Official Report (Hansard)

Session: 2008/2009

Date: 18 November 2008

Members present for all or part of the proceedings:

Dr William McCrea (Chairperson)
Mr Tom Elliott (Deputy Chairperson)
Mr P J Bradley
Mr Trevor Clarke
Mr Willie Clarke
Mr William Irwin
Mr Edwin Poots
Mr George Savage

Witnesses:

Ms Colette Connor )
Ms Jennifer Corkey )
Ms Kate Davey )
Ms Sandra Dunbar ) Department of Agriculture and Rural Development
Mr Roly Harwood )
Mr Michael Hatch )
Mr Andrew Kell )
Mr Ian McKee )
Ms Colette McMaster )
Mr Mike Steel )

Mr Pat Millen ) Departmental Solicitor’s Office

The Chairperson (Dr W McCrea):

We will consider the clauses of the draft Bill in sequence, beginning with clause 1 and ending with schedule 3. I will read out the number and title of each clause as we go through the draft Bill. Members will have received all the relevant documents, including a consideration of the clauses drawn up by the Committee staff, which contains comments from the various organisations that were consulted on the draft Bill.

We must proceed in a clause-by-clause fashion. Unless members have questions to ask or amendments to suggest, we will move through the clauses without explanation. We have a strong team from the Department of Agriculture and Rural Development (DARD) with us to explain matters and provide clarification. If any amendments to clauses are suggested, the Committee Clerk will record the Committee’s decisions in the master file.

Clause 1 of the draft Bill is concerned with the extension of powers to slaughter. The International League for the Protection of Horses (ILPH) wishes the clause amended so that action to slaughter can be taken only on the basis of a disease-risk assessment. Therefore, the question is whether the Department is content that preventive slaughter powers be granted on the basis of risk, and that the clause, if amended, would cater sufficiently for that.

Ms Colette Connor (Department of Agriculture and Rural Development):

I will begin by introducing my colleagues, and setting the scene, which you might find helpful before we go through the clauses.

The Chairperson:

The members have seen the draft Bill, and have all the relevant papers, such as your response, in front of them. We do not wish to go over unnecessary ground; we wish to go through the draft Bill and raise issues as they appear. The issue in front of us is the ILPH’s suggested amendment to clause 1. Do you have a response to that? Is the Department content that preventive slaughter powers be taken on the basis of risk, and that the clause, if amended, caters sufficiently for that?

Mr Ian McKee (Department of Agriculture and Rural Development):

In all of its slaughter policy, the Department acts on the basis of veterinary risk assessment; that is part and parcel of our normal protocols and actions. The primary legislation grants general and overarching powers, and in the practical implementation of those powers, we are required to have an audit trail of decision-making, which would include a veterinary risk assessment.

Mr Elliott:

I declare an interest as a farmer. Does the Department’s slaughter policy extend to badger culling?

Ms Sandra Dunbar (Department of Agriculture and Rural Development):

Clause 1 deals specifically with the slaughter of animals to prevent the spread of disease. It is not concerned with the slaughter of wildlife for any other reason.

Mr Elliott:

A badger is an animal.

Ms Dunbar:

The draft Bill is not concerned with badger culls.

Mr Elliott:

Are badgers not classified as animals?

Ms Dunbar:

Yes, but they are not livestock.

Mr Elliott:

This is the Diseases of Animals Bill.

Ms Dunbar:

It is not concerned with badgers.

Mr McKee:

The draft Bill is concerned with powers to deal with domestic farmed livestock, not wildlife.

The Chairperson:

There is nothing to stop the Committee from making a recommendation that the matter be considered.

Mr McKee:

The Committee is at liberty to make any recommendation.

The Chairperson:

Yes, but once the Committee makes a recommendation, will it receive a clear undertaking that the Department will seriously examine the matter? We will come back to that subject.

Mr McKee:

I appreciate that the Committee has its views on badgers. However, clause 1 of the draft Bill is concerned with a separate issue, which is the culling of livestock, if necessary. Our powers under the Diseases of Animals ( Northern Ireland) Order 1981 are deficient, and we are seeking the permissive power to introduce preventive slaughter, if necessary.

In the event of an outbreak of foot-and-mouth disease, if a veterinary risk assessment determines that neighbouring farms are probably diseased but not yet showing symptoms, the legislation will allow the Department, in accordance with a veterinary risk assessment, to introduce a firebreak so that disease can be controlled.

We also have other legislation, such as the human rights legislation, which makes it explicit that where the state intervenes to remove an opportunity or possessions — in this case livestock — compensation must be paid. With this provision we are trying to provide a permissive power to implement an EU regulation, if necessary and in accordance with a fully audited veterinary risk assessment.

The Chairperson:

We may actually be opening up a wider issue than what this particular power is.

Mr Poots:

Mr McKee has gone some way in identifying the differences between this particular Bill and the legislation currently in place. We already have provision for slaughter of animals with bovine TB and brucellosis. Those are not emergency powers, but emergency slaughter provisions do currently exist. What greater powers will there be as a consequence of this provision?

Mr McKee:

There are slaughter provisions if an animal is diseased or believed to be diseased. What we are considering here is in relation to European legislation. It will allow the Department a wider provision to step in, slaughter and compensate, if it is considered that animals in neighbouring areas are likely to become diseased. That would provide a firebreak and afford greater protection for the greater good. That is the issue before us. It is a permissive power; it is not an absolute. It does not have to be operated, but it would be a pity if a disease outbreak occurred and Department wished to exercise that power, but did not possess it.

Mr Poots:

Would this be applicable if, for example, bluetongue was to come to our shores?

Mr McKee:

Bluetongue is a different disease; it can be treated with a vaccine. The Department is thinking of diseases like foot-and-mouth disease that spread through an animal population and decimate it. With such diseases, the quicker that one moves — even if one has to act very quickly and with almost draconian measures — the greater chance that one has of preventing an even greater calamity.

Mr Poots:

Can the Committee be assured that this provision will be linked to compensation payments for those farmers who lose their herds?

Mr McKee:

Absolutely. The existing human rights legislation is crystal clear in that respect; it dictates that a person must be compensated if their livelihood is denied.

Mr W Clarke:

You have said that speed is of the essence here. However, is there a right for a farmer to appeal such a decision, and can that appeal be processed quickly?

Mr McKee:

In the circumstances that we are considering, there would be no right to appeal, but full compensation would be paid. If the Department was proved to have acted in a disproportionate way, its decision would be subject to the law. It would only be in very precise circumstances that this provision would be invoked. The Department would not want to slaughter healthy animals; that runs against the grain. This would have to be justified on veterinary grounds.

Mr Savage:

I raised the question a long time ago of animals that have been vaccinated, but still remain carriers of a disease. Those animals could come into a herd without the farmer knowing that they were infected. That is a concern to me.

The Chairperson:

Yes, but this is about an extension to slaughter.

Ms Dunbar:

This provision deals with contiguous culls. That is where there is a disease situation and healthy animals around the focus of the disease are slaughtered in order to prevent it spreading beyond that focus. It gives the Department the power to slaughter those healthy animals.

Mr Savage:

I declare an interest. I know of animals that were on a farm that did not react to tests for disease. When those animals were slaughtered and examined it was shown that they were infected with TB. Therefore, there is something wrong —

Ms Dunbar:

It is the same type of thing. It is trying to protect those animals —

Mr Savage:

Those animals were on that farm for seven or eight years. They were causing problems, yet were not reacting to the tests. That is my concern about this clause. I have no other objections.

The Chairperson:

The issue that has been raised is whether this action would be taken only on the basis of a disease risk assessment.

Mr McKee:

Yes, that is right.

The Chairperson:

Do members wish to propose an amendment or recommendation?

Mr Elliott:

I wish to clarify whether the Department is saying that it cannot include other animals, such as badgers.

Ms Connor:

Badgers are included in the definition of “animals” in the 1981 Order. The Bill’s provisions, as Mr McKee said, are part of the EU programme to deal quickly with epizootic diseases, such as swine fever and foot-and-mouth disease, not diseases such as TB and brucellosis. However, badgers are included.

The Chairperson:

Are members content to move on to clause 2?

Mr Savage:

Are we not going to do something about the issue of carriers? Is there no way in which they can be detected?

The Chairperson:

That would be for a different piece of legislation. Is that correct?

Ms Connor:

Yes.

Mr Savage:

I hope that you will come back on that and do something about it. The Department might not be able to do it today, but —

The Chairperson:

In the light of Mr Savage’s concerns, the Committee would like the legislation to be carefully examined again and Mr Savage’s point to be genuinely considered. Will that be done?

Mr Savage:

Cattle everywhere are being vaccinated against bluetongue, for instance, yet people might not be notified and might buy infected animals in all innocence, and that could create a hornet’s nest of problems on their farms. I hope that that never happens.

The Chairperson:

In the light of that, would the Committee like to recommend that the Department consider the issue? We can include it in the correspondence that we will send to the Department. It certainly must be examined.

Members indicated assent.

The Chairperson:

Clause 2 relates to the slaughter of animals and poultry treated with serum or vaccine. Are there any queries on this clause? What level of compensation will be paid for those animals? For example, will it be 100% of the market value?

Ms Dunbar:

It depends on the specific disease.

Mr McKee:

It depends on the specific disease. The compensation levels are set down in the 1981 Order. However, by and large, if a preventative cull of animals that are not showing symptoms of disease were to be carried out, the compensation would be 100% of the animals’ value prior to slaughter. This power is very similar to that in clause 1. Clause 1 refers to culling; this clause relates to vaccination ahead of culling.

The Chairperson:

Is the percentage of compensation laid down in legislation?

Mr McKee:

Yes, the percentage of compensation is laid down in legislation.

The Chairperson:

If members have no further queries about clause 2, we will move on.

Mr W Clarke:

Will vaccinated livestock be culled?

Mr McKee:

They may be culled. What we have here is something that has come through European legislation. Increasingly, it is being written into law that it may be necessary to cull animals as a firebreak. It may be necessary to vaccinate animals as a firebreak. It may be the case that action goes no further than vaccination, but one might need to vaccinate and cull. Vaccination might hold the line, but it might be necessary to cull later. Again, that comes down to veterinary risk assessment and a balanced assessment of what is likely to give the best outcome. The best outcome is one prevents the spread of disease to the general population.

Ms Connor:

It might also be necessary in order to secure our trading position. If we vaccinate, we will have disease-free status, which means that we can continue with our trade — if we cull.

Mr Elliott:

It might be useful for clarity if, at some stage, the Committee were supplied with the legislation relating to the compensation rates.

The Chairperson:

Yes.

