ANIMAL HEALTH ACT 2002Annotations by Stephen Tromans, Barrister
PARLIAMENTARY DEBATESHansard, H.C. Vol. 392, cols. 307-404, 472-481; HL Vol. 639, cols. 1222-1240, 1254-1322, Vol. 640, cols, 115-188, 481-529, 873-917, 949-962.
INTRODUCTION AND GENERAL NOTE
PurposesThe Animal Health Act 2002 has two main purposes. The first, in Part 1, is to provide additional powers to tackle foot and mouth disease (FMD); these powers are extendable by order to other animal diseases. The second main purpose (Part 2) is to provide additional powers to deal with transmissible spongiform encephalopathies (TSEs) in sheep. To these ends, the Act extends and supplements the powers contained in the Animal Health Act 1981 (the 1981 Act). It also makes a number of amendments to the enforcement provisions of the 1981 Act (Part 3). It also contains in Part 4 various other provisions on vaccination, biosecurity, import controls, and a national contingency plan for FMD and other animal diseases. The passage of the Act through the House of Lords in particular was highly contentious, and as explained below, an earlier version was effectively killed off by House of Lords opposition. An account of the background is therefore important.
Background: the 2001 FMD outbreakFMD is a viral disease affecting animals. It is highly contagious and can spread extremely rapidly. It causes distress to affected animals, with painful lesions or blisters around the mouth and feet, and can result in deaths. It also has long term consequences, particularly in pigs and cattle, in terms of meat and milk productivity, and as such gives rise to economic concerns for the livestock and dairy industries. Until 2001, the last outbreak of FMD in Britain had occurred in 1967-8, but this had been relatively confined to cattle in certain parts of the country. On February 19, 2001, signs of FMD were detected in pigs at Cheale Meats abattoir, Little Warley, near Brentwood in Essex. The pigs had come from farms in Buckinghamshire, the Isle of Wight, and Yorkshire. This was to prove the start of a catastrophic epidemic affecting sheep, pigs and cattle throughout much of the country, the effects of which are baldly summarised by the Commons Committee Report of January 2002 as follows:
"New cases continued to occur until 30 September 2001, when the last reported case of the disease was found on a farm near Appleby in Cumbria. Outbreaks of the disease were confirmed on 2,030 premises in the United Kingdom, and the livestock on those farms was destroyed. In addition the animals on more than 7,500 further farms contiguous to those where cases were found or where the disease was suspected were culled. In all four million animals have been slaughtered. A further two million animals were destroyed under the Welfare of Livestock (Disposal) Scheme, which was introduced to pay for transport, slaughter and disposal of animals to address serious welfare problems caused by the ban on the movement of livestock as a result of foot and mouth disease.
The impact of the disease has extended well beyond farms in those areas directly affected. Movements of livestock in all parts of the country were restricted, and exports of livestock, meat and animal products were banned as soon as the outbreak was detected: each has only recently begun to be resumed. The movement and export restrictions caused enormous disruption and imposed a heavy financial burden on many farmers and others in related trades such as livestock traders, auctioneers and hauliers."
The Committee noted estimates of the cost of the epidemic to the Government of £2.7 billion, and the Institute of Directors estimate of the cost to the economy as a whole of around £10 billion, approximately one per cent of gross domestic product. The six million animals referred to as slaughtered by the Commons Committee is in fact a massive underestimate, the Government having failed to take into account lambs and calves killed with their mothers. The final figure, as estimated by the Meat and Livestock Commission was 10,849,000 - a staggering total of almost eleven million.
The first Animal Health BillThe epidemic led to the introduction of the first Animal Health Bill (Bill 39) into the House of Lords on October 30, 2001. This Bill met strong opposition in the House of Lords, and as indicted below, was never enacted. Introducing the first Bill on its Second Reading, the Secretary of State for Environment, Food and Rural Affairs (Margaret Beckett) summarised its purposes thus:
"The purpose of the Bill is to ensure that we have the powers that we need and that we tidy up some of the anomalies in existing powers, and to set up a consistent structure and regime for the handling of animal disease. Hon. Members will have seen that the Bill focuses on two high-profile diseases, foot and mouth and scrapie, but that the powers in it will be extendable to other animal diseases. So, specifically, the Bill should ensure that we have all the powers that we might need to deal swiftly and effectively with any new cases of foot and mouth disease, and will enable us to accelerate the eradication of scrapie from the national sheep flock." (H.C. Vol. 374, col. 574).
