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Foot and Mouth Disease

7.30 p.m.

Lord Willoughby de Broke rose to ask Her Majesty's Government on what basis they believe that the contiguous cull policy carried out during last year's foot and mouth epidemic was legal.

The noble Lord said: My Lords, my reason for introducing this Unstarred Question is that while the legality of the contiguous cull has often been questioned in the House in our debates on the Animal Health Bill and the livestock industry, as well as in the debate on a Starred Question brought forward by my noble friend the Duke of Montrose, we have not yet had a satisfactory answer to the questions put forward.

When challenged as to the legality of the cull, the Minister has given two answers. His most recent answer was in a reply to a Written Question from my noble friend Lady Byford, where he stated:


    "The Animal Health Act 1981 provides for the slaughter of animals which are infected with foot and mouth disease (FMD) or suspected of being so infected and of animals which have been in contact with affected animals or which appear to the Minister to have been in any way exposed to the infection of foot and mouth disease. This is the legal basis of the contiguous cull".—[Official Report, 20/5/02; col. WA80.]

The Minister has accurately summarised the provisions of the Act but his conclusion is quite wrong. The Act deals very specifically with animals that have been "exposed" to foot and mouth disease, not with the possibility of animals being exposed at some remote time in the future. On the best available scientific evidence, much of it from the Pirbright Institute, which is part-funded by MAFF—or DEFRA now—the vast majority of animals slaughtered under the contiguous cull policy could not have been so exposed. That is the clear result of the evidence.

Of course, that is precisely why the Minister introduced the Animal Health Bill, the amendment to the Animal Health Act, to give him the power, which was not given under the Animal Health Act, to slaughter any animal the Minister thinks should be

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slaughtered, whether or not the animal had been exposed to foot and mouth disease. In other words, the power to carry out the contiguous cull.

The Minister also based his assertion that the contiguous cull was legal on two court cases. In his response to a debate on the livestock industry in April, the noble Lord said:


    "Various issues were raised in the debate, the most acute of which was the legality of the cull. I shall cite just two cases: MAFF v Winslade, which we won in the English courts; and Westerhall Farms v Scottish Ministers, which we won in the Scottish courts . . . The legality of the cull is not in doubt".—[Official Report, 17/4/02; col. 983.]

Again, that conclusion is wrong. Both decisions were badly flawed because of the lack of scientific evidence presented in those court cases.

The real problem with the Winslade case—and the problem that goes to the heart of the Minister's assertion that the contiguous cull has been tested in the courts—is that, for whatever reason, not all the relevant scientific evidence was made available. The most persuasive evidence, which was later to blow the Government's case completely out of the water in MAFF v Upton, was two articles written by Dr Donaldson of the Institute of Animal Health at Pirbright. The institute is one of the foremost establishments in the world dealing with foot and mouth research, and Dr Donaldson is an acknowledged expert on the subject.

Dr Donaldson's papers concerned the risk of airborne spread, which was central to the Winslade case. The Donaldson papers confirmed, first, that infected sheep could not spread infection more than 100 metres, even downwind; and, secondly, that intensified clinical surveillance would be an appropriate alternative to immediate culling. It is highly likely that had this evidence been presented to the court, the judge in the Winslade case would have come to a very different decision.

Why was this evidence not available to the court? MAFF was seeking an emergency injunction, and thus counsel for Mr Winslade had only a few hours notice to prepare her case, and Mr Winslade was virtually a prisoner on his farm because he had been served with a movement restriction notice. In cases where applications for injunctions are made and inadequate notice is given to the defendant—I understand that the relevant time period is three days—the applicant for such an injunction is obliged under the rules of civil procedure to make full and frank disclosure of all relevant facts, even if they are unfavourable to the applicant's case.

The Donaldson papers were published in the British Veterinary Record on 12th May, but had been seen by senior MAFF officials in late April. The Winslade case was heard on 22nd May, so there was plenty of time for the ministry to have put that scientific evidence to the court. Why was this crucial evidence not made available to the court? Was it because of simple incompetence, or was it deliberate? Why was I told in a Written Answer from the Minister that the Ministry had complied with the civil procedure rules when submitting evidence in the Winslade case?

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The critical importance of this scientific evidence was shown in the Upton case in June last year—the case of Grunty the pig, as it is known—when it led to the judge finding against MAFF, refusing it the right to appeal and awarding costs to the defendant. The Minister shakes his head, but all he has to do is to read the transcript of the trial to see that that is what swayed the judge, Mr Justice Harrison, in that case. Thus, in the absence of that scientific evidence, the Winslade decision cannot possibly be viewed as authoritative and certainly cannot be taken as the bedrock case which legalises, once and for all, the contiguous cull.

