F&M Stephen SMITH QC to Mary CRITCHLEY 011105.rtf

NEW SQUARE CHAMBERS
12 NEW SQUARE
LINCOLN'S INN
LONDON
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Tel: 020 7419 8000
Fax: 020 7419 8050

E-mail:Stephen.SmithQC@newsquarechambers.co.uk

5th November 2001

Mary Critchley,

Warmwell.

Dear Mary,

Animal Health Bill

You have asked me to comment on the fmd aspects of the Bill published last Wednesday. For ease of reference I shall set out my thoughts in numbered paragraphs.

1.      Much has already been written on the Bill, and doubtless much more will appear shortly. I perhaps approach it from a different perspective than the approach many others take, because my thoughts are coloured by the experiences I had over the summer as the adviser and advocate/potential advocate to several farmers threatened with foot and mouth culls, most notably Rosemary Upton with the remnants of her Portland sheep flock and Grunty the Kune Kune pig.

2.      I have not been involved to date with any claims for compensation (the people I was acting for taking the view either that the question of compensation was simply not an issue because they did not see their animals as a commodity, or that the compensation likely to be offered could never be sufficient for their pedigree flocks). I do not propose, therefore, to address the provisions which seek to reduce the compensation payable to farmers in certain circumstances. This is, however, a significant further issue which a consideration of the whole Bill would have to examine closely.

3.      During the course of the cases in which I was involved it was pointed out to the Ministry that in our view it did not have the power to do what it was proposing to do/in many other cases had actually done, especially in two respects. Those respects were, first to effect forcible entry onto a farmer's premises with a view to the slaughter of the susceptible livestock on those premises: we said that if the farmer did not consent to entry for that purpose, the Ministry had to go to court to obtain an injunction to enable it to enter lawfully. Secondly, to slaughter animals merely because they happened to be present on premises which shared a boundary with infected premises (so called "contiguous premises"); it followed from this, we said, that the Ministry did not have a general power to slaughter animals even further away from infected premises (i.e. power to carry out a cull of susceptible animals on all farms within a specified geographic radius of those premises, e.g. a 3 kilometre cull). There was certainly no power to compel farmers to accept the slaughter of their livestock in order to create a "firebreak".

4.      The Ministry did not fight any of these arguments in court (at least not with us) once we had raised them (an earlier contiguous cull had been sanctioned by the Court in a case in which neither I nor Burges Salmon, my instructing solicitors, had been involved, but we submitted that the decision in that case was fundamentally flawed because the Ministry had not brought to the attention of the Court on that occasion the scientific research which it had itself sponsored which raised serious doubts about the possibility of airborne spread of the disease).

5.      On several occasions, I or colleagues in Chambers were standing by to attend court the next day to resist the grant of an injunction to enable a contiguous cull to take place, but the Ministry called off the application at the last minute, opting instead for "testing and monitoring". I am not aware of any of the animals thus tested and monitored subsequently being diagnosed as having caught the disease.

6.      Rosemary Upton's case, according to the Ministry, was even more serious than a contiguous premises case. It was, it said, a case where Rosemary was a dangerous contact, and it was adamant that Rosemary's remaining animals would have the disease and therefore had to be destroyed as quickly as possible. Rosemary had throughout offered the Ministry the opportunity to blood-test her animals to check its strenuously asserted belief, an opportunity which was rejected. Happily, after hearing argument over the course of 3 days in all, the High Court was satisfied that the right way forward was the testing which Rosemary had all along been offering. The Ministry's application for an injunction was dismissed and it was ordered to pay all Rosemary's legal costs. In due course the tests came back negative, and as far as I am aware Grunty is still munching her way through Rosemary's orchard, and the sheep remain alive.

7.      Rosemary did not behave irresponsibly; she did not contribute to the spread of the disease; and she was not a danger to any of her neighbours. The only thing she held up was the Ministry's misconceived plan. The plan was misconceived because the Ministry did not carry out a reasoned analysis of the risk which she posed, and because, and this was crucial, it dismissed as a "red herring" the results of carefully constructed experiments into the risk of airborne spread of the UK particulate of fmd by acknowledged experts, experiments which the Ministry had itself sponsored. Important mistakes were clearly made, in other words, but not by Rosemary or those acting on her behalf or by any other farmer; they were made by the Ministry itself. The High Court Judge would hardly have ordered the Ministry to pay all Rosemary's legal costs if he considered that she had been behaving in a dangerous or irresponsible way.

8.      I have little doubt that we would have established that similar mistakes were being made by the Ministry in the other cases where we were instructed to resist a cull, but which for whatever reason did not come to court.

9.      The new Bill appears to have been designed in large part to garner for the Ministry the powers which it was asserting to farmers it already had but which we _ and many others - had pointed out were lacking. That, it may be thought, is the way with government: if the executive wishes to do something and lacks the power to do it, it is free to take such power through the parliamentary process, so long as it can persuade a sufficient number of people engaged in that process to support it.