As seems to be increasingly the norm with legislation, the first Animal Health Bill encountered very little critical resistance at its initial Commons stages, and it was left to the House of Lords to draw attention to its less savoury aspects. In particular, a number of members of the Upper House drew attention to the Bills failure to deal with the root cause of FMD problems, namely the import of infected meat products, and to its timing, as being introduced in advance of the outcome of even the limited inquiries permitted by the Government into the handling of the epidemic. There was almost universal criticism of the expanded culling powers and their conflict with the basic human rights of the farming community; likewise the limitation of compensation to 75% of the value of the animal, with the additional 25% being payable only if the Government were satisfied that adequate "biosecurity" measures were in place. Extracts from some of the speeches in the Lords second reading debate illustrate both the depth of feeling and the cogent criticisms made of the first Bills provisions, though these are only a representative selection, and are by no means the strongest language used in the debate:
"This is a bad Bill, and it will not put those matters [failure of investment in the State Veterinary Service, research into disease prevention and eradication and contingency planning] right. A more comprehensive overhaul is needed. The Bill starts from the premise that farmers do not want to control and eradicate foot and mouth disease 'The Bill allows the Ministers official to be judge, prosecutor, defence and jury. First, he will decide whether the premises contain animals that pose a risk - on no evidence of disease, just his suspicion. Then he will decide if the farmer has maintained adequate bio-security for the past 21 days - no doubt sometimes debating that heatedly. His version of these events alone will then be presented to a magistrate. The officials would then use a procedure analogous to that seeking an arrest or search warrant, but this is not about a temporary loss of liberty or the searching of premises. It is about the irreversible destruction of often valuable and much loved livestock against the owners wishes. If the magistrate agrees with that version, having heard no other, the Bill allows an inspector to require any person - not just the farmer or stockman, but any aged aunt, visiting vicar or district nurse - to give such assistance as the inspector believes that he needs to slaughter the stock."
Baroness Miller of Chilton Domer, H.L Vol. 630, cols. 849-850.
"The Bill is harsh, unjust and untimely. It is harsh and unjust because it is so one-sided, giving sweeping powers to the Department for Environment, Food and Rural Affairs, with practically no right of appeal and no need for explanation or justification and no opportunity for the farmer to be represented when an application is made for a slaughter order. The Bill shows no confidence in the farming community and assumes fault in biosecurity and compensation. Above all, the Bill is untimely. We still await the reports of the inquiries into the science of foot and mouth disease and the lessons to be learnt from last year, and the stakeholder consultations are about to take place. That makes the Animal Health Bill appear absurd in its timing, unhelpful in many of its provisions and unpleasant in its tone."
The Bishop of Hereford, H.L. Vol. 630, col. 852.
"The Ministers excuse for the rush is that we might have another emergency. In other words, this is yet another dose of knee-jerk legislation where the Government misuse the excuse of an emergency to give themselves a batch of new draconian powers unjustified by the real risk."
Viscount Bledisloe, H.L. Vol. 630, col. 874.
"The Bill has been introduced in a way that goes far beyond what the Minister suggested were the necessary reasons. It gives virtually unlimited powers, providing DEFRA officials with, in effect carte blanche to order slaughter without any requirement that they publicly justify, explain, give reasons, provide a fair hearing or, in some circumstances, compensate properly those whose animals are destroyed."
Baroness Mallalieu, H.L. Vol. 630, col. 891.
"The Bill has what I describe as an aura of arrogance about it which has dumbfounded the agricultural world."
Earl Peel, H.L. Vol. 630, col. 895.
"My Lords, when dealing with a pernicious little Bill at this stage of its proceedings, there is little new to say."
The Earl of Caithness, H.L. Vol. 630, col. 903.
"The powers that the Government seek for themselves in the Bill are the dream of all those in dictatorships '"
Lord Willoughby de Broke, H.L. Vol. 630, col. 907.
"To put it mildly, the Bill is widely disliked. It follows in the wake of what will probably go down in history as an appalling and unnecessary massacre of our farm stock. History shows that the foot and mouth disease research station at Pirbright was set up in 1924 as a result of criticism of the Ministry of Agricultures "primitive slaughter policy". Nothing much seems to have changed in the intervening period. Despite the development of vaccines on the Continent in the 1930s and 1940s, the ministry refused to allow their use, preferring instead to slaughter thousands of animals in the major outbreaks that occurred in 1952 and 1967. From the beginning of the recent outbreak it was clear that no one had learnt any lessons from the past when they embarked on the mass slaughter of so many animals, the majority of which, it seems, were healthy. It was not the largest outbreak in the world, but it was the one in which the most animals were killed."
The Countess of Mar, H.L. Vol. 630, cols. 910-911.
"This is a nasty Bill in which, at one stage or another, a great many things need to be put right."
Lord Beaumont of Whitley, H.L. Vol. 630, col. 922.
In the event, the first Bill was never enacted. Following unprecedented levels of opposition in the Lords, Lord Moran proposed an amendment on March 26, 2002 that the House decline to consider the Bill further in Committee until the Government had completed consultation on the proposed powers and the results of the inquiries of the National Audit Office and Royal Society into the 2001 outbreak had been received. This was carried by 130 votes to 124 (see HL Vol. 633, cols. 166 and 200-202). The results of the three inquiries into the 2001 FMD outbreak were then received and were debated in the House of Commons in November 2002 (see HC Vol 392, cols. 285-302). The Bill was reintroduced, with some provisions to make it more palatable, and just scraped through the Parliamentary process on November 7, 2002 before the adjournment and prorogation of Parliament (see HL Vol. 640, col 957; HC Vol. 392, col. 480).
Structure of the ActPart 1 of the Act contains provisions on slaughter, extending significantly the Ministerial powers under para. 3 of Schedule 3 to the 1981 Act to cause animals to be slaughtered because of FMD. It also gives power for the Minister to amend Schedule 3 by order to make provision for the slaughter of animals in relation to other diseases. It introduces a new power to slaughter animals which have been vaccinated for the purpose of preventing FMD or other specified diseases.
