Title

The Unintended Consequences of Laws Surrounding The Current Management of m.b. T.B.

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Dedicated

To those farmers and veterinarians who have suffered injury during current m.b. T.B. testing procedures. Most importantly to the families of farmers killed during m.b. T.B. testing because they do deserve to be listened to.

To those in the farming industry who do not currently have input and hence a voice in academic journals in the social sciences and humanities, but are often directly or indirectly subject to its research findings.

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Acknowledgments

A big thank you to those who have found me distracted, sittingat home instead of being where I prefer to be out in the fieldworking with livestock or students, they know who they are.

I started this work with the question what is the truth.

A big thank you to Professor Wellington who opened my eyes to seeing what is the truth. The ethical deficit surrounding the management of m.b. T.B. became clear.

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Content

1 Introduction

1.1 Location of literature survey and methodology employed

1.2 Justification

1.2.1 From The Farming and Food Industry Position

1.2.2 From the Theoretical None Scientific Position

1.2.3 From the Scientific Position

Chapter 2

2 The Scientific History of Tuberculosis Management

2.1 Applicable Law: From Treaty to Practical Application

2.2 Government Strategy on Combating Tuberculosis

2.2.1 E.U. Strategy

2.2.2 Domestic Strategy

2.3 Current Position of Other Stakeholders

2.3.1 The Farmer

2.3.2 The Badger Trust

2.3.3 The Veterinary Surgeon

2.3.4 The Ecologist

2.3.4 The Role of Science

Chapter 3

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4 Recommendations

4.1 Conclusion

Chapter 1

The problem –

The premise of this work is that the law surrounding the

control of Mycobacterium bovis (m.b. T.B.) holds unintended

consequences. The originality of this work concerns the

identification of law surrounding farming which is

contradictory. The unintended consequence is that law fails

in its declared aim to protect the environment. It is also

contended, that this failure also affects the health of those

charged with applying those laws, that is farmers. It is also

contended that the unintended consequences of these laws may

also adversely affect human health.

Further originality of this work concerns how the idea of

cruelty is addressed by government and some sections of

society. Previously only cruelty to badgers has been the

central idea, which has stopped the culling of diseased

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wildlife in England and Wales. This work will show how law

protecting only one species provides for a unfair burden on

the farmer and other species of animal. It will also show

how a form of morality which stems from some social science

theory has been critical of killing diseased or over

populated animals. This work will show how this theory has

over shadowed scientific evidence and created a bigger health

problem for society to deal with.

Other originality is demonstrated when critically analysing

the attempt by government to control Mycobacterium bovis (m.b.

T.B.) in cattle and Tuberculosis (T.B.) in public health.

Uniquely this work identifies why the recent m.b. T.B.

strategy and T.B. strategy only partially answers the problem

of dealing with a zoonosis.

To this end this work uniquely spells out how the need for a

practical fully functioning one medicine or one disease

approach to animal and human health. This is essential if

disease reservoirs are to be eradicated.1

1 From the outset this is a technical paper which requires an excellent standard ofEnglish. No attempt has been made to utilise a reading age analysis and write in alow reading age. Although this has become fashionable in certain academic quarters it is considered inappropriate for this work.

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Literature for this work is located and reviewed in each

section and the methods employed involve qualitative desk

based research which evaluates documents already produced.2

This work crosses the disciplines of veterinary science,

public health, ecology and law. 3 The findings from evaluations

focus on the strengths and weaknesses of various aspects of

innovations as well of their overall ‘outcome’. This

information is, in turn, used to consider how such

interventions might be modified, enhanced or even eliminated

in the effort to provide a better service, fulfil a particular

need or meet a specific challenge.4

Justification

This work is justified from a number of different stand points

including understanding best practice in agriculture,

controlling and eradicating disease in the environment,

challenging sections of social theory which appears to prevent

disease control, and understanding scientific research which

informs best practice.

2 occasional primary research employed merely acted to corroborate secondary material3 Hopkins, David (1989), Evaluation for School Development, Open University Press, Milton Keynes [First 2 chapters are a good introduction to types of evaluation and an argument for evaluation in the service of development].4 ibid at {2}

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Industry Justification

Following best practice within agriculture is a central

justification.56 Here the aim is to produce healthy local food

in an equally healthy environment.7 8This will provide the

consumer with an essential dairy and beef product which in

turn provides essential Amino Acids crucial to the

maintenance of the human immune system.9 Animal protein is the

only food which provides sufficient quantity and quality of

these Amino Acids. A purely vegetarian diet on the other hand

requires manufactured supplements.10

5 Know J.W et al Benchmarking agricultural water use and productivity in key commodity crops Final Report (WU0122) 30th July 2013 Cranfield University pub DEFRA6 beefandlamb.ahdb.org.uk/publications/7 Cattle and Sheep Weekly 26 June issue 25 Agriculture and Horticulture DevelopmentBoard 20158 Economic impact of health & welfare issues in beef cattle & sheep in England Project number:74106Leadcontractor: ADAS UK Ltd 09 January 2012 to 31 March 2012 pub 17 April 20139Don E. Otter Standardised methods for amino acid analysis of food British Journal of Nutrition (2012), 10 www.fao.org/docrep/W0073E/w0073e04.htm#P1625_217364

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Food production is the one industry that is essential to every

ones basic survival. Farming and good farming practice is key

to the production of food. This work will show how good

farming practice and hence food production has been put in

jeopardy by the absence of comprehensive disease control

measures in wildlife.11

The contribution of food and farming to the economy is huge,

it generates £100 billion a year. One in eight people is

employed in food and farming. It’s our largest manufacturing

sector and is bigger than cars and aerospace put together.