10.  Things, however, are not so simple. The UK Government is not completely free to legislate in any way it thinks fit. It has to have regard to the fundamental rights of its citizens which are to be found in the European Convention of Human Rights. The Human Rights Act 1998 was designed to give effect to the rights and freedoms guaranteed under the Convention, and make those rights and freedoms directly enforceable in UK Courts. You will have noticed a certificate of compatibility with the Convention which the Minister has placed on the front-sheet of the Bill. This too is a process required by the 1998 Act, and it is of course very important that careful consideration is given to the question lest the process becomes a rubber stamp.

The Human Rights Act 1998

11.  The following are the principal relevant effects of the 1998 Act:

(a)   legislation must be read in such a way that it is compatible with the rights guaranteed under the Convention, wherever possible (s. 3);

(b)   where it is not possible to read legislation in a way which is compatible with rights guaranteed under the Convention, the Court has power to declare that the legislation is incompatible, and thus in practice force the Government to rethink (s.4);

(c)    public bodies (including the Courts as well as Ministries) must not act in a way which is incompatible with Convention rights (s.6).

12.  The bringing into force of the 1998 Act has, however, had an even more profound effect than one might have thought from reading those principal aims. The introduction into English law of the Convention rights has brought with it the jurisprudence built up over many years in the decisions of the European Court of Human Rights, and that is changing in a dramatic way the relationship between the courts and the executive. The House of Lords (in its judicial capacity) in a decision given earlier this year indicated that the scope for challenging an exercise of executive power under the Convention was significantly greater than has hitherto been the case under English law. In particular, it may now be possible to challenge a Minister's decision to exercise power in a particular way by asserting that that way is not a proportionate response to the problem with which the Minister is faced. This, indeed, was the approach taken by the judge in Rosemary Upton's case: he said that he thought it was at least arguable that the proportionate response was not to move immediately to the slaughter of Rosemary's animals, but first to carry out the tests which Rosemary had suggested be carried out to determine whether the animals were infected.

The European Convention on Human Rights

13.  There are, it seems to me, three principally relevant provisions, viz. Article 6(1) ("Right to a fair trial"), Article 8 ("Right to respect for private and family life, home and correspondence") and Article 1 of the First Protocol ("Right to property"). As you probably don't have access to these provisions, I shall set out the relevant parts:

Article 6(1)

In the determination of his civil rights and obligations _ everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly 

Article 8

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 1 of the First Protocol

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest_"

The new power to enter premises and slaughter without consent

14.  From my perspective, this is perhaps the most deeply worrying of all the new provisions, when seen against the background of what happened in Rosemary Upton's case. Clause 7 of the Bill enables a Ministry official (termed an "inspector") to gain forcible entry onto premises to inspect and if necessary slaughter animals, so long as he has obtained a warrant to do so from a magistrate; a magistrate may grant such a warrant if he or she feels that there are reasonable grounds for the inspector to enter the premises, admission has been refused or a refusal is to be expected, and notice of an intention to seek a warrant has been given to the occupier (it seems that this latter condition may be by-passed in cases of urgency).

15.  There is no scope in this proposal for the fair and public hearing which Article 6(1) of the Convention requires. The application to the magistrate will be made by the inspector in the absence of the farmer, and will not be a public hearing.

16.  Such a warrant can be expected to be enforced immediately by the inspector backed up by the police/army, and the farmer's animals will be destroyed. There will be no practical scope for the farmer to point out to a Judge that the Ministry may be mistaken (as it undoubtedly had been in Rosemary Upton's case), still less that the Minister may be proposing to exercise his/her powers in a way which is not proportionate or is incompatible with any other Convention right.

17.  In short, the inspector and the magistrate will have determined the civil rights and obligations of the farmer without any fair or public hearing, with no legal or practicable possibility of an appeal, in a way which cannot be described as anything other than final. To cap it all, the farmer will commit an offence if he refuses admission to his premises to an inspector without lawful authority or excuse (proof of which is to lie on him, not the Minister).

18.  Thus, instead of being able to present his case to a Judge at a fair and public hearing, the farmer's premises will have been entered forcibly, his animals will have been destroyed, and he will likely be a criminal.

19.  I find it very difficult to see how this proposed process can properly be said to be "compatible with the Convention rights". It is well settled that the phrase "the determination of his civil rights and obligations" in Article 6(1) should receive "a broad interpretation _ The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations" (per Lord Clyde in R (Alconbury) v. Secretary of State for the Environment, Transport and the Regions a decision of the House of lords in its judicial capacity given earlier this year.)

20.  It may be that the Ministry considers that the continuing ability to seek judicial review of any decision to enter or to invoke the new entry power or to slaughter will provide sufficient judicial control for the purposes of Article 6. That, however, is quite impracticable. The experience of the Rosemary Upton case and other cases is that the Ministry acts with great speed and its attendance at premises with police and army back-up can be very intimidating. If it obtains the power to override a refusal of consent to enter and/or a power to arrest the farmer in the process of effecting forcible entry, the chances of a lawyer being instructed to make an application for an interim injunction are practically nil. I note that there is no proposal in the Bill that the Minister should give to the farmer, say, 24 hours' notice of an intention to effect forcible entry to slaughter animals, so as to enable the farmer to take advice and, if necessary, apply for permission to move for judicial review and seek an interim injunction.