Ms Dunbar:

For which disease?

Mr Elliott:

For all the diseases that this affects.

Ms Dunbar:

All diseases?

Mr Elliott:

There is no point in our having part of it if we do not have all of it.

Ms Jennifer Corkey (Department of Agriculture and Rural Development):

Members have been given copies of the 1981 Order; the levels of compensation for the various diseases are in schedule 2 of that Order.

The Chairperson:

It would be helpful if you could highlight those for us.

Ms Corkey:

We can send that to the Committee as a separate document.

The Chairperson:

Clause 3 and schedule 1 make provision for transmissible spongiform encephalopathies (TSEs). It seems that this clause and schedule were originally designed to deal with BSE in sheep — a risk is now estimated to be either zero or very low. If that is the case, why introduce the clause and the resulting bureaucracy? That matter was drawn to the Committee’s attention by the Young Farmers’ Club.

Ms Kate Davey (Department of Agriculture and Rural Development):

When the clause was put in, it was intended to cover BSE in sheep — a scenario which we hoped would never happen. However, research on TSEs, particularly around the issue of genotyping, is still a developing science. We have included basic outline provisions in case the science develops in such a way that we become aware of a new TSE that must be dealt with through genotyping. It is only an overriding power. If we ever arrived at that situation, which hopefully we never will, the Department would have to make further legislation to put the controls in place. This is only an overriding power in the light of still-developing science, even though BSE has been around since the 1980s.

The Chairperson:

Veterinary Northern Ireland believes that that is a shift in policy and questions the circumstances in which that policy will be applied. The Department’s previous response was that it was designed with BSE in sheep in mind. Can you expand on whether there are other circumstances that could see that policy applied?

Ms Davey:

I am explaining that, at this point in time, if BSE in sheep were to become a reality, that policy would be used. However, we could use it if the science developed such that there was a new TSE that was controlled through genotyping for either resistance or susceptibility to that disease. I can assure members that there is no disease that that would apply to at this point in time.

The Chairperson:

Another point I find interesting is that the schedule makes provision for an:

“appeal against the notice to a person appointed by the Department”.

How is that independent, and how could a Minister overturn a decision made by a “person appointed by the Department”?

Ms Davey:

There is an appeals panel, and those people have been independently assessed and appointed by the Minister. It is a common appeals practice within the Department, and there have not been any objections to it. It is the process that we would use.

The Chairperson:

There is an objection that when the appeals process goes through, the Department overturns the decision.

Mr Elliott:

I appreciate what Ms Davey said about there being no diseases at present to which the clause would apply. However, I am concerned that it might be used for circumstances that the Committee might not envisage today. The powers are too wide-ranging. We are often quoted legislation made 20 years ago in relation to a circumstance that is only cropping up now. I remain to be convinced that this is not giving the Department too much power in areas where we would not want to see those powers exercised.

Ms Davey:

The clause will only give the Department an overriding power. Before the Department can implement any of the legislation it would have to make subordinate legislation, which would come before the Committee and set out exactly what the Department was proposing to do. The Committee’s agreement would have to be obtained before any such legislation could be used. This is only providing the principle and the lower-level legislation, if it were ever needed, would be subject to all of the normal scrutiny before the power could be used.

Mr Elliott:

So this would be subject to further legislation?

Ms Connor:

You are correct. A subordinate Order, which the Committee would see before and after consultation, would be required.

Ms Davey:

The Order would set out the circumstances that we were using the power in and what we were planning to do; it would be totally subject to scrutiny.

The Chairperson:

Is that entirely correct? Is it not the case that the Department can lay emergency legislation without consultation, for instance?

Ms Davey:

Courtesy has always been given to the Committee. The circumstances of any emergency legislation in relation to TSE would be unique. I cannot imagine a situation in which we will have to react in the same way in respect of an outbreak of TSE as we would for foot-and-mouth disease, for instance. It is unlikely that there will be such an emergency situation.

The Chairperson:

I remind you that you are being recorded. [Laughter.]

Mr Poots:

This seems to be a belt-and-braces exercise. Herds in which BSE appears or flocks in which scrapie appears can be slaughtered; the progeny and the dam can be slaughtered. What is the situation with genotyping? Would it extend beyond the flocks in which the affected sheep exist?

Ms Davey:

It could. We must look at this in the proper context: we are talking about a TSE that has not yet been found. We could use genotyping to identify animals that are susceptible to the TSE and those that are resistant. We would want to try to remove the susceptible animals. We are talking about the possible appearance in the future of a TSE that is a direct risk to public health. We would have to decide which animals could breed for the future and which animals could be allowed into the food chain. It is about protecting public health. We are not talking about something on a par with scrapie; we are talking about a major TSE that is a danger to public health.

Mr Poots:

Since the process is based on genetics, is there a possibility that its implementation could lead to the eradication of an entire breed?

Ms Davey:

No. However, we would have to look at other things. I am sure that the Committee is aware of the ram genotyping scheme, through which we are looking at the genetics of sheep. We funded a semen archive to keep the traits of the sheep that were susceptible. That is an example of measures that we can explore in the future. There is also provision here to retain rare breeds. To answer your question, we do not see this eradicating a species.

Mr Poots:

We are giving the Department a major power. Identifying the likelihood of a disease occurring, based on certain genetics, is a big responsibility.

Ms Davey:

It will be based on science and where there is a significant risk to human health.

The Chairperson:

If there is a significant risk to human health we will have to be careful.

The proposed new articles 32I(2)(a) and 32I(2)(b) relate to compensation. We do not want to be talking about compensation all the time, but it is a reality. Will compensation be paid at the market value?

Ms Davey:

We have not yet predicted any compensation rates, because we are talking about the unknown. They will be set out in an Order, subject to consultation with the Committee.

The Chairperson:

Members have no amendments to make to clause 3. Clause 4, on powers of entry, will exercise the minds of some. How do these powers of entry differ from those that were employed during the alpha-nortestosterone (ANT) fiasco?

Ms Connor:

I am joined by Michael Hatch and Mike Steel from our central enforcement section, both of whom were heavily involved in the alpha-nortestosterone issue.

The Chairperson:

So, how do these powers of entry differ from those employed during the ANT situation?

Mr Mike Steel (Department of Agriculture and Rural Development):

They differ in two ways. First, they extend the powers in relation to specific requirements for TSEs, the slaughter of animals and identification. Therefore, the breadth of the power is increased. The depth of the power, the intrusiveness of it — which the alpha-nortestosterone-related issues centred on — is more restricted by the legislation by virtue of the fact that the existing legislation did not distinguish between the powers of inspectors to enter dwelling houses, and the rights of inspectors to come into a farmyard. The new legislation makes that distinction and lays down restrictions in relation to dwelling houses.

The Chairperson:

The Ulster Farmers’ Union pointed out that there should be recourse to call on a third party, for example, a Justice of the Peace. DARD has indicated in its response that that would be considered as part of the new administrative protocol. Why is that, therefore, not considered to be part of the legislation, with which people would be more content?

Mr Steel:

I am not an expert on that area, but I believe that the detail in the administrative protocol is not the kind of material that is eligible to go into legislation per se.

The Chairperson:

It may not be eligible per se. Nevertheless, if it is thought to be a necessary safeguard for the community, could it not be included?

Mr Steel:

In other legislation where powers are more draconian, it is not included. I do not recognise it in any legislation that I have seen. The normal challenges that are available to any powers that are used wrongly, overused, or used without any legal basis are there.

Ms Corkey:

Staff instructions applying to how DARD inspectors carry out their duties are not the sort of detail that would go into primary legislation. There is a staff protocol, and if the Committee would like to look at that, we can send copies to members. The powers of entry to deal with the alpha-nortestosterone issue were exercised under the Food Safety (Northern Ireland) Order 1991, not the Diseases of Animals (Northern Ireland) Order 1981, which had nothing to do with ANT. Nevertheless, the principles apply. If the Department was able to put details of staff instructions into the Bill, they would apply only for the purposes of enforcing the Diseases of Animals Order. The Department enforces a wide range of primary legislation, and, indeed, regulations made under the European Communities Act. Therefore, it is important that any standards that are set for how inspectors exercise their duties, apply to all that legislation, not just the Diseases of Animals Order. We are looking at the issue in a much broader sense, and, for that reason, do not propose to put staff instructions into the Bill.

Mr Elliott:

I would certainly like to see that staff protocol document that explains how staff should deal with those situations, because that is something we were never offered during the entire time of the alpha- nortestosterone situation. Clearly, I would like to view that.

My difficulty with the legislation is that it still does not protect people who are innocent. I have no problem with including powers of entry, but the problem is that, as was demonstrated with the alpha-nortestosterone issue, the legislation does not differentiate between regular offenders and those who, in that instance, were innocent. I want to hear how this is different, and how it will protect the innocent. I understand that Mr Hatch was involved in dealing with the alpha-nortestosterone issue, and I would be pleased to hear his comments.

Mr Michael Hatch (Department of Agriculture and Rural Development):

The standard operating procedure and the staff instructions were a recommendation from Joan Ruddock’s review. They are an implementation of the legal powers; they are a way of instructing our staff how to act in accordance with the legislation. The legislation is woven through the instructions, which include guidance on the forms that should be used. The staff instructions also include a code of practice, which is based largely on the Police and Criminal Evidence Act 1984 (PACE) code for when the police conduct inspections and searches. Therefore, the instructions contain all sorts of controls.

You made a specific point about distinguishing between those people who have come under our radar and those who have not. To some degree, that is addressed by the operation procedures in that one of the factors that the officer in charge of the inspection must consider is the person who is being visited. They must consider, for example, whether there is any background of difficulties, and that is written into the instructions.

Before making a decision and before even going to a magistrate to obtain a warrant, the officer in charge must go through a tick list of various factors, and must be persuaded to take action on that basis. For example, according to the standard operating procedures, intelligence on its own is insufficient to conduct a search. That is not contained in the legislation, and it would never be because it would be too limiting, but a telephone call to say that someone was up to something would not be sufficient grounds for action. Another piece of evidence would be required before the Department tried to secure a warrant for entry.

We hope to be able to supply copies of the standard operating procedure, and we would welcome any improvements that the Committee suggested. The standard operating procedure is fairly thorough, and it is an honest attempt to address some of the difficulties that arose during the alpha-nortestosterone visits.

Mr Elliott:

Are you saying that standard operating procedures will evolve from the legislation?

Mr Steel:

The procedures relate to any action taken by staff, especially when they interface with the public. When describing what staff should do, the procedures identify and take into account the risks. As Michael said, the nature of the individual and the offence and the reason for taking action are considered in the background to the standard operating procedure.

