THE 3KM/FIREBREAK
VOLUNTARY/

COMPULSORY CULL

 



Part Two

DID DEFRA LIE?

 





 

SUBMISSION TO

 

THE CUMBRIA FMD INQUIRY


by

 

NICK GREEN

May 2002

 

 

 

 

 

1.            On 10 November 2001, a “leaked” memo from DEFRA, Page Street, London was forwarded to Heart of Cumbria co-founders Elaine Commander and myself
[ Appendix A ]. This document, dated 6 November 2001, was originally sent out by Mr Roy Hathaway, Head of Foot and Mouth Division, Area: 2/02A, 1A Page Street, London. In this memo, circulated to Mr Elliot Morley & Mr Ray Anderson, head of MAFF/DEFRA Operations Carlisle amongst others, Hathaway confirms that the so-called “voluntary” cull in Cumbria was not “voluntary”. It went on to say that the Department was concerned that a local Cumbrian farmer, Mr Bindloss, was legally contesting the fact that, when his stock were culled in the “voluntary” scheme, he was not allowed to appeal against the valuation. The Department, rather than lose in Court and therefore set a legal precedent, had been advised “not to contest the case since the Court would doubtless conclude from the evidence that Mr Bindloss had been denied the right to appeal against valuation as a result of the way the 3km cull policy was presented and applied in Cumbria.”

2.           Mr Hathaway is so right. In fact, it would appear that the Department was so scared of losing this case that they were prepared to “pay any legal costs incurred by Mr Bindloss.” Actually, Mr Hathaway, it is the Tax Payer who will meet these costs and the reported £20 billion wasted by your Department during this FMD crisis. Of course, typically, MAFF/DEFRA continued to side step the issue by saying that “Penrith Farmers & Kidd told Mr Bindloss that he had no right to dispute his valuation.” PFK were contracted by MAFF to complete all administrative duties concerning valuation. PFK managing director, Richard Morris was told by MAFF that the cull became “compulsory” at 4pm on 27 March 2001.

3.           So, MAFF/DEFRA have admitted that there was no such thing as a “voluntary cull”. This seems quite strange as much of the official paperwork that circulated had “Voluntary Depopulation Scheme” clearly noted. [Appendix D/E/F/G].

4.           In the House of Commons Hansard debate 6 November 2001, Elliot Morley states:

 “At the present time we do not have powers for a fire break cull. There was the 3km cull in Cumbria but that was a VOLUNTARY cull and people were invited to participate in that. If there was a situation where it was recommended that a fire break cull would be desirable, then it (The Animal Health Bill 2001) gives you power to do that.”

This last comment is staggering! On the very same day, 6 November, that Roy Hathaway told Morley that there was no VOLUNTARY cull, Morley is saying they had no powers to conduct a 3km cull and that there WAS a VOLUNTARY cull. So, gentlemen, who is lying?

5.           The fact is that MAFF/DEFRA had no legal power to conduct either a “firebreak” or a 3km cull. The fact is that there was no VOLUNTARY cull. A letter given to any farmer who resisted the 3km, contiguous or firebreak cull [Appendix C] states:

”According to our records you were not willing to give up your sheep. This letter is to advise you what arrangements are now being put in place to include your sheep in the cull. In the infected area, sheep, goats and pigs within 3 km of infected premises will be treated as Dangerous Contacts.
This means that the Ministry of Agriculture will make arrangements for your sheep to be slaughtered on the farm.” NIKKI ELLIS Assistant Director of Operations (MAFF, April 2001)

Just a little coercion there I think! It doesn‘t seem to be “voluntary” to me, Mr Morley.

Further documentation received exposes MAFF/DEFRA bullying is typified in a leaked memo from Ann Waters, Deputy Director FMD Operations HQ, 8 June 2001, [Appendix G]

“The purpose of this brief is to provide MAFF staff with information to enable them to seek to discourage farmers from resisting MAFF‘s slaughter policy by citing the favourable judgements of the High Court. The strong possibility that farmers will be liable for MAFF costs in future cases should also be a deterrent.” She adds: “Although the Judge did not award MAFF costs in earlier cases, it is likely that the court will now award costs in future successful cases.”

