Joint Committee On Human Rights Tenth Report


TENTH REPORT


The Joint Committee on Human Rights has agreed to the following Report:

ANIMAL HEALTH BILL

Introduction

1. The recent outbreak of foot-and-mouth in the United Kingdom pre-occupied people across much of the country for about eleven months in 2001, and was officially declared to be at an end only on 15 January 2002. The cost of the outbreak was immense. It led to the destruction of millions of animals, inflicted suffering on many more, and took a vast toll of everyone who was touched by it. The disease, and the measures taken to combat it, caused economic loss on a huge scale, and deep human misery at the level of individual farmers and their families, not to mention those (like people in the tourism and leisure industry) whose livelihoods were also greatly affected.

2. Controversy still surrounds the best choice of strategy for controlling the spread of the disease and eliminating outbreaks. One method, favoured by the Government, involves slaughtering infected animals and those within a certain range of them (including some domestic pets), in the hope of making it more difficult for the virus to spread geographically. For this strategy to work, it is thought to be essential for the culling to take place as soon as possible after a suspected case of foot-and-mouth has been identified. Because of the rate at which the disease spreads, outbreaks of foot-and-mouth disease are always potential epidemics and therefore emergencies, and decisions about how to contain them must be taken and implemented with appropriate urgency.

Current Legislation and the Animal Health Bill

CURRENT LEGISLATION

3. The primary legislation governing the powers of officials to give effect to a cull is contained in the Animal Health Act 1981. The law restricts the circumstances in which officials may destroy animals, and gives rights of appeal to those who are notified that their animals are infected by foot-and-mouth disease or for some other reason are designated for destruction. The Government takes the view that these restrictions and rights of appeal slowed down the response to outbreaks of the disease in 2001, and contributed to its spread.

THE ANIMAL HEALTH BILL

4. The Animal Health Bill[1] is the first stage in the Government's response to the lessons of the 2001 foot-and-mouth epidemic. It seeks to amend the Animal Health Act 1981 ('the 1981 Act') to confer additional powers to control foot-and-mouth disease,[2] and other diseases,[3] and in particular scrapie in sheep.[4] In considering the Bill, Parliament has to make difficult choices. Measures to destroy animals impose significant costs, in terms of suffering to animals, humans, the agricultural industry and the national economy, and interference with significant rights and interests. These must be balanced against the costs of other ways of dealing with outbreaks, taking account of the relative likelihood that the respective approaches will be successful, and the potential cost of failure. Judgments of this kind involve complex assessments of competing interests. Settling the proper extent of legal powers and liabilities in the light of a proper balance between these interests seems to us to be a task for which Parliament is particularly well qualified. We also recognize the role of the courts where a challenge is made in a particular case to the compatibility of the legislation with Convention rights.

THE BILL AND HUMAN RIGHTS

5. The measures in the Bill engage a number of rights, including (as we explain below) the right to a fair hearing by an independent and impartial tribunal in the determination of civil rights and obligations under ECHR Article 6(1), the right to respect for private life and the home under the ECHR Article 8, the right to freedom of conscience under ECHR Article 9, the right to an effective remedy before a national authority for a violation of a Convention right under ECHR Article 13 (which is not one of the rights under the Human Rights Act 1998, but binds the United Kingdom in international law), and the right to enjoyment of property under Article 1 of Protocol No. 1 to the ECHR. Initially, we decided not to report to each House on the Bill.[5] This was because we considered that—

    -  the people exercising the additional powers conferred by the Bill would be public authorities, at least for the purpose of exercising their statutory functions, and so would be under the legal duty (imposed by section 6 of the Human Rights Act 1998) to use the powers in a manner compatible with all Convention rights; and

    -  it would be possible to implement the provisions of the Bill in a manner compatible with Convention rights.

We took the view last December, therefore, that there was no significant risk of the Bill giving rise to an incompatibility with human rights.

6. Subsequently, concern has been expressed (not least in the Second Reading debate in the House of Lords)[6] about the compatibility of three aspects of the Bill with human rights. We have therefore re-examined the Bill, and now make this report in order to contribute to the discussion of these matters in each House. We note that the Government published a consultation paper on 11 January 2001 on the implementation of powers in the Animal Health Bill. The object is said to be to ensure that 'the new measures will be applied proportionately, taking due account of risks, costs and benefits.'[7] The consultation period runs until 15 March 2002.