Part 2 introduces Sched. 2, which inserts a new Part 2A into the 1981 Act. This provides new powers to make order and regulations in relation to sheep genotypes, to take samples in order to establish genotypes and to keep records. In relation to sheep identified as being of a susceptible genotype, unless there are exceptional circumstances, notices will be served to prevent the sheep (or its semen, eggs or embryos) being used for breeding. There are related provisions on appeals, enforcement, powers of entry, and offences.
Part 3 provides extensive new powers of entry in order to carry out vaccination, to ascertain whether powers of slaughter should be exercised, and to do anything in pursuance of the exercise of those powers. There are also new powers of entry to ascertain whether animals are carrying antibodies to FMD or are infected with FMD, and to inspect vehicles to check compliance with disease control measures. A new offence is created of deliberately infecting an animal with certain diseases, or intending to do so.
Part 4 contains a number of further provisions on animal health.
COMMENCEMENTIn accordance with provision made by statutory instrument: s. 19.
TERRITORIAL EXTENTThe Act extends only to England and Wales: s. 21.
DEFINITIONS"animals": 1981 Act, s. 87(1).
This section extends the powers of slaughter in relation to FMD under para. 3(1) of Schedule 3 to the 1981 Act, which reads as follows:
The Minister may, if he thinks fit, in any case cause to be slaughtered -
(a) any animals affected with foot-and-mouth disease, or suspected of being so affected; andIt will be appreciated that this power is dependent on the animal falling into one of four categories:
(b) any animals which are or have been in the same field, shed, or other place, or in the same herd or otherwise in contact with animals affected with foot-and-mouth disease, or which appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease.
It is highly debatable whether all culling practices adopted during the 2001 epidemic fell within these categories: see Stephen Tromans  14 ELM 197, at pp 198-199. Initially, the Government slaughtered all animals on farms found to be affected, and declared "protection zones" and "surveillance zones" around such farms, within which animal movements were highly restricted. However, as the number of outbreaks of FMD rose steadily during the first half of March, the Ministry of agriculture announced a "contiguous cull" policy of animals within the three kilometre "protection zone" of an infected farm.
- animals actually affected with FMD;
- animals suspected of being affected with FMD;
- animals which have been in contact with affected animals; and
- animals which appear to have been exposed to the infection.
Whilst this policy was originally introduced as a response to the particularly serious situation at that time in Cumbria, it became a central tenet of the approach advocated by the computer modelling team at Imperial College, London, in conjunction with the Government's Chief Scientist, Professor David King, whereby the goal should be to cull all animals within the three kilometre zone of an infected holding within 48 hours. As this policy was implemented, questions began to be raised about its legality in terms of para. 3.
In the vast majority of instances, farmers did not seek to resist the cull, whether through a sense of public duty, or intimidation by officials, or because of the compensation to be obtained. However, there were examples of legal challenges, in England and in Scotland, which in a number of cases caused MAFF or the Scottish Executive to back down. The most celebrated case in England was that of "Grunty", a Kune Kune pig of New Zealand origin, owned by Rosemary Upton of Hill Farm, Wellington, Somerset: MAFF v. Upton (Harrison J, June 21, 2001). MAFF had applied for an interlocutory injunction to enable it to kill Grunty and eleven sheep (ten of which were rare breed pedigree Portland sheep). The basis for the application was that Mrs Upton was a "dangerous contact", having been in close proximity to cattle which she owned at other, infected, premises. On evidence presented by both sides, the judge was not convinced that, if there were a full trial of the matter, MAFF would necessarily have succeeded in establishing that there had been contact, though it was accepted that the "dangerous contact" culling policy was lawful in para. 3 terms. At the same time, the judge regarded as impressive and authoritative a report prepared for Mrs Upton by an academic veterinarian showing that the risk of the animals concerned becoming infected and spreading infection was extremely low, and two articles in the Veterinary Record showing the relatively low risk of pigs and other animals becoming infected by aerosol transmission of the virus. In the light of the evidence, the proportionate response was held to be continued monitoring and testing, rather than slaughter.
In Scotland, a challenge to the 3 km slaughter policy was brought by way of judicial review in Westerhall Farms v. Scottish Ministers (Court of Session, Outer House, Lord Carloway, April 25, 2001). It was held that the policy was not precluded by the terms of Directive 85/11/EEC, that the policy did not constitute an unlawful fetter on Ministerial discretion, and that the procedure followed was not in breach of Article 6 of the ECHR. The quality of the reasoning in the decision is however, with respect, open to serious question, and it is to be hoped will not be followed: see the Case Law Comment by Rosalind English of One Crown Office Row, published on the Lawtel website. In another English injunction case, MAFF v. Winslade (May 22, 2001, Mitting J) the court agreed with the Westerhall case on the Directive point, put expressed no opinion on the policy of slaughter within the 3 km radius.
