly, it is not correct to suggest that DEFRA desisted from pursuing injunction proceedings after Upton. In fact, there were five injunctions threatened post Upton, two of which concerned contiguous premises. Of the five, four did not need to proceed to formal hearing as the farmers relented and accepted slaughter—these included the two contiguous cull cases. In one case, it was concluded by DEFRA that there was, after all, insufficient evidence to establish direct contact so as to proceed to a cull based on dangerous contact and legal action did not therefore proceed. In the remaining case, the animals in question tested positive whilst the matter was being heard by the court. Slaughter therefore proceeded. Full legal costs were awarded to DEFRA.


13   Lorien Consulting: Statutory Animal Disease Controls-Insurance for Consequential Losses (March 2002). Back

14   1 picogram is 1 X 10 -12 or one million millionth of a gram. Back

15   `Effects on health of emissions from pyres used for disposal of animals' published 24 April 2001; `An update on risks to health of emissions from pyres and other methods of burning used for disposal of animals', published 22 November 2001; and Foot and Mouth Disease: Disposal of Carcasses Programme Report on Results of Monitoring Public Health, published in July, August and November 2001 are available on the Department of Health foot and mouth guidance web pages: http://www.doh.gov.uk/fmdguidance/ Back

 
The relevance of the Donaldson article in the injunction proceedings

  87.  The Donaldson article was published in the Veterinary Record on 12 May 2001. It was seen in draft by DEFRA veterinary experts some weeks previous to publication and the views of Dr Donaldson were put forward at various meetings of the CSA's Science Group when they discussed possible relaxation of the contiguous cull policy. Regard was therefore had to its conclusions by the relevant Government experts as the policy developed. However, Dr Donaldson's report deals, in large part, with only one aspect of FMD transmissibility—airborne spread. In practice the routes of transmissibility and exposure to infection are more varied: direct or indirect mechanical transmission by the movement of people, vehicles, wild animals, equipment, fodder. Thus, in a contiguous cull situation all potential vectors must be regarded as potential conveyors of disease and thus as conduits for exposure to infection of animals on premises bordering an IP, see further paragraphs 101-115 below which deal with the significance of local spread and how it has not been possible to determine the exact mechanisms of local spread.

  88.  It follows therefore that when considering the justification and underpinning of the contiguous cull, Government experts needed to consider all possible routes of transmission including, but not exclusively, the longer distance airborne transmission examined in the Donaldson article. Their decisions in relation to the cull were informed by many sources of information and opinion of which Dr Donaldson's was only one.

  89.  It has been suggested that DEFRA should have made the Donaldson article specifically available to the court in the injunction cases, in particular, in Winslade. As described in the preceding paragraph, the Donaldson article constitutes only a single element in the whole panoply of factors debated and considered by Government experts in formulating the epidemiological justification for the contiguous cull. The epidemiological justification for the contiguous cull policy was set out by the Veterinary Head of MAFF's Exotic Diseases Team who pointed out the many means of spread of the virus over a local area. In addition evidence was given by the local official who dealt with the appeal by Winslade against the decision to cull his animals. The local official carefully considered all the specific points made by Winslade but concluded, largely as a result of the very close proximity of some of Winslade's animals to animals at the neighbouring infected premises, that the cull should proceed. The judge considered that the decision to proceed with the cull was not an unreasonable one on the facts of that case.

  90.  We cannot see that it was appropriate nor necessary in this context for the Donaldson article to be put in evidence, any more than it was appropriate or necessary to put before the court all the vast amount of published literature on FMD or indeed all the individual elements of advice that were considered in the formation and application of Government policy.

  91.  It is the view of the Government experts that in a contiguous cull situation no potential route of transmission can be ruled out. That was their view in all the cases, including Winslade, where on the facts, as with the majority of cases, it was evident that a number of possible vectors, including aerosol transmission over a short distance, could have been implicated in transmission. The statistics set out in paragraphs 95-109 below show just how likely animals on premises a short distance from infected premises were to go down with the disease. The whole purpose of the contiguous cull policy was to cull the animals before they went down with the disease in order to prevent onward spread of the disease. That purpose was well within the scope of the Minister's power under the Animal Health Act.

  92.  In Upton, DEFRA's expert did not consider airborne transmission to be a relevant factor because, on the facts, DEFRA considered there to have been direct contact in this case. The judge, however, found that on the evidence, he was not satisfied that direct contact had occurred and that is why the application for an injunction failed.

