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UNSTARRED QUESTION 25 JUNE 2002 - THE CONTIGUOUS CULL

You raised 5 questions during the debate and supplemented these in your letter of 28 June. I shall answer each of your questions in turn.

(a) Whether I accept that the 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?

The Donaldson report dealt with only one form of transmission: airborne transmission. In your letter you suggest that the Winslade case "was entirely concerned with airborne spread, as the judgement makes clear". The only reference to airborne spread in the judgement is on page 2, F - G: "… plainly do not exclude the possibility that the disease has been transmitted to the Defendant's cattle, for instance by air through the hedge…." (emphasis added).

Epidemiological advice was that the key methods of transmission were through animal, human, mechanical or airborne transfer between neighbouring farms. In a contiguous cull situation all potential vectors must be regarded as potential conveyors of disease and thus as conduits for exposure to infection of animals on premises bordering an Infected Premises. In Winslade the epidemiological justification for the contiguous cull policy was set out by the Veterinary Head of Exotic Diseases who pointed out to the court the many means of spread of the virus over a local area. In addition, evidence was given by the local official who dealt with the appeal by Mr Winslade against the cull. He deposed that after careful consideration of all the facts, he had concluded, largely as a result of the very close proximity of some of the Winslade animals to the animals in the contiguous infected premises - a level of proximity with which the Donaldson article does not deal - that the cull should proceed. The judge considered that the decision to proceed with the cull in those circumstances was not an unreasonable one.

As I state above, the Donaldson article constitutes only a single element in the whole panoply of factors debated and considered by Government experts in formulating the epidemiological justification for the contiguous cull. This was the context in which DEFRA's expert gave his evidence in the injunction cases, including in Winslade: the evidence was intended to describe to the court the Government decision to proceed with the contiguous cull policy and the background to that decision.

It is the view of the Government experts that in determining whether animals have been exposed to infection no potential route of transmission can be ruled out. That was their view in all the cases, including Winslade, where on the facts, as with the majority of cases, it was evident that a number of possible vectors, including aerosol transmission over a short distance, could have been implicated in transmission.

(b) Why that evidence was not put before the Winslade case?

For the reasons set ot above, we cannot see that it was appropriate nor necessary in the above context for the Donaldson article to be put in evidence any more than it was appropriate or necessary to put before the court all the vast amount of published literature on foot and mouth.

(c) Whether that evidence had been received before the decision in the Westerhall case? The article was seen in draft some weeks previous to publication.

(d) Whether I now accept that those decisions would not have gone the Ministry's way had that evidence not been suppressed?

I repeat what I said during the debate and reiterate what I have stated above. We have never suppressed the Donaldson report. We have always been as open as possible about the advice received by the Government during that period. I do not accept your argument.

(e) Can I 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?

Turning to the remaining points covered in your letter, as you are aware the case covered in your second point was a Dangerous Contact case. DEFRA's expert did not consider airborne transmission to be a relevant factor because, on the facts, DEFRA considered there to have been direct contact in this case i.e the transmission of infectious material by the defendant from an infected premises to her animal. The judge, however, found that on the evidence, he was not satisfied that direct contact had occurred and that is why the animal in question was exempted from slaughter.

In response to the third point in your letter, the judge in the Upton case specifically confirmed the lawfulness of MAFF's slaughter policy albeit in relation to dangerous contacts. His comments are nevertheless relevant to the lawfulness of the contiguous cull policy as the second is an off-shoot of the first and both are dependant on exposure to infection as the trigger for the lawful exercise of the slaughter powers under paragraph 3(1) of Schedule 3 to the Animal Health Act.

I am placing a copy of this letter in the Library of the House.

LORD WHITTY