This is absolutely scandalous! At that time, NO Judge had awarded costs against any farmer and after consultation with a well-known firm of solicitors, they concluded that this particular document was “An Incitement to harass and intimidate!” MAFF had, in effect,  “pre-judged the Judge.

Further examples of DEFRA abusing powers can be seen at Appendix H.

6.           I spoke to Mr Hathaway, head of FMD at Page St., DEFRA Headquarters. Hathaway said that Elliot Morley was in fact wrong to suggest that the 3km/firebreak culls were voluntary.

7.           Morley replies to my E-mail asking why he lied with relation to the “Voluntary” Cull. 21 November 2001. [Appendix B]

8.           Mr Eric Martlew MP stated in Hansard Debate on 12 November 2001:

“In north Cumbria, one option was that we should have a fire break - that we should cull the sheep in the north of the county to stop the infection getting on to the fells. That policy would have been illegal, as the Government did not have the powers to implement it. It was ultimately carried out by other means, but if it had been challenged, we would have had serious problems.”

It seems he must have realised the truth from listening to Elliot Morley’s comments about the “voluntary” cull at the Select Committee meeting just days before on 6 November 2001 [See 1.4]. On that same day Eric Martlew, who had attended most of the FMD meetings held in his constituency discussing the 3km cull, asked Morley:

”If we come to Cumbria, we did have a firebreak in Cumbria with regards to sheep in the north of the county. Are you really saying that you did not really have the powers and did not really have the legal powers to carry out the firebreak – I was involved in a number of meetings – and that really it was a question of goodwill and bluff that allowed that firebreak to take place?”

9.           Nick Brown, Agricultural Minister, stated on 9 April 2001:

“If farmers in the control zone but outside any other 3km zone, and if they give up their animals for a firebreak policy, as is happening in South Cumbria, that is VOLUNTARY and not mandatory.”

10.       Elliot Morley stated on 15 October 2001:

“MAFF/DEFRA received over 2,100 compensation claims in total as a result of the 3km cull in Cumbria.”

11.       Elliot Morley stated on 13 July 2001:

“In Cumbria, 503,545 sheep were slaughtered on 1,732 farms.”

 But, on 10 May 2001, Ms Quin stated:  “As at 2 May 2001, 523,857 sheep had been slaughtered on around 1,800 farms in Cumbria as part of the North Cumbria/Solway precautionary cull.”

12.       Mr Maclean MP asked Ms Quin:

 “What percentage of animals from farms caught in the 3km voluntary cull have tested positive for FMD at Gt. Orton?” Ms Quin replied: “ The information is not currently held on a computerised system and could be collected only at disproportionate cost”

13.       Jonathan Miller wrote in The Sunday Times on 25 November 2001:

“A reader passes on an astonishingly patronising and arrogant letter from the rural death minister Elliot Morley, friend of foxes currently demanding greater powers to slaughter dogs, cats and horses. Morley, it will be recalled, has still to reply to my challenge that he provide the name of a single cull resistor who can be shown to have spread foot and mouth. It is an extraordinary, disingenuous, bizarre letter. I will copy it to anyone who is interested.
”Rant away as you see fit,” writes Morley to Nick Green, of Cumbria, who has been impudent enough to query Defra’s lies. But Green is on to something. The contiguous killing programme of healthy animals was legally dubious and unlawfully executed.
I get a letter of my own from Defra. Lindsey Clothier, a death ministry apparatchik, says I have been “selected” to participate in a survey of agriculture. Inspired by Morley’s bare-knuckled style of correspondence, I reply: “Dear Lindsey: My contempt for Defra disinclines me to co-operate with your organisation in any way. I advise you to seek more reputable employment.”

14.       “Shambles over cull” from the Cumberland & Westmorland News, Editorial Opinion, November 2001:

”One thing about the handling of Cum­bria’s foot and mouth outbreak has become clearer following the Government’s deci­sion not to contest a farmer’s appeal against the valuation placed on his slaugh­tered sheep.

