Diseases of Animals Bill

Explanatory and financial memorandum

Introduction

1. This Explanatory and Financial Memorandum has been prepared by the Department of Agriculture and Rural Development in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or schedule does not seem to require an explanation or comment, none is given.

Background and policy objectives

3. Animal health legislation is largely contained in the Diseases of Animals (Northern Ireland) Order 1981 (“the 1981 Order”). As part of contingency planning, the Department carried out a detailed review of the operation of the 1981 Order to ensure that it remains fit for purpose. The review indicated that a number of changes were needed to ensure that preventative biosecurity measures are in place and that appropriate powers are available to deal quickly and effectively with any disease outbreak. The Bill will amend the 1981 Order to provide new powers which will-

• protect and improve our animal health status through enhanced disease prevention, biosecurity and control measures;
• enable policies to be introduced reflecting the latest developments in research and technology to trace and combat disease;
• ensure that appropriate enforcement powers are available including measures to deal with certain types of offences.

Consultation

4. Views on the draft Bill were sought during a public consultation between January and March 2008. Officials appeared before the Committee for Agriculture and Rural Development on two occasions to discuss the detail of the Bill and met with representatives of the Ulster Farmers’ Union which represents a large proportion of stakeholders. The consultation process highlighted broad industry support for the establishment of a more effective framework to deal with animal diseases in the future. Some minor changes were made to the Bill in response to comments received during the consultation exercise.

Options Considered

5. The main options considered were-

• Option 1-No change to existing measures in the 1981 Order.
• Option 2- Adopt a non-statutory approach.
• Option 3- Introduce a Diseases of Animals Bill.

6. The Department does not currently have all the powers necessary to deal with a major disease outbreak such as the power to slaughter animals to prevent the spread of disease. There is also a need to have effective controls in place at ports and airports to prevent the introduction of disease through illegally imported animal or poultry products. The options of not introducing statutory powers or relying on administrative measures are considered to be an inappropriate response to the economic and welfare consequences of a disease.

Overview

7. The Bill contains 24 clauses and 3 schedules which amend the 1981 Order in relation to powers to slaughter animals in particular circumstances, controls on transmissible spongiform encephalophathies (TSEs), general disease control measures and enforcement.

Commentary on Clauses

Please note comments are not given where the wording is self-explanatory.

Clause 1 – Slaughter to prevent the spread of disease

Clause 1 improves the wording but does not change the meaning of Article 16(1) of the 1981 Order and inserts a new Article 16(3) which extends the Department’s powers to slaughter animals and poultry with a view to preventing the spread of disease. The new powers will be introduced in an order which will be subject to consultation with industry and the Committee for Agriculture and Rural Development and will be laid before the Assembly. The order will include provision for compensation in respect of any animals slaughtered under these powers.

The circumstances in which these powers may be necessary include the slaughter of healthy animals to create a firebreak between an area of infection and a clear area or a pre-emptive cull of animals susceptible to disease.

Clause 2 – Slaughter of animals and poultry treated with serum or vaccine

Clause 2 inserts a new Article 16A into the 1981 Order which makes provision for animals and poultry treated with serum or vaccine (or both) to be slaughtered for the purpose of preventing the spread of any specified disease. Paragraph (3) of that Article requires the Department to make provision for compensation for any animal or bird slaughtered under the Article by means of an order which will be subject to consultation with industry and the Committee for Agriculture and Rural Development and will be laid before the Assembly.

The power to slaughter vaccinated animals may be needed to-

• prevent the spread of disease from animals where vaccination has masked existing infection or has induced a carrier state both of which are a risk factor for non-vaccinated animals; or
• secure disease free status for Northern Ireland in the context of international trade rules.

Clause 3 – Transmissible spongiform encephalopathies

Clause 3 and Schedule 1 insert a new Part 2A into the 1981 Order to provide powers to specify TSE susceptible livestock genotypes, ascertain (by means of sampling) specific genotypes, identify livestock, place restrictions on breeding and movement, slaughter livestock susceptible to TSEs and pay compensation. The principal controls on TSEs, including the specification of susceptible livestock genotypes, will be introduced in an order which will be subject to consultation with industry and the Committee for Agriculture and Rural Development and will be laid before the Assembly.

It will be an offence to fail to comply with restrictions or requirements without reasonable excuse, or to do certain other things in relation to livestock. Provision is included for appeals against a restriction notice to be made to an assessor appointed by the Department.

The most commonly known TSEs are BSE in cattle and Scrapie in sheep. The new powers will enable the Department to act on the latest scientific knowledge of TSEs and their association with particular genetic types.

