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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Messrs Westerhall Farms v Scottish Ministers For Judicial Review [2001] ScotCS 98 (25 April 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/98.html Cite as: [2001] ScotCS 98

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[1] The Animal Health Act 1981 (c. 22) provides :

"31. Schedule 3 to this Act has effect as to the slaughter of animals in relation to -

...(c) foot-and-mouth disease;...

Schedule 3

Power to Slaughter in Relation to Certain Diseases

...

Foot-and-mouth disease

3.(1) The Minister may, if he thinks fit, in any case cause to be slaughtered -

(a) any animals affected with foot-and-mouth disease, or suspected of being so affected; and

(b) any animals which are or have been in the same field, shed, or other place, or in the same herd or flock, or otherwise in contact with animals affected with foot-and-mouth disease, or which appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease.

(2) The Minister shall for animals slaughtered under this paragraph pay compensation as follows -

(a) where the animal slaughtered was affected by foot-and-mouth disease the compensation shall be the value of the animal immediately before it became so affected;

(b) in every other case the compensation shall be the value of the animal immediately before it was slaughtered."

[2] The Foot-and-Mouth Disease Order 1983 (SI 1950) makes provision for a variety of measures designed to prevent the spread of a foot-and-mouth disease outbreak including compulsory notification requirements, designation of infected areas, restrictions within such areas, and cleansing and disinfecting of premises and vehicles. Clause 13 provides :

Such a Notice would specify the particular restrictions to apply to the premises and the animals on them. The Order does not deal with powers to order the slaughter of animals. These powers are simply those general ones given to the Minister in terms of the 1981 Act.

[3] The Council Directive 85/511/EEC of 18 November 1985 (OJ 1985 L315/11) introduced measures for the control of foot-and-mouth disease. In its original form, article 1 of the Directive was said simply to define "the minimum Community control measures" to be applied in the event of an outbreak. It narrated in its preamble, inter alia:

These elements of the preamble remain but article 1 was amended in 1990 (Council Directive of 26 June 1990 90/423 (OJ 1990 L224/13)) to read simply :

"This directive defines the Community control measures to be applied in the event of outbreaks of foot-and-mouth disease, whatever the type of virus concerned". Article 4, which was left unamended by the 1990 Directive, provides for the investigation and monitoring of the presence of the disease on a land holding which contains one or more animals suspected of being infected or of being contaminated with the disease. An animal suspected of being infected is defined in article 2 as being one "showing clinical symptoms or post mortem lesions which are such that the presence of foot-and-mouth disease may reasonably be suspected". An animal suspected of being contaminated is defined as one

Article 4 also provides that the specified measures may be extended to adjoining holdings:

[4] Article 5 provides that the relevant authority shall take certain additional measures "without delay" in respect of holdings with animals actually infected (i.e. those with clinical symptoms or post mortem lesions or in which laboratory testing has demonstrated the presence of the disease. These include the slaughter of all susceptible animals on the holding: "on the spot.....in such a way as to avoid all risk of spreading the foot-and-mouth virus".

Again it is provided that certain measures can be extended to adjoining holdings but these measures are only those specified in what is described as "paragraph 1" which appears to relate only to sample taking.

[5] Article 9 provides for the establishment of a "protection zone based on a minimum radius of 3 km and a surveillance zone based on a minimum radius of 10 km" around an infected holding. The establishment of the zones must "take account of natural boundaries". Certain measures must be taken in the different types of zone. There is specific mention of "emergency slaughter" in both protection and surveillance zones albeit that such slaughter is not specifically authorised by the Directive.

[6] Article 6 of the Convention provides :

"In the determination of his civil rights and obligations...