The Anderson letter in Nature

  93.  Mr Bacon asked "Why Professor Roy Anderson in his article in Nature of 4 October 2001 was wrong when he said there were significant biases in the DEFRA contact tracing process".

  94.  Computerised models give a broad insight into the disease processes that are taking place on the ground. No computer simulation can model what is actually happening in a disease outbreak with great precision—there are too many variables to take into account. A simulation model of an FMD outbreak therefore can only be a simplistic representation and any model will be subject to variablity and dependant on any assumptions made in determining the parameters used by the modeler in constructing the model. As Anderson says the output of the model described is an estimate and the text refers to a "newly estimated disease kernel". The output from a computer model must be interpreted and a judgment made on its validity given any existing knowledge on the epidemiology of disease.

  95.  The DEFRA contact-tracing process is, however, based on actual events. When disease is confirmed on a farm then the movements of animals, people, vehicles and other things onto or off the premises that may either have introduced disease or may have spread disease are traced. These tracings are based on the factual evidence gleaned on the farm. It is true that not all of the events that may either have brought disease onto the premises or which may have spread disease from the premises will have been observed, reported and therefore investigated. Subsequent analysis of the epidemiological data has shown, however, that 78% of cases occurred within 3km of an existing infected premises. There will always be differences between that which is actually observed and that which a computer simulation predicts.

  96.  The specific comment that "This implies significant biases in the DEFRA contact-tracing process, with closer contacts being more easily identified", does not mean that the computer models used to support the rationale behind the contiguous cull were flawed. The output from the model reported in the Anderson letter continues to support the fundamental premise that the animals at greatest risk of becoming diseased are those in closest proximity to an infected place.

The Animal Health Bill

  97.  It has been suggested that the Animal Health Bill was introduced in order to give the Secretary of State a power, not available to her under the Animal Health Act, to slaughter any animal she thinks should be slaughtered, whether or not the animal has been exposed to FMD. This is correct but it has also been implied that this enhanced power would enable her to conduct the contiguous cull lawfully. This is incorrect. As can be seen from the section on lawfulness of the contiguous cull above and paragraphs 95-109 below, animals on contiguous premises were exposed to infection and thus were slaughtered lawfully pursuant to the existing slaughter powers contained in Schedule 3, paragraph 3(1) of the Animal Health Act 1981.

  98.  The provisions of the Bill are intended to address important lessons learned from DEFRA's disease eradication experience. In relation to slaughter, two aspects of this experience in particular, are addressed by the Bill:

  99.  In relation to (a) above, the new slaughter powers contained in the Bill will permit the Minister to slaughter animals that have not been exposed to infection. This would enable culling of animals for preventative reasons, for example, by the creation of an animal-free "firebreak" around disease hot spots. It is considered that this would enhance the flexibility and thus the effectiveness of the slaughter options available to Ministers in any future outbreak.

  100.  In relation to (b) above, it became apparent during the last outbreak that a significant number of farmers were prepared to resist entry onto their premises of DEFRA slaughter teams. This kind of resistance meant that slaughter, the speed of which is so essential in an epidemic, was inevitably delayed. In cases where resistance was protracted, recourse had to be had to the courts by injunction so that entry could be effected by court Order. This, of necessity, delays the intended slaughter by a number of days, usually about a week. Given the need to slaughter quickly so as to get ahead of disease, these delays are clearly undesirable. Hence, the new, enhanced powers of entry contained in the Bill will provide for greater rapidity of access to premises by enabling the Minister to effect entry on obtaining a Magistrate's warrant—a process which is speedier and less cumbersome than an injunction. The Royal Society Report makes a point of calling for clear powers to enable speedy action in any disease control situation. The Anderson Report makes it clear there should be no doubt about the legality of any slaughter power. He particularly calls for clear powers to implement pre-emptive culls, should that be required. Both reports call for the option of emergency vaccination to be introduced. The Animal Health Bill does cover these points, but we will also need to assess over the summer whether any future provisions are needed that we could deliver by amendment to the Animal Health Bill.

Detailed note on the veterinary rationale for the contiguous cull policy

  101.  FMD is a highly infectious and contagious disease. Once infected, an animal may excrete large amounts of virus in exhaled droplets in its breath, in the vesicular fluid expressed from ruptured vesicles or blisters. These are the characteristic lesions of FMD found within the animals mouth and on its feet and occasionally its snout and udder. An animal will also secrete large amounts of virus in its saliva, nasal secretions, milk, semen, urine and faeces. FMD can be spread by:

  102.  All of the potential modes of transfer have a part to play in the transmission of the virus and must therefore be treated very seriously. However, although infected animal movements seed an epidemic in particular geographical areas, the vast majority of FMD cases result from "local spread".