It shows that there was deliberate ambi­guity surrounding the rules governing the controversial three-kilometre cull.

Everyone believed the cull was voluntary, when in reality it was anything but.

Farmers and valuers were allowed to think that stock valuations could not be disputed, when farmers should have been informed about their legal right of appeal.

In the name of expediency there was, quite clearly, some economy with the truth.

The Government continues to fan the blame culture against farmers over the spread of foot and mouth, but its own inep­titude was at the heart of the problem.  If hundreds of angry farmers now decide to challenge their payments, the Government will simply be paying the price for its own earlier incompetence.”

15.       Morley replies to my assertions on 21 November 2001:

 “There have never been 200 court actions in Devon, another myth. Of the 103 I referred to, a very large number had the case rejected and were culled. The figures are therefore more significant than seven given that these were probably considered low risk. You should also look at the Thirsk figures to give a more accurate picture.

 I investigated Morley’s claims concerning Devon and checked on the Thirsk figures.

According to Hansard 29 November 2001, Elliot Morley stated:

 “Some went to court, and some did not. There was a repeated claim that Alayne Addy assisted 200 farmers to resist the contiguous cull in Devon. We have no record of legal cases concerning 200 farmers there. We had many appeals to the deputy veterinary manager. The hon. Lady rightly said that we introduced exemptions for cattle if the case was reasonable. Those cases did not have to go to court. It is in solicitors’ interest to claim that some great change was brought about by legal action. There is a vested interest there. Incidentally, it was stated - it may be a mistake by the newspapers - that not one premise on which there was a challenge became infected. That is not the case. At least three premises dealt with by Burges Salmon were later confirmed as infected. Three cases went to the High Court. We lost only one case, and the premises concerned went on to become infected. That is incorrect because I have details of three cases that went on to be confirmed as positive. One of only three cases that went to the High Court related to Alayne Addy, whose premises went on to become infected.

16.       A reply received from Alayne Addy:

”I don’t quite know what we can do to correct Mr Morley and his wilful misreading of this situation !

 He is correct to repeat that I assisted over 200 farmers in Devon (and elsewhere) to resist the contiguous cull. NONE of those farmers who saved their healthy livestock subsequently became infected with the disease.

 He is incorrect to imply that I instituted any legal action against MAFF. His files will show that it was MAFF that took the decision and initiative on any legal action that was commenced against any of those 200 farmers. Many farmers were threatened with High Court legal cases by MAFF, but only three of my clients were actually dragged into the High Court by MAFF (details and names below).

 One farmer won against MAFF in the High Court - but was later, and under much protest, declared to be ‘an infected premises’ by MAFF despite the cattle there being perfectly healthy and showing no signs of disease whatsoever (see below).

Stephens & Scown, by whom I am employed, represented the three farmers that resisted the contiguous cull and were dragged into the High Court in actions commenced and brought by MAFF. Mr Morley (will) be able to see this from his files and he will also be able to confirm that the names of these farmers and the dates of the High Court Hearings were Winslade on Monday 21st May, followed by Jordan and Wilmetts on Friday 25th May.

 Mr Morley seems here to be referring to the one case won by a farmer against MAFF in the High Court - being Wilmetts on 25th May - where the MAFF Regional Office in Exeter then many days later declared the farm ‘an infected place’ ... despite their own veterinary inspectors confirming on the farm earlier on that very same day that all livestock there were totally healthy and that none of the cattle on the farm were at that time showing, or had shown, any signs of the disease.

No-one really understands or knows why Mr Wilmet’s farm was declared an infected premises in early June. Although it is starting to look very convenient for MAFF/DEFRA now.

 What MAFF said at the time, under pressure from this firm, was that they had re-tested at Pirbright and found anti-bodies in the blood of one winter-keep sheep which had previously been tested prior to slaughter in early May (on another part of the same farm) and that the test results had ‘just become available’ in June.

This is all very important - as it is becoming very clear to me that the sole plank in terms of evidence being used by Mr Morley to justify the drastic new powers proposed by the Government, seems to be this one farm. So the full circumstances of the suspiciously convenient imposition and declaration of ‘infected premises’ status, which we were all very unhappy about at the time, need to be available and understood by everyone.