Article 1 of the First Protocol to the Convention provides :

[7] The petition has as its background the outbreak of foot and mouth disease which has spread to certain parts of Scotland, notably into Dumfries and Galloway. In a Note dated 9^th April 2001 issued by the United Kingdom Government's Ministry of Agriculture, Fisheries and Food to explain a policy of slaughter on farms contiguous to those containing infected animals, it was said that :

In a Notice to farmers issued by, amongst others, the Scottish Executive Rural Affairs Department and the State Veterinary Service dated 2 April designed to explain slaughter policies in Dumfries and Galloway, including one to slaughter animals on farms within three kilometres of infected areas, it was said :

In short then, expert advice given to the respondents advocated the necessity, to avoid the spread of the disease, of slaughtering sheep on farms contiguous to those with confirmed infected beasts and those within three kilometres of farms with such beasts. In practice, the distance appears generally to have been measured simply as the crow flies but using a radius measured from a centre on the relevant farm steading rather than points on its boundaries.

[8] The expert advice mentioned in the government publications is not the only advice available. In an article published on the Internet, Dr. Keith Sumption, a veterinarian, advocated a vaccination policy. However, his article did not seem to discourage a slaughter policy running in tandem with vaccination.

[9] The petitioners own a hill farm known as Westerhall Farm, located to the north west of Langholm, an area some distance away from the main centres of infection so far identified. The farm consists of about 1100 hectares upon which graze some 1000 black-faced ewes, together with other sheep and cattle. The blackfaced ewes are of particular significance as they have been hefted (made familiar with) the particular ground area over some generations. They could not easily be replaced.

[10] The north east extent of Westerhall Farm is bounded by Bush of Ewes Farm. The steading of the latter farm is less than three kilometres distant, as the crow flies, from that part of Westerhall Farm known as Meg's Shank. The boundary of the two farms in the vicinity Meg's Shank is on high, yet boggy, ground, more than 400 metres above sea level. At least some of the petitioners' sheep had access to the Meg's Shank area in the sense that there was no fence preventing them from grazing there. The petitioners maintained, however, that their sheep would have not gone into that area because of their preferences to remain on lower ground where their feed is distributed. The prevailing wind at the boundary is westerly, i.e. towards Bush of Ewes farm from Westerhall Farm.

[11] On or about 9 April 2001, certain sheep in the area of the Bush of Ewes Farm steading were confirmed as being infected with foot and mouth disease. The livestock on Bush of Ewes Farm was slaughtered. On the same day, a Notice (Form D) executed by one of the respondents' officials (Mr. John Riddett, Senior Agricultural Officer based at Dumfries) was sent to the petitioners under and in terms of article 13 of the Foot and Mouth Disease Order 1983 severely restricting the movement of animals to and from Westerhall Farm and imposing certain disinfectant and warning notice procedures. The Notice gave as a reason for the restriction :"the outbreak of foot and mouth disease within 3km of your holding". The petitioners were also telephoned by an official advising them that their livestock was being considered for slaughter.

[12] On or about 14 April, the petitioners' factor made representations to Mr. A. Robertson, Chief Agricultural Officer for Scotland. Mr. Robertson, in turn, discussed the situation with Charles Milne (a Veterinary Advisor based in Dumfries and Galloway). Westerhall Farm was visited by Mr. Robertson on or about 15 April but on 16 April, he advised the respondents that the slaughter of their livestock would proceed.

[13] On the afternoon of Tuesday 17 April, the matter came before me upon an application for a first order for service of a petition for the judicial review of the decisions: (a) to issue the Form D Notice; and (b) to slaughter the petitioners' livestock. As the slaughter was scheduled to take place on the morning of Wednesday 18 April, the petitioners sought interim suspension of the decisions. In the case of the D Notice, this was restricted to a suspension which would permit the petitioners to take blood samples from their stock whilst alive and send the samples away from the farm for analysis.

[14] The petitioners initially challenged the Form D Notice on the ground that it did not seem to be signed by an appropriate officer. However, that factual matter was clarified by the respondents as set out above.