The government considers this industry vital to the British

economy. In 2012, 5,173 new Mycobacterium bovis incidents were

recorded in cattle in Great Britain (GB), a 5% increase from

2011. The government has felt it necessary to implement a

comprehensive strategy12 and to be disease free by 2038.

11 Ward, A. I.; Smith, G. C.; Etherington, T. R.; Delahay, R. J. (2009). "Estimatingthe risk of cattle exposure to tuberculosis posed by wild deer relative to badgers in England and Wales". Journal of Wildlife Diseases 45 (4): 1104–112012 It has been effective in other countries. In Australia, New Zealand and Ireland

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The number of human cases of M. bovis infection remained the same

as last year, with 35 confirmed cases'1314.

Within this work it became clear from initial research that

consideration of m.b. T.B. and animal health could not be

separated easily from the consideration of public health and

m. T.B. in general. In this work it will be spelt out why it

is necessary to consider the diseases of m.T.B. and m. b. T.B.

within the a single idea of One Medicine One Health.15

The low figures for m.b.T.B. may or may not present as a cause

for concern in the human population at this moment. However

the principles applied in disease prevalence models do

indicate the potential for this disease to increase in the

human population, and this is the main worry as far as Public

Health England is concerned.16 Critically, there is no

specific model of disease prevalence for m.b. T.B. despite the

13 The Secretary of State The Rt Hon Elizabeth Truss MP speech at the Northern Farming Conference November 14 2014 pub by :Department for Environment, Food & Rural Affairs 14 www.ons.gov.uk/ons/rel/npp/national-population-projections.html15 onehealthinitiative.com/about.php16 www.apho.org.uk/DISEASEPREVALENCEMODELS

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increase of m.b. T.B. within the environment. 17 18. Uniquely

this work makes the case for its inclusion.

The Philosophical and Theoretical Justification

The disease host for m.b. T.B. is the badger meles meles. When

considering the central question of disease control within

wildlife previous governments have relied upon The Protection

Of Badgers Act 1992 where any disturbance of setts or badgers

is prohibited. Historically badgers were baited and involved

in acts of dog and badger fighting.

17 ibid at {15}18 Conversely according to new research cattle can become infected with the human version of Tuberculosis Wellington et al will publish work in NIAH which shows 20% of cattle caught Tuberculosis from humans in Africa. Goats also tested have caughtm.b. T. B. from wildlife.From a telephone conversation with Professor Wellington

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The main badger supporter group The Badger Trust believes that

culling badgers is unjustified and cruel.19 However on other

aspects of this disease and the consequences of this disease

the group is silent. This group does not consider cruelty from

other perspectives.20

To begin further examination of this phenomena in the round,

it is essential to explore the ideas which have informed parts

of society about cruelty.21 Further it is necessary to fully

interrogate these ideas and explore the ways of critically

thinking about the idea of what is cruelty. This in turn will

inform in approaches to animal welfare when the new government

implements its strategy to eliminate T.B. specifically m.bovis

T.B.

To understand the current position regarding societies

approaches to cruelty we must refer to historical evidence.

Scientists and philosophers have long argued about the

existence of animal consciousness and suffering22. When trying

to find theorists who considered this subject we begin to

19 badgertrust.org.uk/threats/bovine-tb.aspx20 ibid at {18}21 The focus of cruelty changes depending on which group is considering the idea22 albeit using completely different methods

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struggle to find all but the most tentative references to the

subject matter.

From the philosophical perspective In the 16th century Michel

de Montaigne thought that animals were probably very like us.

His focus was on challenging why any animals inner instinct

should be different from our own.23

In the 17th century, the philosopher René Descartes, thought

that animals could not feel pain and so we could do whatever

we liked to them.24 A century later, the Scottish atheist

philosopher David Hume remarked that people should be bound

by laws of humanity and treat other creatures gently.25 It is

this philosophy which is a common view amongst humanists

today.26 In 1789 the utilitarian Jeremy Bentham wrote of

animals to concentrate not on the animal’s ability to reason

or talk but on their ability to suffer.27

23 www.animal-rights-library.com/texts-c/montaigne01.htm accessed 26th November 201324 JCottingham, R.Stoothoff, D. Murdoch and A. Kenny (editors and translators):The Philosophical Writings of Descartes Vol. III.(Cambridge: Cambridge University Press 1991). 25 An Enquiry concerning the principles of Morals.By David Hume26 humanism.org.uk/campaigns/public-ethical-issues/animal-welfare/27 Bentham J Introduction to Principles of Morals and Legislation, published 1789.

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Also in the 19th century when significant discovery in the

natural sciences took place , Charles Darwin's theory of

evolution28 taught us how closely related to other animals we

are, and how like us they can be. In the 20th century

ecologists reminded us of the interdependence of species and

the importance of conservation. Quite separately, people from

none scientific backgrounds began to talk of "animal rights"

and "speciesism", ideas pioneered by the philosopher Peter

Singer and this is still controversial today.29 It is this

strand of thought which has informed single species badger

support.

