Barbara Jordan of Jordans Solicitors (Ross on Wye) addressed a large meeting of farmers and stock holders in the Forest of Dean on Tuesday 13th November.
She was listened to by the audience who were appalled by what she had to tell them about the small print of the Animal Health Amendment Bill - which has already had its Second Reading
Extract: So the requirement for the Minister to act reasonably according to this statute appears to have been dropped. The implication is therefore that the Minister can act "unreasonably"
"Up until now, all the actions of Maff/Defra have been regulated by the Animal Health Act of 1981 and associated European Directives. Under the 1981 act, the Minister could only order the slaughter of animals that were "infected" or "suspected of being infected" by Foot and Mouth, animals that had been in contact or animals that were exposed to the disease, where it could reasonably be believed there was a risk of infection.
Carrot and stick - but Court action ducked by DEFRA
I think it would be the common experience of people here locally through the Spring and the Summer that the government and the Ministry used a mixture of stick and carrot to persuade people to do their bidding. The carrot of course was the compensation. Many farmers who were dependent on farms as their main sources of income felt compelled to accept compensation; the stick of course was used for those animal owners who resisted a cull. But it is notable that while many local people threatened ...and resisted the threat of culling by injunctions, DEFRA on the whole went out of its way to avoid the court process. When the courts were asked to assist farmers the results were extremely mixed. There was about a 50:50 chance that if a farmer applied for help from the court the judiciary tended to the view that the government's responses were "reasonable" in the circumstances of the foot and mouth "emergency". There was certainly no national experience by animal owners that courts were likely to support them in the face of what was categorised as an "emergency".
No need for new powers
In that case it is very difficult to see why this government should need to take further powers to itself to interfere with farming and to achieve the culling of animals.
Bizarre and unreasonable
Every effort needs to be made, by every individual who is concerned, in preventing this bill from becoming law. It certainly isn't restricted to farm animals and therefore pets are likely to be at risk. Bizarrely the act gives the minister the power to cull animals whether or not those animals are affected , suspected of being affected with foot and mouth - whether or not they have been in contact with infected animals - whether or not they have been exposed to infection and if they have been vaccinated. So the requirement for the Minister to act reasonably according to this statute appears to have been dropped. The implication is therefore that the Minister can act "unreasonably" - which would be a breach of natural justice not to mention of the Human Rights Act.
TSEs: The right to cull
The Minister has power to extend these already extensive rights to cull foot and mouth animals to diseases covered by the Transmissible Spongiform Encephalopathies; TSEs; and that includes scrapie and BSE.
So here we have draconian powers being taken by the government- and of course scrapie is probably endemic in the sheep flock in this country.
Lost interest, lost time, lost compensation - and government delays
The new bill limits compensation to 75% of the value if the government inspector reports that the owner has acted in any way during the previous 21 days "to create a significant risk of spreading the disease" . And there is a right of appeal - quite a complicated set of procedures which the farmer and the government have to enter into, in a kind of minuet - and this will take some months. What of course the farmer and the government are arguing about is the 25% the government may hold back, but no interest is payable on that 25% - and of course again there's some incentive for the government to take some time over this.
It is notable that clause 4 of the Bill confers on the Minister the power to slaughter animals that have been vaccinated. In this county it isn't possible to vaccinate animals against foot and mouth without a licence and the government wont issue a licence so again this suggest that somehow or other the government is frightened that vaccination will take place behind its back and will prove that all along through this set of events it will prove that it was wrong not to vaccinate and that that would have been more effective than culling.
Many new criminal offences
The new Act allows for the Minister to identify species of sheep that are more susceptible than others to scrapie or BSE to order that those sheep should not be used for breeding. The farmer is given the right of appeal if such a restriction notice is served but unlike the Animal Health Act (1981) this bill makes it a criminal offence to keep susceptible sheep for breeding, makes it a criminal offence to fail to comply with any restrictions and it creates a criminal offence to oppose a government inspector or anyone else in the discharge of his duties. The act enables the inspector to make a forcible entry into premises to inspect or if necessary slaughter animals so long as a warrant has been obtained from a magistrate and the magistrate may grant such a warrant if there are " reasonable grounds" for an inspector to enter the premises - or, if admission has been refused - or if a refusal of admission is even to be expected - and a notice of intention should be given to the occupier -but it looks as though in emergencies that is a requirement that is waived.