[15] The decision to order the slaughter was attacked on four broad grounds. First, the policy to slaughter all relevant livestock within the three kilometre radius was contrary to the European Council Directive. The Directive laid down an exhaustive code as to what was to happen in the event of a foot-and-mouth outbreak and nowhere did it permit the slaughter of animals on holdings where infection had not actually been diagnosed. That the Directive did lay down such a code was shown by the removal of the words in the original form of the Directive which stated its terms to be the minimum requirements. The Directive gave farmers rights as to what to expect within the European Union. This was important in relation to securing equality of treatment throughout the Union so as to avoid distorting competition in the market, hence the reference in the Directive's preamble to Articles 43 and 100 of the European Communities Treaty (now articles 37 and 94). In so far as the terms of the 1981 Act purported to permit slaughter beyond the boundaries of infected holdings it must be taken as being superseded by the 1985 Directive and thus not enforceable (The Queen v Secretary of State for Transport ex parte Factortame (Case C-213/89) [1990] ECR I-2433, judgment of the European Court at paras.18-19; Factortame v Secretary of State for Transport [1990] 2 AC 85, Lord Bridge of Harwich at 140). Alternatively, the terms of the 1981 Act ought to be construed in a manner as compatible with the Directive as possible (Webb v Emo Air Cargo (UK) [1993] 1 WLR 49, Lord Keith of Kinkel at 59; Marleasing v La Comercial Internacional de Alimentacion (Case C-106/89) [1990] ECR I-4135, judgment of the European Court at para. 8). In adopting the Directive, the Council would have had in mind the concept of proportionality (United Kingdon v Commission of the European Communities (Case C-180/96) [1998] ECR I-2265, Judgment of the European Court at para. 96). What the respondents were doing was contrary to the Directive and thus unlawful.

[16] Secondly, the respondents were operating a rigid policy and the petitioners had not been permitted to argue that they should be an exception therefrom. The policy was not in accord with the proportionate response reflected in the Directive. There was nothing exceptional about the existence of a policy provided that the policy does provide room for exceptions where that is appropriate (In re Findlay [1985] 1 AC 318, Lord Scarman at 335-6). In this case, there were good reasons to consider an exception. It was very unlikely that the virus had travelled up a high ridge and gone down the other side, especially given the direction of the prevailing wind. Furthermore, the particular sheep were unique and their replacement would be very difficult to achieve.

[17] Thirdly, the procedures of the respondents in arriving at their decisions were contrary to certain articles of the European Convention in respect that no reasons had been given for the decisions nor had a fair hearing been afforded to the petitioners. All that the respondents had said was that the policy required the slaughter to occur because of the three kilometre radius. It was necessary, as part of the duties imposed by article 6, for the respondents to produce adequate reasons for their decisions (Stefan v The General Medical Council, Privy Council, 8 March 1999 paras. 16-19). Furthermore, there were no safeguards by way of appeal or a right to be heard. This was a particular problem in this situation where the respondents had effectively engaged all the experts in the field and, as distinct from the petitioners, had access to the research material upon which the slaughter policy was based. The procedures did not amount to a proportionate response to the problem (Goodwin v United Kingdom [1996] 22 EHRR 123, judgment of the European Court of human Rights at para. 40). This was especially so given the limits placed on the petitioners ability to challenge the decision to slaughter (Hentrich v France [1994] 18 EHRR 440, judgment of the Court at para. 49) and despite the existence of compensation (James v United Kingdom [1986] 8 EHRR 123, judgment of the Court at para. 54).

[18] Fourthly, the procedures were also contrary to Scots administrative law and no rational basis for the decisions had been proffered. Adequate reasons required to be given in terms of domestic law (Wordie Property Co. v Secretary of State for Scotland 1984 SLT 345, LP (Emslie) at 348-9) and they had not done been. Such reasons as were given required to have a proper factual basis (Leisure Inns (UK) v Perth and Kinross Licensing Board 1993 SLT 796, LJC (Ross) at 798) and that was not the case here.