The source of evidence which informs about animal welfare is

considered by some to come from those who do original research

and publish the results. Research is usually published in

peer-reviewed journals. Peer review means that two, three or

more peers (scientists or none scientists with similar

research interests located in their own discipline) evaluate a

manuscript submitted for publication and assess its novelty

28 Charles Darwin, "On the Origin of The Species 1859 29 In Defence of Animals (ed.), Blackwells, Oxford, 1985; Harper & Row, New York, 1986

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and quality of design, analysis and interpretation of results.

This system relies on the independence of the peer reviewers

to assess a piece of work impartially.30 31

As it is pointed out in the Farm Animal Welfare Committee's

report there are ethical problems with journal based

evidence.32 Indeed within journals some of the articles are

published from an animal rights33 perspective but do not

contain many references to any other work on animal welfare

yet it has been published suggesting peer review.34 Peer

review is likely to have been ideological rather than

scientific or research evidence based in that instance.35 Other

research may eminate from journals which have an ideological

starting point and will only publish articles from a

particular political persuasion.36

30 Evidence and the welfare of farmed animals part 1: the evidence base June 2014 Farm Animal Welfare Committee 31 The concept of what is true independence needs to be factored in32 Evidence and the welfare of farmed animals part 1: the evidence base June 2014 Farm Animal Welfare Committee who only intend to use peer reviewed scientific journals to inform its opinion. Other opinion is to come from technically trained stakeholders.33 Animal rights predominantly stems from the social sciences or humanities disciplines, whereas animal welfare is largely considered among the scientific academic community34 Cooper J Criminal Law and Justice Weekly (formerly Justice of the Peace)/2007/Issue 35, September/Articles/Violence, Animal Cruelty and Human Behaviour - (2007) 171 JPN 62235 :ibid at {33}36 The Environmental Lawyers Journal is one although there are many environmental specialist lawyers who take different views and do not subscribe to the group. or

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Lawyers writing on selective aspects of animal ethics have

also looked at the question of what is cruelty.37 The starting

point is the difference between the treatment of domestic

animals and wild animals.38 The wrong assumption by Spark is

that domestic animals are treated better than wild animals as

far as the law is concerned.39 40 Spark points to the fact that

domesticated animals within law are owned as property and that

they need to be afforded protection against unreasonably

caused unnecessary suffering The Animal Welfare Act 2006

where this is stated, also affords this protection for any

other wild animal.41 Conversely what is not mentioned is while

the badger is protected from any interference whatsoever under

domestic law, cattle are subjected to restraint and procedures

which causes distress. To date the judicial review process

reviewed in literature has only considered the domestic law

and only then in relation to The Animal Welfare Act and The

journal.37 Gareth B. Spark Journal of Environmental Law Protecting Wild Animals from Unnecessary Suffering 1 November 201438 ibid at {36} pg 139 ibid at {36} pg 140 Hart D All About Killing Badgers Environmental Liability, Law Practice and Policy/2012 - Volume 20/Issue 4, 141 ibid at {37}pg 2

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Animal Health Act 1981 42. Reference to treaties which require

the government to act to control disease regardless, is

largely missing in current legal literature and specific

reference to the cruelty involved in current m.b. T.B.

testing procedures completely absent.43.

Law affecting the welfare of cattle exists it is argued

directly contradicts domestic Animal Welfare Law during m.b.

T.B. testing.44454647 Here as part of m.b.T.B. testing

regulation48 unhandled cattle are put in a crush and given

injections equivalent to a bee sting which is painful and may

result in fear aggression later.49 The owner is required to

cooperate with veterinary personnel who is in turn appointed

42 R (ota Badger Trust) v Defra Ouseley J, 12 July 2012,1 www.lawtel.com/.pdf.43 Government policy and commitment in light of these treaties is dealt with in a separate section.44 Council Directive of 26 June 1964 on animal health problems affecting intra-Community trade in bovine animals and swine (64/432/EEC) (as amended) 45 Council Directive 77/391/EEC of 17 May 1977 introducing Community measures for the eradication of brucellosis, tuberculosis and leucosis in cattle (as amended) 46 Council Directive 78/52/EEC of 13 December 1977 establishing the Community criteria for national plans for the accelerated eradication of brucellosis, tuberculosis and enzootic leukosis in cattle (as amended) 47 Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products48 ibid at {42}49 safe handling of large animals (cattle and horses) occupational medicine: State of the Art Reviews Vol.14, No.2, April-June 1999 Philadelphia, Hanley & Belfus, Inc.

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by the state.50 Under section 4(1) of The Animal Welfare Act

the question becomes is it unreasonably caused unnecessary

suffering which is a criminal act51 and was there intent to

cause distress to the cattle if so by whom. At this point we

may consider whether the practice of protecting the badger

regardless and leaving the domestic cattle and handlers to

shoulder the burden of disease is heuristic in notion.52 That

means is it the case that it has always been that way and that

greater considerations surrounding the objective of disease

control has been absent. For this ethical reason alone a

review of the law is essential.