The Westerhall case, the second of the cases referred to by the Minister, gives even less support to his contention that it legitimises the contiguous cull. That decision was given on 25th April, before Dr Donaldson's papers had been published—although, again, it is likely that senior MAFF officials had seen that evidence. Dr Donaldson's research is, after all, part-funded by MAFF so they would certainly have seen drafts. In any case, the Westerhall case was dealt with as a three-kilometre cull case. Without the benefit of the Donaldson scientific evidence, again it is extremely doubtful whether the Westerhall case can be cited as justifying the contiguous cull policy.

The real bedrock case—if the Minister is looking for a bedrock case for or against the contiguous cull—was the Upton case, where Dr Donaldson's scientific evidence was produced by the defending solicitors. This won the day for the defendants and, as I said, costs were awarded against the ministry with no right of appeal. The proof of that pudding is that following the decision in the Upton case—the first case based on correct science—the ministry, when faced with a legal challenge on the contiguous cull, almost invariably backed down, confining itself to blackguarding the farmers and lawyers concerned.

The contiguous cull was a vastly expensive and unnecessary disaster. As Dr Donaldson said last week when giving evidence to the EU inquiry:


    "There was no justification for the 3Km or the CC policy, which were both novel and untested".

When giving evidence at the same inquiry, Professor Fred Brown, also recognised throughout the world as an expert on foot and mouth, who used to be head of the Pirbright Institute before moving to America, said that,


    "the barbaric conduct in Britain last year was a disgrace to humanity".

It now appears that that "barbaric conduct" was not sanctioned by law and that the legal bases which the Minister cites as justifying the contiguous cull in fact do nothing of the kind.

I conclude by asking the Minister to answer the following simple questions. First, whether he accepts that relevant scientific evidence was not put before the court in the Winslade case, even though that evidence was available to and read by the ministry. Secondly, why that evidence was not put before the court in the Winslade case. Thirdly, whether that evidence had been received before the decision in the Westerhall case. Fourthly, whether he now accepts that those

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decisions would not have gone the ministry's way had that evidence not been suppressed. Fifthly, and finally, can the noble Lord say why the ministry never fought a case for an injunction to enable a contiguous cull to proceed after the decision in the Upton case?

If the Minister is unable to answer these questions today, perhaps he will at least undertake to write to me and put a copy of his answers in the Library of the House.

7.40 p.m.

Lord Monro of Langholm: My Lords, I am glad that my noble friend Lord Willoughby de Broke has given us this opportunity to raise yet again the problems of foot and mouth. Farming is still in crisis. The price of milk is going through the floor, and the price of lamb, beef and grain is at rock bottom. Generally, farmers have a great lack of confidence in the future, with a Secretary of State who is so keen to adjust the CAP—which inevitably means that there will be less for farming but more for the environment. No one understands how we shall get the same amount of money out of the environment as we do out of production.

One cannot condense into the seven minutes allowed all the recent reports on foot and mouth: the results of the European Union inquiry, the report of the Royal Society which is to be published next month, and particularly the National Audit Office report which is so damaging to the Government. The NAO report is critical of the Government for not having made sufficient contingency plans for a major outbreak such as we had to put up with last year.

I farm in Scotland, at the very heart of the area in the Borders where foot and mouth broke out. I lost my sheep flock under the three-kilometre cull. Like all my neighbours, we practised isolation—biosecurity, as it is termed. We locked the gates, the children did not go to school, and we hoped that we should all survive. But on Easter Saturday last year, the ministry vet telephoned, in the afternoon my own vet came to inspect the sheep and the valuer arrived. On Easter Sunday, the sheep were all killed—the ewes, the tups and the lambs. It was sympathetically and humanely done, but it was a great personal disaster for the farm.

All this happened too quickly for us to protest. Indeed, none of us would have protested—we believed that this was being done on ministry advice in order to help to stop the spread of foot and mouth as quickly as possible. However, it is important to note the difference between the contiguous cull—a cull that takes place next door to an infected farm: just over the farm dyke, the fence or the hedge—and the three-kilometre cull, where the farm could be two to three kilometres away from an outbreak of the disease.

The National Audit Office has described both decisions—on the contiguous cull and on the three-kilometre cull—as "highly controversial". I hope that in replying the Minister will expand on how he treated the differences between the two categories.

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Under the Animal Health Act 1981, the Minister has a power to slaughter under four headings. The first three are: infected animals—of course, I agree; animals suspected of being infected—I agree; and animals in contact with infected animals—I accept that all those would have to be slaughtered. But the fourth ground—which the Minister set out in a letter, for which I am grateful—is if animals,


    "appear to the Minister to have in any way been exposed to infection".

That is a highly subjective reason for culling animals. I should like a little more information from the Minister as to how he came to a decision, with the ministry vets, on this very subjective basis.