Mr Elliott:

How does that differ from the staff protocol?

Mr Hatch:

It is the same thing. The Department has a library of standard operating procedures for a number of our jobs. Some of those are fairly rudimentary; they involve procedure and do not involve the public. The standard operating procedures provide an element of consistency. The operating procedures include controls and limitations, and tests must be met before we embark on searches.

Mr Elliott:

Did such tests not have to be met before now?

Mr Hatch:

The tests were not documented as thoroughly as they are now.

The Chairperson:

Are you saying that legislating for operational procedures would allow greater recourse for farmers who have been inappropriately targeted?

Mr Hatch:

It is a non-legislative control on the activities of staff. Although legislation imposes restrictions, there are many other limitations on staff, one of which is the requirement to abide by standard operating procedures. Furthermore, there are codes of ethics, internal disciplinary procedures, lots of non-statutory —

The Chairperson:

The code of ethics and so on would, however, have applied in the past.

Mr Hatch:

That is correct.

Mr Elliott:

The Chairperson makes a valuable point in that there is nothing in the proposed legislation that protects the innocent. Such provision should be included to ensure that such people do not have to endure the court process and incur a financial, physical and mental burden. Such provision should be included in the legislation in order to make the Department responsible for its actions.

Mr Steel:

In general, the police, or any regulatory authority, can accuse an innocent person in good faith. Legislation seldom incorporates individuals’ rights.

Mr Elliott:

Why should this legislation not do so?

Mr Steel:

There is no particular reason why it should not, except that the legislation intends to tackle a specific mischief.

Mr Elliott:

What about the mischief of the Department?

The Chairperson:

You mentioned the police. However, the police are bound by legislation such as the Police and Criminal Evidence Act 1984 (PACE).

Mr Steel:

The Department is also bound by PACE, the Regulation of Investigatory Powers Act 2000, the Criminal Procedure and Investigations Act 1996, etc. Many statutes protect the rights of people who have been accused of an offence.

The Chairperson:

Therefore, there should be no problem putting that into the legislation.

Mr Steel:

Department staff are trained to abide by all that legislation. That arrangement is not distinct from that of any other regulatory authority. We do what we do, and I hope that we do it well.

Mr Savage:

We must be careful that farmers are not turned against the Department. I realise that the Department has powers of entry, a code of conduct and a code of practice. The code of conduct is important, because farmers need to know when a departmental official will visit. Nowadays, many farms have CCTV. Last week, a farmer switched his system on while he was in the cattle pens, and a fellow was walking through the cattle. He is lucky that he was not shot.

Although some officials think that they can do what they want, but that code of conduct must be adhered to by all visitors to any farm. Many foreign people work in the testing section of the Department. Those people might do what they want in their country, but they cannot do what they want in our country, and they must adhere to the code of conduct. I will not delve further into that matter. Farmers want to be friendly with the Department. Mr Hatch mentioned the code of practice. However, I am concerned about the code of conduct.

Mr Steel:

Mr Savage alluded to the possibility of the Department upsetting farmers. Enforcement always creates that possibility. There is in enforcement the innate tension between the outcry over a welfare case with which the Department has not dealt adequately, and the alpha-nortestosterone outcry, when innocent people were suspected of having used illegal hormones. The Department tries to steer a straight and true course, and we try to consider the issues that Mr Savage raised.

We accept that there is a tension. The Department does not want to fall out with the industry. I have been working in the agriculture sector for many years, as a vet in practice and in the Department, and I know that if the good name of Northern Ireland produce is to be worth anything, there must be a level of enforcement. It has to be fair enforcement, and it has to abide by all the rules that this Committee would rightfully demand, but it has to be there.

Mention was made of people arriving at farms unannounced and wandering around. There are people in the industry — an industry of which we are all fond — who do not abide by the rules. If we warn those people that inspections are to be carried out, then any evidence of their wrongdoing — which is generally extensive in the cases of such individuals — will be gone. There is a line to be followed.

Mr Savage:

You said that there is a level of wrongdoing. How can you prove that? That is a very serious matter. I know that you have been in practice for a number of years, and I have the highest regard for you. If people are coming to evaluate cattle they may want a DNA test, but those cattle were DNA-tested when they were registered — that can easily be checked, because there is a record of it somewhere. There is no way in which anyone could bluff their way on that. However, we must be careful that we do not turn farmer against Department. The very fact that someone says something along those lines immediately throws up an invisible barrier. We must be very careful with this issue. I know that there should be legislation, and that people can break it if they want to, but most farmers want to work in close co-operation with the Department.

Mr Steel:

I could not agree with you more. More than 99% of farmers want to co-operate with the Department, but there are those who do not give two hoots about the good reputation of that 99%, and are out just for personal gain.

Members should know that incorporated in the enforcement training, for which I am personally responsible, is a two-hour session on fairness in investigations — on being fair to whoever is being investigated. In one training exercise, I ask group members to consider how they would feel if they pulled back the curtains one morning to find a yard full of Department officials, and possibly police. It is not a matter we take lightly. I hope that gives you some reassurance.

Mr Elliott:

That must be new training.

Mr Steel:

It is about two or three years old.

Mr P J Bradley:

From the outset we have been speaking about 99% of farmers, so anything that I say refers to 99% of vets and 99% of inspectors. We have learned a little from the alpha-nortestosterone debacle, but not a lot. I come from an area that was greatly affected by that, and farmers are in trauma to this day. I cannot accept an inspector being given infallibility status, and made the judge and jury – I think the Committee is being asked to agree to that. I do not think that that is in order, and while that clause is included in the Bill, I will never vote for it.

Mr Steel:

Which clause is that?

Mr P J Bradley:

In schedule 4A(2) it states that:

“Where an inspector finds a person on any occasion and has reason to believe that on that occasion he is committing or has committed a fixed penalty offence, the inspector may give that person a fixed penalty notice in respect of that offence.”

Mr Steel:

Are we moving on to discuss fixed penalties now?

Mr P J Bradley:

No, we are still discussing schedule 4A, are we not: the issues relating to powers of entry.

The Chairperson:

No, we are discussing clause 4, which deals with powers of entry.

Mr P J Bradley:

In that case, I will come back to that issue, or will we deal with it now?

The Chairperson:

No, we are scrutinising the Bill clause by clause. We will deal now with just the powers of entry.

Mr T Clarke:

My point has been covered, apart from one concern. I know that it would not normally be specified in a Bill, but why can clause 4, subsection 2(A) not be changed from “an inspector may at all reasonable times” to “an inspector, accompanied by, at all reasonable times” thereby taking on board the suggestion by the Ulster Farmers’ Union? I am aware that the Department has its codes of conduct, but farmers are not aware of that. However, if a Justice of the Peace is not accompanying the Department official, farmers will know that the powers of entry that the official is coming to serve will not be legal.

Mr Steel:

Are you referring to a dwelling house?

Mr T Clarke:

Yes.

Mr Steel:

The legislation relates to all premises that we would want to enter for conducting a TB test, or whatever else. Proposed new paragraph (5A) refers to dwelling houses.

Ms Corkey:

Michael, it may be helpful if you clarified for the Committee the approach to on-farm searches, which brings in the third-party oversight, and the powers of entry that are for normal inspections.

Mr Hatch:

The powers in the Bill are intended to empower us for the vast majority of visits that will, hopefully, not be remotely confrontational. The powers are intended only to entitle us to be on the farm; we will not be going near anyone’s dwelling house unless we are invited inside. The powers will allow officials to inspect cattle or sheep, for example. At this point, there is no intention of involving a magistrate to issue a warrant to authorise the visit — officials will simply telephone farmers to let them know that they are coming to do an inspection.

However, on those rare occasions when, for example, it is considered necessary to look at a dwelling house, we would have to secure magisterial authority through a warrant, which is when that protocol comes into play. There would be no requirement for a warrant for the vast majority of visits. However, if and when a warrant —

Mr T Clarke:

The inspection of dwelling houses is one issue. However, as George Savage suggested, there are occasions when officials must visit a farm but cannot announce that they are coming. Why could a third party not be in attendance on those occasions?

Mr Steel:

Another member of the Department would, almost invariably, be attending in those circumstances.

The Chairperson:

The suggestion is that oversight by a third party, such as a Justice of the Peace, may be beneficial when specific powers to enter premises are being exercised. Surely that would be beneficial for the Department as it would prevent the possibility of accusations being made?

Mr Hatch:

We envisage that there are two instances when a third party would be required. The first is when an official is conducting a search that requires a magisterial warrant, as the magistrate would be operating as a third party. In the second, as part of the response to Joan Ruddock’s review, we considered — as, I believe, the Ulster Farmers’ Union, and, perhaps, the Committee also considered — the usefulness of having a third party independent officer or person. We have built that into our procedures, whereby a search liaison officer, who is independent of the enforcement team —

Mr T Clarke:

Would that person be from the Department?

Mr Hatch:

Yes, but they would have a particular role in acting as a liaison with all parties. However, they would be independent of the inspectors.

Mr T Clarke:

There is no point in progressing with that — that is not independent.

The Chairperson:

Furthermore, it is not set out in law; it is only staff guidelines, and we know from experience that staff guidelines can be set aside. The Committee will produce a recommendation at the end of this, rather than going around in circles.

Mr W Clarke:

Michael, you touched on how you build up a case so that you can use the powers of entry. In my opinion, the process must be intelligence-led. How do you build up a case while also guarding against people being malicious — for example, if there was a falling out between neighbours and you had someone continually telephoning the Department with so-called intelligence? Will you also expand on what is meant by “reasonable force”?

Mr Hatch:

Several factors can trigger an inspection or an investigation – for example: intelligence; findings from previous visits; or patterns of purchases of animals. Some are just statutory inspections that we are required to do. We are obliged to carry out cattle-identification inspections. A large number of those are random, but a certain number are targeted. The Animal and Public Health Information System (APHIS) computer could highlight things such as numbers of replacement tags, patterns of buying and selling, or anything that suggests that illegal activity could be occurring. Animals going missing or being found without identification could trigger a cattle-identification inspection.

Therefore, intelligence depends on quality. It can be assessed, but anonymous tip-offs are not given as much weight as, for example, when someone from another agency contacts us and provides names and details, and perhaps some strong evidence. As regards the behaviour of people — although you were really talking about malicious calls —

Mr W Clarke:

It was referring to, basically, a falling out between two farms.

Mr Hatch:

That is a very difficult line. Welfare is not relevant there but it is a good example in that if someone complains about welfare, we will always go out and check. Sometimes it is a bit embarrassing because everything is absolutely fine, in which case we apologise as we carry out the checks.

Mr Savage:

That is an important point: it can be embarrassing because many people think that farmers are fiddling, and when they are put to the test and it is found that nothing has happened, they can walk away scot-free. The hassle that farmers are put through is unbelievable. I am not saying that inspections do not need to be carried out from time to time. However, I know one family that has been put through a huge amount of hassle as a result of someone —

The Chairperson:

The reality is that there was a bad taste in the mouths of the farming community with regard to what happened, and accusations were firmly laid against people for which there was no foundation.

Is it the mind of the Committee that we seek to see the clause amended to include a Justice of Peace, rather than someone from a Department? The Justice of the Peace would be an independent person. Would the Committee like such a person to be considered as a possibility for safeguarding farmers? Is it the mind of the Committee to recommend that to the Department?

Mr T Clarke:

At least.

Mr Elliott:

That is fine, although, to be fair, it must be done in a reasonable timescale. The Department cannot have a genuine suspicion and want to go on to a farmyard, but be held up for a day-and-a-half as a result of seeking an independent person.

Mr T Clarke:

That would be a failure of the Department if it could not organise that.

Mr Elliott:

Would it not be the farmer who organised providing the independent person?

The Chairperson:

The Department could allow the farmer to make the decision about the independent person.

Mr Steel:

Under the Diseases of Animals (Northern Ireland) Order 1981, as it stands – even though we have an absolutely unfettered right to go into a dwelling place — I do not see any circumstances in which we would need to do so. The only time when we would carry out an inspection during what many people might call unreasonable hours is when we want to get hold of someone who is a dealer, and we know that he is in his lorry and away by 6.30 am. In such cases, we might be there at 6.00 am.

The Chairperson:

As that is so limited, it would not be very hard to get that independent person.

Mr Steel:

That is a very good point. The alpha-nortestosterone cases resulted in us entering four houses, and there were two cases previously in which we found alpha-nortestosterone. In all my experience — and I have been involved in Veterinary Service enforcement since 1996 — I have not even felt the urge to go into a house. Only in extremely rare circumstances, which were, obviously, following on from alpha-nortestosterone, were those even less likely to occur.

The Chairperson:

Would an independent person, therefore, make it easier to allow that to happen?

Mr T Clarke:

It is more than just dwelling houses. DARD officials also need an independent person with them on those occasions when they inspect farms because they suspect something or have information.

Mr Hatch:

Such visits already happen all the time. We exercise our powers of entry and nobody regards that as a confrontation because people expect the Veterinary Service to visit, sometimes announced and sometimes unannounced. Cattle identification inspections, single-farm payment inspections, and cross compliance inspections are sometimes announced, and sometimes unannounced. That is what Europe demands.

I urge caution; the vast majority of visits carried out by staff are not confrontational, they are perfectly pleasant. Imposing practical conditions, such as having an independent third party attend, will disrupt normal work and inspections. I cannot speak for grants and subsidies services, but in the Veterinary Service, inspections are carried out throughout the Department all the time. There will be dozens today, some of which will be announced and some of which will not. At the vast majority of those inspections there will be no upset at all. Therefore, I urge caution on that issue.

Mr T Clarke:

In the vast majority of cases there will be no upset caused, but it is the minority of cases about which we are concerned.

The Chairperson:

The Department, in its consideration of the Committee’s recommendation, must define clearly those barriers. If biosecurity guidance is in the Bill, there should be no problem putting in staff instructions. Is the Committee agreed that it asks the Department?

Members indicated assent.

Mr Elliott:

On that point: can penalties to protect farmers from wrongful accusation be incorporated in the suggestion for staff procedures or protocol?

The Chairperson:

Yes, that certainly would be included in the staff instructions.

Clause 5 is concerns failure to give name and address.

Mr P J Bradley:

Does that include fixed-penalty notices?

The Chairperson:

No, fixed penalty notices is in clause 6. You are definitely anxious.

Mr P J Bradley:

I am looking at the wrong paper, but I am not letting the issue go.

The Chairperson:

If nobody wants to raise anything about clause 5, we will move on.

Members indicated assent.

The Chairperson:

Now we come to the fixed penalties in clause 6. In the light of the lessons from the alpha-nortestosterone episode, how will the Department ensure that those penalties are not applied inappropriately, and why are the details of the offence not included as a schedule to the Order?

Mr Steel:

There were no circumstances in which a fixed penalty would have been issued during the alpha-nortestosterone visits because those visits were primarily investigatory, to take samples and to look for evidence of illegal growth promoters. Things had not reached the fixed penalty stage. In order for a fixed penalty to be issued, the offence must be straightforward — for example, travelling at 35mph in a 30mph limit area. The case has to be fairly cut and dried from the evidential point of view. A fixed penalty would not be issued for something complicated.

The Department sees the use of fixed penalties as limited. Every time one was issued, there would have to be sufficient evidence to take that case to court, and a reasonable prospect of conviction. Fixed penalties are not the only way out for a person who gets a fixed penalty notice — he has the option of going to court.

The Department has not used them, and I cannot speak with authority about how that will be in 10 years’ time. Whoever will be doing my job at that time may review that decision. I believe that fixed penalties would be a useful deterrent for people minded to break regulations. The principal thing is that they would be a deterrent. However, if the penalty for an infringement is minor, and the people involved are not major players in breaching regulations, a fixed-penalty notice may be appropriate from their point of view and from that of the Department.

The Department’s position would be that, administratively, it is more economical. From the offender’s point of view, in the circumstances in which they accept that they committed the offence, they will face a fragment of the fine that might be imposed if they were convicted in court. That would also avoid the associated publicity and embarrassment of going to court.

Mr Hatch:

The provision came from the 2001 outbreak of foot-and-mouth disease, when the vast majority of the public had a “fortress farming” approach. The vast majority was frustrated by a small number of individuals who ignored livestock-moving rules during that outbreak. That frustration that was created was shared by the industry and the Department. Consequently, the alternative “quick fix” for people who breached bans on moving livestock during an epizootic crisis was proposed. In that environment, at that time, everyone would have loved to have had the opportunity to bring in that provision from secondary legislation. However, if there is another outbreak of foot-and-mouth disease, it would be great if the Department, probably with the support of the industry, could bring in fixed penalties for people who flout the laws that the vast majority were doing their best to observe. That provision came from the context of the situation in 2001.

The Chairperson:

Are farmers presented with the DARD evidence before a fixed penalty is issued?

Mr Steel:

That is not happening yet. However, if I were in charge of that process, they certainly would be. Farmers must know with what they were charged, and I think that the legislation —

Ms Connor:

The secondary legislation will detail with what offence the Department is charging the farmer.

Mr Steel:

The style of that must be decided. The deterrent point is that, during the foot-and-mouth outbreak, although people were prevented from moving animals, and were subsequently prosecuted, that prosecution took place up to 18 months later. Therefore, the deterrent effect was lost. If it were the case that, when asked, the Minister said that three people were given fixed penalties for moving cattle, that would be more of a deterrent due to the publicity.

Mr P J Bradley:

I said earlier that 99% of farmers are law-abiding and efficient. The same applies to the vets and inspectors — maybe 99·9% of them. However, to return to the issue of alpha-nortestosterone, when one inspector told a farmer that he had been caught red-handed and had no case. If that inspector had the authority to issue an on-the-spot fine, he would have done so there and then. We must ensure that that never happens again, and there is only one way. One inspector cannot be allowed to become judge and jury, and there was talk earlier about a third party being involved.

If an offence is so serious that an on-the-spot fine is demanded, that would require the opinion of a second inspector – two inspectors, not one, must be involved. The Committee can never allow that to happen again. As I said, there are farmers who are still stressed out about the attitude of that one inspector, perhaps bringing the whole regime into disrepute. He thought that he was on his high horse, and that he had caught everyone red-handed. However, when the charges started to mount, there was not one, two, or even five. It was only when it became 60 and 70 people that the inspector realised how wrong he was. However, he never admitted to being wrong. Instead, he adopted an infallible attitude, believing that he was right. We cannot let that happen again.

The Chairperson:

Was he not right?

Mr P J Bradley:

No, he was not. If he had been allowed to issue a fine, he would have done so on the day.

Mr W Clarke:

Can a farmer opt to reject a fixed penalty and go to court?

Mr Steel:

Yes. The fixed penalty notice is an option for the farmer to accept a fine or go to court. There must be adequate evidence in the inspector’s mind that, if the farmer does not take the option of a fine and the case goes to court, there is a reasonable prospect of securing a conviction. Otherwise the inspector would not issue a notice.

The Chairperson:

If the court found in the farmer’s favour, would he be reimbursed for all that he has gone through?

Mr Steel:

He would not have paid the fixed penalty at that stage.

Mr T Clarke:

He would have legal costs.

The Chairperson:

The farmer would have to pay spend quite a considerable amount in legal costs in order to defend himself and prove his innocence.

Mr Steel:

At present, those offences, if pursued, would go through the courts, with all the attendant procedure. However, a fixed-penalty notice is an alternative that is available to farmers in relation to certain offences that are straightforward.

The Chairperson:

Those departmental officers who visited farmers in those cases to which some members referred, thought that they were right, too, and if they had offered farmers a fixed penalty as a way out —

Mr Steel:

There was never any question about that. Under no circumstances would that have happened.

The Chairperson:

However, those officers were wrong.

Mr Steel:

They were wrong because of the science that had led them to their conclusions. However, even if the science had been right, those are not the circumstances ever in which a fixed-penalty notice would have been issued.

The Chairperson:

It would not matter tuppence whether they had issued a fixed-penalty penalty, because if they were wrong, they were wrong.

Mr P J Bradley:

The farmers were guilty before proven innocent.

The Chairperson:

The farmers were accused of being the ones in the wrong, and that accusation sticks. They went through an awful experience, and the reputation of many of them was soiled until, finally, the matter was settled.

Mr Steel:

At present, if someone is found to be guilty of an offence, and the officer is right and can prove it, then they will be taken to court and convicted, or they will not be convicted if the evidence is not there and the officer is wrong. The only difference that this legislation makes is that if an officer believes that he has the evidence to secure a conviction, he can offer the farmer an early option of accepting a fixed penalty.

The Chairperson:

The Young Farmers’ Clubs of Ulster raised a point about the fairness of fixed-penalty notices, referred to in schedule 4A paragraph 2(1):

“Where an inspector finds a person on any occasion and has reason to believe that on that occasion he is committing or has committed a fixed penalty offence, the inspector may give that person a fixed penalty notice in respect of that offence.”

That is a strange way of phrasing it.