 As I think I have said before, anywhere can become ‘an infected place’ if MAFF office staff chose to declare it so on the basis that they suspect the disease is present. That should not though, in this particular case, be seen to imply that the disease was present !!?! and certainly not at the time the farm was declared so by MAFF - or at any time before or since.

The Judge in one of our cases (Wilmetts, as I recall) was very critical of the role of office-based MAFF staff deciding upon important matters of disease control and cull policy without the benefit of personal or informed local knowledge.

Please circulate this as widely as you feel necessary , so that everyone understands the situation. Mr Morley cannot change the facts - and although he may chose to interpret them one way at present, he may yet find himself open to a suggestion of the very “vested interest” that he here declares exists amongst those pressing him for answers to tricky questions.

Alayne Addy
Stephens & Scown

17.       Now to the Thirsk Figures.

 My investigations revealed again that Morley had been economical with the truth. The NFU provided some figures on 12 December 2001 [Appendix I]

These were as follows: “In North Yorkshire there were 55 appeals against inclusion in the contiguous cull, of which 29 were upheld. 7 of these were subsequently diagnosed as infected premises and 4 involved further culls of dangerous or contiguous premises. Of the 26 appeals, which were rejected, 4 were confirmed as IP‘s of which 2 led to further culls.”

18.       However DEFRA obviously misread these figures by accident or design as Christopher Booker points out in The Telegraph on  21 April 2002:

”Last November (2001) when Margaret Beckett based the case for her new Animal Health Bill on a claim that 55 farms around Thirsk had resisted the ministry slaughter policy, 29 of their appeals had been upheld, yet nine were later found to have foot-and-mouth.

 Following pressure from Lord Jopling, Lord Whitty admitted on December 20 that these figures had been applied to Thirsk in error. They related to the whole of North Yorkshire. In a letter to Jopling on January 10 Elliot Morley further corrected the figures, admitting there had been only 16 appeals from Thirsk and only two farms found infected; and Lord Whitty grudgingly conceded on the floor of the House that the Thirsk farmers had been maligned. Yet, when appearing two weeks ago before MEPs, he without a blush repeated much the same figures for which he had earlier apologised, claiming that in the Thirsk area 27 appeals had been upheld and seven farms found infected.

Again he must have hoped that if he repeated his untruths, no one would notice. It is getting rather a habit.”

19.       On Friday 23 February 2002, it was revealed that Elliot Morley had written to Mr David Maclean, MP for Penrith & Borders.

 Morley writes: ‘Some owners of animals subject to the 3km Cumbrian cull on grounds of FMD may have been informed that there animals were culled on a voluntary basis ... they may also have been informed that they had no right to dispute the valuation of their animals ... the Department considers that all such culls, carried out under the supervision of its officials, were in fact compulsory and that in all such cases there was a right to dispute their valuation within 14 days.”

Mr MacLean said:  “The minister’s confession was further evidence that a full public inquiry was needed to get to the bottom of the “scandal of the handling of foot ­and-mouth and the pack of lies farmers have been told by ministers from day one. This announcement has been sneaked out in a letter to me with no announcement in Parliament and not a single word of apology.”








CONCLUSION



20.       It can be seen from all the evidence presented here, that MAFF/DEFRA and Mr Blair’s Government, at best, created total confusion with respect to the 3km cull in Cumbria.

21.       More importantly, I have shown that Mr Morley and other ministers have consistently been economical with the truth. Some may say, he lied.

22.       The 3km cull was unscientific, barbaric and probably illegal. The government’s desperation to introduce the new Animal Health Bill clearly adds weight to the argument that this bill was being introduced to give The Department retrospective powers.

23.       The whole sorry story of the 3km cull was a disgrace. Those responsible for their actions must be held accountable now. I include the Prime Minister, Mr Blair, who “took personal charge of the epidemic.”

