7. The matters which have given rise to particular concern on specific human rights grounds are the following—

    -  the imposition of criminal liability on those who refuse to assist an inspector when required to do so;

    -  the power of an inspector to enter premises under warrant without giving notice to, or obtaining the consent of, the occupier for the purpose of destroying animals;

    -  the absence of a right to appeal against a decision to destroy animals before that decision is implemented.

We examine each of these matters in turn.

Provisions of the Bill: Criminal Liability for Failure to assist an Inspector

THE PROVISIONS OF THE BILL

8. Clause 7(1) of the Bill would insert new sections 62A, 62B and 62C in the 1981 Act. New section 62A(1) would confer on an inspector a power to enter premises for the purpose of—

New section 62C(3) would provide that, when entering any premises by virtue of section 62A or under a warrant issued for that purpose—

    The inspector may require any person on the premises to give him such assistance as he reasonably needs for the purpose mentioned in section 62A.

This seems to empower the inspector to require the owner of animals to assist the inspector in killing them, or to require a veterinary surgeon to assist in the killing even if that course is contrary to the professional judgment of the veterinary surgeon.

9. If a person were to fail to give assistance required under section 62C(3), the Bill provides for criminal liability. Clause 7(2) would introduce a new section 66A to the 1981 Act. Sub-section (2) of that new section would provide—

A person commits an offence if—

    (a) he is required to give assistance under section 62C(3), and

    (b) he fails to give it.


HUMAN RIGHTS ENGAGED

10. It might be thought to be draconian to criminalize a refusal to help to kill one's own animals, or to act in a manner inconsistent with one's professional judgment as a veterinary surgeon. The person concerned may have a strong commitment to the protection of the animals. For example, the animals might be important examples of a rare breed, or the person might have a conscientious objection to the manner in which the slaughter was being conducted. In such a case, a requirement to assist in the killing, and the imposition of criminal liability for failing to do so, would be likely to engage both the right to freedom of conscience under ECHR Article 9(1) and the right to moral integrity which forms part of the right to respect for private life under ECHR Article 8(1). In this context, it seems to us that the two rights are more or less co-extensive, so here we concentrate on freedom of conscience under Article 9.

11. Article 9, so far as relevant, provides that—

In circumstances of the kind outlined in paragraph 10 above, we consider that the proposed provisions of new section 66A of the 1981 Act have the capacity to interfere with that aspect of freedom of conscience which consists of the right to manifest one's belief in practice. Such an interference would be justifiable only if the limitations meet the conditions set out in Article 9(2).

12. In considering the legitimacy under Article 9(2) of the interference represented by proposed new section 66A, the following matters must be borne in mind.

13. First, a requirement under new section 62C(3) would be 'prescribed by law', and would often be likely to have a legitimate aim under Article 9(2).

14. Second, the test of necessity in a democratic society demands that the measures taken to advance that aim be a proportionate response to a pressing social need. In cases to which the Bill relates, it is likely that there would be a pressing social need. It is at least possible that, in some circumstances, it might not be disproportionate to require people on the premises to provide some assistance, even perhaps in the killing process. Much would depend on the urgency of the situation, the availability of alternative resources, the nature and strength of the individual's conscientious belief that the killing was wrong, and the strength of the evidence for believing that the killing is necessary.

15. In this connection, any code or protocol on the operation of slaughter powers could play a significant role in reducing the risk of disproportionate action. We note that the DEFRA consultation paper of 11 January 2002 contemplates that decisions about slaughtering animals will take into account factors affecting the level of risk they present, including the nature of their housing, husbandry, deliveries to the premises, direct or indirect contact with other susceptible species, and the genetic merit of rare breeds.[8] The consultation paper also proposes to formalize a procedure whereby a person who considers that there are insufficient grounds for slaughtering his or her animals would be able to have the decision reviewed by a senior veterinary surgeon (the Divisional Veterinary Manager or person of equivalent status) before a slaughter decision is carried out.[9]

16. It follows that it is quite possible, although not inevitable, that nobody would be required to help to kill animals despite his or her conscientious objections, except in an exceptional case when the requirement was justifiable under Article 9(2).

17. In the light of this, we have considered the effect on a person's rights and liabilities in domestic law of being required by an inspector to help to kill animals. We start from the general principle of law that no public authority can impose an obligation on anyone to act in a particular way if the public authority is acting unlawfully in seeking to impose the obligation. It follows that, in the context of proposed new section 66A(2) of the 1981 Act, a person would not commit an offence by failing to give assistance if the inspector were acting unlawfully (that is in violation of ECHR Article 9) in requiring him to give it.

18. We consider that an inspector exercising statutory functions under the 1981 Act, as proposed to be amended, could properly be treated as a public authority within the meaning of the Human Rights Act 1998, section 6, at least when exercising those functions. As such, the inspector would be obliged by section 6 of the 1998 Act to act compatibly with Convention rights (including the right to manifest a belief in practice under ECHR Article 9), unless compelled to act incompatibly by primary legislation which cannot be read or given effect compatibly with those rights.

19. In this connection, we note that proposed new section 62C(3) of the 1981 Act would confer a discretion on the inspector. It would not compel the inspector to impose any requirement on anyone. It would therefore be unlawful for an inspector to attempt to impose a requirement which engaged rights under Article 9(1) unless the requirement could be justified under Article 9(2). If, in all the circumstances, a requirement which engaged the right under Article 9 were disproportionate, it would not be a lawful requirement. The person subject to it would be free to ignore it without risking criminal liability under proposed new section 66A of the 1981 Act. To assist the inspector and those affected by his actions, we consider that the Protocol, proposed in the Government's consultation paper on the implementation of powers in the Bill (see paragraph 6 above), should include guidance on the type of assistance which could be requested, the reasons which would justify the exercise of the power to request assistance, and the Convention rights which would have to be taken into account. The Protocol should also draw attention to the significance of any advice which may be given to the inspector by a veterinary surgeon. This would help to avoid arbitrariness which would otherwise undermine compatibility with Convention rights.

20. The factors relevant to the human rights compatibility of a requirement to assist an inspector in exercising statutory powers, including any power to destroy animals, are also relevant to the compatibility of the criminal offence under proposed new section 66A. In this context, it should be borne in mind that the maximum penalty for an offence under proposed new section 66A would be limited to a fine, which would be substantial but not excessive in view of the seriousness of outbreaks of the disease and the urgent need to take effective measures to combat them.[10]

21. In the light of that conclusion, we do not consider that there is a serious risk of these provisions of the Bill being incompatible with Convention rights in theory or in practice. However, we believe that legislation which confers apparently wide powers or imposes apparently wide liabilities should make clear the limitations which are imposed by Convention rights. This is desirable in the interests of legal certainty and the notion of the rule of law, ideas which are central to effective guarantees of human rights. Express clarification on this point could be provided by an amendment to the Bill without in any way affecting the policy which the Bill seeks to advance or the balance of interests which it embodies. Accordingly, we draw the matter to the attention of each House.

Provisions of the Bill: Power to Enter Premises etc.

PROVISIONS OF THE BILL

22. As already noted, clause 7 of the Bill would insert new sections 62A and 62B into the Animal Welfare Act 1981. These new sections would confer powers of entry on an inspector. Under proposed new section 62A, an inspector would be allowed to enter any premises (including dwellings, where companion animals might be) for the purpose of ascertaining whether a power under the 1981 Act (as amended) to cause an animal to be slaughtered should be exercised, and doing anything in pursuance of the exercise of that power. Proposed new section 62A would not confer power to use force to enter premises.

23. Proposed new section 62B would allow an inspector who had been refused entry, or who expected to be refused entry, to give notice to the occupier of the premises and then to apply to a justice of the peace for a warrant to enter the premises, using reasonable force if necessary, for a purpose mentioned in proposed new section 62A. More controversially, perhaps, proposed new section 62B would allow an inspector to apply for a warrant without first giving notice to the occupier if giving notice would defeat the object of entering (for example, because the occupier would be likely to barricade the premises or hide the animals), or 'the case is one of urgency', or 'the premises are unoccupied or the occupier is absent'. In either case, a justice of the peace would be permitted to issue a warrant if satisfied that the relevant conditions have been met and that there are 'reasonable grounds for an inspector to enter the premises for that purpose.'

HUMAN RIGHTS ENGAGED

24. The power to enter premises, or to authorize entry to premises, engages the right to respect for private life under ECHR Article 8(1). The right applies both to dwellings and to commercial premises. An interference with the right can be justified under ECHR Article 8(2). Article 8 provides—

25. As Article 8(2) has been interpreted by the European Court of Human Rights, an entry to premises, or the issue of a warrant, must, in order to be justified—

    (a) be in accordance with the law,

    (b) be intended to advance one of the legitimate aims listed in Article 8(2), and

    (c) be a proportionate response to a pressing social need to pursue that aim.