Clause 4 – Powers of entry

Clause 4 inserts new powers of entry into Article 46 of the 1981 Order. The powers are very specific about the reasons to enter premises and are directly linked to provisions in the Bill on the slaughter, treatment and identity of animals, investigation of disease outbreaks and the exercise of functions in respect of TSE controls. There is provision for the issue of a lay magistrate’s warrant to enter premises under strict conditions and powers to enable an inspector to take such samples and carry out such tests and procedures as are considered necessary. These powers will enable the use of new technology such as DNA samples to ensure that the correct animals are valued for compensation purposes and removed for slaughter.

A number of controls are included which inspectors must observe when exercising powers of entry under the Bill:

• Inspections at reasonable times.
• Inspectors must produce evidence of authority and, if requested, state in writing the reasons for entering the premises.
• Inspectors must leave any unoccupied premises effectively secured.
• 24 hours notice must be given for entry to a dwelling house (no such notice is currently required).
• A lay magistrate’s warrant is required for entry without notice and strict conditions must be met to satisfy the magistrate.
• When a warrant is used strict obligations apply in relation to communication with the occupier and record keeping.
• On the rare occasion when forced entry is required (e.g. a locked or blocked shed containing animals infected with disease) a warrant is required and reasonable force may be used, but only if necessary.

Clause 5 - Failure to give a name and address

A new offence of failing to provide a name or address or provision of false or inaccurate details is added to Article 52 of the 1981 Order. This information may be required during an investigation into an animal disease outbreak or a suspected offence under the 1981 Order.

Clause 6 – Fixed penalties for certain offences

Clause 6 of the Bill (inserting Article 53A into the 1981 Order which gives effect to Schedule 4A) enables the Department to give a fixed penalty notice to anyone believed to have committed a specified offence. The fixed penalty scheme will only apply to existing offences under the 1981 Order which are specified in an order for the purposes of Schedule 4A. Examples of offences to which the scheme could apply include the illegal movement of restricted animals (e.g. at time of Foot and Mouth disease restrictions), movement of unidentified cattle or sheep and the attempted illegal importation of livestock or animal products.

The scheme will offer the recipient of a notice the opportunity to elect for a fixed penalty and thus avoid being subjected to formal enforcement proceedings which may culminate with a Court appearance and criminal conviction. Anyone given a fixed penalty notice will not be liable to conviction for that offence on condition that the amount of the penalty is paid within 21 days from the date of the notice. The amount of a fixed penalty shall be not more than 3% of the maximum fine on summary conviction (currently £5000) for the offence in question.

The particular offences, the form of the fixed penalty notice, the amount of the penalty and the method of payment will be detailed in an order which will be subject to consultation with industry and the Committee for Agriculture and Rural Development and will be laid before the Assembly.

Clause 7-Prosecutions: time limit

The time limit for bringing court proceedings for certain offences under the 1981 Order will be extended from six to twelve months beginning from the date on which sufficient evidence to justify a prosecution is known to the Department. This will facilitate the processing of more complex cases which may require a longer period to collate evidence for consideration by the Public Prosecution Service. The Court Service has been advised of this provision and is content.

Clause 8 – Biosecurity guidance

Clause 8 of the Bill (inserting Articles 4A and 4B into the 1981 Order) enables the Department to prepare and publish biosecurity guidance for any disease specified by an order which will be laid before the Assembly. The guidance will include practical precautions which farmers can take to prevent the introduction of disease on to their premises. The Department will carry out public consultation on any proposed biosecurity guidance and stakeholders will have the opportunity to provide input to the guidance.

Failure to comply with published biosecurity guidance will not render a person liable in any civil or criminal proceedings but a court may take account of any failure to act in accordance with the guidance in deciding any question in such proceedings.

The Department may withhold, either wholly or in part, compensation in respect of an animal slaughtered under the 1981 Order where, in the judgment of the Department, the owner or person in charge of the animal failed to act in accordance with published biosecurity guidance, where that guidance relates to the disease necessitating slaughter.

Clause 9 – Power to regulate the supply of fodder

The amendment to Article 5 of the 1981 Order will enable regulation of the supply of fodder and litter between farms where no actual sale is involved but there is a risk of disease transmission .

Clause 10 - Fees and expenses

Subsection (1) amends Article 5 of the 1981 Order. This provision will enable the Department to make an order specifying the circumstances in which it may recover any expenses incurred in taking action to remedy a default by any person under the 1981 Order. An example would be where a livestock keeper is required to cleanse and disinfect his premises within a specified period. If he fails to do so, there is a risk that any remaining virus may spread to other parts of the premises and beyond. In such circumstances, the Department would carry out the necessary work but requires powers to recover its expenses.

Subsection (2) amends Article 50 of the 1981 Order to clarify the business activities for which fees, expenses or other charges may be prescribed by order.

Clause 11 - Deliberate infection

Clause 11 of the Bill (inserting new Articles 5A and 5B into the 1981 Order) creates an offence of deliberately causing an animal or bird to be infected with disease or knowingly acquiring or taking possession of such an animal or bird. It is the responsibility of the prosecution to provide evidence to a court to prove the essential elements of the offence, beyond a reasonable doubt. If the prosecution discharges its obligation, Clause 11 provides a defendant with a defence if he can show that he had lawful authority or excuse for the action.