[19] As preliminary matters of fact, the respondents stressed that the article from Dr. Sumption did not provide an alternative to the slaughter policy. Rather it was suggesting that additional methods required to be used including vaccination and, perhaps, slaughter on a wider scale. Taking the petitioners' position at its highest, they did not suggest that there was no risk at all that their livestock was infected, only that it was very unlikely that it was. Put another way, they accepted that a risk existed. In that situation, the realisation of the risk could cause the infection to spread to the farms adjoining the petitioners' holding. This had potentially serious consequences given that the outbreak at Bush of Ewes Farm was at present an isolated one creating a new centre of infection. There was nothing in the petitioners' submissions which challenged the prudence of the measures being taken by the respondents in accordance with expert advice tendered to them.

[20] The Council Directive, even in its amended form did not purport to prescribe a mandatory and exhaustive code beyond which national governments could not go. Rather, the Directive itself stated that it was experimental in nature and it made no sense to construe its terms in a manner which would prevent such governments from coping with outbreaks in ways which seemed appropriate to them, provided that the methods adopted did not conflict with the Directive. The respondents' policy was not inconsistent with the Directive. The amendments in 1990 had been intended to prohibit unauthorised individual vaccination programmes and not to change the minimum requirements nature of the Directive.

[21] It was fair to describe the respondents' policy as "rigid" but that of itself was not a ground for a successful challenge to a decision which happened to be in conformity with the policy. The policy itself had been devised upon expert advice and the respondents had, as a matter for their discretion, determined to implement it. Having decided to implement it, it would be somewhat absurd, in the circumstances here, to create exceptions to it (i.e. to leave areas unculled). There was little said here to suggest that the petitioners' situation was outwith the normal one such that an exception ought to have been made. In any event, the respondents' officer, Mr. Robertson, had in fact considered the petitioners' representations but ultimately rejected them having taken appropriate expert advice. It was legitimate for him to take such a decision as the person to whom authority had been delegated (Carltona v Commissioners of Works [1943] 2 All ER 560, Lord Greene MR at 563).

[22] The slaughter policy was not contrary to the provisions of the European Convention. The Convention did not prohibit the type of policy involved here simply on the basis that "full" compensation for all losses, including disruption of business, was not provided for. Rather, the European Human Rights jurisprudence seemed to accept the adequacy of compensation where it was reasonably related to the value of the item seized (James v United Kingdom (supra)). In relation to article 6 issues, no prima facie case had been made out here albeit that there were questions in terms of Convention rights about the legitimacy of similar executive action in other areas of administrative law which were pending before appellate courts (County Properties v The Scottish Ministers 2000 SLT 965; Alconbury Developments Ltd [2001] 5 EG 170 sub nom. R v Secretary of State for the Environment etc. ex parte Holding and Barnes). In these situations, one question was whether the availability of the remedy of judicial review of executive action was sufficient to secure compliance (Bryan v United Kingdom [1995] 21 EHRR 342). In this case, the petitioners had the opportunity in this Court of testing the lawfulness of the decision taken on the basis of the reason given. The lawfulness of the procedures in the particular case had to be tested having regard to the principle of proportionality (R. v D.P.P. ex parte Kebilene [2000] 2 AC 326, Lord Hope of Craighead at 380-1). Proportionality was a flexible tool and had to take into account the emergency situation which had arisen and the need to take swift action in the public interest. Such action was not compatible with the occurrence of hearings involving experts and lawyers. In the time which it might take to organise and hold a hearing, the virus could have spread.

[23] It was accepted that reasons had to be given for the proposed slaughter and that such reasons required to be sufficient to advise the informed reader of their nature and whether they might afford him a ground for challenge. In this case, the reason for the original Form D Notice had been clear, namely the existence of part of the petitioners' holding within the three kilometre policy radius. The reasons for the existence of that policy had also been published so that the petitioners could be in no doubt about the basis for the order to slaughter.