It would appear therefore that the Government was, to put it mildly, skating on very thin ice in terms of some of its practices during the 2001 cull of almost eleven million animals. Lord Whitty, in an ill-tempered introduction to the Lords second reading of the first Animal Health Bill, referred to the problem, as the Government saw it, of farmers in North Yorkshire resisting the contiguous cull and threatening legal action, and "teams of lawyers in the district trying, very irresponsibly, to provoke them to do so." (H.L. Vol. 630, col. 837). He went on to say that the Government would be acting irresponsibly if, being aware of "a major defect in the powers that are available to them", they did not introduce corrective legislation. This appears to amount to an admission that the Government's action during the 2001 cull was not within the legal powers then available, a point made by a number of their Lordships during the following debate: see for example Baroness Mallalieu at H.L. Vol. 630, col. 892, Earl Peel at col. 900, Lord Willoughby de Broke at col. 908.
Lord Whitty was even more explicit in relation to the second Bill (see HL Vol. 639, cols. 1234-5) in admitting that massive slaughter had been carried out during 2001 without legal authority:
"The Bill addresses gaps in the powers of the Government 'We are dealing here with powers that we do not currently have. One such power is the power of preventative slaughter 'That is what the clause is about ' It is intended to give us that power which we lacked and which we would need in a future outbreak."
The new slaughter powersThe effect of s. 1 is to add to the existing two categories of animals which may be slaughtered, a third category of: "any animals the Secretary of State thinks should be slaughtered with a view to preventing the spread of foot-and-mouth disease." The wording is the same as that which appeared in the first Animal Health Bill, where it was subject to the criticisms referred to above. The test is therefore simply whether the Minister thinks the animal should be slaughtered with a view to preventing the spread of FMD. The use of the word "thinks" was criticised as imprecise and less justiciable than the word "decides" (see HL Vol. 639, cols. 1254-6) but defended by Lord Whitty on the basis of consistency with the terms used in the 1981 Act: see HL Vol. 639, col. 1257.
It is not necessary that the animal should have been, or be thought to have been, affected by or exposed to the disease, or to have been in contact with animals so affected, or whether it has been vaccinated against the disease. This is made clear by the new sub-para. 3(1A), introduced by subs. (3).
By s. 87(1) of the 1981 Act, the "animals" to which the power applies are cattle, sheep, goats and all other ruminating animals and swine. Under that section, it is however possible for the Minister by order to extend the definition of animals much more broadly.
Human Rights aspectsThe Bill was certified by Ministers under s. 19(1)(a) of the Human Rights Act 1998 as being compatible with Convention rights. Nonetheless, the existence and exercise of such draconian powers must merit the most careful scrutiny in human rights terms.
There would appear to be two distinct but related issues. The first is whether a decision to slaughter in any given case is unlawful under s. 6(1) of the 1998 Act as incompatible with Convention rights. The power to slaughter is discretionary, and thus it cannot be argued under s. 6(2)(a) that the Minister could not have acted differently. The most obviously relevant provision of the Convention is the requirement that no one shall be deprived of his possessions in the public interest and subject to the conditions provided for by law (Article 1, First Protocol, second sentence). Clearly, the slaughter of livestock constitutes depriving the owner of his possessions; equally clearly, there may be strong arguments that this is necessary in the public interest to check the spread of disease. The existence of compensation is relevant, but cannot of itself justify a deprivation that would otherwise be unlawful. What is required is that a proper balance should be struck in each case between the interests of the individual and the broader public interest. This must entail some form of risk assessment.
Further, under the principle of proportionality, the decision maker should consider whether there are other and less damaging means by which the public interest could be protected, such as vaccination - as to this, see Note to s. 15.
A second issue relates to the procedures by which an affected owner may question and contest a decision to slaughter his stock. This brings in Article 6(1), which requires a fair and public hearing before an independent and impartial tribunal. Quite clearly, a right to ask a more senior officer to review the decision taken by his subordinate cannot purport to be a hearing before an independent and impartial tribunal. The issue then is whether the possibility of judicial review is a sufficient safeguard to satisfy Article 6(1).
Two possible factual scenarios may be distinguished here. The first is where a farmer takes the initiative and seeks judicial review of the issue of a slaughter notice or of a review by the DVM. The second is where the farmer refuses access to DEFRA to carry out the slaughter. As explained above, under the law in force during the 2001 epidemic, DEFRA had to seek an interlocutory injunction in order to gain access - as in the case of Grunty the pig, this at least gave an opportunity for the owner to put in evidence by way of resisting the cull. Under the new provisions, DEFRA will be able to seek a warrant from a justice of the peace authorising entry for the purposes of slaughter (see notes to s. 8 below).
In defending the compatibility of the Bill with human rights, Lord Whitty stressed the need for a swift procedure, that avoided delays and struck a balance between effectiveness and reasonableness in the interests of those possibly affected by the further spread of FMD. He spoke of the "thread of reasonableness" running through all the powers of the Bill and of the safeguards stemming from the right to make representations to the DVM, to seek High Court injunctions, and the fall-back of judicial review: see HL Vol. 639, cols. 1309-11 and Vol. 640, cols. 903-4.