This is an important point. Of the 650,000 head slaughtered in Scotland, 77 per cent were slaughtered under the terms of the three-kilometre cull; 20 per cent under the terms of the contiguous cull—animals right next door to the infection; and 3 per cent on a suspicion. So the vast majority of the stock killed in Scotland were killed as a result of a decision under the Animal Health Act and were not, in fact, next door to farms that had foot and mouth.

My noble friend mentioned the Westerhall case. The farm was very near to my home, and the case involved a hefted flock on a hill farm. As the Minister knows, hefted flocks stay put on their area of land on a hill farm. They do not wander over the march fence or the march boundaries. They know where they live and they stay there. Westerhall was on the opposite side of the hill to a farm where there was a contiguous cull. In the view of all the local farmers there was only the remotest chance of that hill flock having been in contact with another flock. The decision of the Court of Session in Scotland was that they had to be culled. That is the kind of case that we need to examine carefully to see whether we got it right. The majority of practical farmers thought that in that case we got it wrong.

In all of this, the State Veterinary Service is desperately important. It is unbelievable to me that the Government are cutting back on this UK issue. The Minister is responsible. According to the National Audit Office report, the Animal Health Act is devolved to Scotland—except, according to Appendix 5 of the report, the State Veterinary Service, which is on a UK basis as animal disease is no respecter of national boundaries. So the Minister at DEFRA is responsible for the National Veterinary Service. I want to know what the position is in Scotland and in England relative to the reduction in the National Veterinary Service as reported widely in the press a week or so ago.

It is important that the United Kingdom co-operates and co-ordinates throughout on the issue of foot and mouth. At present, there is something of a split between Scotland and England. Last week, Scotland produced a consultation document which all farmers in Scotland feel is far too complacent. For instance, the Army is to be called in only as a last resort. Yet if the Army had not been called in belatedly by the Government during the last outbreak, heaven knows where the outbreak would have ended up. The

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Army saved the Government, and saved farming, from a real crisis last year. That should be recorded. The Scottish Executive is very wrong if it tries to make the Army merely a backstop in relation to foot and mouth.

I hope that the Government will think closely about the distribution of information during a foot and mouth outbreak. Last time, there were a number of holes in the information that people received. That must never happen again. Lastly, I hope that the Minister will say something about exports to this country. The Government continue to say that they are doing something, but, so far as we know, nothing is happening at ports and airports. So let us have a response on that point and let us never have foot and mouth in this country again.

7.47 p.m.

The Duke of Montrose: My Lords, coming from north of the Border, my approach is perhaps slightly different from that of my noble friend Lord Willoughby de Broke, but many of our questions focus on the same kind of issues. First, I declare an interest as someone who has a livestock farm and who spent only 18 hours under the terms of a Notice A form when my farm was a suspected infected place. We were very relieved to have that restriction lifted. When it came to establishing the view of the courts in the latest outbreak, the Scots may not have been the first to go to law, but they did so quite early on—on 25th April. My noble friend Lord Monro referred to the Westerhall case. It turns out to be important, because much of that judgment was relied on in the further case used by the Government; namely, the Winslade case.

My noble friend Lord Monro described the situation on Westerhall farm: the fact that the boundary it shared with the infected farm at Bush of Ewes was a 400-metre high piece of boggy ground known as Meg's Shank. The owner was very nearly certain that there was no chance that any sheep were likely to have been in that area given the time of year and the management of sheep at that time. Furthermore, at the time in question the infected farm was to the north east of the farm and the wind was blowing from the south west, away from Westerhall.

This case, as my noble friend Lord Willoughby de Broke pointed out, pre-dated the publication by Professor Donaldson on 12th May in the Veterinary Record concerning wind-borne infection. But, on the evidence produced, the judge came to the view that the Secretary of State "had grounds to believe" that infection could have occurred and that was why he gave the judgment that he did.

The important point about the Westerhall case was that the judge did attempt to sort out some of the other issues raised. One was that European Directive 85/511 laid down control measures which were not intended to be comprehensive and exhaustive; therefore, further actions by the Government under the Animal Health Act 1981 were allowed.

The other critical point made in that judgment was that, however rigorously enforced the policy was, it should not be so rigid as to be incapable of delivering

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a proportionate response in a particular case. The fact that the petitioners had been given the opportunity to argue for an exception was regarded as sufficient proof that there was flexibility. The judgment also ruled out any infringement of the European Convention on Human Rights in the implementation of the cull if, as the judge considered at that point, it was carried out legally. Of course, if it turned out that the cull was carried out illegally, the human rights question would be thrown open again. However, there was no examination in that case of whether the Minister's judgment on whether there was a risk should be subject to inquiry by the courts. That may need to be looked at a bit more carefully.