 

 

 

 

JUDICIAL REVIEW:

APPEAL AGAINST VALUATION DURING THE 3KM CULL IN CUMBRIA

 From:        Roy Hathaway

           Head, Foot & Mouth Division

Location:     Area: 2/02A, 1A Page Street

(   :  020 7904 6019 (GTN: 3290)

  :  020 7904 6167

:   :   R.A.Hathaway-official@ahvg.defra.gsi.gov.uk

Date :         6 November 2001

Via: E-Mail

 

 

To:              Elliot Morley

 

cc:        Private Offices

            Kathryn Morton

            Jim Scudamore

            Andrew Burchill

            Lucian Hudson

            Neil Thornton

            George Trevelyan

            Ann Waters (for RODs/DVMs)

            David Littler

            Jeremy Cowper

            Mayur Patel

            Anne Werbicki

            Martyn Smith

            John Webb

            Eddie Routledge

            Ray Anderson – Carlisle

            Judy Brooksbank

            Kate Ward, FMD Briefing Unit

            Paul Dray  (For Helplines etc)

            Leo Hanmer

 

Issue

1.  A Judicial Review application (Bindloss) about the appeal procedure by which farmers can dispute the valuation of slaughtered animals in the 3km cull in Cumbria.




 

Timing

2.  Routine.

 

Action

3.  For information.

 

Background

4.  The Claimant in this case is a Cumbrian farmer involved in the 3km cull.  He says he was told by contractors administering the 3km cull for the Department that the cull applied to his animals was voluntary and that he was expressly told he had no right of appeal against the valuation of his animals.  Our investigations confirm that the cull in question was the 3km cull announced on 15 March and put into effect some days later in parts of Southern Scotland and Cumbria.  As you know, the 3km cull was predicated on the CVO’s advice that the animals concerned were exposed to FMD infection.  The cull was therefore carried out under the slaughter and compensation provisions of the Animal Health Act 1981.  The CVO swore a witness statement to this effect in a separate judicial review case in March (Kindersley) which the Department won.  Locally, however, in Cumbria, the 3km cull was referred to as “voluntary” in part because those farmers who cooperated with it had their animals taken first.

5.  Subsequent investigations have shown that the term “voluntary” was widely used in Cumbria to describe the 3km cull and appeared on official documents, including the valuation forms used by the firm (Penrith Farmers’ and Kidd’s plc – PFK) contracted by DEFRA locally to administer the slaughter policy.  Representatives of that firm have confirmed to us that they believed the cull was voluntary and that farmers were therefore not entitled to dispute their valuations; and that they specifically told Bindloss that he had no right to dispute his valuation.  This is incorrect; under the 1981 Act and subordinate legislation, farmers have 14 days to appeal against valuations.  

Discussion

6.  We have been advised by Counsel not to contest this case, since the Court would doubtless conclude from the evidence that the claimant had been denied his right to appeal against his valuation as a result of the way the 3km cull policy was presented and applied in Cumbria.

7.  Settling the case will mean the Department will have to pay any legal costs incurred by the claimant.  At this stage we do not think they will be substantial.  However, we anticipate that other farmers affected by the 3km cull in Cumbria may argue that they too were advised that they could not dispute their valuation and may notify the Department that they wish to be allowed to dispute their valuation outside the normal 14 day limit.

 

 

Action being taken

8.  This note is being copied to Communications Directorate, the Helplines and to DVMs/RODs.  It is important that all understand the true legal status of the 3km cull under the Animal Health Act 1981.

9.      The Department is separately defending another claim (Messrs Dockeray) submitted for Judicial Review which challenges the 14 day appeal period.  In this case the farmer appealed after the 14-day time limit and the Department turned down the appeal as out of time.  However, the facts and circumstances of these two cases are completely different because the case of Dockeray does not involve the Cumbria 3km cull.  We will be defending this separate case strongly and we will let Ministers know the outcome as soon as it is known.  

 

 

 

Roy Hathaway

Head, Foot and Mouth Division

 


APPENDIX B

 

020 7238 5421/3

 

From the Parliamentary Under Secretary of State (Commons)

 

 

 

Nick Green Esq

The Heart of Cumbria (by e-mail)                                                                         

21 November 2001

 

 

 

Thank you for your e-mail of 15 November outlining your comments on the FMD crisis.