GENERAL NOTESubsection (1) of this section inserts a new section 32A into the 1981 Act. This gives the Secretary of State a wide ranging power to amend Schedule 3 of the Act to deal with slaughter of animals in cases of other diseases than FMD, and compensation in cases of such slaughter. The opportunity is therefore open of extending the much-widened slaughter powers discussed above under s. 1 to other diseases. Schedule 3 of the 1981 Act, apart from FMD, refers also to cattle plague, pleuro-pneumonia, swine fever, and diseases of poultry (as defined by s. 88(3)). The new s. 32A, inserted by this section, allows the slaughter powers of Sched. 3, as amended, to be extended by Order to other diseases.
Subsection (2) extends the powers of the Secretary of State as to seizure, disposal and destruction of carcases under s. 35(2) of the 1981 Act to apply to carcases of animals affected by TSEs, and to any disease in respect of which an order under s. 32A (see immediately above) is in force.
GENERAL NOTEThis section introduces two new provisions into the 1981 Act, which are aimed at providing safeguards in relation to the new and broad power under para. 3(1)(c) of Sched. 3 to the 1981 Act to slaughter animals with a view to preventing the spread of FMD.
Section 32B requires the Secretary of State to prepare a document known as the Disease Control (Slaughter) Protocol indicating the matters in s. 32B(2)(a)-(e), which go to the manner in which the power will be exercised. The purpose is to seek to allay concerns expressed in the House of Lords (see above): HL Vol. 639, col. 1259. Changes to EU law in favour of vaccination may be reflected in the Protocol: see HL Vol. 639, col. 1263. The Protocol must be consulted on in draft, published and kept under review.
The concept of such a Protocol derives from the consultation paper issued by the Government during the House of Lords stage on the first Animal Health Bill in 2002: DEFRA, Consultation on implementation of powers in Animal Health Bill. Section 2 and Annexes A and B of that paper deal with the exercise of the new powers of slaughter. Para . 13 states:
"The Government believes that these new powers are vital for disease control, and wishes to demonstrate that they will be exercised in a proportionate, consistent and fair way. This will require openness in the decision making process. A balance is needed so that farmers and other owners of livestock have confidence in the basis on which these powers are being exercised and, where necessary, have the opportunity for a reasonable hearing." Annex A of the paper set out the key criteria that would be taken into account in any decision to exercise the wider powers of slaughter in the Bill, and illustrates the kind of situations in which the new powers may be required. Essentially, the Government proposes that there will be a prior overall assessment of the possibility of disease spreading. It was stated that the Government will justify its decision to use the powers, explaining the veterinary, epidemiological and other factors that had been taken into account. This would include the publication of a "slaughter protocol" where the powers are invoked, and the issue of "slaughter notices" to farmers, certifying that any power to slaughter is consistent with the published protocol. An example was given at para. 12 of the Consultation Paper of a situation where these wider powers might be exercised - this is where factors create a risk of disease spreading to a significant population of susceptible animals, and where the removal of animals within a clearly delineated area would remove a route of disease transmission from an area of active infection. Various factors are listed which would influence the risk of windborne or waterborne spread. A "firebreak" zone free of susceptible animals would be created to prevent spread of disease out of a defined area, though how the zone was rendered free of susceptible animals would be for consideration, and might include vaccination.
Annex B of the Consultation Paper contains a form of slaughter notice, to be served by the Veterinary Inspector where animals are slaughtered for disease control purposes. Before giving the notice, the inspector must have ensured the recipient has a copy of the published criteria covering the reason for slaughter, and have explained the reasons for the decision to the recipient. The Inspector must also remind the recipient of the procedures for requesting the Divisional Veterinary Manager (DVM) to review the decision. The notice itself simply states which of the sub-paragraphs (a), (b) or (c) of para. 3(1) the notice is based on, and states that the decision has been reached in accordance with the published criteria. The Government proposes to "formalise and clarify" the process for review by a DVM, by including it in the Slaughter Protocol. This was confirmed by the Minister at HC Vol. 392, col. 479. The Consultation paper stated that the notice would spell out in particular that:
Section 32C provides that the wider slaughter powers may not be exercised unless the Protocol has been published, and that any act done in contravention of that requirement is done without lawful authority. By subs. 32C(3) failure to act in accordance with the Protocol does not in itself lead to criminal or civil liability, but the terms of the Protocol are, by subs. 32C(4) admissible and relevant evidence in any criminal or civil proceedings.
- A stock owner will be entitled to seek review by the DVM (or person of equivalent status) of a slaughter decision before slaughter is carried out - if appropriate, this may be done by telephone.
- The person who reviews such a decision will be obliged to take account of representations made by the farmer and to give reasons for his decision in the light of such representations.
- The decision-maker will pay particular attention to whether or not the slaughter protocol and veterinary instructions have been properly adhered to.
- The decision-maker will make his decision in the light of the risks that he believes to be present, including the risks that would arise from significant delay. The Government will continue to work to a target of 24 or 48 hours, and this will be borne in mind during the deliberations.
GENERAL NOTEThis section introduces a further safeguard in relation to the new powers of slaughter, in the form of section 32D of the 1981 Act. This provision requires the Secretary of State not to exercise the powers without first publishing reasons in relation to the circumstances of the description in which the powers are to be exercised. The reasons must include reasons for not exercising the power under s. 16 of the 1981 Act to require the vaccination of animals. The stated intention is to be as open and transparent as possible: see HL Vol. 639, col. 1274. However, the difficulty of defining what is meant by "circumstances" has been pointed out by Lord Plumb: HL Vol. 639, col. 1275.