While referring extensively to Lord Carloway's judgment, the Winslade case seems much more particular, centred around whether the Minister had grounds to suspect infection in certain named circumstances, so it does not produce a great deal of precedent for other cases.

The Grunty the pig case came back to the position that contiguous cull cases must be considered on their own merits, particularly if the farmer questions the position. It does not seem to me that the whole cull was illegal and that every farmer had the right to go to law in his own case. With the powers that these cases regard as legitimate, I find it difficult to see why the Government do not find that they have sufficient powers at present for executing a proper control of foot and mouth disease.

I have a question for the Minister arising out our debate on 8th May. It is very similar to a point made by my noble friend Lord Monro. Is it the Government's view that the contiguous cull was somehow under different rules from what was described as "slaughter within a 3-kilometre radius", which was used in the Westerhall case—the 3 km cull, in shortened form—or are the two terms interchangeable?

The Animal Health Bill, which we considered recently, contained a vast extension of the Minister's powers, as if that was where the fault lay. The fault was much more that the rules for the cull were badly judged. The policy was too widely and unthinkingly drawn up and was bound to lead to irrational and over-vigorous application by field operatives, even those of a fairly high level of authority. History can now tell what it was like when let loose by those charged with implementing it at each farm.

The Minister has argued recently in this House that many of the powers envisaged in the Animal Health Bill were necessary for carrying out the Government's responsibilities on the control of TSEs. Foot and mouth disease is very different, in particular as, with TSEs, the Government seem to see no practical difference between an EU regulation concerning suspect animals and a UK one concerning susceptible ones.

Having got that element out of the way, why does the Minister still think that additional powers are necessary for controlling foot and mouth disease?

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7.54 p.m.

Lord Pearson of Rannoch: My Lords, I have little to add to the three erudite speeches that have cast such doubt on the legality of the so-called contiguous cull—or mass slaughter, as it obviously was—so I shall go a little further and ask what would have been the point of the slaughter even if it had been legal. It is surely not right to do something incredibly cruel and ruinously expensive just because one believes—wrongly, as it appears in this case—that one has the legal power to do it.

As I understand it, there are two official answers to my question. I should like to check them with the Minister. The first is that we are in the European Union, so we must obey its common agricultural policy and all its rules about meat exports and imports and we must respect its dislike of vaccination. Will the noble Lord confirm that that is the legal position?

The second official answer is that our meat exports are so valuable to our farming industry and to the national economy that they must be protected at almost any cost.

We now know from the National Audit Office that these two policies cost the British taxpayer #8,000 million in last year's foot and mouth epidemic—#3,000 million to our farming industry and #5,000 million to our tourism industry. Are our meat exports so valuable? Not according to Written Answers that I received from the Minister on 24th April and 25th March this year. They reveal that the total value of our exports of meat and meat preparations, including poultry meat, amounted to a mere #615 million in 2000, which was before the foot and mouth epidemic started. The Minister also revealed that the value of our corresponding meat imports for 2000 was almost four times greater than our exports, at #2,417 million. The answer that the Government refused to vaccinate and embarked on such costly and cruel mass slaughter to protect our meat export trade does not appear to stand up. I repeat, in a normal year we spend roughly four times as much on meat imports as we get from our meat exports—about #1,800 million more. Rather than going through all that misery and expense again, would it matter if we vaccinated, even at the cost of some of our exports, which we could presumably eat here and import correspondingly less?

What about the other official answer, to the effect that we had to avoid vaccination and inflict all that immense damage on our farming industry and economy because we have to obey EU law in this as in every other way? What is the legal position? Here again, the Government's figures make our continued adherence to the common agricultural policy look crazy. Your Lordships are aware that the burden of the CAP falls on our consumers through higher food prices and on our taxpayers through tax-financed support. The net annual cost of the CAP is therefore the difference between the sum of those two costs and what our farmers get back from the CAP. On that basis, the Government's Answers in another place—for instance, on 25th November 1999 and 8th January 2001—indicate a minimum net annual cost to the

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British taxpayer of the CAP in 1998 of #6,600 million. The OECD put it rather higher, at #9,400 million. Even those figures include a credit from the EU of #2,400 million, which was part of the #5 billion-odd repaid by the EU from the #10 billion-odd gross that the UK paid to the EU.

Let us settle for the minimum figure of #6,600 million per annum, as calculated by the Government. Let us even concede—although I have no reason to do so—that the cost of the CAP may have come down since 1998 and may now be, shall we say, a mere #5,000 million per annum. That is still a colossal figure. To get it into perspective, #5,000 million would pay for about eight new district hospitals—the land bought and the hospitals built, equipped and staffed to run indefinitely. That is the sort of money that we are throwing away every year on the CAP alone. If we did not do so, surely we could use at least some of the resulting saving to look after our farmers and our environment, with several thousand million pounds per annum to spare.