There is little doubt that an entry properly made, or warrant properly issued, under proposed new sections 62A or 63B would be in accordance with the law and would serve a legitimate aim. If there is an outbreak of foot-and-mouth disease in the vicinity, it would also be likely to relate to a pressing social need. The question, in most cases, is likely to be whether or not the steps taken are proportionate to that need.

26. We note that both the inspector, and any justice of the peace to whom the inspector might apply for a warrant, would be public authorities within the meaning of section 6 of the Human Rights Act 1998. For the reasons explained in paragraphs 17 and 18 above, in relation to the effect of a requirement to assist in slaughtering animals, an entry made, or warrant issued, which was disproportionate to the legitimate aim in all the circumstances, would be incompatible with rights under Article 8, and so would be unlawful in domestic law by virtue of section 6 of the 1998 Act. It would be likely to be disproportionate to apply for or to issue a warrant when there was no reason to believe that it was necessary to enter premises, and to exercise powers under the Act, without giving notice to the occupier.

27. On the other hand, the requirements of the proposed new section, including obtaining a warrant from a justice of the peace before entering premises without the occupier's consent and without giving notice, would be capable of providing a safeguard for Convention rights helping to ensure that any entry properly respects rights under ECHR Article 8, as long as the inspector makes full and frank disclosure to the justice of the peace of all relevant information, and the justice properly discharges his or her responsibilities under the law.[11] However, we consider that it would be desirable for a copy of the information sworn by an inspector in support of the application for a warrant to be served on the occupier, together with a copy of the warrant, when the warrant is executed, in order to reduce the risk of arbitrariness and to make judicial review of the warrant an effective remedy for any violation of Convention rights. With the same ends in view, we consider that the terms of the Protocol, proposed in the Government's consultation paper on the implementation of powers under the Bill (see paragraph 6 above), should be capable of being received as evidence in relation to any issue to which they may be relevant in any proceedings, like the Codes of Practice which deal with many other areas of public administration, including entry to premises in the course of criminal investigations. Such proceedings would include applications for warrants and judicial review of warrants.

28. If these safeguards are provided, we conclude that the provisions of the Bill would be unlikely to give rise to an unavoidable incompatibility with rights under ECHR Article 8.

Provisions of the Bill: Right to Appeal

29. The destruction of a person's animals interferes with his or her right to enjoy property under Article 1 of Protocol No. 1 to the ECHR. This provides that a person may be deprived of his or her property—

The state has the right—

    to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Any such interference must be in the public interest and subject to the conditions provided for by law and by the general principles of international law.[12] This requires that there be 'a reasonable relationship of proportionality between the means sought to be employed and the aim sought to be achieved',[13] demanding that a proper balance be struck between the public interest and the rights of the property owner.

30. One aspect of the balance between individual rights and public interests is the observance of safeguards to ensure that any interference with a right is properly justified. Ideally, there would be a judicial hearing at which the inspector would have to satisfy the tribunal that the interference with property rights would be justified, and the owner of property would have an opportunity to challenge the argument and the evidence advanced to support it. However, where action is urgently needed in order to alleviate a serious threat to a legitimate public interest, the urgency may justify lesser safeguards. It is at least a tenable argument that an outbreak or suspected outbreak of foot-and-mouth disease gives rise to such a situation.

31. We note that the proposed new section 62B does not entirely dispense with safeguards. Where an occupier is given notice, he or she would be able to apply to a court for an injunction to protect threatened Convention rights. Where no notice is given to an occupier, the inspector must obtain a warrant from a justice of the peace, who must satisfy him- or herself that the conditions for entry (including those arising from the Human Rights Act 1998) are satisfied.

32. We recognize that clause 1 of the Bill would empower the Minister to authorize slaughter of animals without giving an opportunity to their owner to make representations or to challenge the order before it is implemented. However, we note that compensation is payable for the slaughtered animals. Clause 3 of, and Schedule 1 to, the Bill would allow the compensation to be reduced if the owner has contributed to the risk of disease or has failed to co-operate with an assessment of the risk of disease, and the compensation payable would not in any case reflect the sentimental value of a slaughtered companion animal to its family. If there is a pressing need to take effective action to combat disease in the public interest, the restricted amount of compensation or the absence of an opportunity to challenge an order for destruction of animals would not necessarily mean that the Bill fails to secure a reasonable relationship of proportionality between the means sought to be employed and the aim sought to be achieved. As we observed in paragraph 4, it is above all Parliament's responsibility to ensure that a proposed legislative provision strikes a fair balance, including appropriate safeguards for rights.