Mr Steel:

Those are the circumstances in which an inspector can offer a fixed-penalty notice. However, it is only an option; the person who is offered the fixed-penalty opportunity, so to speak, does not have to accept it. That means that the case then has to go to court; and, if it has to go to court, the investigating officer needs to know that there is evidence to succeed in court.

Mr Elliott:

The Committee has addressed the matter of fixed-penalty notices with regard to fishing, and it seems to be an issue that is going on throughout the Department. That causes me grave concern. May I give an example in which your ground-breaking training may come into play, Michael? I am an inspector, and I visit your farm and find what I believe to be a misdemeanour. However, you know that it is not. I say that I will let you away with a fixed-penalty fine of £500 otherwise you can go to court. I know that I would never be able to make the case stand up in court. However, you as the farmer think that, perhaps, you will pay the £500 and get out of the situation, and not have the cost and trouble associated with going to court — pay the £500 and get on with life, and resolve to improve the book-keeping or whatever in order to prevent something similar happening in the future.

That is the situation in which farmers will find themselves. I will not put my hand up in support of that, because that is what will happen, and do not tell me, Michael, that it will be any different. That is what will happen. Department staff will put farmers under so much pressure, telling them that they can get away handy by being let off with a £500 or £1,000 fine in order to avoid the hassle of going to court.

The Chairperson:

Fixed penalties are already offered as a way out. Recently, a case in which such an offer was made was widely reported. In fact, the senior law folks told the person in question that he had been foolish to pay the fixed-penalty fine because he had not broken the law, and paying the fine caused the public to assume that he was guilty. I shall not mention the man’s name, but his case achieved a high profile in the press.

Mr Elliott:

A farmer involved in an alpha-nortestosterone case told me that if he had been offered the chance to pay a £2,000 fine, although innocent, he would have taken it — simply to avoid the hassle.

Ms Connor:

The fixed-penalty fines would be no more than £150. Members are talking about the principle of the matter, but the fines would not be thousands of pounds.

The Chairperson:

Is that not even more reason to accept what Mr Elliott and Mr Bradley are suggesting? Although a plaintiff might be innocent, he or she can pay a £150 fine in the knowledge that his or her reputation will remain intact and people will not look at him or her suspiciously. Paying fixed-penalty fines is worthwhile, because taking legal steps to prove one’s innocence costs a fortune — it costs £150 even before one walks through a solicitor’s door. So what should one do? Where is the justice?

Mr Steel:

That is a major reservation about the process. I can assure members that such an outcome would not be allowed to happen under my regime. Members might think that I am a nice chap and accept that assurance or — as seems to be the case — they might believe that I would not be able to stop that happening. I accept that it might be easier for an innocent person to pay up and shut up.

The Chairperson:

You will not necessarily be the officer for all future cases.

Mr Steel:

I will probably have a great deal to do with any cases in which penalty notices will be dished out.

The Chairperson:

The members are genuinely mystified about that aspect of your powers.

Mr T Clarke:

On a light-hearted note, I wonder who inspects the inspectors. Recently, I had occasion to invite inspectors to my own area because of an animal that was in a river. I have told this story before; however, given that we have inspectors here, I would like to tell it again — it is an example of who is right and who is wrong. The inspectors said that they would have to inspect the animal to ascertain whether it was a farm animal. Having looked at it, they said that it was a horse. Consequently, it had to lie for another week, before being removed by the council. However, the photographs showed that the animal was a cow. These are our so-called veterinary inspectors. If you feed that into what we are saying about farm inspections —

The Chairperson:

How much of a fixed penalty should the Department pay for that?

Mr T Clarke:

What percentage of the cases that the Department has taken to court has it won?

Mr Steel:

We win convictions in well over 80% of cases. If the Committee wishes, we can provide statistics.

Mr Hatch:

I have those statistics, which are published annually in our counter-fraud and enforcement activities report.

Putting things in context, of the cases that go to court, we achieve approximately 30 convictions a year. In the past three years, there have been four acquittals. Of course, there are many opportunities for cases to be closed before reaching court. Some cases do not go as far as the Public Prosecution Service. We conduct approximately 250 investigations a year, but they get closed off using various means other than going to court, such as issuing warning letters —

Mr T Clarke:

Did you say that you take 35 cases to court each year?

Mr Hatch:

Yes, approximately.

Mr T Clarke:

How many do you lose?

Mr Hatch:

We lose one or two a year — in the past three years, four cases that have got to court have resulted in an acquittal.

Mr T Clarke:

Does that mean that you were wrong?

Mr Hatch:

Yes, it means that there was a not guilty verdict.

The Chairperson:

Did you say that there are 250 cases a year?

Mr Hatch:

There are approximately 250 investigations. However, that figure includes —

The Chairperson:

How many of those cases go to court?

Mr Hatch:

Approximately 30 to 35.

The Chairperson:

You could offer fixed penalties to the others, and the general public would say that, rather than going through all that, they would pay fixed penalties. You are successful in 80% of your cases, but you could have offered fixed penalties and people could have paid the £150 instead of going to court in the first place; that is the big danger.

Mr Hatch:

I accept that to a degree. In 2001, we all shared the frustration and angst when a small number of people, really only 10 or 12, were being intercepted by the police or at DARD road checks with lorry loads of sheep. In those cases it would have been very attractive — not only for DARD, but for the entire industry — to have been able to announce that DARD was introducing fixed-penalty notices for people who breached that very specific rule against transporting animals during a crisis. It would be great to have that alternative.

Mr Elliott:

Were those people taken to court?

Mr Hatch:

Some of them were, but it was extremely difficult to take a large number of people to court.

The Chairperson:

In my opinion, those who bring the industry into disrepute should be going to court, rather than being offered the chance to pay a fixed penalty.

Ms Connor:

If the power was limited to, for example, a breakout of epizootic disease, we have said that it would only refer to existing offences where someone moves animals illegally or the animals are not properly identified, or there is a problem with the herd book. How would the Committee feel if it was in those extreme circumstances that the enforcement team have outlined, during an epizootic disease outbreak, where the whole economy — not just agriculture — is put in jeopardy by the irresponsible actions of a dozen or so people?

The Chairperson:

I would suggest that you would not offer them a fixed penalty. I suggest that, if they were threatening the industry and the whole economy, those people would be in court and we would not be talking about fixed penalties. It is not on the radar.

Ms Connor:

It is a quick method.

The Chairperson:

It is not a quick method. If they are endangering the whole economy and the industry, I am not looking for quick fixes.

Ms Connor:

An on-the-spot fine is a deterrent at that particular point in time.

Mr T Clarke:

One hundred and fifty pounds is not a deterrent for something as serious as that.

The Chairperson:

I would not be looking for a quick fix on that.

Mr Elliott:

There might be an issue if the fine was raised. We are talking about the top end of the scale of serious offenders — I would classify those people as serious offenders. You could not get away with issuing them with a £150 fine, because they would just pay it and get on with moving more animals that same day.

Mr T Clarke:

They would pay £150 every day.

Mr Elliott:

To be fair, if it was limited to cases like that at the very top end of the scale, and the on-the-spot fine was appropriate, then it might be something that I would look at. However, I do not think that would be relevant in the circumstances that you have outlined.

Mr Steel:

In the foot-and-mouth situation, a lot of people who would have been eligible for fixed-penalty notices were people who were moving sheep down the road from one of their fields to another. Having the ability to issue a fixed penalty does not stop —

The Chairperson:

The people that Ms Connor was talking about are people who could threaten the entire economy.

Ms Connor:

Even movement from one field to another —

Mr Steel:

That was a threat, in the circumstances.

Ms Connor:

It was spreading so quickly.

Mr Steel:

Those are not the sort of people that you would want to haul in front of a court.

Mr W Clarke:

In relation to the repeat offenders, I take it that this can only be used once or twice. You cannot continually use these fixed penalties.

Mr Steel:

It would tend not to be used in the first instance. You would be looking at taking them to court anyway.

Mr W Clarke:

And if they kept doing it?

Mr Steel:

Yes; it is in effect a slap on the wrist.

Mr W Clarke:

My understanding is that this provision relates to minor breaches.

Mr Steel:

It is also for people who are likely to learn from the experience.

Mr W Clarke:

It is really for minor offences. For example, moving an animal to another field — which has happened; we all know that people needed to move livestock.

Mr Steel:

There was one person who did not even know that there had been an outbreak of foot-and-mouth disease.

Mr W Clarke:

We must examine the provision more closely. Farmers would rather have the option of a fine than the embarrassment and cost of going to court. If a farmer commits a minor breach during an outbreak, the option of a fine should be available, provided that fines are not dished out like confetti.

The Chairperson:

The Ulster Farmers’ Union has said that in the absence of details about specific offences that may be considered for fixed penalties, it cannot support the provision. Therefore, we need to hear about more specific offences. The Committee would be grateful it the Department sent details of specific offences to consider for fixed penalties. Would that be helpful?

Mr Elliott:

Yes, it would.

Mr PJ Bradley:

Might it be worth looking at a fixed penalty for a first offence as opposed to second or subsequent offences?

The Chairperson:

Yes, that is an option. Do Committee members agree to bring that to the Department’s attention, including the point about first offences?

Members indicated assent.

The Chairperson:

Clause 7 addresses the time limit for prosecutions. Do Committee members have any comments?

Mr Savage:

There is one thing that I want to raise before we move on. This is the only point that I can see where this can be raised. If there is a mix-up in the recording of an animal’s sex when a farmer takes it to an abattoir — for example, a male is registered as a female — it cannot be brought home. That happens regularly. The Department states that farmers should check that everything is in order before they leave the factory or when the animal is registered. However, when an animal goes to the factory finished for beef, the farmer is powerless.

I know of two animals that had been tested by the Department, but their sex did not show up in the tests. Is there any way for the Department to help farmers on that issue, because animals worth between £750 and £800 each are going into the bin? Those animals stood in the abattoir for nearly 10 days, and the farmer ended up losing them. Is there no way to bring in a wee bit of common sense to a case like that? There are faults on both sides, but there should be a halfway house — is there no way to stop the farmer being the fall guy?

Mr Steel:

I cannot comment on specific cases. It is a public-health requirement that an animal be traceable, which means that its ear number, description, age and sex must tally. That is a public-health requirement, which is what customers in Sainsbury’s want. However, in some cases errors are made, and I do not know an easy way to resolve the situation.

Ms Connor:

Normally, in the circumstances that Mr Savage outlined, the Department would give the animal identification-query (IDQ) status. If the farmer can prove the identity of the animal, for example through herd records, within a certain time frame — I am not sure if it is several hours or a day — it can be slaughtered normally.