So it is clear that what is anticipated here is an application to the magistrate without the farmer being present to put his case, and obviously this rides roughshod over the requirement for public hearings in article 6 of the European Convention of Human Rights. Bearing in mind that this legislation doesn't appear to require the Minister or the inspectors to act on the basis of reasonable assessment of risk of infection, it can be anticipated that when the decision has been made to cull animals the ministry will move at speed possibly backed up by the police and army, and the farmers' animals will be culled.
The many costs of going to court
After the cull presumably compensation will be paid and the farmer will then be spending some time, probably months if not longer arguing, over compensation. It will be very difficult - as it is now - for the farmer to bring any sort of claim against the government certainly outside the Human Rights act because in part at least he will already have been paid compensation for the slaughter of his animals and he will, as now, be forced to think very carefully indeed about the costs, both economic and emotional, in attempting to fight the government further.
Peaceful protest becomes a criminal offence
Not only can inspectors effectively make raids on farms but they have a statutory right to inspect farm vehicles, check compliance with "disease control measures" in certain areas and at certain times and in doing this the inspector must be accompanied by a uniformed police officer. The new bill makes it clear that police officers and inspectors may arrest anyone who prevents them from carrying out their functions under the act. It would appear that this does not require active obstruction from the farmer and calls into question the peaceful farm gate protests that were going on in the forest over the Spring and Summer would now result in those protestors being arrested if this act were to become law and even charged with criminal offences. The new act creates a new offence of deliberately infecting an animal with certain diseases or intending to do so and carries the imposition of an unlimited fine or up to two-year imprisonment. Furthermore a court can disqualify a farmer for keeping or dealing with animals if they are convicted of deliberately infecting them and of course presumably resistance to the ministry could itself amount to a deliberate infecting of an animal if the farmer seeking to delay a cull was subsequently found to have animals that test positive.
Three year threat
Extraordinarily, if a road traffic offence is not subject to a prosecution within six months no prosecution can be brought but this rule does not apply to offences under this bill. If the likelihood of an offence is discovered within three years of the date of the offence prosecution can then be brought within six months of that offence being discovered. This leaves the farmer at risk for three years. It's very difficult to see how this legislation is compatible or possibly could be thought to be compatible with the Human Rights act.
Farmers cannot afford to fight
There is the risk to the individual. Access to legal aid or public funding is denied farmers because they are businesses. Under this government's legislation a married couple need - under the "Access to Justice Act" (sic) - to have a joint net income of not more that £9731 per annum if they are to qualify for legal aid and if they come within these criteria they will have to make a contribution in excess of a hundred pounds a month to obtain legal aid. It is extremely difficult to see how the farmer facing normal trading conditions not mention the unwanted attentions of the ministry inspector could possibly go to court and put up a fight against the government, while representation paid for by the minister of Rural Affairs. It is blindingly obvious that the Minister has access to thousands of pounds worth of resources paid for by the government while the farmer would be lucky if he could afford a high street solicitor. It is notable that the only truly successful outcome in the court in the last round of culls was produced with the assistance of a Queen's counsel, a silk, and doubtless at enormous cost - potentially at enormous cost if they had not won - to the owner of Grunty the pig.
The need for an effective farmers' union - and an offer
It is essential that all farmers and livestock owners set up effective local and national organisations to defend their livelihoods because I think that only joint action will be effective. Under the relatively new Civil Procedure rules is that before embarking on litigation there should be "disclosure". Gloucestershire MAFF has not produced test results and full results relating to the reasons for culling reasons even for imposing restriction notices. There were 76 culls in the Forest of Dean. It is suggested that the names and addresses of all those people, if offered to Jordan's, could then give Jordan's the right to demand from DEFRA, on behalf of those culled premises, the test results, the file from the ministry in relation to those cases. We'd then have a lot more information about how much foot and mouth there really was in Gloucestershire - which I imagine was absolutely minimal. There would in such action be no cost to those people and no threat of costs orders being made against farmers and people who were at threat.
(If you were involved in a cull in Gloucestershire and would like Jordans to represent you - at no charge - in asking to have your tests returned from DEFRA, phone Jordans on 01989 566111 or email this website.)