33. It will then be the responsibility of the public authorities who must implement the legislation to ensure that its practical operation is compatible with rights on a case by case basis. In the case of this Bill, the main public authorities concerned would be the Minister, the inspector, the justice of the peace, and (on any application for an injunction, judicial review or damages) the courts. Parliament is entitled to assume that these public authorities would properly exercise their respective functions under the Bill and the Human Rights Act 1998. That being so, we conclude that the enactment of these provisions would not necessarily give rise to an incompatibility with the Convention right to the enjoyment of property, either in theory or in practice, as long as proper consideration is given at each stage to the factors relevant to the issue of proportionality, both generally and in each individual case.

34. If the owner of animals, to whom notice is given of intention to take action under the proposed legislation, believes that his or her Convention rights are being violated by the action of a public authority, he or she would be able to claim an injunction to restrain the execution of any order, warrant or decision. If the action is taken without first giving notice to the owner, he or she can bring proceedings for damages, including (but not limited to) damages under the Human Rights Act 1998. We therefore consider that the provisions of the Bill are in principle unlikely to be incompatible with either the right in national law under ECHR Article 6(1) to a fair hearing by an independent and impartial tribunal in the determination of civil rights and obligations, or the right in international law to an effective remedy before a national authority for violations of Convention rights under ECHR Article 13.

Conclusion

35. The Animal Health Bill, coming in the wake of the traumatic events of 2001 for the UK's farmers, provides an example of the need for the Government and Parliament, and those who ultimately will have responsibility for implementing its provisions, to pay careful attention to the need to balance the interests of the community with the rights of individuals.

36. In deciding to adopt the culling option as a solution, the Government may consider it necessary to authorize the use of the apparently draconian powers contained in the legislation we have examined above. It will have decided that combatting the emergency is a pressing social need, and that the solution it has adopted is not only effective but is proportionate to the circumstances of the case. We consider that the Government should make available to Parliament, when the occasion arises, the information on which it bases its view that a particular solution is proportionate.

37. Our overall conclusion is that the provisions of the Bill are capable of being put into practice in ways which are compatible with Convention rights. But it would also be possible for them to be used in ways which were incompatible with those rights. Parliament will make its own decisions on where the balance should be struck, but the terms of the law itself cannot comprehend the nuances of every circumstance in which it might be applied. This highlights the importance which must be attached by the agents of all public authorities, when exercising their statutory powers, to ensuring that they do so in ways which are compatible with Convention rights as well as the letter of the statutes which confer their powers on them.

38. In this context we applaud DEFRA's initiative in publishing the consultation document referred to in paragraph 6 above. We hope that the Department will take further steps in the future to ensure that its enforcement officers are fully aware of their obligations to act in accordance with the provisions of the Human Rights Act.


1   HC Bill 39; HL Bill 37 Back

2   Clause 1 Back

3   Clause 2 Back

4   Clause 5 and Schedule 2 Back

5   Ninth Report of 2001-02, Ninth Report, Scrutiny of Bills: Progress Report, HL Paper 60, HC 475, p. vi, para. 9 Back

6   HL Deb., 14 Jan. 2002, cc 835-854 and 871-940 Back

7   DEFRA, Consultation on Implementation of Powers in Animal Health Bill, Jan. 2002, available electronically at http://www.defra.gov.uk/corporate/consult/current.htm or in printed form from DEFRA, at para. 7 Back

8   DEFRA Consultation, op cit, at para. 16 Back

9   ibid., paras. 22-23 Back

10   The maximum penalty for the basic offence would be a fine not exceeding level 5 on the standard scale, currently £5,000. If the offence related to more than ten (live) animals, the maximum would not exceed level 3 on the standard scale, currently £1,000, for each animal. If the offence relates to carcases, fodder, litter, dung, or other thing (exclusive of animals), the maximum would be a fine not exceeding level 5 for the first 508 kg of the thing in question, and a fine not exceeding level 3 for each additional 508 kg. See Animal Health Act 1981, s. 75(1), as amended by Criminal Justice Act 1982, ss. 38 and 46. For the standard scale, see Criminal Justice Act 1982, s. 37 as amended Back

11   On the duties of justices when a warrant is sought, see R. v. Guildhall Magistrates' Court, ex parte Primlaks Holding Co. (Panama) Inc. [1989] 1 WLR 841, DC; Attorney-General of Jamaica v. Williams [1998] AC 351, PC Back

12   Allan Jacobsson v. Sweden (No. 1), Judgment of 25 October 1989, Series A, No. 163, at para. 51 of the judgment Back

13   ibid., at para. 55 Back


 
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