Another pertinent question must be asked is which law prevails

the International/ European originating T.B. eradication law

or The domestic Animal Welfare Law. The two are quite

different in direction, yet frequently legal writers when

considering Badgers (meles meles) and Tuberculosis have been

silent on the substantial law surrounding disease control.53

50 www.gov.uk/government/news/new-tb-testing-arrangements-for-england-and-wales-due-in-201551 section 4(1) Animal Welfare Act 200652 Evidence and the welfare of farmed animals part 1: the evidence base June 2014 Farm Animal Welfare Committee pg 32 53ibid at{42}

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5455They have concentrated purely on domestic law which has led

to a less than complete consideration of the issues.5657. If we

consider that causing distress58 in one species of animal is

illegal then that surely applies for another. However what

is missing is how the rules and regulations of Animal Welfare

impact the health and well being of the farmer. The very

person who is tasked to apply Environmental and Animal Welfare

law is simply not considered . This is an anomaly, which this

work uniquely seeks to address.59

Since causing unreasonably caused unnecessary suffering60 is a

criminal act we can answer the question in legal terms by the

consideration of mens rea (intent) and actus rea (act). Here

54 CA, 11 September 20122 http://www.bailii.org/ew/cases/EWCA/Civ/2012/1286.html.55 ibid at {40}56 Cooper J Justice of the Peace Violence, Animal Cruelty and Human Behaviour The Journal Dedicated to Magisterial and Local Government Law1 September 200757 With Cooper, the concern is that this barely referenced work is to be found in ajournal whose sole purpose is to inform magistrates on cruelty, Cooper makes a hugeleap of assumption from animal cruelty, to the complex issue of human abuse his intention is to affect sentencing since his presumption is that one cruelty will lead to another. This presumption is concerning on a number of points, but is for another paper involving the ethics of who has access to magistrates using what unsupported information.58 This always has to be said with a caveat since the process of birth is distressing. Distress happens in life. The ethics surrounding this is how to minimise that distress with regards to any animal.59 In the ten-year period from 1999/2000 to 2008/09 a total of 436 people have been killed as a result of agricultural work activities. Health and Safety Executive..80% of all veterinary injuries are caused by accidents with livestock.JointResearchCentre(JRC)theEuropeanCommission60 ibid at {51}

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the remote state appears oblivious to any distress believing

that T.B. testing is about the greater good with reference to

disease control in cattle and its potential to get into milk.61

The state is the originator of the act. The veterinary

personnel act as the qualified agent who can legally according

to government direction perform the procedure. The actual

owner is both compelled by the threat of sanction to cooperate

and is the primary person likely to be put in harms way if the

cattle react aggressively to a human afterwards.62 However

maintaining that m.b. T.B. testing law is a criminal act

according to section 4(1) of the Animal Welfare Act is at best

tenuous and is unlikely to receive merit in court.63 However

the underlying principles may well be used as part of the

argument compelling government to think further about the

morality of what it asks farmers to do.64

61 A pertinent point here is that pasturalisation destroys any bacteria including the T.B. pathogen. 62 Broom, DM and FraserAM(2007)Domestic Animal Behaviour and Welfare(4th edition)CABInternational, Wallingford. 63 After all the vet who theoretically minimises suffering was present64 The FAWC Report on the well being of Farmers in light of what farmers are asked to do by government has yet to publish.

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Currently there is no compensation offered to the farmer to

employ extra staff to deal with cattle on the day of the test

or any agitated cattle post test.6566 This can lead to under

staffing for a very difficult, tiring and dangerous testing

procedure which are known risk factors in accidents.67 This is

then the moral dilemma and argument that the law creates the

perfect environment for an accident to happen.

The wildlife host, the badger, however is protected by its

specific law68 and there is no deviation from this to protect

human health.69 Further moral argument employed provides

critique, to leaving the host wild animal to spread disease to

other wild life species and small domestic pets. 70Other moral

argument concerns the critique of allowing a top predator to

grow in numbers by man made species specific protecting law71

65 The Tuberculosis (England) (Amendment) Order 201466 The Secretary of State exercises powers conferred by sections 1, 7(1), 8(1), 15(4), 25, 32(2),87(2) and 88(2) of the Animal Health Act 1981(a) and now vested in him(b)67 ibid at {59}68 The Badger Protection Act 199269 There is no other law to suppy here Animal Welfare Law impacting on farmer healthand welfare is only been consulted upon Feb/March 2014 and opinion is yet to be published by FAWC70 A host animal is either immune to the disease itself or succumbs in the due course of time scientific research has yet to be done to establish which applies to the badger.71 The Protection of Badgers Act 1971

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which impacts on other (iconic and charismatic) species.72 To

date these are the important points which remain unanswered by

relevant legal literature.

Relevant legal literature mentions scientific research only

in passing However Spark references Harrop who in turn

states, albeit grudgingly, that science will be the final

arbiter.73. Indeed the Law Commission In 2012, published a

Consultation Paper relating to its project to review wildlife

law in England. The project is mainly concerned with species-

specific protections afforded to wild animals the Commissions

view was such decisions are political and policy decisions

which should be taken by the appropriate authorities, subject

to scientific advice.7475Uniquely this work will show where

scientific advice is available, but not been acted on by

government.