  103.  Local spread is defined as spread between infected premises (IPs) within 3km of one another, where no specific conveyor or more than one potential conveyor of infection has been identified. The exact mechanisms of local spread have not been fully determined. However it is believed that the majority will be either from local aerosol spread between animals, particularly where the animals are contiguous, or from the movement of contaminated, vehicles, people equipment, fodder and possibly wildlife, which may act as mechanical vectors of disease. By these conveyors environmental contamination is built up of the area in and around an IP, resulting in infected material on roads or other common facilities boundary fences or hedge etc, as well as the IP itself. This can lead to transmission by a host of potential agents (fomite transfer) such as persons, animals (including wild animals and pets), vehicles etc as the virus is picked and passed from one agent to another. For example, the virus may be found in faeces which is picked up by a vehicle leaving an IP and transferred to a road. It could then be picked up and transferred to other premises by another vehicle or a person on their footwear. The infectious faeces containing virus could be deposited in an area of the other premises where it may be some days before animals on the premises have contact with the faeces and become exposed.

  104.  The FMD virus may survive in the environment for long periods of time. R L Sanson of the Department of Veterinary Clinical Sciences, Massey University in a scientific review article published in the New Zealand Veterinary Journal 42,41-53, 1994, citing a number of international authorities including Alex Donaldson of the World Reference Laboratory, Pirbright, gives the following information on foot and mouth disease virus (FMDV) survival:

Wool 14 days
Cow's hair 4-6 weeks
Houseflies 10 weeks
Contaminated footware 11-14 weeks
Wood, hay, straw, feed sack, etc 15 weeks



  105.  These survival rates thus illustrate the considerable scope for environmental contamination and local spread to premises sharing a boundary with infected premises by fomite transfer of the type described above.

  106.  The table below sets out the results of the epidemiological investigation based on all cases with data to 21 October 2001.

RESULTS OF THE EPIDEMIOLOGICAL INVESTIGATION

Conveyor
Group Name Airborne Milk tanker Infected animals Local Other formite Person Swill (suspected) Vehicle Under investigation Total % due to
`local'
Anglesey 1 12 13 92
County Durham 3 5 82 1 4 1 7 103 80
Cumbria 2 8 41 927 3 23 10 55 1,069 87
Devon 1 1 8 146 1 6 2 19 184 79
Essex and Kent 4 5 1 1 5 16 31
Hereford 11 118 3 12 24 168 70
North Yorkshire 3 2 81 1 3 4 27 121 67
Northumberland 4 2 76 7 1 11 101 75
Sporadic 5 2 1 2 3 6 19 11
Staffordshire 8 52 4 4 17 85 62
Wales 3 2 44 2 10 1 18 80 53
Yorks and Lancs 4 11 4 19 58
Lancashire 2 2 1 31 1 3 5 45 69
Grand Total 18 13 92 1,587 12 73 1 29 198 2,023 78
Total per cent 0.9% 0.6% 4.5% 78% 0.6% 3.6% 0.0% 1.4% 9.8% 100%


  107.  It can be seen from the table that the vast majority of FMD cases in GB (78%) were attributed to "local" spread. This is defined as spread between IPs within 3km of each other where more than one conveyor of infection has been identified. The relative magnitude of local spread differed between geographical groups, most likely due to regional differences in husbandry practices, stock distribution and control measures implemented. The exact mechanisms of local spread have not been fully determined. However, it is believed that the majority were either from aerosol spread between animals (particularly where they were in close proximity) or from contamination in the area near an IP, resulting in infected material on roads or other common facilities due to the movements of contaminated people vehicles [wildlife] and things.

  108.  It can be seen that only 18 cases (0.9%) are attributed to airborne spread whilst 1,587 (78%) are attributed to local spread occurring within 3km of an infected place. It appears therefore that longer distance airborne spread has not played a significant role in the transmission of the virus. This is consistent with the experimental research of Donaldson et al, `Relative risks of the uncontrollable (airborne) spread of FMD by different species' (The Veterinary Record, 12 May 2001, p.602). The probable reason for this is that few pig premises (pigs being the main aerosol emitters of FMD) have become infected. However, it should also be borne in mind that short distance airborne spread cannot easily be differentiated from other causes of local spread and so the figures given above for local spread are likely to include an amount of short distance airborne spread.

