QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HIGH BURROW ORGANIC FARMING PARTNERSHIP||Claimant|
|THE SECRETARY OF STATE FOR THE DEPARTMENT OF THE ENVIRONMENT, FOOD AND RURAL AFFAIRS||Defendant|
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Mr A MacLean and Mr G Rothschild (instructed by DEFRA) appeared on behalf of the Defendant
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"Although it is possible for such an explosive outbreak of disease it seems unlikely that the original reactor, purchased from an unconfirmed breakdown herd in Hereford, 11th January 2006, should be on farm for 20 months, be the only reactor found at the test, 17th September 2007, and then to suddenly become infectious to so many other stock."
Ricardo de la Rua at DEFRA observed in an email of the same day that:
"I intend to hold the current policy line that all gIFN test reactors must be slaughtered. Infection has been confirmed in this herd, there are several concurrent skin test reactors in the herd, and it is not clear at all that the initial skin test reactor found on 17th September was the only animal infected at that time."
On 29th November 2007 in an internal email he observed again:
" . . . [Unless] VLA Weybridge (Adam Whelan) casts any doubt on the validity of those results, and pending a review of the current gIFN testing policy, we will be expecting AH to proceed with the slaughter of every gIFN test reactor in this herd, along with the skin test reactors."
In a further email he considered the option of treating the results at this herd as requiring an exceptional departure from policy. He answered the question by a rhetorical question of his own:
"Do we want to start making exceptions before the gIFN test policy has been reviewed and objective, agreed criteria to identify and deal with unusual results that have been set?"
"(1) The Minister may, if he thinks fit, cause to be slaughtered any animal which --
(a) is affected or suspected of being affected with any disease to which this section applies; or
(b) has been exposed to the infection of any such disease."
Bovine tuberculosis is such a disease and is specified as such in 2007 Regulations.
"Whereas, to eliminate those differences, measures must be taken within the framework of the common agricultural policy and in line with regulations already adopted or in preparation on the progressive establishment of a common organisation of markets; whereas the animal health provisions of Member States must therefore be approximated."
The Directive has been amended many times and I have helpfully been provided with the current compilation of Directives, both original and amended.
"(1) A bovine herd is officially tuberculosis-free if --
(a) all the animals are free from clinical signs of tuberculosis;
(b) all the bovine animals over six weeks old have tested negatively in at least two official intradermal tuberculin tests carried out in accordance with an Annex B . . . "
That is a reference to the tuberculin skin test precisely identified in paragraph 2 of Annex B, with which the skin test conducted on these animals complies. Thus, a herd is officially tuberculosis-free if its animals do not test positively on the skin test. However, paragraph 3 of Annex B permits blood testing:
To enable detection of the maximum number of infected and diseased animals in a herd or in a region, Member States may authorise the employ of the gamma-interferon assay referred in the OIE Manual of Standards for Diagnostic Tests and Vaccines, 4th Edition, 2000, chapter 2.3.3 (bovine tuberculosis) in addition to the tuberculin test."
That provision was introduced by Community Regulation 12/26/2002. That provision impliedly recognises that the gamma-interferon assay, or blood test, may detect infection with tuberculosis in a larger number of animals than the traditional tuberculin skin test.
(1) Where a herd contains an animal suspected of having tuberculosis, the competent authorities shall ensure that official investigations are carried out as soon as possible to confirm or rule out the presence of that disease ...
(3) Where the presence of tuberculosis is officially confirmed, the Member States shall take appropriate measures to prevent any spread of the disease and shall ensure in particular that:
-- all movement into or out of the herd in question is prohibited ...
-- cattle in which the presence of tuberculosis has been officially confirmed, and cattle which may have been infected by them, are isolated within the herd,
-- the cattle undergo an examination for tuberculosis without delay,
-- cattle in which the presence of tuberculosis has been officially confirmed, cattle which have been examined as stipulated in the third indent with unfavourable results, and cattle considered by the competent authorities as infected are isolated and marked until their slaughter pursuant to Article 15 ...
Member states shall ensure that, following a bacteriological, pathological or tuberculin examination, animals in which the presence of tuberculosis has been officially established and those considered by the competent authorities to be infected are slaughtered under official supervision as soon as possible and not later than 30 days after the owner or the person in charge has been officially notified of the results of the tests . . . "
"[On] public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible decision-maker has reached after consultation with its expert advisors."