[24] It was not disputed that, before I could grant the interim measures sought, I would have to be satisfied first that the petitioners had averred a prima facie case on one or more of the grounds argued which ultimately might merit the suspension of the decisions complained of. Secondly, I would have to be satisfied that the balance of convenience favoured the granting of such measures. I am not satisfied on either of these two elements.

[25] First, I am unable to agree with the submission that the 1985 Council Directive as amended by the 1990 Directive is intended to be a comprehensive and exhaustive code limiting what national governments are entitled to do to prevent the spread of foot-and-mouth disease. Rather, as originally framed, the Directive was intended to provide the minimum preventative steps required by such governments. I do not consider that the 1990 amendments, which were concerned mainly with the proscribing of policies of vaccination, were intended to stop governments from taking further steps deemed necessary to eradicate the disease provided, of course, that such steps did not conflict with the terms of the Directive. These terms seem to envisage programmes of emergency slaughter in both the protective and surveillance zones outwith holdings where the disease has actually been diagnosed. This is so even although the Directive does not dictate that such slaughter should or even might take place. In these circumstances, I am of the view that the current policy of slaughter within a three kilometre radius does not conflict with the Directive. Rather it seems to be one foreshadowed in its terms. I should add that I am unable to perceive the purpose of the Directive either in terms of competition policy or as intended to afford individual rights to land holders. Rather it seems directed towards the improvement of the quality of livestock and hence its profitability.

[26] Secondly, it is certainly true that the respondents have adopted a policy which, if applied indiscriminately, could be regarded as rigid, if not draconian. Nevertheless, in this particular case, the petitioners have been afforded the opportunity to argue for an exception. That argument was looked at and ultimately rejected. It is difficult to see how the respondents could even begin to attempt to manage a foot-and-mouth outbreak without some form of policy (see Lord Scarman in In re Findlay (supra)). Part of that policy may be that it should be rigorously enforced in order to achieve success. Again there is nothing inherently wrong in such an approach provided, of course, that the policy is not so rigid that it is incapable of delivering a proportionate response in a particular case. I do not consider that a prima facie case has been made out here that the policy is so rigid or that it has been applied in such a way that the respondents' discretion in individual cases has been fettered. Rather, the respondents accept that they have adopted a policy which, normally, they will enforce rigorously. They considered but ultimately rejected the argument for an exception. There was a rational basis for such a decision (infra), which was one which the relevant official, having authority delegated to him by the respondents, was entitled to take.

[27] Thirdly, in relation to Convention rights, I do not consider that a prima facie case has been made out under article 1 of the First Protocol. Although it is proposed that the petitioners' peaceful enjoyment of their livestock be interfered with, it was not suggested that this was otherwise than purportedly in the public interest and subject to conditions provided for by law. These conditions involve the payment of compensation amounting to the value of the beasts slaughtered and this type of approach seems to be permitted under the Convention where the public interest demands the interference. Of course, in deciding to interfere with the petitioners livestock, the respondents must, once again, act in a proportionate manner. There has to be a fair balance between the competing private and public interests (Lord Hope in Kebilene (supra)). Here, there is on the one hand the prospect of substantial, potentially catastrophic, economic harm being caused to the farming industry if swift and effective action is not taken to prevent the spread of the disease. Such steps as are advised may result in a limited amount of farming livestock being slaughtered. However, the legislation empowering the executive to order the slaughter of animals also compels the executive to pay compensation amounting to the value of the animals killed. This process does not seem to amount to a potential beach of the article.

[28] The petitioners' attack under article six related primarily to a failure to afford the petitioners a hearing and the absence of adequate reasons for the decisions taken. I have no doubt that in relation to a decision to slaughter a farmer's livestock, there is an obligation on the part of the respondents, in terms of the general Scots administrative law and under article 6 of the Convention, to provide reasons for that decision. These reasons must be adequate in that they must leave the informed reader in no real and substantial doubt as to what these reasons were and what was and was not taken into account (LP in Wordie Property Co. (supra) at 349).

[29] I have equally little difficulty in concluding that such reasons were given in this case. As was indicated in the Form D Notice, the reasons were that the petitioners' holding was within the three kilometre radius of an infected farm and that therefore, in terms of the published policy, the livestock would be slaughtered. That reasoning may not appeal to some but it is clear, if concise, in its terms. The reasoning provided is also, fourthly, adequately based in fact, again albeit that it may not be an attractive basis to some. The basis is the material quoted above from the government notices explaining the policies in terms of the expert advice given. That advice warrants the need for a policy to slaughter livestock in areas of potential, but not proven, infection or contamination.

[30] In relation to a fair hearing, which may well include the question of whether there is an effective right of appeal, there may well be difficulties with the procedures adopted in the process leading to the slaughter. These may, in an appropriate case, have to be the subject of closer judicial scrutiny than I have been able to apply in the urgent circumstances of this case. In particular, it must be a source of some concern that the 1981 Act prescribes no real procedures or mechanisms under which a decision to order the slaughter of animals takes place. For example, there appears to be little statutory guidance as to: (a) the appropriate form which notification of a potential order for slaughter should take; (b) the person to whom any representations resisting the order should be made; (c) the expertise of any person qualified to pronounce the order; or (d) the powers available to any persons authorised to carry out the order. Perhaps also of some significance, although the point was not developed in argument before me, there is no apparent need for any form of judicial warrant authorising the slaughter process. This may seem strange given the potential economic effect of the process on the persons in possession of the cattle.

[31] In this case, however, it seems that the decision maker was someone qualified to reach an informed view and one who took expert advice. The petitioners were allowed to make representations to him albeit that these were rejected after consideration. The respondents provided reasons for their decision to the petitioners. The petitioners were and are able to attempt to challenge the merits of the decision in this judicial process (see Bryan v United Kingdom (supra)). I do not therefore consider that a prima facie case has been made out here in terms of Scots administrative law including Convention rights.

[32] Turning to the balance of convenience, I accept that the risk of a spread of the disease from Bush of Ewes Farm onto the petitioners' Farm is perhaps not of the highest. However, that risk does exist. It could not and was not be said to be de minimis. In that situation, the major factor favouring the suspension of the slaughter must be the consideration that if the slaughter goes ahead, the petitioners will lose their livestock and, to at least some extent, sustain damage to their business which might be incapable of repair at least in the short or medium term. They may never receive compensation for that damage. The damage is to be caused in an attempt to protect against what seems to be a relatively small risk of the infection spreading into the petitioners' livestock. On the other hand, set against this is the potentially catastrophic consequences to the farms neighbouring the petitioners' holdings should the disease spread. Such a spread would put the neighbouring farms' livestock at risk and, in turn, that on farms neighbouring them. The petitioners may suffer some damage to their business but they will at least be compensated for the loss of the value of each animal slaughtered. Balancing these considerations, having regard also to the absence of any material which cast any substantial doubt upon the prudence of the respondents' policy of slaughter as at least part of a scheme to eradicate the disease, I have reached the view that the balance favours permitting the slaughter to proceed.

[33] The submissions on the merits were completed in the early evening of 17 April when I provided parties with the broad bases for my decision. I was then asked for leave to reclaim. In the normal case involving issues of such importance as were argued here, I might have been inclined to grant leave. However, the grant of leave would inevitably result in delay at least into the morning of the 18^th and perhaps beyond before a hearing would have been likely to be completed. Such a delay might well place the farms neighbouring the petitioners at risk. I accept that, having regard to the various questions of law raised, it might be successfully argued that I have erred on the question of whether a prima facie case for review exists. However, I am not persuaded that any substantial basis has been advanced as to why the Inner House might be inclined to reverse the decision which I have reached on the balance of convenience. Having regard to the consequences of delay and the absence of such a basis I have decided, with hesitation, to refuse leave to reclaim.