  109.  Donaldson considered that the only uncontrollable risk of spread of FMD in the 2001 outbreak was airborne spread. He concluded when movement control is fully implemented animals on contiguous premises should not be at risk from uncontrollable spread, that is, airborne spread, unless there are pigs or very large numbers of cattle or sheep on the affected premises with early clinical signs and the concentration of virus in the plume was at the same or higher concentration than the threshold necessary to infect them. It is acknowledged that this was not a significant route of infection in the 2001 epidemic.

  110.  The reality however, is that the mechanisms of local spread other than airborne spread played a significant part in exposing animals on contiguous premises to infection ie direct or indirect mechanical transmission by the movement of people, vehicles, wild animals equipment and fodder which both contaminated the environment in and around the infected place and conveyed infection to susceptible animals on contiguous premises. Donaldson's paper gave little weight to these important and significant mechanisms.

  111.  Further analysis has shown that premises between 0 and 1km of an existing IP are 2.7 times as likely to go down with disease as premises which are within 2 to 3km of an existing IP. Premises which are within 1 to 2km of an existing IP are 1.7 times as likely to go down within disease as premises within 2 to 3km of an IP.

  112.  Another analysis of the current outbreak, based on 1,704 premises and set out in the table and graph below, clearly illustrates that the premises most likely to be infected with disease are less than 2km from existing IPs. (The map references used to determine distances are single points usually based on the farmhouses or areas where animals have been examined, rather than farm boundaries. Accordingly, even directly contiguous premises will tend to appear to be separated by some distance. Contiguous Premises generally fall within the range of 0-2km from IPs).

DISTRIBUTION OF IPS BY DISTANCE FROM NEAREST IPS WHICH HAD AN ONSET OF CLINICAL SIGNS IN THE PREVIOUS SEVEN DAYS


Distance/km
No of IPs %
1-2 763 44.8
2-3 265 15.6
3-4 148 8.7
4-5 93 5.5
5-6 63 3.7
6-7 41 2.4
7-8 42 2.5
8-9 43 2.5
9-10 21 1.2
10-11 18 1.1
11-12 15 0.9
12-13 12 0.7
13-14 12 0.7
14-15 15 0.9
15-16 14 0.8
16-17 11 0.6
17-18 6 0.4
18-19 7 0.4
19-20 10 0.6
  20 105 6.2
Total 1,704 100



  113.  The evidence therefore demonstrates that the premises at greatest risk of going down with disease are those which are closest to existing IPs because of the mechanisms of local spread outlined above. In summary, the risk of a premises succumbing to disease is inversely proportional to its distance from an IP. The closest premises, the contiguous premises, are at most risk and this risk diminishes the further away from the IP the premises are located. More than 3km from the IP the risk is deemed to be such that the less severe controls of the surveillance zone can be applied. Beyond 10km the risk falls to such a level that providing there are no special factors such as wind borne spread to consider then no special measures need be taken. Premises within the 3km protection are therefore considered to be at special risk of exposure to the virus. This is based on expert veterinary and epidemiological advice and on experience of dealing with the disease in practical situations around the world. It is for this reason that it is believed that susceptible animals on contiguous premises are exposed to infection and likely to succumb to disease.

  114.  The objective of the contiguous cull policy is therefore to cull the exposed animals on contiguous premises before they succumb to infection and in turn excrete virus further contaminating the environment and spreading disease.

  115.  The contiguous cull policy developed as a result of the above expert epidemiological advice, including from a number of different University institutions and from the Government's Chief Scientific Adviser following discussions in the Science Group; and the continued rapid spread of FMD around the UK. In particular, in light of the epidemiological evidence that the virus was spreading rapidly, including in the immediate vicinity of infected premises by air, but also by people and animal movements, and that the single most important consideration for control and eradication was quick identification and slaughter, it was considered that (subject to limited exceptional circumstances) premises holding susceptible animals that neighboured (ie were directly contiguous to, or separated only by a barrier such as a small road or river) an infected premises had been exposed to the virus.

Question 261: I have the classical swine fever report referred to in paragraph 2.50 of the NAO Report. Who saw that in the Department in top management and when did they see it?

CSF REPORT

  116.  Material gathered by the small SVS Team charged with learning lessons from the CSF outbreak was presented at a national meeting of SVS managers on 5 December 2000. Over 40 people attended including most Divisional Veterinary Managers, the Regional Heads of Veterinary Service, the DCVO (Services) and the MAFF Risk Coordinator. The "Powerpoint" presentation was subsequently placed on the MAFF intranet where it was accessible to all members of staff.

  117.  The team made a further presentation of the report to the CVO, DCVO (Policy) and DCVO (Services) on 13 December 2000.