72 James W, Killing Wildlife: The Pros and Cons of Culling Animals for National Geographic 06 MARCH, 2014 73Harrop (n 19) 300 suggested that, perhaps, 'the law...will turn to science as the ultimate arbiter in deciding questions of wild animal welfare', in the sense of determining which animals can suffer and which activities cause them to suffer.74 Law Commission, Wildlife Law (n 7) [1:25]75 UNESCO. Bioethics Committees at Work: Procedures and Policies. Guide no. 2. Paris: UNESCO; 2006; available at http://unesdoc.unesco.org/images/0014/001473/147392e.pdf (last accessed 23062015).

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To understand the scientific basis of disease control and

understand what unreasonably caused unnecessary suffering

means in practical terms, scientific evaluation and industry

expertise is essential.76 77 Without technical knowledge of what

act causes distress78 across the species, and within the

people directly involved, we will not understand the

unintended consequences of law.7980

Even if for one moment we decide that one animal or persons

distress is worth the sacrifice to the greater good, there

must be a moral duty by society to properly reference

scientific best practice from all points of view and/or

rectify the situation in other ways.81 This may involve the

state paying for extra technical staff to attend a T.B. test

so ensuring proper working hours and safer working conditions

are met. However further information suggests the T.B. test

using the double needle method82 is unnecessary and could be

76 Bishop P Badgers and Bovine Tuberculosis: The Relationship Between Law, Policy and ScienceJ Environmental Law(2012) 24 (1): 145. Bishop states that the court tends to refer to administration discretion where technical matters are involved.77 www.hse.gov.uk/pubns/ais35.pdf Handling and Housing Cattle78 The raising of the chemical Cortisol is widely seen as the scientific indicator of stress79 ibid at {72}80 UNESCO. Bioethics Committees at Work: Procedures and Policies. Guide no. 2. Paris: UNESCO; 2006; available at http://unesdoc.unesco.org/images/0014/001473/147392e.pdf (last accessed 23062015).81 ibid at {71}82 single comparative intradermal skin test (SICTT)

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replaced by a faecal collection method where the sample is

sent to the laboratory for testing.83 This of course would be

painless to the animal and remove the farmer from danger. The

ethical deficit of government not using this more humane test

is clear.

One of the moral component of this discussion turns on those

who are remote from the day to day industry, being given or

assuming more powers of control than the actual practitioners

in the industry concerned. The practitioners are in the best

place to understand the impact of law and relay any concerns

to the policy makers and via them the drafters of law.

Reliance on information in academic journals may be a problem.

It is almost impossible to find a journal written by farmers

or agricultural lawyers to provide peer reviewed research.84

This communication role is largely left to farmers unions who

lobby on behalf of farmers. Within an academic context this

appears to create a problem. The academic community considers

83 From a conversation with Professor Wellington corroborated by her work and further corroborated by a farmer who had used the method to identify diseased badger setts.84 Frequently Agricultural Law deals with financial aspects of the business as perGeoff Whittaker Practice Points: Life on the farm may never be the same Law SocietyGazette 3 February 2005Consultant and adviser to the Agricultural Law Association

24

the academic journal to be of more value. Hence to provide

evidence in response to the none scientific animal rights

view, evidence from government policy documents and scientific

journals is employed.

The central question on the impact on farmers lives (and the

working life of large animal veterinarians) is not met at

all.8586 The first formal research on this issue of the

relationship between Animal Welfare Law and Health and Welfare

of Farmers is only due for publication next year.87

What Are The Other Ethical Considerations

If we are to consider this animal human relationship further,

many people think that rights must be linked with duties and

reciprocity, and it is difficult to see how animals can have

duties or respect human rights.88 The idea that animals have

rights, infers consciousness, and foresight to consequences.89

Most natural scientists will agree that animals have no

85 FAWC Report pg 10 86 FAWC Consultation on the link between the health and well-being of farm personneland farm animal welfare 2014 The FAWC says that m.b. T.B. and farmer health and well being is largely considered by the Farming Network Community. The FNC handle cases and do not produce case evidence to share with the wider research community.87 ibid at {71}88 Broom, DM and FraserAM(2007)Domestic Animal Behaviour and Welfare(4th edition)CABInternational, Wallingford.89 ibid at {79}

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concept of tomorrow and live entirely on the need to survive

there and then.90 They do however have memory and may act out

memory of a painful episode by fear aggression or avoidance.

– suffering is both physically and psychologically.91 When

considering a large animal either act may have an

unpredictable significant impact on those people handling

them. Adverse experiences such as putting two needles in the

neck of an animal after shaving the animal with a tool during

the m.b. T.B. test is likely to elicit an adverse response

either immediately or upon close contact with a keeper later

on. The question will always be the severity of that

response.92

When trying to make sense of the situation presented we may

consider how relevant philosophers, theoreticians, critical

thinkers have applied the different ways of making sense of

where we are and how we got there. One caveat to this is the

appearance of a ramble of ideas, ideas which only provide the

90 ibid at {79}91 ibid at {79}92 www.bovinetb.co.uk/article.php?article_id=145 last accessed 14/06/2015

26

most remote treatment of human consciousness93 in relation to

zoonosis.94

However what is missing quite equally can be turned on its

head and restated as what is crucially required, particularly

in light of the urgency which surrounds the management of a

category 3 Zoonosis m.bovis T.B.