Against such figures, why is the meat export trade held to be so valuable? Why do the Government think it is worth staying in the common agricultural policy? In short, why do we not get out of the CAP and why do we not vaccinate?

7.59 p.m.

Lord Livsey of Talgarth: My Lords, I shall not follow the noble Lord's remarks about the CAP. If we boil down the debate, it is about whether the contiguous cull was legal. The noble Lord, Lord Willoughby de Broke, has given a forensic analysis of the court cases. I cannot argue because I do not have the detailed information. However, it seems that the interpretation of words such as "infected" and "affected" is a part of the maze of information surrounding the regulations made possible originally by the Animal Health Act 1981.

The fact is that 6.5 million animals were destroyed, about 1.25 million as a direct result of the contiguous cull. Depending on how one interprets the figures, it is possible to claim that a larger number of animals were destroyed. We lost a large proportion of our ewe flock and a massive number of animals, the cost running into many billions of pounds. In my part of Powys we lost 155,000 animals; 66,000 were contiguously culled. The interesting question is how those animals will be replaced. Much more dependence will be placed on meat imports as we no longer have our own animals. Although I am a firm supporter of the EU, I am very alarmed by its proposals to increase, for example, the quotas of Argentinean beef. As we know, foot and mouth is endemic in many parts of Argentina. I do not believe that those proposals should be given effect. Surely, we must maintain precautionary measures in relation to any country where foot and mouth is endemic.

The 2001 foot and mouth outbreak was a very traumatic time. The outbreak was UK wide, but the worst hit areas were probably Cumbria, Devon and Dumfriesshire, with my own area of Powys fairly close

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behind. A massive number of sheep were culled in our hills, many of them in contiguous culls. I shall give but one example of my worries about the contiguous cull.

One cull was conducted primarily at the Royal Welsh Showground, but subsequently the sheep proved not to be infected. The suspicion arose that they had the disease because of a visual assessment by a 25-year-old South African veterinarian. I can just about accept that. What I cannot accept is that the animals of two neighbours on the other side of the river were consequently contiguously culled. The cull spread to Mynydd Eppynt, which was then declared an infected area. It was then decided to establish a mass burial site at Mynydd Eppynt. We fought that plan for a fortnight and were eventually successful. The fact, however, is that the area had no foot and mouth. The case shows how a contiguous cull can move sideways until a much more serious situation develops.

We shall have to consider not only the powers in the Animal Health Act 1981, but the recent outbreak and what other powers are needed. In their new Bill, the Government are requesting increased powers of entry which could be quite traumatic for farmers. As has been said, animals which appear to have been exposed to foot and mouth disease are subject to culling. The Minister has said that the contiguous cull was "necessary to contain" the disease and that "apparently" healthy animals were culled on neighbouring farms to prevent the disease spreading. In an outbreak as large as that in 2001, such a policy becomes a very emotive issue. I say that as one who lived through the 1967 outbreak in the north of England. In the legislation proposed this year, the Government are asking for the power to slaughter and for increased powers of entry and enforcement. However, the 1981 Act already allows the Government to slaughter any animals appearing to have been exposed to foot and mouth.

In June 2001, the policy was to slaughter infected animals within 24 hours of confirmation and contiguously culled animals within 48 hours. Animals on holdings that had close contact with infected holdings were slaughtered as dangerous contacts. There were 69 appeals against slaughter, most of which were on the basis of misdiagnosis. Although the main slaughter criteria were based on controlling the disease among animals at risk, I believe that that is a subjective interpretation of the law. The legislation provides that such action can be taken "if he"—the Minister—"thinks fit".

The new Bill seeks to address the issue of whether the action in 2001 was taken on a satisfactory legal basis—namely the previous Act. As we have heard, the point was tested in the courts, although I shall not address that issue now. The Government say that they require greater enforcement powers in relation to future foot and mouth outbreaks. That suggests to me that they were already sailing very close to the wind in the 2001 crisis.

According to the criteria, vaccinated animals can in future be slaughtered. The Government also require the ability to take fast-track action. The main objective

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is to eliminate disease. However, the culling of apparently healthy animals as a firebreak is very difficult for farmers and their families. There are some very important points to consider. Why do we not have a method to test instantly? Although it would be a technological breakthrough, why cannot we ask Pirbright to devise a way of determining within an hour whether an animal is positive? If we could do that, we should certainly be able to slaughter infected animals well before the 24-hour limit. Things got out of control in 2001.