GENERAL NOTEThis section introduces new provisions (s. 16A of the 1981 Act) allowing the Secretary of State to slaughter animals which have been vaccinated for the purpose of preventing the spread of FMD or any other diseases specified by order. Compensation is payable in the event of such slaughter in accordance with the provisions of subss. (5)-(7).
GENERAL NOTEThis section introduces a new Part 2A into the 1981 Act, dealing with scrapie in sheep. Some explanation as to the background is required.
Background: TSE in sheep
Transmissible spongiform encephalopathies (TSEs) are transmissible diseases which cause irreversible "spongy" changes to the brain and are invariably fatal. Bovine spongiform encephalopathy (BSE) was discovered in cattle in the UK in 1986. Some ten years later, the announcement was made that a number of young people had contracted a new variant of the fatal Creutzfeldt-Jakob disease (vCJD) and that it was probable that they were suffering from BSE. By the time of the BSE Report in September 2000, there had been 80 victims, almost all within the UK; over 170,000 cattle had been diagnosed with BSE, and 4.7 million slaughtered.
A form of TSE known as scrapie has been endemic in sheep flocks within the UK for about 200 years, and indeed percipient pathologists early in the BSE outbreak considered that the disease might be a bovine form of scrapie. However, it was to become clear that the human health effects of BSE were far more dangerous than those of scrapie were thought to be. The Act amends the 1981 Act to allow for the genotyping of sheep, in order to identify genotypes which are particularly susceptible to infection by TSEs (including scrapie and BSE) or to becoming carriers of TSEs. This would have the benefits of reducing the risk of the BSE disaster being repeated through consumption of sheep meat, and of expediting progress towards a scrapie-free national flock. DEFRA published a consultation version of its Contingency Plan for the possibility of BSE in sheep on September 28, 2002.
Part 2A: provisions
The new Part 2A operates as follows:
Section 36A allows the Secretary of State to make orders specifying sheep types which are believed to be more susceptible than others to infection by TSEs or to becoming carries of TSEs.
Section 36B allows the Secretary of State to make regulations for the taking of samples from sheep to establish their genotype, to attach electronic identification devices to sheep, and to keep records of the genotype of sheep.
Section 36C requires the Secretary of State to impose restrictions on the breeding from sheep of susceptible genotypes. These restrictions are imposed by way of a "restriction notice" served on the keeper of the sheep. This has the consequence that that keeper (or owner, if they are also served with a notice) must not use the sheep - or its semen, eggs or embryos - for breeding purposes. Any semen, eggs or embryos taken form the sheep must be destroyed, and the sheep must either be castrated or sterilised within a month, or slaughtered within seven months. By subs. 36C(2) the Secretary of State must consider whether there are any exceptional circumstances that would justify allowing the sheep to be used for breeding; these include circumstances in which the consequences of a restriction notice are likely to be that the breed will become extinct. This Government amendment was intended to apply either to rare breeds or to any breed threatened because of the low numbers of animals with acceptable genotypes: see HL Vol. 640, cols. 177. This may go part of the way at least towards the concerns expressed by the Countess of Mar, and shared by significant numbers of members of the House of Lords, as to the dangers of extinction of genetic types of sheep: see HL Vol. 639, col. 1287.
Section 36D provides for a right of appeal against a restriction notice to an assessor appointed by the Secretary of State. The time limit for appealing, which may be extended by the Secretary of State in exceptional circumstances, is only 21 days. Where an appeal is allowed, the notice may be wholly or partially revoked, or further testing may be required; this does not prevent the issue of a fresh notice following such testing (subs. (9)).
Section 36E gives wide powers of enforcement to the Secretary of State where a restriction notice has been served, is not under appeal, and the requirements of s. 36C have not been complied with. The Secretary of State may take such reasonable steps as are considered appropriate to remedy the non-compliance, including causing the sheep to be castrated, sterilised, or slaughtered.
Section 36F creates various offences in connection with restriction notices.
Sections 36G-36J contain provisions as to powers of entry in relation to functions under Part 2A.
Section 36K allows regulations to be made providing for compensation in respect of loss suffered or costs incurred as a result of the exercise of powers under Part 2A.
GENERAL NOTEThis section makes amendments to s. 16 of the 1981 Act to strengthen the powers of entry for the purposes of vaccination.
GENERAL NOTEThis section inserts new ss. 62A-62C and 66A into the 1981 Act, to provide strengthened powers of entry in relation to the slaughter of animals. Of particular concern and adverse comment was the power under s. 62C(3) to require any person on the premise who is the occupier, or appears to have charge of the animals, or to be under the direction of the occupier, or the person appearing to have charge of the animals, to give the inspector such assistance as he may reasonably require. As originally drafted this extended to any person present on the premises; the narrower formulation in the Act is intended to remove the risk of bystander or even children being required to assist: see Lord Whitty, HL Vol. 640, col. 950. Another beneficial change made in response to concerns is the requirement under s. 62B(2) that the information presented to the magistrate in applying for a warrant of entry must include details of any representations made by the occupier of the land: see HL Vol. 640, col. 950. Section 66A creates various offences in connection with these powers, including failing to give such assistance when required.