If we are to understand matters more thoroughly we must look

for the point of view that is missing. For example one other

major theory is that of conducting a spot experiment and

thinking dialectically.95 That means does the therapy (policy)

work yes or no and proceed from there. Spot experiments are

conducted over time. Doctors of medicine do this well, if a

particular drug does not work for a patient another

therapeutic is chosen. By process of seeing what works a

therapeutic regime is arrived at for an individual patient

(set within the knowledge of the day). Thus the doctor works

93 Davidson J. M. and. Davidson R.J..The psychobiology of consciousness / Published New York ; London : Plenum Press 1980 94 Busby, Jeremy; Onggo, Stephan. Managing the social amplification of risk: a simulation of interacting actors. /In: Journal of the Operational Research Society, Vol. 64, No. 5, 05.2013, p. 638-653.95 Hyerle D and Alper L Pathways to thinking schools /.Published housand Oaks, Calif. : Sage Publications, Inc. 2014

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dialectically where a series of questions and answers arrives

at a logical conclusion.96 The farmer has also conducted spot

experiments with reference to animal and soil management over

centuries. For example the farmer conducts a series of

experiments with soil to see what chemical or mineral

component is missing in order to maximise crop production.

When the test reveals a missing or low chemical P or N then

that is replaced. The principle employed is just enough for a

balance to take place for effective growth, not too much not

too little.

That is the case of dialectic assessment of good practice in

its simplistic sense, however other competing interests

prevail (usually accompanied by law) and some of those

competing interests may not be about the greater good but a

remote and often political perception of what is a greater

good.9798

96 Manzo, Anthony V.; And Others Dialectical Thinking: A Generative Approach to Critical/Creative Thinking. pub ERIC Dec 199297 Busby, Jeremy; Onggo, Stephan. Managing the social amplification of risk: a simulation of interacting actors. /In: Journal of the Operational Research Society, Vol. 64, No. 5, 05.2013, p. 638-653.98 Leach M, , Scoones I The social and political lives of zoonotic disease models:Narratives, science and policy Social Science & Medicine Volume 88, July 2013, Pages 10–17

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In other words are other none technical considerations at

heart and not the control of disease where ever it may be

found.99 Hence at each stage of logical consideration we must

consider what is missing in the round.

To focus on the problem before us scanning both written

documents and also evaluating field based methods of research

will assist..100

At least one written body of evidence that we could reference

to find law, comment or historical reference to human

interaction with food producing animals is Agricultural

Records A.D. 220-1970.101 This book in turn references the

Anglo Saxon Chronicles.102 Both chart disease, flood, drought

and the fluctuations of market prices as a result. For food to

be produced and sold requires a balancing of conditions;

should adverse conditions take a hold then remedial action is

taken. Here what is missing is dealt with using mechanisms

that were and are practical in nature. Diseased animals were

99 Posey, Rollin B. (March 1961). "Modern Organization Theory edited by Mason Haire". Administrative Science Quarterly 5 (4): 609–611.100 Nelson J, Carlson K, Stuart B. Palonsky. Critical issues in education : a dialectic approach / 2nd ed.Published New York ; London : McGraw-Hill c1993 101 Stratton J and Whitlock R Agricultural Records A.D. 220 - 1977 Baker Publishers1979102 www.britannia.com/history/docs/449-95.html the searchable version of The Anglo Saxon Chronicles allows the researcher to look for the pattern of droughts and floods and hence the fluctuations in food prices.

29

culled and burnt, wildlife bearing disease were also

controlled by culling and burning. Remarkably after all this

time this is still the best practice method of controlling

notifiable zoonosis.103 Reasoning then was pragmatic in nature

and continued until the problem was solved.

Another realistic way of looking at our problem is to consider

how a court may proceed with matters. Concentrating on

reasonable commonsense, provided in the rules of evidence

seems to be one solution found in the law community.104

Certainly it assists in principle even if a poor defendant

still does not become acquainted with it in practice .105

The court will allow evidence to be presented using

commonsense interpretation of what is reasonable and we may

reasonably conclude from that that there must be a theory of

commonsense.106 This means the solution is clear and obvious in

light of the absence of other disease control methods. If we

are to reference back to how zoonosis was controlled in

103 Foot and Mouth Disease, Brucellosis and m.b. T.B. attracts a simple cull and burn policy104 R v Adams [1996] 2 Cr. App. R. 467. As Lord Steyn observed in R v A (No. 2) [2002] 1 AC 45: "…to be relevant the evidence need merely have some tendency in logic and common sense to advance the proposition in issue." 105 The defendant may not have means to go to the court106 www.oxforddictionaries.com/definition/english/common-sense sound judgment and practical application

30

previous epochs of history and how those traditional measures

of controlling disease is still best practice today we must

wonder at how and why a distraction from basic disease control

has occurred in the early 21st century. In other words what

other theory has prevailed which has led to a potential multi

drug resistant pathogen being allowed to become an

uncontrolled epidemic of a category 3 disease amongst wildlife

in England and Wales.107 It appears theory which is not linked

to commonsense rationale of disease control has created an

environment of disease production and expansion.