The new general power to slaughter

21.  Clause 1(1) of the Bill gives the Minister an additional power to slaughter:

"any animals the Minister thinks should be slaughtered with a view to preventing the spread of foot-and-mouth disease"

22.  It is proposed that this additional power should fit in immediately after the other three circumstances in which the Minister already has power under the Animal Health Act 1981 to direct a slaughter, viz. where an animal is infected, where an animal has in some way been in contact with the infection (whether through other animals or inanimate objects) or where in the belief of the Minister an animal has been exposed to the infection.

23.  Thus the proposed new power is a power to slaughter animals _ note not just fmd susceptible animals - which are not infected, which have not been in contact with the infection in any way, and which the Minister does not even believe have been exposed to the infection.

24.  This is, therefore, a power of quite extraordinary breadth. One wonders what the perceived need for such a power can possibly be. The Ministry's Explanatory Notes (said to be designed "to help inform debate" on the Bill), give no clue at all.

25.  I have thought of one possible circumstance where the present slaughter power may be thought with some justification to be inadequate. That is a situation where, although it cannot presently be said that there has been exposure to the infection, there is good reason to believe that exposure will occur in the very near future. For instance, the infection may have occurred in an area which at times also contains a sizeable wild deer herd. Wild deer are of course no respecters of the boundaries of adjacent premises, and may move across several farms during the course of one night. If there is scientific evidence that deer movements may contribute to the spread of the disease, one might think that the slaughter of animals on farms where such movements may occur might be reasonably necessary, unless the susceptible animals on those farms can be protected by adequate bio-security (for instance by being housed, or protected by deer fencing, so that they do not come into contact with land over which the deer may have crossed).

26.  Such a perceived gap in the legislation cannot, however, be what the Ministry is thinking of filling with the new power, because if it were it would be cast in much narrower terms. It would talk of the Minister having reason to believe that exposure to the infection was imminent.

27.  The concern is that the Ministry is instead set on a course of obtaining for itself powers to create animal-free rings around infected premises or areas, whether those rings be on the basis of contiguity or geographical distance. Alarm has been expressed about this idea because the fear from which it stems (that neighbouring animals contribute to the spread of the disease) has not been scientifically tested, still less proven, and that the experience of those who have successfully resisted culls has generally been that the animals saved have not subsequently contracted the disease. Others have commented that it seems very odd that the Government should seek to rush through Parliament its desire to have such a power when there has not been a new fmd case for over a month and, perhaps even more significantly, when none of the Enquiries it has so far set up has reported.

28.  The Human Rights Act issues to which the proposed new power gives rise appear to me to be as follows:

(a)   To the extent that the new power encroaches on the Article 8 right to respect for an individual's private life, is it "necessary _ in the interests of national security, public safety or the economic well being of the country _ or the protection of the rights and freedoms of others"?

(b)   As an exercise of the new power would undoubtedly deprive an individual of the peaceful enjoyment of his possessions, can that deprivation be said to be "in the public interest"?

(c)    Would an exercise of such a power be a proportionate response to the perceived problem?

29.  Because the Ministry has not explained how this proposed new power can be compatible with the Convention, still less addressed questions such as those identified in the previous paragraph, assessment of the certificate of compliance is not easy. Suffice it to say, however, that given the powers of slaughter which the Ministry already has, I am not at present convinced that the new power is compatible with the Convention.

30.  I am, however, clear that it is strongly arguable that the combination of the wide new general power of slaughter and the new power to override a farmer's objections to a cull without the farmer having any practicable opportunity first to present his case to a Court, is not compatible with the Convention. If a wide power of slaughter is enacted there will be an even greater need for the Courts to be able to review the actions of the Ministry, because the capacity for mistake, abuse, or even a disproportionate exercise of the power will be so much greater.

31.  There is one further point that I should perhaps mention in the context of the proposed new slaughter power and proportionality. If the Government's desire is to maintain a disease-free zone around an outbreak, the obvious (and significantly cheaper) way to achieve that would be to inoculate all the susceptible animals in the buffer zone against the disease. The Government did indicate earlier in the outbreak that it favoured a policy of vaccination but did not implement that policy for political reasons. It now seems distinctly odd that the Government should be advocating a policy at the other end of the spectrum as a means of combating the disease. When the Government is itself prone to oscillations between such extreme positions within the course of a few months, one would have thought that the mature way to react to the question would not be to rush into legislation, but to wait for an independent enquiry which has heard all the relevant scientific and factual evidence and reported in a dispassionate way.

I am sorry I have written at such length, but I hope the thoughts I have expressed are helpful and at least alert you to some of the legal issues which arise on the two aspects of the Bill I have mentioned.

Regards,

Stephen

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