Question 261: Protecting the export trade was often used as a justification for the policy, so any statements or notes, documents, which justify that, anything which justifies the statements that it was done to protect the export trade?

THE CONSEQUENCES OF DIFFERENT DISEASE ERADICATION POLICIES FOR REGAINING THE UK'S FMD FREE STATUS IN 2001

  118.  It is necessary to appreciate how international trading standards in live animals, animal products and germplasms are set in order to understand the international consequences for the UK of adopting different FMD eradication policies.

  119.  This paper describes the role of the Office Internationale des Epizooties (OIE), the international animal health organization, outlines the guidelines it sets down for trade between countries of different FMD status and the consequences for UK of adopting different eradication policies.

The OIE

  120.  The OIE is an international animal health organization comprising some 158 member countries. It is one of three bodies recognized under the international Sanitary and Phytosanitary Agreement (SPS) as an international standard setting body. The others are the Codex Alimentarius and the International Plant Protection Convention. Information about the OIE can be found on its website www.oie.int . Guidelines for international trade are embodied in the OIE Code which is made up of Chapters each dealing with a specific disease. FMD is dealt with in Chapter 2.1.1.

Country classifications for FMD

  121.  The OIE accords country animal health status in respect of FMD. There are three classifications:

  122.  The UK's FMD status at the start of the 2001 epidemic was "FMD free without vaccination". This was lost immediately disease was confirmed on 20 February 2001 and was restored on 22 January 2001 after the UK Government satisfied the OIE that it had eradicated FMD and carried out adequate surveillance to show disease was no longer present in the country.

  123.  The OIE sets down rules for the acquisition of FMD status and for restoring status following an FMD outbreak. If an FMD outbreak occurred in a country that was classed as FMD free without vaccination, restoration of status would take place (a) three months after the last outbreak where the disease was eradicated by "stamping out" and serological surveillance was applied or (b) three months after the slaughter of the last vaccinated animal where stamping out, serological surveillance and emergency vaccination was applied, whichever is later. If emergency vaccination was carried out but the vaccinated animals were not slaughtered, then status would not be restored until 12 months after the last case of FMD (where stamping out is carried out) or after the last animal was vaccinated, whichever was later[16]

  124.  Had the UK abandoned its stamping out policy and decided to control the disease through vaccination alone, its status would have reverted to FMD infected and it would not have been recognized as FMD free with vaccination until two years after the last outbreak of FMD was confirmed, that vaccination was being practiced and that an effective system of surveillance for FMD disease and the detection of viral activity was in operation. If such a country wished to change its status to FMD free without vaccination a waiting period of 12 months after vaccination had ceased would be required.

  125.  A further complication is that although the OIE allows for a country to be zoned for the purpose of categorization, such zones must be defined and be bounded by buffer zones, physical or geographical barriers which effectively prevent the entry of FMD virus. More importantly, perhaps, the OIE would have to approve the proposed zone and would only do this once a year when its International Committee meets.

Trade in live animals, animal products and germplasms between countries of different FMD status

  126.  The OIE lays down guidelines for trade based on the FMD status of the exporting country. These rules are complex and are set down in Chapter 2.1.1 of the Code.

  FMD free without vaccination: There are no special requirements in respect of countries which are FMD free without vaccination other than they come from a country or zone that is FMD free without vaccination.

  FMD free with vaccination: Exports of live animals would have to be certified that they showed no signs of FMD at the time of export, had been kept in an FMD free country since birth or for the past three months, that they had not been vaccinated and had given a negative result to a test for FMD antibodies when destined for a country which was FMD free without vaccination. In the case of fresh meat, bovine meat would have to come from animals slaughtered in an approved abattoir, be deboned and matured and the animal certified as having been in the FMD free country for three months prior to slaughter. In the case of fresh meat from other species (pigs and sheep) and meat products, the meat could only come from animals that had not been vaccinated.

  FMD infected countries: The conditions for live animals would be more onerous still and would require guarantees in respect of the FMD status of the holding from which the animal originated plus a period in quarantine prior to export. In the case of meat and meat products, similar guarantees in respect of FMD freedom for the farm of origin and the surrounding area plus deboning and maturation of fresh meat from bovine animals or processing to ensure the destruction of the virus in the case of meat products. Fresh meat from non-bovine species could not be exported.

  127.  In addition to the above, there would also be controls on exports of semen, embryos, milk and milk products, straw and forage, and skins and hides, appropriate to the FMD status of the country.

