Examination of Witnesses (Questions 40-59)
TUESDAY 6 NOVEMBER 2001
MORLEY, MP AND
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 caseswe have had 2,030and
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 Committeeand it is not often saidthat
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 costemotional, 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
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
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
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
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
(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
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.