You are entitled to be as bad mannered and exhibit your own prejudices and free to rant away as you see fit. I can’t say it does much for your credibility. It is also not borne out by the many letters and expressions of gratitude I have seen from farmers in Cumbria for the support they have had from our staff and the way they carried out their jobs. You also are not entitled to attribute to me things I didn’t say. I have never on any occasion said the majority of farms that resisted the contiguous cull became IP’s, yet another dent in your credibility. There have never been 200 court actions in Devon, another myth. Of the 103 I referred to, a very large number had the case rejected and were culled. The figures are therefore more significant than seven given that these were probably considered low risk. You should also look at the Thirsk figures to give a more accurate picture. 

You may not like the culling policy, as indeed I may not. The fact is, however, on all practical and independent scientific evaluation it worked. What we should be doing is looking forward for the future and examining the possibility of alternatives. It’s a pity you seem more interested in witch-hunting than thinking about the many serious issues surrounding this epidemic. I really think a more grown up attitude is called for.

I accept that at various times and places there has been confusion over the terminology used to describe the 3km cull in Cumbria, but I strongly refute the suggestion that there was any intention on our part to deliberately mislead people. The cull was carried out under the 1981 Animal Health Act, on the basis of scientific and veterinary advice that the animals concerned had been exposed to FMD infection. It was on that basis that the farmers concerned were compensated for the animals slaughtered. There was a ‘voluntary’ element to the initial implementation of the cull, when farmers who were willing to cooperate with the 3km culling policy had their farms dealt with first, and this has given currency to the term “voluntary cull” as a shorthand description. But this does not justify the intemperate accusations in your email.

 

   

ELLIOT MORLEY


APPENDIX C

COPY OF LETTERS SENT TO FARMERS WHO RESISTED THE CULL.

 

MAFF Northern Regional service Centre, Eden Bridge House, Lowther Street, Cumbria, CA3 6DX

 

April 2001

Dear .....(farmer’s name)

In March the Minister for Agriculture announced that all sheep in the 3km zones around an infected premises in certain areas of Cumbria must be slaughtered. This was following the advice of the Chief Veterinary Officer and MAFFF’s scientific advisers who believe that sheep within these zones will have been exposed to infection. They also believe that by slaughtering these sheep the impact of the spread of the disease will be reduced.

Following consultation with members of the NFU a decision was made to remove sheep from farms in the 3km zones to a central place for slaughter. This gave farmers the opportunity to avoid the slaughter of sheep on their own premises and enabled the slaughter of about 20,000 sheep a day without impacting heavily on the available resources. To this end local auction marts contacted farmers in the 2km zones and invited them to give up their sheep. Arrangements were then made for the sheep to be valued, collected and slaughtered.

According to our records you were not willing to give up your sheep. This letter is to advise you what arrangements are now being put in place to include your sheep in the cull.

In the infected area, sheep, goats and pigs within 3 km of an infected premises will be treated as Dangerous Contacts. This means that the Ministry of Agriculture will make arrangements for your sheep to be slaughtered on the farm. Compensation will be paid for your sheep.

if you have reason to believe that your flock has not been exosed to infection it may be possible to arrange for them to be subjected to repeated serological surveillance to confirm your beliefs. You will need to contact your local veterinary surgeon and ask him at your expense, to visit your flock and make a submission to the Senior Veterinary Officer at Hadrian House Carlisle. He will need to include in his submission arguments why your flock, or part of it, should be exempt from the cull. He will need to prove that they have been isolated from other stock and high levels of bio-security have been sustained since the end of February. These cases will be referred to MAFF Head Office.

If rather than have your sheep slaughtered on farm you would like them to be taken away for slaughter please phone 01228 590490 and ask for Mark Lawson or Michael Armstrong. they will arrange for your sheep to be valued and transported to Great Orton or Carlisle Abattoir for slaughter.

Yours sincerely

NIKKI ELLIS
ASSISTANT DIRECTOR OF OPERATIONS