Scientific Background and Justification

There are two main strains of T.B. which is considered

important by Public Health England and hence when considering

English Law and policy Mycobacterium T.B a mainly human

strain and m.bovis T.B an animal strain.108 109 In this work

107 Mishra R et al Gene mutations in Mycobacterium tuberculosis: Multidrug-resistant TB as an emerging global public health crisisJanuary 2015Volume 95, Issue1, Pages 1–5108 Hewinson et al Recent genomic analyses suggest that M. bovis has developed from M. tuberculosis, i. e. that cattle acquired tuberculosis from humans ( 2006).109 Wirth T., Hildebrand F. et al. (2008). "Origin, spread and demography of the Mycobacterium tuberculosis complex". PLoS Pathog 4 (9): e1000160. doi:10.1371/journal.ppat.1000160. PMC 2528947. PMID 18802459.

31

m.bovis T.B110 is mainly considered as this strain has the

potential to move between animal and human, this means this

strain of T.B. pathogen is a zoonosis.111 However importantly

according to Wirth et al, humans were the host of

microbacterium Tuberculosis and it spread to farmed animals as

humans began to farm 10,000 to 20,000 years ago. There was a

major surge 180 years ago of human to human contact 180 years

ago as industrialisation and city growth occured. 112

Law set in one place in time no longer work and It is

interesting to see an estimate that combined together,

campylobacteriosis, VTEC and salmonellosis carry a higher

burden of disease in Europe than influenza and measles, yet

less of a burden than HIV and tuberculosis.113 This

dissertation uniquely identifies the need to look at the law

applicable to zoonotic disease control specifically

Tuberculosis. Further this work identifies how applicable law

came into existence and why it is need of review.

110 m.b. T.B. often described as bovine T.B. is imprecisely named as it is highly contagious and can be caught by a multitude of mammals.111 Public Health England Zoonoses Report UK 2012 September 2013 pdf112 ibid at {108}113 Ghaiwal S Editor News: Trends in zoonotic infections in Europe. Food Safety Newsletter(2008) 11(7) 6-71

32

Scientific History of m.b.T.B.

Bovine tuberculosis has been recognised as an infectious

disease of cattle for many decades. It is possible that

existed in Northern Italy at the beginning of the Christian

era with its origins being in cattle of Indian origin. During

the nineteenth century, the disease spread into Europe,

although infected cattle imported by the Romans could have

been the source of the disease in Britain. Infection was from

then on spread from Europe into many countries of the world.114

Milk was one of the very few animal foods that was almost

universally consumed without heating or refrigeration, and was

less of a health risk when consumed within a few hours of

collection.115 But, as cities grew larger in the industrial 114 Lord Soulsby of Swaffham Prior Animals and the Law Medico-Legal Journal MLJ 69 (166) 28 January 2002 115 This point is still current today as the rise of raw milk consumption has becomefashionable but the mechanisms of microbacterial load is still not appreciated by todays experts as per Ghaiwal S Editor News: Treated Milk. Food Safety Newsletter(April 2008) which prompts the call to revisit historic records.

33

revolution of the mid-1800s with mass migration the time and

distance between collection and consumption increased. In the

early 1800s, dairy cows were commonly found within residential

areas of British cities. As the cities grew, dairy farming

became more rural and milk transportation took longer, hence

the term the “milk run” became synonymous with frequent stops

as made by trains of the latter half of the nineteenth

century. Rosenau 116pointed out that urbanisation increased the

time between collection and consumption from a few hours to

more than forty-eight without refrigeration. Given the nature

of milk as a microbial growth medium, one can only imagine the

microbial condition of raw milk kept at ambient temperature

for two days. Then, as today, milk was seen as important in

infant nutrition and, as such, it held a special place in the

hierarchy of foods.117

Hence scientific understanding of the properties of milk and

how microbes used the milk as a medium of growth were being

developed as the phenomena of milk contamination rose. It

further has to be understood that prior to the industrial

116 Rosenau MJ (1912) The Milk Question. New York: Houghton Mifflin Company.117 ibid at {115}

34

revolution each farm was self sufficient and ate out of

necessity very fresh food each day118..

History provides us with more than one source of information

to ensure good opportunities of verification are possible on

this subject. Hansard provides its own chronological account

of the discussion on phthisis the term used together with

consumption to identify the wasting disease now called

Tuberculosis.119

From 1842 accounts of phthisis described as a highly

contagious disease characterised by pulmonary inflammation, a

wasting disease, encountered in situations where poor

drainage, poor ventilation, cramped conditions prevailed. Many

in parliament had concerns about this and provided accounts

from their own observations and experience.120

Lord Ashley clearly connected hours spent at work and the

prevalence of disease,121 whilst Mr John Bowring expressed

118 There were no refridgerators119 Hansard discussions on phthisis, consumption and latterly Tuberculosis all termsused for approximately the same disease.120 ibid {118}121 Hansard Hours of labour in factories. lord ashley commons — march 15, 1844

35

concern about the mode of contagion122. Lord Clarence Paget

commented on the overcrowded nature of naval ships and the

level of contagious diseases found on board.123 Numerous other

contributors to the debate not only identified phthisis but

also the cramped conditions which contributed to the spread of

this disease. Interestingly Anthony Mundella certifying

surgeon in Belfast pointed out that Flax workers were more

likely to contract the disease than labourers or merchants.124

Factory workers were paid more than general outdoor labourers

the inference here is that poverty itself was not the root

cause of this disease.