GENERAL NOTEThis section inserts new ss. 62D-62F into the 1981 Act, providing strengthened powers of entry for the purposes of testing and sampling in relation to FMD and such other diseases as the Secretary of State may specify.
GENERAL NOTEThis section introduces new s. 65A into the 1981 Act, giving powers to stop, detain and inspect vehicles to ascertain whether the provisions of the 1981 Act, or any order made under it, or any local authority regulations made under such order, are being complied with. The inspector stopping the vehicle must be accompanied by a constable in uniform: subs. 65A(2)(b).
SECTION 11[No Note]
GENERAL NOTEThis section inserts new ss. 28A-28B into the 1981 Act; these provisions create the offence of knowingly causing or intending to cause an animal to be infected with one of the diseases specified in Sched. 2A, including FMD. As well as the criminal penalties provided for by s. 28A(2), conviction may result in the court disqualifying the defendant from keeping or dealing in animals (s. 28B(1)), the onus then being on the person disqualified to apply to the court for the disqualification to be removed or varied.
GENERAL NOTEThis section provides the general summary penalties for offences under the 1981 Act where no penalty is otherwise specified.
GENERAL NOTEThis section inserts a new s. 71A into the 1981 Act, providing that the normal time limit for laying an information for summary offences is extended to three years starting with the date of commission of the offence, or (if sooner) six months starting with the date on which evidence comes to the prosecutors knowledge which the prosecutor thinks is sufficient to justify proceedings.
GENERAL NOTEBy new s. 14B inserted into the 1981 Act, the Secretary of State is placed under a duty in relation to any occurrence of FMD to consider what is the most appropriate means of preventing its spread. In particular he must consider whether treatment with serum or vaccine is more appropriate than any other means of preventing the spread of the disease (implicitly, though not stated, including slaughter). Animals which have been vaccinated may however still be subject to slaughter: see Note to s. 5 above.
The background to the provision lies in an amendment by the Countess of Mar requiring the Secretary of State to give effect to a "vaccinate to live" policy where no FMD had been detected on the relevant premises: see HL Vol. 639, col 1222 and 1235-6. This amendment was agreed to by 171 votes to 123, but was then rejected by the House of Commons (HC Vol. 392, cols. 307-330) which proposed the new 14B in lieu.
EC law on vaccinationPolicy on vaccination is in fact driven primarily by EU law, in particular Directive 85/511/EEC. The Directive as originally drafted set out its purpose at Article 1 as follows:
"This Directive defines the minimum Community control measures to be applied in the event of outbreaks of foot-and-mouth disease, whatever the type of virus concerned, without prejudice to the Community provisions governing intra-Community trade. This Directive does not affect Member States prophylactic vaccination policies".This approach was predicated on the ability to modulate the implementation of immediate control measures in cases where a Member State carried out prophylactic vaccination, so that under certain conditions, such Member states could exempt animals having sufficient immunization protection from slaughter (see Recital 2). This approach was changed when the Directive was amended by Directive 90/423/EEC which in the light of a Commission study (see Recital 2) intended to effect an official withdrawal of vaccination against the disease accompanied by "a policy of total slaughter and destruction (stamping out) of infected animals". Accordingly, Article 1 was amended to read:
"This Directive defines the Community control measures to be applied in the event of outbreaks of foot-and-mouth disease, whatever the type of virus concerned".As originally drafted, Directive 85/511/EEC required the presence or suspected presence of FMD to be compulsorily and immediately notifiable to the competent authority (Article 3). This requirement has not been amended.
Article 4(1) required Member States, where a holding contains one or more animals suspected of being infected or of being contaminated with FMD to set in motion immediately measures to confirm or rule out the presence of the disease. On notification of suspected infection, the competent authority was required to place the holding under official surveillance and to order specified measures in terms of identification, isolation, restrictions on movement of animals of susceptible species, produce, persons and vehicles, and disinfection. These requirements have not been amended. Article 4(2) (again, this provision has not been amended) provides as follows:
"The competent authority may extend the measures provided for in paragraph 1 to adjoining holdings should their location, their configuration, or contacts with animals from the holding where the disease is suspected give reason to suspect possible contamination".Article 5 deals with the measures to be taken where it has been confirmed that one or more "infected animals" are on a holding. Article 2(c) defines "infected animals" to mean:
"Any animal of a susceptible species [any domestic or wild ruminant or swine present on a holding]: 'in which clinical symptoms or post-mortem lesions which may arise from foot-and-mouth disease have been ascertained, or ' in which the presence of foot-and-mouth disease has been officially ascertained following a laboratory examination".Originally, Article 5 provided an alternative procedure (5(2)(a) and 5(2)(b)) for Member States or regions where vaccination is prohibited, and for member States or regions where a vaccination policy was organised in accordance with Article 14. Under the amendments of Directive 90/423/EEC, such vaccination was no longer an option and accordingly option (b) was removed.