There is an IDQ and there is an appeals procedure. In such a case the farmer would present the freeze brand of the animal, a drawing or the herd record to the official veterinarian at the meat plant. The official can then examine the records and decide whether that status can be lifted. If it can be lifted, that animal can then be slaughtered in the usual way. The IDQ status is there to protect public health, but there is a right of appeal.

Mr Savage:

The cycle of events was that the animal was bought in a livestock mart; it was passed by your officials in the mart and brought to the farm. The animal was then tested again by your officials, the number was sent in and the finished animal went to the abattoir to be killed. That was when it was discovered that the number was wrong. The farmer had bought the animal in good faith, but still lost it. It went into the bin.

Ms Connor:

If you provide the Department with the details —

Mr Savage:

I know that the farmer should have checked, but your officials should have checked too.

Ms Connor:

If you can provide us with the details, the Department can check it with the mart, the divisional veterinary officer and the meat plant.

(The Deputy Chairperson [Mr Elliott] in the Chair)

Mr Savage:

It all comes back to the old story that you people will always be right, while the farmer is always at the receiving end. If you would admit that that is the case I would appreciate it. However, you will not admit that you are wrong. Everyone cannot be right. The man who never made a mistake never did anything. These cases happen occasionally, but there does not seem to be any comeback for the farmer.

Ms Connor:

We can certainly investigate that particular case.

The Deputy Chairperson (Mr Elliott):

OK. I think that if we look at the detail —

Mr Savage:

Hold on, Chairman. These cases have happened, and the farmers are out of pocket between £700 and £800 per animal while the Department gets away scot-free.

The Deputy Chairperson:

George, I do not know whether you have dealt with the Department on those cases before, but if you give the specific details of the cases to some of the officials —

Mr Savage:

I have given the officials the details. The animals stood in Lurgan abattoir for 10 days. PJ will know that, as there was a similar case in Newry. What can you come back with whenever the animal is dead and has been sent to the burn house? You have no comeback. That is the way of it.

There should be some mechanism in place to protect the farmer. If the animal has been checked by the Department, there should be some form of compensation — at least on a 50:50 basis. The farmer cannot be the fall guy all the time. Everyone cannot be right and everyone cannot be wrong.

Mr T Clarke:

This may be a very valid argument, but it is not really applicable to the Bill.

The Deputy Chairperson:

I think that what you are trying to say, George, is that if there is nothing wrong with the animal, then not all of the expense should fall on the farmer.

Mr Savage:

That is right. The farmer is the fall guy at the end of the day.

The Deputy Chairperson:

OK. Clause 8 of the Bill deals with biosecurity. There are a number of issues with this clause.

Ms Corkey:

Before I address clause 8, I would like to introduce my colleagues who will be joining me to discuss this part of the Bill. Ian McKee is from animal disease control branch, Colette McMaster from tuberculosis and brucellosis policy branch, and Sandra Dunbar and Roly Harwood from the Veterinary Service.

Clause 8 deals with biosecurity guidance and inserts new articles 4A and 4A into the 1981 Order. The term “biosecurity” deals with practical measures that farmers can take to prevent diseases from entering or leaving their premises.

The new provisions in the Bill require DARD to publish biosecurity guidance for any disease specified for that purpose in subordinate legislation. In practice, that means that the Department must first introduce subordinate legislation specifying the particular diseases for which biosecurity guidance will be published. Any draft Order would, of course, come before the Committee.

When such an Order is made, the Department will then be required to prepare biosecurity guidance in draft form for the specified diseases, and to issue that guidance to stakeholders for their consideration and comments. Under the terms of the Bill, the Department will be required to consider all comments received and to publish the final guidance in an appropriate manner. The Department will also be required to keep the guidance under review and to revise it as necessary.

It will not be an offence in itself under the 1981 Order to fail to comply with the guidance, but non-compliance with the guidance will be admissible as evidence in court proceedings for an offence under that Order. Compensation for animals that are slaughtered under the 1981 Order may be reduced if there is evidence that failure to act in accordance with the guidance for a particular disease led to the compulsory slaughter of animals.

The Deputy Chairperson:

As a matter of interest, who will regulate the Department’s responsibilities on biosecurity? I am thinking about the Department’s responsibility when it visits farms.

Ms Colette McMaster (Department of Agriculture and Rural Development):

The Veterinary Service has its own code of biosecurity practice, to which staff must adhere when they go on to farms.

Ms Corkey:

The powers of entry to farms to check on biosecurity are specified in the 1981 Order and supplemented by this Bill. Therefore, all of the issues that have been raised about how powers of entry are exercised, and the various safeguards on those powers, apply to the implementation and enforcement of biosecurity guidance.

The Deputy Chairperson:

That goes back to our original point that staff protocol and guidance must be included in the legislation. If that is not included, the legislation puts all of the emphasis on the farmers and none on the Department staff.

Ms Corkey:

I do not wish to discuss clause 4 again, but the Bill does place obligations on inspectors in relation to exercising powers of entry for any purpose under the 1981 Order. Previously, we said that the protocol will apply to powers of entry in relation to all legislation that is enforced by DARD, not just the 1981 Order. The protocol has a much wider application , but the Bill does contain controls relating to how inspectors enforce controls. Those will apply to biosecurity guidance.

The Deputy Chairperson:

How, specifically, does the legislation relate to biosecurity for the inspectors?

Ms Corkey:

In order to check compliance with the biosecurity guidance, inspectors have to go on to farms. They do so under the authority of the 1981 Order, which gives them powers of entry to enforce the legislation. Biosecurity guidance is only one aspect of the 1981 Order; there are many other reasons why inspectors go on to farms, but inspectors rely on one set of powers of entry, which is covered by article 46 of the 1981 Order.

Mr Poots:

Potentially, a person who does not adhere to your guidance code could end up in a criminal court.

Ms Corkey:

Failure to adhere properly to the guidance code, on its own, will not be a crime. If an individual is taken to court for another offence under the 1981 Order, and there is a connection with the biosecurity guidance, the failure to comply with the guidance can be submitted as evidence. However, failure to comply with the guidance will not be an offence in itself.

Mr Poots:

Could such a case end up in a civil court?

Ms Corkey:

No. It is not a civil matter.

Mr Poots:

How will the legislation be enforced if cases cannot be brought to a civil court or a criminal court, and it is not subject to a fixed-penalty notice?

Ms McMaster:

At present, there is a voluntary code. Most people abide by that, but a minority do not. In those cases, the Veterinary Service will follow up the case and ensure that appropriate action is taken. The Veterinary Service will investigate any breach of the Order through normal investigative procedures. A breach of the biosecurity guidance might be considered as part of that investigation.

If there was evidence of a breach of biosecurity guidance on a farm, and the contributory negligence led to an outbreak of disease on that farm and the subsequent slaughter of animals, the Department might consider reducing the compensation that is payable to the farmer for the slaughtered animal. That is the main penalty that is tied into the biosecurity guidance.

Mr Poots:

There is strong resistance to moving from a voluntary code — which, for the most part, is adhered to — to something that is legislated. Is it necessary to incorporate this into legislation?

Ms McMaster:

It is about helping to protect the majority of farmers from the minority who do not abide by the biosecurity practice. One cannot forget that breaches of biosecurity practice can lead to serious disease. If care is not taken to prevent diseases, it can lead to serious consequences for the affected farm, neighbouring farms and further afield. The non-compliance of the minority can have serious consequences for others.

Mr Poots:

What will happen if there is another outbreak of foot-and-mouth disease and, due to the high demand, some farmers cannot access the disinfectant that they are obliged to have available on their farm? Will they face criminal proceedings?

Ms Dunbar:

One must remember that an Order relating to foot-and-mouth disease biosecurity arrangements would have to be implemented under this legislation, and it would have to go past this Committee. Therefore, it is not as simple as saying that this piece of legislation enforces the need for disinfectant at the gate. That is my understanding.

Mr Poots:

That will not be an issue in most cases, but there are extreme cases — as was evident with the alpha-nortestosterone issue — where things do not work out as expected. Therefore, the introduction of a strong regulatory approach that is linked to legislation, as opposed to a voluntary code which is fairly well adhered to and works well, will cause consternation among the farming community. That is evidenced by the responses that we have received.

Ms Dunbar:

There are occasions when it is not adhered to, including one that contributed to a major brucellosis outbreak in recent years. Sometimes fencing, or straying animals, contributes to the spread of disease.

Mr Poots:

The scepticism of the Committee — and that of the farming community — arises from the Department’s refusal to do anything about badgers straying through farms and spreading disease, while applying stringent regulations to everything else in relation to farming. There must be a two-way process; the Department also has responsibilities.

Ms McMaster:

I agree absolutely, but the badgers issue is not what we are talking about today.

Mr Poots:

I know that it is not.

Ms McMaster:

We are not proposing stringent measures here; we are proposing a biosecurity code developed in consultation with the industry — practical measures within which people can operate. The Department intends to develop that approach and to take on board the views of industry.

The Deputy Chairperson:

In that case, why not legislate for specific breaches of guidance, as opposed to broad generic breaches?

Mr Poots:

I assume that this provision can be added to, and amended, as time goes on.

The Deputy Chairperson:

Why not detail specifics, as opposed to the broad base that is suggested?

Ms McMaster:

That is where we want to get to. At the moment, the voluntary code applies across the board, to all diseases. With this, it is proposed that specific things be developed that people should take account of when they consider, for example, brucellosis. Therefore, there will be guidance in order to help farmers to manage that risk and to prevent brucellosis from breaking out on a farm. Other guidance might be developed, for example, for avian flu, which would be specific for the disease, helpful and practical.

The Deputy Chairperson:

People are mostly content, as Edwin said, with the guidance. The difficulty arises when that is built into the legislation in a broad way. To be blunt, anything can be introduced in that way. You are telling the Committee that only some things are specific and interest the Department — why not include them in the legislation?

Ms Dunbar:

I am not a legislator, but that is the intention. There must be a specific Order under the primary legislation; a piece of secondary legislation that is specific to a disease.

The Deputy Chairperson:

Will you state what that is, before secondary legislation is brought back to the Committee that has such a broad sweep that it will incorporate everything?

Mr McKee:

It cannot be one size fits all. Each disease will have a code of practice. There may well be common issues with those codes of practice, as well as matters that are specific to diseases. With epizootic diseases, there may well be an issue of the availability of disinfectants. There will be an iterative process, designing the codes of practice with farming unions and stakeholders in order to reach a common understanding about what must be included.

