TUESDAY 6 NOVEMBER 2001

MR ELLIOT MORLEY, MP AND MR BRIAN DICKINSON

  40. Their argument is that contiguous cull was unnecessary and you have the burden of proof resting on you to show that it was actually beneficial.
  (Mr Morley) Absolutely and we can demonstrate that. There are two detailed independent studies in relation to contiguous cull. One of them suggests that the delays that we did have, for a variety of reasons, meant that an additional one million animals had to be culled because we were not fast enough in relation to putting it in place. The other one makes it absolutely clear that, if we had not applied the contiguous cull, we could have been facing between 3,000 and 6,000 cases—we have had 2,030—and we would still now be in the midst of an outbreak and I think that it was a very high number certainly in relation to some of these scenarios today. The evidence from independent experts is that contiguous cull made a big difference and indeed I should point out to the Committee—and it is not often said—that even though this was the worst outbreak in the world, much worse than in 1967, it has been brought under control faster than in 1967 with less number of outbreaks although I accept that it is not an absolutely fair comparison because they were smaller farms in 1967, but that is no mean achievement. That has been done at great cost—emotional, financial, damage to the rural economy and tourism. All these things have come into that and of course we will have to take that into account in the future, but all the evidence is that a contiguous cull was an essential part of that whether you like culling or you do not and the Brecon Beacons is the kind of practical experiment and practical evidence that contiguous cull was essentially there for. So, all the evidence is that the contiguous cull works and I have seen no evidence that it has not.

  Chairman: We have the chief government scientist making a cameo appearance tomorrow, and Professor Roy Anderson, so we will no doubt wish to pursue these epidemiological matters with them.

  41. Returning to the question of appeals. The Minister has promised to give some further information to the Committee by the end of the week about the numbers of appeals and their relationship with source of infection. He also said just now that the Bill does not intend to abolish an appeals mechanism, I think, and that new protocols will be put into place.
  (Mr Morley) Can I be very clear in legal terms because we always have to be very clear in legal terms. It is an informal appeals mechanism through the divisional veterinary manager, but that is the situation now and it is a situation that we can have in the future and there is a procedure for this which I can spell out in detail or I can write to you with it if you would wish. Do you want me to send you the details of the appeal procedure?

  Mrs Shephard: It would be very useful for the Committee to have the detail because you must realise that the impression is that the Bill abolishes appeals procedures and that can partly explain why the publication of the Bill has been received in a rather hostile way in a number of quarters. I think there is a strong feeling in the countryside that this Bill is proposing a new legal system, but just for farmers, with powers of investigation, with powers to make charges, powers to act as judge and jury and then to impose penalties apparently without appeal. That is one of the problems in the countryside in the farming community and the Minister has given some sort of reply about consultation but he should realise that he will need to do a very great deal more to make people feel that this legislation is actually designed to help the situation in rural communities and to help farmers rather than to hinder them and to pick them out. That is the problem. What does the Minister intend to do about that?

  42. I think it would be helpful to have at least a brief outline of appeals as well as a written note.
  (Mr Morley) Can I say that obviously this part of the Bill is the most controversial. I think that other parts are not really controversial; in fact, most people welcome them and recognise the sense in them. In terms of the present time on contiguous culls, the detail now is that on hearing, normally by telephone, that animals are to be culled, the farmer can ask the divisional veterinary manager to review the case. That will not change. The DVM makes a rapid assessment of the case. Normally, the point of issue is whether the animals have been exposed to FMD because of course that is the issue. There is no change in that, but of course the vets will now also consider whether slaughtering animals will prevent the spread of FMD. That has to be a consideration taken into account. The DVM gives a ruling. If the decision is that the cull is to go ahead, the farmer indicates that he is not prepared to let the DEFRA staff onto his land and, at the present time, DEFRA has to go to the High Court to obtain an injunction and that is a very time-consuming process. The change with the Bill is that, instead of going to the High Court, DEFRA will go a justice of the peace and obtain a warrant. I might add that the justice of the peace is legally obliged to consider whether or not the request is reasonable, so there is a test of reasonableness in relation to applying for the warrant. In terms of the point that was made that we are somehow singling farmers out, I might point out that the procedure we are proposing is exactly the same as some procedures that were introduced under the honourable lady's time in government. The Food and Environment Protection Act 1985 has power for an officer to obtain a warrant from a justice of the peace to authorise the officer to enter into a dwelling and power for an officer to use reasonable force in the performance of the officer's functions. The Food Safety Act 1990 has the same powers. The Breeding of Dogs Act 1991 has the same powers. The Postal Services Act 2000, section 49, has the same powers. The Immigration and Asylum Act 1999, section 125, has the same powers. So, it is not unique and it is not singling farmers out in any way. There is a range of measures on the statue book exactly the same.

  43. That principle of ordering the right to entry which is what you have been describing in other cases of course is not unique, to order the destruction of someone's livelihood is and that is why farmers require reassurance about the kind of appeal mechanisms that will be open to them and may I also ask what training has been given to magistrates for this extension of their powers.
  (Mr Morley) I would not want to presume on the training that magistrates have but I do not think they just pull anyone off the street and put them on the bench without giving them some guidance in that respect.

  44. It has resource implications.
  (Mr Morley) I think that magistrates are resoursed and, in my experience, they do have professional guidance and they also have quite regular training and discussion as well.