Surely, we also need a major contingency plan that includes a sufficient number of vets. However, I do not blame the Government for the shortage. In 1980, there were about 623 vets, whereas, as we know, there were just under 300 in 2000-01. Most of those vets were lost in the 1980s and early 1990s. We need to return that number to 620 to 700 to be able to tackle foot and mouth. About six years ago, I said that we would not be able to cope with a foot and mouth epidemic. Unfortunately, that turned out to be true.

 

Lord Willoughby de Broke: My Lords, I am sorry to interrupt the noble Lord, but I remind him that he has exceeded the time limit. He is now in the tenth minute of his speech.

Baroness Farrington of Ribbleton: My Lords, as the Whip on duty I accept that rebuke. However, there is a little extra time. I hope that the noble Lord, Lord Livsey, will finish now.

Lord Livsey of Talgarth: My Lords, I thank the noble Baroness. I shall finish very quickly. We need enough vets, a contingency plan, a crackdown on meat imports, proper surveillance and a large increase in regional rendering capacity. If all that were done, contiguous culls would not be so necessary.

8.9 p.m.

Baroness Byford: My Lords, I am looking at the Whip and thinking, "May I have my minutes too?" However, I shall try to stay within the seven minutes.

I thank my noble friend Lord Willoughby de Broke for securing this debate. The Government's contiguous cull policy during last year's foot and mouth outbreak caused great consternation when it was introduced and resulted in thousands of uninfected animals being killed. At the time the Government failed to convince those who questioned the legality of a contiguous cull. This debate gives the Minister an opportunity to consider the many questions posed then and raised again tonight. I hope that he will fully respond.

I again remind the House of my family's farming interests, although we were not directly affected by the outbreak.

My questions to the Government are fairly simple. On what basis were the Government convinced that their contiguous cull was legal? Did the Government seek approval from the European Commission as to its legality and, if so, when was it given?

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On 23rd March 2001, the Chief Scientific Adviser recommended that, following modellers, animals on contiguous premises where it was believed that animals had been exposed to infection should be culled. But some vets and scientific advisers argued that local circumstances and adequate biosecurity measures should be taken into account before a contiguous cull was carried out.

As others have said, on 12th May Dr Alex Donaldson of the Institute for Animal Health considered that action taken on contiguous premises should be determined by the species at risk on those premises—sheep are at risk due to the difficulty of diagnosis and cattle should be subjected to intensified clinical surveillance. On 26th April 2001, more veterinary resources were made available for patrolling. That was welcome.

As I said, vets were allowed to give greater consideration to cattle, especially milking cows. After much argument in this House, the Government acknowledged that rare breeds should be assessed separately rather than be automatically included in a contiguous cull. Will the Minister clarify how and when that decision was taken?

At the time the NFU accepted the necessity for the contiguous cull and the three-kilometre culls but welcomed greater flexibility. What made the Government change their mind about fully applying a total cull on contiguous farms, as they did in the early stages? Were the Government given new legal advice that made them change their mind and, if so, when was that advice received and from whom did it come?

My noble friends have referred to the Rosemary Upton case. It is the only case in which the judge based his evidence on the scientific evidence that was available. It swayed him to come down in favour of Rosemary Upton. On previous occasions when we have raised the matter, the Minister has not responded fully. I hope that he will respond fully tonight as it is an extremely important matter. I have considered other cases but the Rosemary Upton case stands alone. If the Government were so rigid about the matter, why was Phoenix the calf spared? What scientific reason was there for the decision taken by the Prime Minister?

By the end of April 2001, Clarke Wilmott Clarke argued that the contiguous cull was illegal within EU law. Directive 85/511 stated that only infected animals could be killed. William Neville from Burgess Salmon argued that the Government withdrew from seven out of the nine cases that he represented. Why did that happen? What was the reason for the Government not pursuing those seven cases? How did the Government decide which cases to proceed with and which ones to withdraw from?

On 6th November 2001, Mr Morley was challenged in the House of Commons Select Committee on the legality of the contiguous cull. He responded that the Government were confident that the culling had been absolutely legal and that a court ruling had not challenged that. So how does the Minister explain the ruling of the judge in the Rosemary Upton case? I refer

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also to the Exeter based solicitor, Alayn Addy, who represented 200 farmers, none of whose livestock subsequently developed the disease. I am pleased to see that the noble Baroness, Lady Hayman, is present. She and the noble Lord, Lord Whitty, have argued that the fact that livestock did not develop the disease did not mean that they did not run a risk of doing so. To a certain extent I accept that. However, I need to push the Minister further rather than accepting a rather broad brush approach. I hope that he will discuss that matter when he responds to the debate.