Under Article 5(2)(a),
"As soon as it has been confirmed that [infected animals] are on a holding, the competent authority shall introduce the following measures ' (2) in addition to the measures listed in article 4(1), the following measures are taken without delay: (a) ' all animals of susceptible species on the holding shall be slaughtered on the spot under official supervision in such a way as to avoid all risk of spreading the foot-and-mouth virus '".Article 5(4) (which has not been amended) deals with adjoining holdings, and is the critical provision so far as this Memorandum is concerned:
"The competent authority may extend the measures provided for in paragraph 1 to adjoining holdings should their location, their configuration, or contacts with animals from the holding where the disease has been recorded give reason to suspect possible contamination".It is clear from this provision that the Directive does not contemplate a policy of automatic contiguous culling, or of automatic culling of holdings within a given radius of the infected holding. The competent authority may only extend culling to "adjoining" holdings, and then only when there is reason to suspect possible contamination from location, configuration, or the history of contacts. It is also relevant to consider Article 9 (which has been amended). This Article provides for the compulsory establishment of "protection zones" and "surveillance zones" around infected holdings. The protection zone must be based on a minimum radius of 3 km, and the surveillance zone on a minimum radius of 10 km. Article 9(2) specifies the measures to be applied in the protection zone. These include movement restrictions, restrictions on itinerant breeding services and artificial insemination and fairs, shows or other gatherings of susceptible animals. Article 9(3) specifies the measures to be taken in the surveillance zone. Clearly in neither case do those measures include slaughter of susceptible animals present within the zone.
It is clear therefore that any policy based on the automatic culling of susceptible animals on non-infected holdings is outside the scope of the Directive. Culling of animals on adjoining non-infected holdings is permitted only in the circumstances referred to in Article 5(4).
GENERAL NOTEThis section introduces into the 1981 Act new provisions on Biosecurity Guidance, ie guidance on "biosecurity measures", defined by subs. 6A(7) as "measures taken to prevent the spread of causative agents of disease". The guidance must relate to FMD, and to any other disease as the Secretary of State specifies by order. By subs. 6B(1), publication of the guidance is a pre-requisite for the exercise of functions under the 1981 Act relating to FMD. As with the FMD Protocol (see Note to s. 3 above), whilst a breach of the guidance does not of itself give rise to liability, the guidance will be admissible as evidence in criminal or civil proceedings involving both persons having functions under the Act and the owners or occupiers of premises affected, or persons having charge of animals.
GENERAL NOTENew s. 10A of the 1981 Act requires Ministers to prepare an annual report reviewing all activities directed to the prevention of animal disease being introduced into England and Wales through the importation of animal products and matter, and other things. This must include assessment of the effectiveness of any action taken under orders made under s. 10 of the act, and propose such further action as may be advised to further reduce the risks of disease being imported.
Illegal imports of meat are in fact a major problem throughout the EU, and are thought to have been the most likely cause of the outbreaks of classical swine fever in the UK in 2000 and FMD in 2001. See the House of Commons Food and Rural Affairs Committee, Illegal Meat Imports (7th Report of Session 2001-02, HC 968) including the Governments Action Plan, appended to the Report.
GENERAL NOTENew s. 14A of the 1981 Act requires preparation by the appropriate authority (defined in subs. 14A(8)) of a national contingency plan indicating the arrangements intended for dealing with any occurrence of FMD, or of any other disease specified by order. Such a plan is central to the recommendations of the Anderson and Royal Society Reports into the 2001 outbreak: see Lord Whitty, HL Vol. 640, col. 144. It may be noted that there is no precedent for such a national contingency plan in UK legislation, and the provision may therefore be something of a prototype: see Lord Whitty, HL Vol. 640, col. 912. As to the rest of the UK, the Scottish Ministers and Northern Ireland authorities will prepare their own plans in conjunction with the Government, which will be responsible under EU law for delivering plans covering the whole of the UK: see HL Vol. 640, cols. 149-150.
SECTIONS 19-22[NO NOTE]
 A detailed and critical factual account of the 2001 epidemic and its handling, written by the journalist Christopher Booker and the epidemiologist Richard North, was published by Private Eye in November 2001 (Not the Foot and Mouth Report) and provides an excellent overview of the issues.
 The House of Commons Environment, Food and Rural Affairs Committee published a short Report in January 2002: The Impact of Foot and Mouth Disease (First Report of Session 2001-02, HC 323). This incorporates evidence taken by the Committee between March and November 2001, which provides further factual detail. For legal comment, see Stephen Tromans, Silence of the Lambs: the foot-and-mouth crisis, its litigation and its environmental implications  14 ELM197.
 HC 323, paras. 1 and 2.
 The example given by Lord Whitty in debate was the risk of infection from cases arising in the Thirsk area or major populations of pigs in the east riding of Yorkshire, and hence into Lincolnshire and the East Midlands (see H.L. Vol. 630, col. 836).
 Detailed factual background can be found in the Report of The BSE Inquiry (Lord Phillips of Worth Matravers, Mrs June Bridgeman CB, Profesor Malcolm Ferguson-Smith FRS. October 2000, HC 887-I, Volume 1: Findings and Conclusions.)