  128.  In summary, the lower the FMD status of the country, the greater the penalty paid in terms of the export guarantees required. In addition such guarantees would all have to be attested to through official certification requiring, in turn, greater supervision/oversight of both live animals and processing establishments. In practice, many countries go beyond OIE guidelines and ban all imports of animals, animal products and other products from FMD infected countries.

  129.  In the case of fresh meat, meat and dairy products, material for export would have to be kept separate from that destined for the domestic market. In addition the certification and processing could extend not only to the meat, meat products or dairy products but also to products that contained them such as chocolate, pizzas, instant drinks etc.

The European Union

  130.  The EU has a harmonized policy for the control of FMD based on all Member States being FMD free without vaccination. The FMD control Directive 85/511/EEC requires Members States to stamp out disease but makes provision for emergency vaccination in the event that an outbreak occurs. Vaccination would have to take place under terms agreed by the Commission and the Member States.

  131.  Since the introduction of the single market in 1992, no Member State had ever used vaccination to control an outbreak of FMD so the consequences of applying vaccination and not killing vaccinated animals had never been tested in terms of intra-Community trade or trade with other countries.[17] However, there would be a reasonable expectation that the EU would adopt a policy in line with the OIE guidelines and similar to that it applies in respect of trade with third countries that are not FMD free without vaccination.


CONSEQUENCES OF DIFFERENT DISEASE ERADICATION POLICIES FOR REGAINING THE UK'S FMD FREE STATUS

A policy of stamping out disease together with emergency vaccination—vaccinated animals to be killed

  132.  Had the UK adopted a policy of stamping out disease coupled with the use of emergency vaccination to control disease in certain areas and in which vaccinated animals were slaughtered, then restoration of its FMD free status without vaccination status would have followed three months after the last case of FMD or three months after the last vaccinated animal was slaughter, whichever was later. There would have been no immediate effects on trade other than that resulting from the immediate export controls imposed on the UK by other EU Member States and third countries as a result of having active FMD on its territory.

  133.  The OIE has no statutory basis and its guidelines/rulings are not legally binding. Thus Member Countries are free to impose import bans or set import requirements that exceed the OIE guidelines and they are not obliged to accept an OIE decision or take action in response without first obtaining independent verification/clarification of the situation. Likewise a member country can chose to impose conditions on trade that go beyond the OIE guidelines if it feels this is necessary. For example, despite the OIE having restored our FMD free without vaccination status on 22 January 2002, the US has not officially recognized us as free of the disease and the US, Canada and Australia insisted on carrying out their own assessments of our FMD status.

A policy of stamping out disease together with emergency vaccination—vaccinated animals to remain alive

  134.  Had the UK adopted a policy of stamping out disease with the use of emergency vaccination in which vaccinated animals were allowed to live, then a return to normality in international trade would not take place until 12 months after the last case of FMD.[18]

A policy of control based on vaccination alone, no stamping out

  135.  Had the UK adopted a policy of not stamping out disease and had instead resorted to prophylactic vaccination, the consequences can only be speculated upon. This would have been unchartered waters for the UK and the EU as a whole. Under this scenario, the UK's FMD classification would have reverted to FMD infected and it would not have moved to FMD free with vaccination for two years after the last outbreak occurred. During this period, it is likely that exports of animals and animal products would have been subject to the OIE rules set down for an FMD infected country. In reality, many countries would be expected to ban all imports of animals as well as animal and dairy products unless the latter had been treated to destroy any FMD virus.

  136.  More importantly perhaps, the EU would have had within its boundary a Member State that was potentially infected with FMD. This could have had a major impact on the operation of the single market. We could reasonably have expected the export controls imposed by the EU at the start of the 2001 epidemic to have remained in place. It might also have affected the free movement of goods and people because other Member States would probably have been concerned that (a) their livestock industries were under threat of FMD and (b) their trade with third countries was affected because many treat the EU as a single region for animal health purposes. In summary, the presence of a country within the EU which was FMD infected or FMD free with vaccination could be expected to impact not just on trade in live animals and animal products but the myriad of products which contain animal and dairy products.

Question 261: Finally in your evidence to the EFRA Select Committee there were 17 areas where you undertook to write to the EFRA Select Committee with further information. Perhaps you could provide us with a copy when you write to them?

INFORMATION PROVIDED TO EFRA SELECT COMMITTEE

  137.  A copy of this document was provided but is not printed here.

Question 264: Mr David Rendel would like to know whether we could have a note on how many vets have been employed in the Government Veterinary Service each year since 1990?