In addition to any other penalty for an offence committed under Article 5A, the court may disqualify a person from keeping animals or poultry for such period as it thinks fit.

Clause 12 - Seizure and destruction of things liable to spread disease

The items specified in Article 6 of the 1981 Order which may be seized to prevent the spread of disease are extended to include anything animate or inanimate. Compensation will be based on the value of the thing at the time of seizure.

Clause 13 – Control of vaccines

Clause 13 enables the Department to prohibit or regulate, by order, animal and poultry vaccines and their use. Similar powers were previously available to the Department under the Medicines Act 1968. As this Act no longer applies to veterinary medicines, the powers to control vaccines are being inserted in the 1981 Order.

Clause 14 – Treatment of animals or poultry

Clause 14 of the Bill (substituting Article 11 of the 1981 Order) enables the Department to require the treatment of any animal or bird with serum or vaccine (or both) for the purpose of controlling or preventing the spread of disease.

Clause 15 - Regulation of movement of animals and poultry

The amendments to Article 19 of the 1981 Order will enable the Department to prohibit or regulate the exposure of animals or poultry for sale. Currently the powers are restricted to diseased or suspected animals. It will also provide powers to regulate the isolation of animals or poultry. An animal that is diseased or suspected may need to be isolated on farm pending the results of any tests or samples taken. This is usually the first line of action in a disease investigation. It may also be necessary to require the isolation of imported animals pending the outcome of any post import tests or surveillance.

Clause 16 – Registration and approval of livestock dealers

Clause 16 of the Bill (inserting a new Article 19A into the 1981 Order) makes provision for the Department to make an order regulating the activities of livestock dealers for the purpose of preventing disease or preventing injury or suffering to animals. The order may provide for the approval and registration of livestock dealers and their premises. Any proposals for legislation will be subject to consultation with industry and the Committee for Agriculture and Rural Development and the order will be laid before the Assembly.

A livestock dealer is regarded as any person who buys or sells animals commercially and does not generally retain them in his ownership for more than 30 days.

Clause 17 - Export of animals and poultry

Clause 17 of the Bill amends Article 32 of the 1981 Order to enable the Department, in the interests of animal or human health, to prohibit or regulate the export of animals or poultry to any location.

Clause 18 - Records and returns

The current powers enabling the Department to require the owner of an animal or bird to keep records and make returns are extended to include any person in charge of animals or poultry.

Clause 19 – Inspection, etc., of imports

A new Article 47A is inserted into the 1981 Order to provide powers for the Department to enter and inspect premises, open and inspect packages and personal luggage (primarily at points of entry into Northern Ireland) and take samples of any product, for the purpose of enforcing importation orders made under the 1981 Order.

Clauses 20 – Power to inspect, cleanse and disinfect vehicles

Clause 20 (inserting Article 48A into the 1981 Order) enables an inspector to stop, detain and examine any vehicle in a designated area during a designated period to ascertain compliance with animal health legislation. An inspector may also cleanse and disinfect that vehicle. During a disease outbreak, these powers will enable the Department to carry out inspections of vehicles to ensure that any disease control measures are being complied with. The designation of the area and the period during which inspections may be carried out will be specified in an order which will be laid before the Assembly.

Clauses 21 to 24 deal with minor regulatory matters arising from the introduction of the Bill.

Financial Effects Of The Bill

8. The Bill does not place any duty on the Department over and above its standing obligations that will require any expenditure additional to its current budgetary allocations.

Human Rights Issues

9. The provisions of the Bill are compatible with the Convention on Human Rights.

Equality Impact assessment

10. Under Section 75 of the Northern Ireland Act 1998, the Department is required to have due regard to the need to promote equality of opportunity:

• between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;
• between men and women generally;
• between persons with a disability and persons without; and
• between persons with dependants and persons without.

11. The Bill has been screened in terms of equality and it has been concluded that the proposed measures do not have any differential impact on the groups listed above. As part of the consultation process the Department specifically sought comments on the equality aspects of the Bill but none was received.

Summary of the regulatory Impact Assessment

12. Compensation payments will offset any costs to business related to the application by the Department of the slaughter powers contained in the Bill. Previously non-statutory areas such as biosecurity guidance may create some cost to business if the current voluntary guidance is not being followed. There is also the potential for deduction in compensation for slaughtered animals where statutory biosecurity guidance has not been followed.

Legislative Competence

13. The Minister of Agriculture and Rural Development had made the following statement under section 9 of the Northern Ireland Act 1998:

“In my view the Diseases of Animals Bill would be within the legislative competence of the Northern Ireland Assembly.”

Secretary Of State Consent

14. A statement is required under section 10(3)(b) of the Northern Ireland Act 1998, on Secretary of State consent:
    "The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill."