|BARBARA JORDAN, House of Commons meeting, 29-11-01
A very comprehensive summation of the legal implications of the new "Animal Health Bill" from solicitor Barbara Jordan
Mary Critchley: Now we are going to move on to Barbara Jordan who runs a firm of solicitors in Gloucester. The Forest of Dean was one of the first areas to be very badly hit, and Barbara struck me as one of the lawyers on the ground who has made herself extremely knowledgeable, and she understands a great deal about the significance and, implications of the law.
Barbara Jordan: Good Afternoon. I believe it is relatively common knowledge to everyone affected by the government's activities in relation to foot and mouth that until now, all the actions of DEFRA have been regulated by the Animal Health Act and the associated European derivatives. And under that act, a minister could order the slaughter of animals that were affected, or suspected of being affected by foot and mouth, disease, or animals which the minister reasonably believed had been affected.
I think it was a relatively common experience out of those people who were affected one way or another, by the foot and mouth outbreak throughout the country this spring and summer, that MAFF attempted to deal with the outbreak by using a combination of stick and carrot.
The carrot was the compensation, which many farmers who were dependent upon their farms, for their only source of income felt compelled to accept. And the stick was used for those animal owners who were able to resist the offer of compensation. It is however notable, that whilst many people threatened DEFRA with the obtaining of an injunction and resisting the threat of killing, while enquiring how to obtain injunctions, DEFRA went out of it's way to avoid courts, or the litigation process generally.
But it should also be noted that up and down the country, where the courts were asked to assist, the results were very mixed. On the whole, there was about a fifty-fifty chance if application to the court was made, that the judiciary tended to the view that the government's behaviour was reasonable in the circumstances; those circumstances being one of emergency.
And there was certainly no national experience for animal owners that the courts were likely to support them, in the face of what the government characterised as a foot and mouth crisis. And this being the case, the recent experience makes it very difficult to see why the government should need to take to itself yet further powers. Enabling it to interfere with farming and cull all animals.
The Animal Health Bill, as we have heard, has had its second reading and will shortly go to the Lords. And the act, as did the earlier one, applies to any animal, and is not going to be restricted to sheep and cows. It encompasses domestic animals of any type. This new act gives the minister power to cull animals whether or not they have, or are suspected of being affected with foot and mouth. Whether they have been in contact with affected animals, and whether or not they have been exposed to infection. And, significantly, cases where animals have been vaccinated against foot and mouth.
The requirement to act reasonably in ordering slaughter appears to have been dropped. And in clause 2 of the proposed bill, the minister has power to extend the right to slaughter in cases other than foot and mouth including spongiform encephalopathy. Which diseases include scrapie and BSE. And we have the draconian powers that have been taken to the government, to slaughter animals. And of course, scrapie may well be endemic in the UK flock.
The new bill limits compensation of 75% of value if the government inspector reports that the occupier has acted in any way during the previous 21 days to create a significant risk of spreading the disease. There is a right of appeal within 14 days. And the item further sets out a relatively complicated procedure by which the farmer and minister can argue over the remaining 25% that can be paid.
The government is not required to pay any interest on the money, should one succeed on appeal. And, there is no incentive on the government to act properly, quite the reverse. And the bill confers on the minister the power to slaughter animals that have been vaccinated. Of course, in this country, it is impossible to vaccinate against foot and mouth without a licence. And the government will not issue any such licence. Perhaps this suggests that the government is somehow or other frightened that vaccination may take place behind it's back, and provides proof of the argument that many have put forward over the year that vaccination would be a more effective means of control of foot and mouth than extensive culling.
The new act provides power for the minister to identify species which are more susceptible than other species, to scrapie or BSE. And to order that those sheep should not be used for breeding. Again, the farmer is given a right of appeal, but unlike the other one, this bill makes it a criminal offence to keep susceptible sheep for breeding and makes it an offence to fail to comply with any restrictions in place on the farm. It creates an offence of obstructing a government minister, or anyone else in the discharge of his duties under the act. And it enables a ministry official and inspector to gain forcible entry onto premises to inspect and, if necessary slaughter animals, as long as the inspector has obtained a warrant from the magistrate, and the magistrate may grant such a warrant if there are reasonable grounds for an inspector to enter if admission has been refused, or if the refusal is to be expected, and notice of the intention to seek a warrant has been given to the occupier.
Although it may be classed an emergency. So it is clear that what is anticipated is an application to the magistrate without a farmer being present, to put his case, and appears to ride roughshod over the requirement for public hearings in article 6 of the European convention of human rights. Bearing in mind that this legislation does not appear to require the minister's inspectors to act on the basis of reasonable assessment of risk. When the decision is made to cull animals, the ministry and its officers will move at speed. Possibly backed up by the police and/or the army. As has happened this year, and the farmer's animals will be culled. After the cull, presumably compensation will be paid and the farmer will be spending most of the time arguing with the Inland Revenue.
As is currently the case, it will be difficult for the farmer to bring any sort of claim against the government. Certainly outside the human rights act, as he will by definition already have been compensated, and as is now the case, will be forced to think very hard indeed about the costs, both economic and emotional, in an attempt to defy the government further, or at all.
Not only can the inspectors effectively make raids on farms, but they have a statutory right to inspect farm vehicles, check bio-security disease control measures in certain areas, and at certain times, and if the inspector does this, he must be accompanied by a uniformed police officer. The police officers may arrest anyone who prevents them from carrying out their functions under the act. It would appear that this does not require active obstruction from the farmer, and calls into question whether the farm gate people's protests that were common all over the country, would now result in those protestors being arrested. If this act becomes law. Curiously it kind of prevents people protesting.
The new act creates a new offence: Deliberately infecting an animal with certain diseases, and can lead to the imposition of an unlimited fine, or up to two years imprisonment. Furthermore, a court can disqualify a farmer from dealing with animals if they are convicted of deliberately infecting an animal. And of course, presumably resistance to the ministry could itself amount to the deliberate infecting of an animal, If the farmer is seeking to delay a cull; and was subsequently found to have animals that tested positive.
Again, you will be aware that if a road traffic offence is not the subject of prosecution within 6 months, then no prosecution can be made that would have been effective discovered within 3 years of the offence, a prosecution can then be brought. It is very difficult to see how this legislation is compatible, or can be thought to be compatible, with the human rights act.
But again, it cannot be said that the judiciary have shown themselves to be particularly robust in enforcing that act. And have seemed sometimes to limit the infraction of the human rights act, under this particular legislation. One of the very major difficulties that is obvious in the legislation process is the risk to the individual of financial ruin. As the human rights act requires the parties to come to court, with what is called equality of arms, access to legal aid or public funding. This is routinely denied farmers, because they are businesses.
The means test for farmers and for anybody now seeking public funding are relatively limited. It is therefore extremely difficult to see how the individual farmer facing normal trading conditions, not to mention the unwanted attentions of the ministry inspector, could possibly go any court and put up a fight in front of the representation of the Minister for rural affairs. It is blindingly obvious the minister has access to thousands of pounds worth of resources paid for by the government and the taxpayer, whereas the farmer would be lucky if he could afford a local high street solicitor.
It is also notable that the only truly successful outcome in the high court in the last round of the foot and mouth culls, was only with the assistance of a QC; doubtless at enormous potential risk to the owner of Grunty the pig, had the QC not in fact won the case.
It is not to say that legal challenges to the existing legislation and the actions of DEFRA and in due course, and if necessary, provisions of this bill, will not, or should not be made.
I think it is absolutely clear that in order to oppose such draconian legislation, it really is imperative that all farmers and animal owners work together to set up effective national and local organisations to defend themselves; and their livelihoods and their civil rights.
Mary Critchley: I feel that if the general public were aware of half of what you have said this afternoon, far from having 60 people out in front of the House of Commons this morning, we would have had thousands. It has not been in the press. The press have not mentioned the implications of this draconian bill. They have not understood perhaps, how any animal owner is likely to be criminalised by this law.
I don't know if anyone would like to make a comment on this, but before they do, I would very much like to thank Diana Organ, Labour MP for the Forest of Dean, for being here this afternoon. I would also very much like to thank Mr Winterton for coming here this afternoon too. There are MP's who do understand and share our concern. Thank you.
A points was made from the floor and Mrs Jordan responded:
Barbara Jordan: Under civil procedure rules that were introduced last year, the Government have been anxious to ensure to avoid unnecessarily acrimonious or pointless litigation that each party disclose facts; prior to proceedings being issued. And it therefore follows, that you as an aggrieved farmer or smallholder, can write to DEFRA and say, I think that you have behaved negligently, and I may have a claim. Could I please, therefore, see my file? Could I have a look at all the papers? How did you come to the decision to cull? Or do you impose an A notice, or a notice of whatever, and I just feel that that gives a little power. To the individual, that I feel has actually not been used.
Well, I have suggested that people in the Forest of Dean, the 76 people who were culled, could write as a body to DEFRA for all of their findings. In truth, it has been my experience that some farms have been lost, and there has been a certain reticence to produce records.
Tim Boswell, MP: Partly speaking as a livestock farmer, and therefore with an interest in the bill; not being a lawyer, but having a member of the family who is a public lawyer and this tends to rub off on one's own interests. Can I simply rehearse with Barbara the issue that I am always told when I start raising these points with ministers and indeed, did slightly with Nick Brown in one of the early statements, that ministers always have a duty to act responsibly and their officials do.
And I wasn't quite clear from the presentation, whether MAFF has taken the power to absolve itself, which I doubt that it can, or whether it's merely saying that it wouldn't have to have reasonable grounds to act, as long as it was reasonable in general. Or could she untangle that? Not in any way to derogate from the basic argument she has made.
Barbara Jordan: As I say at the end of this, I think challenges will be made. The Government hopefully, has an underlying and overriding obligation to act reasonably. But it is interesting in the bill, that reasonableness is not a statutory requirement.