  45. As you have just described it, it is an entirely new duty for magistrates and I would suggest that it does imply some sort of veterinary knowledge and I am sure that you will need to be able to answer questions about this when the Bill goes into committee stage.
  (Mr Morley) Magistrates will be informed of all new measures and the implications of them, but you cannot expect magistrates to be vets in the same way that they could be public health experts or experts for the range of issues and warrants that they already have.

  46. There is a difference, as I have already said and I hope that you can perceive the difference, between giving a warrant to a right of entry and giving a warrant for a destruction of the livelihood. I think that is an important distinction which is not lost on farmers. In connection with that, what advice have you received about compatibility of the Bill with European Union law? I see that there is the usual disclaimer for the Secretary of State on the face of the Bill.
  (Mr Morley) It has of course been given to our lawyers and we have received the usual legal advice and the advice is that it is compatible with the European human rights legislation.

  47. On the question of magistrates, let us take somewhere like Brecon or the Yorkshire Dales or Cumbria, local magistrates come out of that community.
  (Mr Morley) Yes.

  48. They may well be farmers or farmers' wives.
  (Mr Morley) Yes.

  49. It is a terrible burden to ask a magistrate to approve a warrant destroying a generation of work by a neighbour. It is not quite the same as granting a licence for the extension of opening hours. It is a heavy responsibility, potentially a very devastating one for the community.
  (Mr Morley) I think that magistrates face all sorts of heavy responsibilities and difficult decisions when they are in the community; I do not think there is any change about that. Of course, they will have the veterinary advice from the divisional vet. Of course, the powers of slaughter are already laid down in the Animal Health Act. What the warrant will relate to is not the decision on slaughter but the decision on entering in order to carry out the duties. That is the difference in relation to the magistrate.

  50. May I just probe the reasonable test which the magistrate is supposed to adjudicate on because I see from the Bill that it says, "If a justice of the peace is satisfied on sworn information in writing that the first condition is satisfied" and then it goes on to deal with other conditions which talk about the way entry will be gained to premises and the reasons for seeking that entry, does the reasonable test apply to the methodology and reasons for going on or is it applied to the evidence in writing which I presume must be some form of veterinary scientific justification?
  (Mr Morley) That is right.

  51. Just help me out on this: what happens if the magistrate says, "I am not certain" because it is the clerk to the magistrates in many cases who will be the source of advice to which the magistrates would turn. Certainly some of the appeals that you referred to earlier did require a lot of scientific and veterinary understanding to see where people were coming from. I am not quite certain how it works in reality if there is uncertainty in the mind of the magistrate or the clerk to resolve a veterinary or scientific issue. What bit does "reasonable" really turn on?
  (Mr Morley) The conditions are laid down here in terms of both the written submission from the divisional veterinary manager and also whether or not there is a need for a warrant and that should be fairly familiar because of course that is what magistrates will have more experience with in terms of the warrant but rather than ask my legal adviser, I wonder if it is all right if he talks to the Committee rather than talk to me and then I talk to the Committee because I am the middle-man.

  52. Before Mr Dickinson gives us his views on this, is it intended that the application would be in writing or would a representative of the appropriate part of the DEFRA mechanism be in court to be able to respond to questions from the magistrates?
  (Mr Morley) Yes, they would.
  (Mr Dickinson) As you have rightly pointed out, the conditions to obtain a warrant are set out in the Bill in respect of each of the provisions where new rights of entry are granted and the magistrate, a single magistrate, with advice from the clerk will have to be satisfied that the conditions as provided in the Bill are made out. The overall test of reasonableness is that the magistrate will have to be satisfied that the evidence put before the magistrate by the officials on behalf of DEFRA stack up, not only that the conditions as laid out in the Bill are proved but that overall it is reasonable in the circumstances of the facts and any veterinary or other relevant evidence before the magistrate that a warrant should be granted.

  53. Can you help just to refresh my memory. If a person who was affected by this was in court and a judge did not think that a reasonable case had been made out, what legal remedy or routes are open to him to challenge that?
  (Mr Dickinson) The decision is the decision of a single justice of the peace, it is not a decision of a full sitting of a magistrates' court as such. The decision of the justice of the peace whether to grant a warrant or not to grant a warrant is amenable to judicial review, so that if a farmer concerned or any other representative of an interested party who has sufficient connection with the case thinks that the decision is wrong as a matter of law, then it would be open to them as with any decision, to take judicial review.

  54. And the party who is subject to law would be advised that it was going to the magistrate and they would know all about when it was going to be heard or you say that this is a single magistrate, so could this be a magistrate sitting at home or on the end of a telephone?
  (Mr Dickinson) It would be a hearing before the magistrate. It would not normally be anything other than the DEFRA officials who would inform the magistrate concerned at a time between the clerk and the magistrate and the magistrate and DEFRA.

  55. So not necessarily in public open court?
  (Mr Dickinson) Not necessarily.

  56. Why judicial review and not appeal?
  (Mr Dickinson) There are the general provisions of the Magistrates' Court Act 1980 which apply to hearings such as this but judicial review would be the normal mechanism whereby the decision of a magistrate to grant a warrant would be by review.

  57. That is going to take longer and be more difficult, is it not?
  (Mr Dickinson) Not necessarily if there were circumstances which —

  58. Not necessarily but probably?
  (Mr Dickinson) It depends on the circumstances whether expedition would be appropriate.

  59. Just talk us through it and I am sorry to persist. You go to a magistrates because you want to get onto some premises urgently for slaughter.
  (Mr Morley) That is correct.