I understand that MAFF stated that it was not confined by EU directive 85/511 but was overruled by the Animal Health Act 1981 which widened out the matter to include animals which a veterinary official might, on his discretion, have reasonable grounds for supposing had been exposed to infection. Did the Government raise that issue with the European Commission and, if so, when? My noble friends the Duke of Montrose and Lord Monro raised the whole question of the balance and the difference between the contiguous cull and the three-kilometre cull. I hope that the Minister will comment on that.

On 26th March this year the noble Lord, Lord Whitty, following my question about the need for additional powers in the Animal Health Bill, said,


    "The issue is whether the House wishes to deprive the Government of powers which in their judgment the Government consider are wanting for the period between the passage of this Bill and a point at which we can further legislate".—[Official Report, 26/3/02; col. 195.]

I hope that the noble Lord will define what those powers are that he felt that he did not have and that he sought in the Animal Health Bill. The noble Lord went on to say that,


    "in particular in carrying out a contiguous cull ... we do not have adequate powers of entry or rapid enough powers for enforcing entry in order to contain the disease".—[Official Report, 26/3/02; col 196.]

We need to have that matter clarified.

As others have said, the farming industry is still in deep crisis. The Government must appreciate that there are still concerns and doubts about the contiguous cull. Tonight the Minister has the chance to redress the situation. I express my concern in regard to the cut in finance allocated to animal health research. There may be a misunderstanding as regards the figures that were mentioned in another place. I hope that the Minister will clarify the position.

8.16 p.m.

Lord Whitty: My Lords, I am to some extent grateful for having the opportunity to clarify the position yet again. A number of the points raised by noble Lords addressed concerns in the farming community and beyond. Others slipped into paranoia and conspiracy theories. I should have thought that by now we would have moved away from that. As I have said before in this House, it is quite understandable that within the farming community there was much confusion and mistrust and that allegations were made during the course of the epidemic which overwhelmed us all. It is understandable that such allegations were

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made in the heat of the moment. However, it is not reasonable that some of those allegations should be repeated several months later when we have had time to reflect on the disease and are in the process of receiving a number of well founded inquiries into how well or how badly the Government dealt with the outbreak and how well or how badly the farming community dealt with it.

However, this debate is focused on legality. I make it quite clear—as several noble Lords have almost explicitly said—that the basis of the contiguous cull rested on paragraph 3(1)(b) of Schedule 3 to the Animal Health Act 1981 which states,


    "animals . . . which appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease".

As noble Lords rightly said, that is a subjective judgment. The issue of the law is clear: we have the power to slaughter animals where that judgment is made. The issue of the law in a particular case or a particular campaign must concern whether that power was exerted reasonably.

I shall refer to particular cases in a moment. However, as regards the situation in general, throughout the epidemic Ministers—like the noble Baroness, Lady Byford, I am glad to see that my noble friend Lady Hayman is present—acted on the clearest veterinary and epidemiological advice, all of which indicated that the highest risk of exposure would occur on premises situated close to the premises where an infected case had been found. I refer in that connection to the contiguous cull which was operated for the most part in the whole of England and to the three-kilometre cull which was operated for the most part in Scotland. However, due to the overlap of certain premises in Cumbria, we also operated a three-kilometre cull in Cumbria as well as across the Border in Dumfries.

Both the contiguous cull and the three-kilometre cull were based on strong advice received from vets on the ground and from epidemiological modellers. We were advised that the best way to contain the disease was automatically to presume that the contiguous premises, or the premises three kilometres away, could have been exposed to it. That stance was not adopted from the beginning of the outbreak. We reached that conclusion through our experience during the first few weeks of the disease when it became clear that infectivity was primarily local. The overall indications are that during the course of the disease 80 per cent of cases were transmitted by local infection.

The noble Lord, Lord Willoughby de Broke, asked whether the Donaldson report was before the Winslade case. So far as I am aware, that report was not before the judge. The judge, as I said in an earlier debate, had before him the same information that Ministers had before them, including an assessment of all forms of transmission. The Donaldson report dealt with only one form: airborne transmission. Most local infectivity occurred as a result of direct contact of animals or direct contact with human beings who had been in contact with animals, or it resulted from vehicles. That is the way in which the infection spread. Airborne infection was only one element. That is why

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the Donaldson report was not of itself a determining factor; in that regard we should refer to the combination of all the matters that were in affidavits before the judge in that case. It is therefore not relevant whether the Donaldson report was before the judge. I believe that that was also referred to by the legal representation on the other side at that case.

The noble Lord also asked whether we had effectively suppressed the Donaldson report. That has never been the case. We have always been as open as possible about the advice received by the Government during that period. I therefore do not accept his argument that those cases would have led the judge to a different conclusion had that information been before him.