There is an issue about whether a code of practice is ever cited as contributory negligence in something as fast-moving as foot-and-mouth disease, or in the case of repeat offences in relation to a non-epizootic outbreak. Advice and voluntary codes can be offered until one is blue in the face; however, if the same thing recurs time and again because of generally poor biosecurity, it may be that there is contributory negligence that can be brought before the courts or considered in relation to compensation. However, that is well down the line and must be cleared in legislation that will be brought to the Committee.

Mr W Clarke:

Will the stakeholders get to consider specific issues prior to consultation?

Ms Connor:

When we drafted the voluntary code, a group of stakeholders was established comprising representatives of the Ulster Farmers’ Union (UFU), the Northern Ireland Agricultural Producers Association, Veterinary Northern Ireland and the Northern Ireland Meat Exporters Association. In fact, that was a subgroup of our main rural stakeholders’ forum.

We published the code and released it under a joint DARD/farming industry heading. However, for all intents and purposes, the industry drafted it. UFU policy officials took a lead role, and the Department checked the legislative references. It was an industry-led initiative, and, therefore, it worked well. The biosecurity code was signed off by the industry, and a laminated flyer was distributed to most farms. The majority of farmers bought into that process, because the industry promoted it well. That joint track was successful.

The Deputy Chairperson:

Is the Department now taking advantage of the industry’s goodwill?

Ms Connor:

The expertise was there.

The Deputy Chairperson:

The Department is taking advantage of that goodwill and putting it into the legislation rather than the voluntary code.

Ms McMaster:

It is important that the code — which was developed as a voluntary code — is not transferred into legislation. We do not want to take something that people thought was voluntary and make it a statutory requirement. We will develop new guidance from scratch with the industry for specific diseases.

Mr Poots:

The proposals are too broad. They must be more specific.

The Deputy Chairperson:

What do you recommend?

Mr Poots:

I recommend that the Department return with more specific proposals.

Mr W Clarke:

What is the time frame for consideration of the guidelines? I assume that the Department needs to talk to the stakeholders about each specific case or disease before returning to the Committee?

Mr McKee:

We are dealing with permissive powers again. We cannot address specific issues, because it will take time to develop.

Ms Dunbar:

It only gives the Department the power to make secondary legislation. The specifics to which Mr Poots refers will be included in the secondary legislation.

Mr W Clarke:

Can you highlight the risks of not having the primary legislation? Could that damage the industry?

Mr Poots:

There are steps that go beyond good practice and provide additional security. The gap between the potential benefits and the costs can be extreme. The Committee must identify the Department’s position to ensure that we do not give officials carte blanche to apply a gold-plated scheme that, in essence, will not generate benefits for many farmers, but will have a major effect on their everyday duties. Some measures which are not always applicable might be applicable in emergencies. If we give you the go-ahead, those measures could become always applicable.

Mr W Clarke:

Brucellosis and TB affect taxpayers in the North in general, not only in farming communities. A huge cost is involved, and, if the Department requires measures, it will have to —

Mr Poots:

The farmers need measures, too. It is a two-way process, and it is difficult for the farming community to take all this seriously, given that the Department knows about problems and does not take them seriously. The officials can tell the Committee that this is important for the Northern Ireland community to eradicate disease but —

Mr W Clarke:

If you are talking about badgers again, that is not proven.

Mr Poots:

It is indeed. You are living in a cave.

The Deputy Chairperson:

We are not getting into that debate now. Edwin, do you think that the Department should return with more specific information?

Mr Poots:

Yes.

The Deputy Chairperson:

There is no reason why that cannot be done at the primary legislation stage rather than the secondary legislation stage. Is that reasonable? Does everyone agree?

Mr McKee:

The drawdown and the specific detail of individual measures cannot be agreed in relation to the primary legislation, which is an overarching power. Although we might require biosecurity codes for three or four common diseases, that figure could easily increase to 10 or 12 during the development phase.

The Deputy Chairperson:

We will not agree the clause until you come up with a way of resolving the issue.

Mr McKee:

An iterative process with the industry cannot begin at this stage on the basis of primary legislation. Either the Department has the permissive power, or it does not. That is all that we ask. We are not asking the Committee to sign up to anything that puts farmers’ hands behind their backs, or prevents the Committee from taking action. That is not the issue.

The Deputy Chairperson:

Believe it or not, I am sceptical about that.

Mr McKee:

I understand that you will have the same outlook as any reasonable person. We are not putting anybody into a corner or boxing anybody in. It is a permissive power.

Ms Connor:

In fairness, Mr Poots in particular needs some additional advice to enable him to support the clause. The Department will provide that as best it can, and will then discuss the clause again with the Committee. The information received through our veterinary risk assessment and from our veterinary colleagues shows that that power is necessary and must be included in the Bill. However, we understand your concerns, and will provide further information.

Mr Poots:

My problem is that there are steps one can take on an everyday basis, which are normal good practice; there are steps to achieve added biosecurity which go beyond normal good practice; and there are steps that might be taken in an emergency. None of that is particularly clear in the Bill. There are things that should be done by everyone, and I do not have an issue with those. It is the circumstances in which one moves beyond that that I am concerned about.

Ms Connor:

We will try to clarify that.

The Deputy Chairperson:

Thank you. Do members have any issues with clause 9?

Members indicated assent.

The Deputy Chairperson:

Clause 10 is concerned with fees and expenses. Are there any issues that members want to raise, or is everyone reasonably content with that clause?

Members indicated assent.

As there are no objections we will move on to clause 11, which is concerned with deliberate infection. Does any member have anything to say about that clause?

Mr Poots:

The International League for the Protection of Horses seems to be saying, in the summary of contents on the provisions in the Bill, that that clause should go slightly further. The Department’s response is that that is a matter for the Minister and the Assembly in the detailed stages of the Bill. I agree that anyone who deliberately infects an animal must be severely punished.

The Deputy Chairperson:

I welcome the proposals in clause 11. Credit where credit is due — I am glad to see the issue of deliberate infection included in the Bill. Do you want to comment on what Edwin Poots has said? Could something be included in that clause to deal with repeat offenders?

Ms Connor:

It is as a last resort that we would deprive someone of their livelihood; we do not want to prevent a farmer from carrying on his normal farming activities. Under the Diseases of Animals Bill, anyone found guilty of deliberate infection is, on conviction, liable to a fine of up to £5,000 or a prison sentence. That is how that sort of offence is dealt with.

Under the Welfare of Animals Act ( Northern Ireland) 1972, a person who is convicted can be banned from keeping animals. That extends to only the person guilty of the offence; sometimes, when that happens, another member of the family takes over the running of the farm. We all realise the seriousness of someone wilfully introducing infection or disease into a herd, usually for monetary gain. The Department would deprive someone of their livelihood as only a last resort. However, it is something that we would consider.

Mr Poots:

That would not be a last resort for me.

Ms Connor:

We convict someone depending on the seriousness of the offence. Clause 11 provides for the disqualifications that we would want to apply in circumstances such as deliberate infection. However, the decision whether to convict is open to the Department.

The Deputy Chairperson:

Are you confident that the proposals are tight enough to ensure that people will not deliberately infect animals, and feel that, to some degree, they can get away with it?

Ms Connor:

We sought advice on how to tackle the offence of deliberate infection, and that is one of the best proposals that we could come up with. We hope that it will be a deterrent. Perhaps you should ask my veterinary colleagues.

Mr Poots:

I accept that it is a matter for the courts. However, with regard to the legislation, how much latitude will the courts have in preventing people who have caused deliberate infection from keeping animals, particularly repeat offenders?

Ms Connor:

The court can specify that.

Mr Poots:

The courts are, however, very often guided by the legislation.

Mr Hatch:

The equivalent provision in the Welfare of Animals Act ( Northern Ireland) 1972 is a mandatory disqualification from keeping animals. That is applied on the second occasion where there is cruelty to animals, what is known as a 13(g) offence. The Department has not, I believe, opposed a mandatory disqualification.

Ms Connor:

This is an entirely discretionary power for the court, and it would be for the court to decide in the circumstances.

Mr Poots:

I would like the matter to be a bit firmer, to be honest.

The Deputy Chairperson:

That is where you would like to see a mandatory disqualification?

Mr Poots:

Certainly for a second offence.

Ms Corkey:

We could build that into the Bill.

Mr Poots:

To infect an animal deliberately is one of the most disgusting things that anyone can do. To do that for monetary gain does not make it any better.

Mr Irwin:

Has anyone ever been found guilty of deliberately infecting animals? I know that the Department’s record on pursuing people who are thought to be guilty of offences is quite dismal. Having spoken to Department officials, I know of instances when they knew on many occasions about problems but could not get a conviction.

Mr Hatch:

I do not think that there has been a successful case in the North.
The specific offence of deliberate infection has not existed, although I am aware that there may have been convictions for offences such as indirect interference with a test. There was a successful case in the Republic when two men were sent to prison for the deliberate introduction of BSE. We should have equivalent powers to enable us to secure convictions for that offence.

Ms Connor:

Our intention was that the provision would be used in cases of malicious or deliberate infection.

The Deputy Chairperson:

The Committee is happy with that. For once, we want that power to be beefed up or improved.

Ms Connor:

We will look for the second offence to be included.

Mr Poots:

What is the possibility of offenders receiving a jail sentence? I regard deliberate infection as a criminal offence — it is not the same as someone leaving a bucket of disinfectant at the side of the yard.

Mr T Clarke:

It was mentioned earlier about having a fixed penalty as a deterrent. However, a jail sentence would be a more effective deterrent than a fixed penalty was for the matter that we discussed earlier. Knowing that deliberate infection carries a jail sentence would serve as a real deterrent.

Ms Corkey:

Deliberate infection is an offence under the Diseases of Animals (Northern Ireland) Order 1981, and carries the penalty of imprisonment and a fine, with the additional penalty that an offender may not be able to keep animals. Therefore, it is a dual approach to tackling deliberate infection, as offenders will be hit from both angles.

Members indicated assent.

The Deputy Chairperson:

Clause 12 relates to the seizure and destruction of things liable to spread disease. Are members content with that clause?

Members indicated assent.

Clause 13 relates to control of vaccines. Are members content with that clause?

Members indicated assent.

Clause 14 relates to the treatment of animals or poultry. Are members content with that clause?

Members indicated assent.

Clause 15 relates to the regulation of movement of animals and poultry. Perhaps Department officials could provide a quick briefing on clause 15.

Ms Corkey:

There are two separate aspects to clause 15. Clause 15 makes two changes to article 19 of the Diseases of Animals (Northern Ireland) Order 1981, concerning animal movement controls. The first change concerns powers to make subordinate legislation, regulating the exposure of animals for sale at markets and other places. The exposure of animals for sale at markets has the potential to spread disease, due to the close confinement of animals from different farms.