NUMBERS OF VETS IN THE STATE VETERINARY SERVICE

  138.  The Table below shows the total number of veterinarians employed in the State Veterinary Service (SVS) on a full-time equivalent basis since 1990. The management structure of the SVS has changed considerably in that time, so these figures should not be used to compare veterinary manpower over the years.

  139.  At the outset, the figures included all the managerial, structural and research grades. However some of these were removed from the SVS with the establishment of Agencies, eg the Central Veterinary Laboratory (CVL), which previously formed part of the SVS, became the Veterinary Laboratories Agency (VLA) in April 1990. The Veterinary Investigation Service became part of the VLA on 1 October 1995 and is excluded from these figures from that date. In 2000, there were 99 veterinarians employed by VLA. Veterinary surgeons responsible for meat hygiene work transferred to the Food Standards Agency in 2000. The figures for these Agencies have not been included in the SVS figures from the respective dates.

  140.  This demonstrates that although there has been a significant reduction in the management structure of the SVS, the number of field veterinarians has remained approximately stable, varying slightly according to the ease of recruitment. For example in 1990 there were 206 Veterinary Officers (VOs), in 1995 there were 234 and in 2001 there were 220. The VOs are located in Animal Health Divisional Offices and are responsible for carrying out the front-line work of the SVS under the control of a Divisional Veterinary Manager.

  141.  The work of veterinary staff in the SVS is supplemented by approximately 100 Temporary Veterinary Inspectors (TVIs), and over 7,000 Local Veterinary Inspectors (LVIs) from the private sector in normal times.

THE NUMBER OF VETERINARY SURGEONS EMPLOYED BY THE STATE VETERINARY SERVICE AS AT 1 JANUARY* SINCE 1990 (FULL TIME EQUIVALENT BASIS)
Year No of vets
1990 430.5
1991 408.0
1992 414.5
1993 420.0
1994 408.3
1995 394.5
1996 301.2
1997 289.5
1998 302.0
1999 283.0
2000 284.0
2001 286.0
2002 336.8


  *The figures for 2002 are as at 1 April.

Question 265: You did mention the impact of the closure of footpaths on rural tourism and you said your policy would be different now and you would not be imposing a blanket policy. Perhaps you could let us have a note on that because we did not go into any detail on footpaths and that is an important point?

RIGHTS OF WAY

  142.  When FMD broke out in February 2001, local authorities were initially encouraged by MAFF to use the existing statutory powers to close public rights of way in Infected Areas (minimum 10km radius zones around a case of the disease). At that stage new cases were occurring in widely dispersed areas of the country, and it was not known to what extent the disease was present in the sheep population. Therefore, on 27 February, authorities were given additional powers to close rights of way (with the consent of the Minister) outside the then Infected Areas; such consent was readily given when authorities asked for it. The new statutory instrument also temporarily amended existing legislation to permit "blanket" closure of extensive areas without the need to display notices on individual paths. In the prevailing uncertainty, almost all rural and many urban authorities used these powers to close paths throughout their areas.

  143.  From 22 March, DETR and MAFF, later DEFRA, published successive guidance to local authorities, informed by veterinary risk assessments, urging them to reopen paths where safe to do so. However, the closures, once imposed, took a long time to reverse, even where no longer justified by the guidance and risk assessment. Some were eventually revoked by Ministers without the consent of local authorities.

  144.  The closures contributed substantially towards the severe impact on the rural economy of the FMD outbreak and the measures to control it. Many small businesses that depend on countryside visitors were badly affected. Some holiday areas depend almost entirely on visitors wishing to walk in the hills. More generally, the closure of rights of way, alongside images of the burning and burying of animal carcases, was widely perceived by the public at home and abroad as meaning that the countryside was closed. People who would otherwise have visited the countryside were also deprived of the benefits such visits can bring.

  145.  In their reports on the effects of the outbreak on the wider rural economy, published on 18 October 2001, both Lord Haskins and the Rural Task Force commented on this issue, and the Rural Task Force recommended that a protocol be drawn up to provide guidance on how far restrictions on public access to the countryside should be imposed during any future outbreak of FMD or other animal disease. The guidance should take account of the impact on walkers and the businesses that cater for them, besides the requirements of disease control. The Government indicated in its response to those two reports, published in December 2001, that it accepted this recommendation in principle. This note sets out the Government's proposals for deciding whether rights of way should be closed, and by whom those decisions should be taken, in any future outbreak of FMD.

  146.  The approach set out here is based on the lessons learnt from the 2001 outbreak. It will be further reviewed in the light of the recommendations of the "Lessons learned" Inquiry and Royal Society scientific review. It should be borne in mind that the nature and circumstances of any future outbreak may differ from those of the 2001 outbreak, so the approach may need to be adapted to the type of outbreak then being faced.