The noble Lord, Lord Willoughby de Broke, the noble Baroness, Lady Byford, and others referred to the Upton case, the case of Grunty the pig. That judgment found against the Government. However, that was not a contiguous cull case and is therefore completely irrelevant to the legality of the contiguous cull. It was a direct contact case and has no bearing on any individual contiguous cull case or on the overall approach of the contiguous cull. In that case, the judge was absolutely supportive of the Government's policy and stated that, in his opinion, the action of MAFF in carrying out the contiguous cull operation was reasonable.

I have started to explain the distinction between the three-kilometre arrangement and the contiguous cull; both were based on the same veterinary advice. That advice was going to Scottish Ministers with regard to the three- kilometre cull arrangements—that was because of the structure of farms in Scotland and the logistics of the situation there—and it was available in England and led to the adoption of the general contiguous cull arrangements.

DEFRA and the United Kingdom Government have a responsibility for the state, size and operation of the State Veterinary Service but the detailed application of animal health matters are a matter for Scottish Ministers under the devolution of those powers within Scotland.

On the size of the State Veterinary Service, various erroneous figures are floating around. The figures quoted by the noble Lord, Lord Livsey, are misleading. Although the numbers have come down significantly in total, that is largely because of managerial changes, a reduction in the number of regions, the switch of some of the veterinary service's activities to the Meat Hygiene Service and the Food Standards Agency and the fact that the research side has moved to the Veterinary Laboratory Agency. The figures do not compare like with like.

On the Veterinary Field Service, the figures have not changed significantly during the past 10 years. There have been some ups and downs but broadly they have been in the low 200s. That service is mainly responsible

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for dealing with animal disease. The inquiries are currently considering whether that is an adequate level.

Lord Livsey of Talgarth: My Lords, I received a Written Answer when I was a Member of the other place that indicated that during the first 10 years and on a like with like comparison, there was a reduction of 300 in the number of field vets.

Lord Whitty: My Lords, if the Answer referred to field vets, it was misleading. The total number came down from just under 600 to just under 300. However, that was mainly the result of a loss of management and research jobs and the transfer of responsibilities to other agencies, not because of a reduction in the number of field vets. It is true that some of the figures are a little obscure for the years 1967 to 1981 but the position from 1981 to the present is fairly clear. That is the pattern.

I turn to the question of whether the European Union was in support of, or had cleared, the Government's policy. I have to be careful with my terminology because the noble Lord, Lord Pearson, is clearly against the European Union having any role in this respect. Some are concerned about the fact that the endorsement or otherwise of the EU was not clear and that that cast doubt on the legality of the situation. However, that view is not well based. The European Commission was well aware of the situation throughout. There was constant communication with the European Commission and almost constant activity from the standing veterinary committee of the EU.

The Commission was well aware of the UK's culling policy and approved of that approach. The recitals to Commission Decision 2001/257/EC, which permitted a programme of vaccination in the UK, specifically acknowledged the existence of the contiguous cull policy in the UK. It stated:


    "In addition to the measures within the framework of Directive 85/511/EEC"—

that has already been referred to—


    "the UK apply the pre-emptive killing of susceptible animals in holdings in close proximity to infected or suspect holdings".

It therefore explicitly recognised that that was allowable within EU law.

The number of so-called healthy animals destroyed during the cull has been raised. It is deeply distressing that 1.2 million animals were slaughtered under the contiguous cull. It is more distressing that people are now told that it was unnecessary to slaughter those animals. However, it is misleading to tell them that that was unnecessary because the majority of those animals proved to be healthy. As I have made clear previously, the more effective the contiguous cull policy, the less likely animals are to prove positive on testing. If the disease has just been discovered and the cull of contiguous premises is carried out immediately, there will be no testable sign of the disease among those animals. It is also true that a large proportion of

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those killed during the epidemic were never tested because the pressure on resources meant that efforts concentrated on detecting the disease in new outbreaks. Any figures that are used in this regard are deeply misleading.

It is also important to recognise that there was some discretion in the operation of the approach. Although there was a presumption, there were also a number of areas of discretion for local vets to be involved; that is why the courts could be brought in to judge whether we were being reasonable or not. The local inquiries will consider whether that discretion was adequate and whether there should have been greater discretion.

The fundamental issue is that the legality or validity of the contiguous cull strategy is well established in case law and European law.

Lord Willoughby de Broke: My Lords, will the Minister please undertake to answer the five questions in writing and put a copy in the Library of the House? He has partly answered three of them but he still has two others to answer.

Lord Whitty: My Lords, I thought that I had answered all five questions; I may have missed one. I believe that two of them were collated.

I have to finish at this point. I should be delighted to debate further the future of the CAP on a different occasion with the noble Lord, Lord Pearson. I shall elaborate on my answers in writing when I have read the rest of the debate.