The current powers in article 19 regulate the exposure of animals for sale that are diseased or suspected of being diseased, but they do not enable measures to be prescribed to protect the health of all animals at sales. Therefore, the first amendment in clause 15 of the Bill deletes the references to diseased and suspected animals in article 19(a) of the Diseases of Animals (Northern Ireland) Order 1981. The effect of that amendment is that subordinate legislation may be introduced to regulate the exposure of any animals for sale regardless of their diseased status, with any draft legislation being brought to the Committee’s attention.

The second part of clause 15 — 15(b) — amends article 19(e) of the 1981 Order. Article 19(e) currently enables DARD to introduce subordinate legislation to regulate the exposure of animals newly purchased. Isolation of a newly purchased animal may be necessary in order to check its identity or to carry out certain tests to confirm its disease status. The powers in article 19 do not apply to the isolation of diseased or suspected animals, and that is a serious gap in our animal health controls. The isolation of a diseased or suspected animal is an immediate requirement in the control of any contagious disease.

Failure to isolate a diseased or suspected animal increases the risk of disease spread. For example, failure to isolate brucellosis reactors may lead to the rapid spread of disease in the herd and to neighbouring farms. In order to close that serious gap, the Bill will amend article 19 to provide a power to regulate the isolation of any animals or poultry, not just those newly purchased, by means of subordinate legislation. As I said earlier, that legislation will be subject to consultation with stakeholders and be brought to the Committee in draft form for discussion.

The Deputy Chairperson:

Are you saying that there is no legislation to enforce the isolation of animals with brucellosis?

Ms Corkey:

At the moment, the Department enforces that under a system of licensing, where it may be a condition in a licence to isolate an animal. However, the direct isolation powers in article 19 relate to only newly purchased animals; they do not relate to diseased or suspected animals, which are the important circumstances when the Department would want to isolate animals. At the moment, that is carried out under a system of licensing that requires the animal to be licensed under the particular disease control order. For example, if the animal was a brucellosis suspect, a notice would be issued under the Brucellosis Order 1997 requiring the animal to be isolated. The Department’s lawyers have advised that it should take direct and clear powers in the Diseases of Animals (Northern Ireland) Order 1981 to regulate the isolation of any animals when necessary.

The Deputy Chairperson:

If that would not change significantly the brucellosis isolation, what are we talking about, specifically?

Ms Corkey:

The power would apply to any disease. It would, obviously, apply to diseases where there are close contacts between a suspected animal and clean animals, and where that would be likely to give rise to the spread of disease, the Department would want to have that animal separated out until it could be confirmed as an infected animal or, perhaps, cleared and returned to the herd. It would be any disease where those circumstances applied, and certainly in the epizootic situation, where we may require isolation of animals for fast-spreading diseases.

The Deputy Chairperson:

What, additionally, will that mean for farmers practically?

Mr McKee:

It does not mean that the Department requires state-of-the-art biosecure premises. It could be a shed, a building on a farm, a field or a paddock, as long as the animal is physically separate from other animals.

The Deputy Chairperson:

Farmers must have isolation facilities in order to get a herd number. Would that facility accommodate that requirement?

Mr McKee:

Yes, in the main. There may well be exceptions, but we are not regulating for the exception; we are dealing with the usual, ongoing situations where there is a need for separation or isolation. In a recent case, we discovered someone importing animals who was not doing things as we would have wished. They were in breach of a licence relating to isolation, which would also mean that they were in breach of a main statute.

The Deputy Chairperson:

The Ulster Farmers’ Union has indicated that it is not content with this proposal.

Mr McKee:

They may well be misguided and feel that the Department is looking for something way beyond what is there at present. That is not the intention.

The Deputy Chairperson:

For some reason, you keep telling us that.

Mr McKee:

Nobody believes me. Do we have a credibility problem? [Laughter.]

Mr Savage:

An animal that is diseased, or suspected of being diseased, may need to be isolated. If the farmer who owned the animal took the decision to put it down rather than go through a testing regime, is he at liberty to do that? Would the Department allow that, or would it want to test the animal in order to diagnose any disease?

Mr Roly Harwood (Department of Agriculture and Rural Development):

We usually would want to test, because if blood tests have to be taken —

Mr Savage:

Every time a farmer has to call out a vet, knowing that the animal would not get better, expense is incurred. Does the farmer have the right to put the animal down, or can the Department make him go through a regime of testing to try and diagnose the ailment?

Mr Harwood:

Usually, from a TB and brucellosis point of view, it would be expected that in inconclusive cases, the animal could be slaughtered if the farmer wishes, and samples can be taken at meat plants. With other diseases, however, possibly more exotic ones, the situation may be different. It depends on the disease and the advice that is given.

Ms Dunbar:

There are many diseases that are not Government-controlled. In those cases, it is entirely up to the farmer what he wants to do with the animal. It is only in cases of disease on which there are notification controls that the Department may ask for the animal to be kept alive until we get the results of tests.

Mr Savage:

If the farmer knows that the animal is not going to get better, but the Department wants to do tests on the animal, what position does that leave him in?

Ms Dunbar:

That depends very much on the specific disease. If the animal was suspected of having foot-and-mouth disease, we would want to slaughter it before we got the results of the test. If there was a suspected case of bluetongue, we would want the animal to be isolated if it was during the winter while we investigated the disease, as there are many other diseases that would give a similar clinical picture to bluetongue; you could not tell just by looking at the animal. It depends very much on the specific disease.

Mr Savage:

If the farmer knows that the animal will not get better, but you want to do tests for your own information, can you compel the farmer to put the animal through that process?

Mr Harwood:

In most cases, we would want to get the animal away as soon as possible, particularly if it is suffering from a virus that spread quickly. We would take whatever samples we could when the animal was alive. I am trying to picture how that could happen; in my experience, I have never been in that situation.

Ms Dunbar:

I know of cases in which we slaughtered animals when, from an epidemiological point of view, we would have liked to keep them alive. I have known it happen the other way around: however, I cannot think of a situation where we kept an animal alive specifically to get results in a disease situation. In 2001, during the foot-and-mouth epidemic, we would have liked to carry out more sero-surveillance of the area before we slaughtered some animals, but we did it that way round. We will slaughter if we think that that can stop the spread of disease, before we know whether a spread of infection has taken place.

The Deputy Chairperson:

So, it can almost work the opposite way.

Mr P J Bradley:

Ian McKee mentioned that farmers must demonstrate that isolation facilities are available to them. Do farmers have to own those facilities, can they be rented, or do those facilities simply need to be available?

Mr McKee:

The facilities must be available for their business.

Mr P J Bradley:

Could they be rented from a neighbour?

Mr McKee:

They could be rented from a neighbour, or it could be a paddock on conacre land.

The Deputy Chairperson:

Isolation facilities, therefore, are worth a fortune. [Laughter.]

Are members content with clause 15?

Members indicated assent.

The Deputy Chairperson:

Clause 16 deals with the registration and approval of livestock dealers. Are members content with that clause?

Members indicated assent.

The Deputy Chairperson:

Clause 17 deals with the export of animals and poultry. Are members content with that clause?

Members indicated assent.

The Deputy Chairperson:

Clause 18 deals with records and returns. I hope that that does not create additional bureaucracy.

Ms Corkey:

It does not place any additional obligations on the farming community; it places those on the right, responsible person, who is not necessarily the owner. European Union legislation refers to that person as the “keeper”.

The Deputy Chairperson:

I just wanted to read in Hansard that you said that that will not lead to more bureaucracy. Are members content with clause 18?

Members indicated assent.

The Deputy Chairperson:

Clause 19 is entitled “Inspection, etc., of imports”. Are members content with that clause?

Members indicated assent.

The Deputy Chairperson:

Clause 20 deals with the power to inspect, cleanse and disinfect vehicles.

Mr Poots:

Is that power intended to be used for emergencies, or is it for use at all times?

Ms Dunbar:

It is an emergency provision.

Mr Poots:

So, a person who was driving down the road with their jeep and trailer would not be subject to those powers at ordinary times.

Ms Corkey:

The times at which those powers can be used must be designated in an Order, which would come before the Committee. The powers can be used in only an emergency situation.

Mr Poots:

I have no issues with clause 20.

Members indicated assent.

The Deputy Chairperson:

Clause 21 deals with procedures for Orders. That is a technical aspect of the Bill. Are members content with that clause?

Members indicated assent.

The Deputy Chairperson:

Clause 22 deals with minor and consequential amendments and repeals. That is also a technical aspect of the Bill. Are members content with that clause?

Members indicated assent.

The Deputy Chairperson:

Clause 23 is entitled “Commencement” and is also a technical clause. Are members content with that clause?

Members indicated assent.

The Deputy Chairperson:

Clause 24 gives the short title of the Bill. Are members content with that clause?

Members indicated assent.

The Deputy Chairperson:

Schedule 2 deals with minor and consequential amendments to the 1981 Order. Are members content with schedule 2?

Members indicated assent.

The Deputy Chairperson:

Schedule 3 deals with repeals. Are members content with schedule 3?

Members indicated assent.

The Deputy Chairperson:

That brings us to the end of our consideration of the Diseases of Animals Bill. I thank the representatives from the Department for their help and assistance. The Committee Clerk will write to the Department on the issues that we have raised.

Ms Connor:

I thank the Committee for its time. The Diseases of Animals Bill is important to the Minister and the Department. We are grateful for the comments that members made; we will deliberate on those, and we will respond when the Committee Clerk writes to us formally. This is another step in the Bill’s passage through the Assembly.

Ms Corkey:

After speaking to the Department’s legal adviser, I wish to correct an earlier point on Clause 20, which deals with the power to cleanse and disinfect vehicles. As we said, that power is for use in an emergency situation. In fact, that happened during the foot-and-mouth outbreak in 2001, when vehicles that came in and out of protection and surveillance zones were cleansed and disinfected.

For Hansard purposes, the solicitor asked me to clarify that it is possible to use the powers in clause 20 in normal situations. A designation zone could be set up around, for example, a port area to cleanse and disinfect vehicles coming in and out of that area. For instance, if there were a disease outbreak in Britain, we might want to cleanse and disinfect vehicles coming off boats at Larne. Therefore, it is technically possible to use those powers in normal situations.

However, regardless of whether there is a disease outbreak here, in order to use the powers, areas and times must be designated. That must be done through subordinate legislation, which means that the Department can never have a free hand. It is important to clarify that point.

The Deputy Chairperson:

The Committee is content with that. Thank you very much.

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