  147.  The Government's policy is that decisions whether to close rights of way and other countryside access should take into account both the requirements of disease control (informed by veterinary risk assessment), and the likely impact on rights-of-way users and businesses that depend on them. This means, in relation both to the powers conferred on local authorities and the advice given them, and to consideration of specific proposed closures, that account needs to be taken both of the risk that path users could spread disease, and of the value of rights of way to users and to the local economy.

  148.  The Government's proposed approach will be to:

  More attention would also need to be given to improving understanding on the part of walkers and farmers. During the 2001 outbreak that many farmers clearly found it hard to understand why paths should be reopened across their land when movement of their livestock remained restricted and they were urged to maintain tight biosecurity.

  149.  Current veterinary advice, based on what is known about the 2001 outbreak, is that, for an outbreak of the same type as in 2001, outside 3 km Protection Zones (PZs) around Infected premises the risk of walkers and other path users spreading the disease is very small indeed. As a result, were there to be another outbreak of the same type, rights of way within PZs should be closed, but those outside PZs may safely be kept open. (Farmers and others regularly in contact with animals or farm areas where animals regularly congregate are most likely to come into contact with the disease without realising it, and outside PZs should therefore be subject to stricter biosecurity measures than path users.)

  150.  On the basis of this advice, although local authorities would retain power to close paths within Infected Areas (a minimum of 10km radius around Infected Premises) without consent, DEFRA's guidance is expected to be that paths should be closed only within 3km PZs; and consent would not be given for closures outside Infected Areas. It should be stressed, however, that both the veterinary risk assessment and the guidance would be subject to review in the light of the circumstances of any future outbreak.

Question 265: Looking to the future, you have issued an interim contingency plan for foot and mouth disease which draws on the experience and what we have learned from 2001. We should be interested to know what you are doing to revise your contingency plans for other animal diseases in the light of what happened in 2001?

INTERIM FMD CONTINGENCY PLAN AND CONTINGENCY PLANS FOR OTHER ANIMAL DISEASES

  151.  DEFRA is working on the revision of contingency plans for other notifiable animal diseases. Work is underway, under the auspices of a Programme Management Board, to take forward the lessons learnt during the last outbreak and apply them to plans for other animal diseases. A generic and modular format is being considered for contingency plans for all animal disease outbreaks. This will require careful deliberation by veterinarians, stakeholders and other operational partners.

  152.  Future plans will further emphasise risk-assessment and scenario planning (to include consideration of the economic, environmental and financial impacts of disease control) with regard to both FMD and other diseases.

Questions 265 and 266: We have mentioned vaccination and the Royal Society Report, which I know is coming out very shortly. When that report does come out, I should be interested to have your observations on it. ? In the context of what we have been asking you, particularly given Mr Geraint Davies's questions . . . . Perhaps the cost implications of annual vaccination for cows?

VACCINATION

  153.  The Government's initial reaction to what the Royal Society Study, and the lessons to be learned Inquiry, said on vaccination was contained in a Parliamentary Written Answer on 16 July (HC Deb, 16 July, col 140w), and the Secretary of State's oral Statement on 22 July (HC Deb, 22 July, col 669-688).

  154.  In 1987, the EC carried out a cost-benefit analysis of prophylactic vaccination compared to stamping out. It estimated that the cost of vaccination in the UK in the same year would be #18.6 million (in 1987 prices, equivalent to #31.9 million in 2002 prices), based on the costs of vaccine, vaccination and general administration, but not possible side effects. This study formed part of the argument for the prohibition of prophylactic vaccination in the EU, which came into affect in 1992.

  155.  The most recent cost assessment of prophylactic vaccination was carried out by the Veterinary Economics and Epidemiology Unit (VEERU) at Reading University. This work was commissioned by The Royal Society Inquiry into Infectious Diseases of Livestock. VEERU developed a model to estimate the costs of prophylactic vaccination which estimated that a vaccination strategy that achieves 90% coverage of the UK cattle population would cost #31 million per year. However, the report also noted that this strategy would not guarantee that the national herd would be immune to the disease.


16   The OIE rules on the waiting period where vaccination was used were changed in May 2002. In future the waiting period will be 6 months where it can be shown through discriminatory tests that vaccinated animals ae not infected with FMD virus. Back

17   Even the Netherlands eventually decided to kill all vaccinated livestock. Back

18   30 September 2002 in the case of the 2001 epidemic. Back