Indeed Dr Kenealy said about pottery artisans. These persons

were, were sober, regular, and temperate of life. There were

among them two special diseases, which were traceable

distinctly to that want of proper ventilation in the workshops

for which he contended, and to which he specially directed

attention—and those diseases were "Potter's asthma" and

pulmonary consumption.125

122 Hansard Quarantine laws and regulations. mr john bowring commons — july 23, 1844 123 Hansard Supply—navy estimates. lord clarence paget commons — february 24, 1862

124 Hansard Mr Anthony Mundella Commons — May 6, 1874 125 General law relating to factories and workshops. mr edward kenealy commons february21, 1878

36

Yet others identified different occupations and circumstances

where phthisis was more prevalent than any other. schools,

gaols. mining in other words any place where people were

crammed together. Conversely outdoor workers were least likely

to catch contagious diseases.126

The point about the ongoing discussion was that industrialised

Britain was realising that a by product of this

industrialisation was the creation of optimum conditions for

contagious diseases. This was of course in nobodies interest

and hence concern was expressed right across social

boundaries. As cities grew other problems emerged, concerning

how to manage the waste of a population. Public health as a

idea was emerging and just as swiftly drainage systems of most

cities were organised and built during the same time. Indeed

many of these drains still exist today. At the same time water

systems were also a concern, drinking water came from wells

which bore down into underground aquifers. some aquifers are

closer to the surface than others. 127 .Discussion then was not

126 ibid at {123}127 ibid at {123}

37

just about one disease or cause of contagious disease but how

to create a system that best protected public health using in

the main best practice and prophylactic measures. Systems of

protecting drinking water and treating waste water separately,

formed major engineering projects of their day.128

We can still learn much about the management of disease from

the discussions held nearly 150 years ago. Complacency was not

apparent and the lessons needed to stop a disease from

spreading were learnt and learnt well. After all prophylactic

measures were all they had until science developed.

Robert Koch, a German physician and scientist, presented his

discovery of Mycobacterium tuberculosis, the bacterium that causes

tuberculosis (TB), on the evening of March 24, 1882. From the

earliest days it was also understood if disease prevention was

to work it had to be tackled in all countries infected

simultaneously. The response to scientific understanding was

swift and by 22 May 1882129 Lord George Hamilton was asking

the Vice President of the Council in parliament, whether steps

128 Centenary history of waste and waste managers in London and South East England by Lewis Herbert pdf129 HC Deb 22 May 1882 vol 269 cc1249-50 Lord George Hamilton

38

were being generally taken by local authorities to carry out

the provisions of the dairies, cow-sheds, and milk-shops Order

of July 1879. In addition he spoke of the supposed

transmissibility of tubercular disease through infected milk,

and whether The Vice President could take steps to make

tuberculosis a "disease" for the purposes of paragraph eight

of this Order. This suggests that prior to the discovery of

the distinct bacillus in the laboratory it was already

understood that a number of diseases were transmitted by milk.

Perhaps one of the most extraordinary parts of this

acquisition of knowledge about Tuberculosis is that of

pasturalisation specifically the delays in administration of

this process.130

The Villaescusa study 2007 misses some vital historical

information which enables understanding of the process and

processing of knowledge over time. For example in 1882 Lord

George Hamilton asked the Vice President of the Council,

whether steps are being generally taken by local authorities

to carry out the provisions of the dairies, cow-sheds, and

milk-shops Order of July 1879; and, considering the supposed 130 Routine Pasturalisation did not come into effect until the 20th century The debate surrounding pasturalisation was that it would lead to poor dairy hygiene practices reappearing.

39

transmissibility of tubercular disease through infected milk,

he could take steps to make tuberculosis a "disease" for the

purposes of paragraph eight of this Order? This clearly means

that it was cattle prior to 22nd May 1882 and not a horse in

1884 according to Villaescusa that first showed signs of

Tuberculosis and that it was already understood by then that

this disease was transmittable to humans via milk as opposed

to 1888 as asserted by this same author. To be fair to this

author, other scientific points in her work have been

corroborated as accurate.

The first contagious Diseases Animals Act was in 1870 and in

1877 London and other areas were affected by Cattle Plague or

Rinderpest as it is now known.131 Vast number of cattle were

culled at this time. By accident this would also have stopped

the spread of Tuberculosis in cattle too. At the same time

wildlife particularly top predators were routinely controlled

by hunting but not eradicated.132 This of course would also

assist in the stopping of the spread of disease into

domesticated animals. Just a quick check of historical

131 Stratton J and Whitlock R Agricultural Records A.D 223 -1977 Baker Publishers1979132 Eradication would have caused other wildlife problems balancing predator and prey was a concern for food production.

40

accuracy by using more than one type of source brings into

sharp relief the idea of versions of events and hence a

variety of 'academic rationale' being allowed even in the

21st century.

If anything is to be learnt from this is to proceed with

caution and revisit newer scientific research papers on m.b.

T.B. and check accuracy by numerous cross referencing with

appropriate earlier research papers and other historic

documents.133 134

And if we are to do this with a scientific paper we would

certainly not take a paper from the social sciences or law

without looking for corroborating evidence. This is also a

matter of ethics where it is still considered by some

academics that the paper published in the academic journal

carries more weight than other documents for example from a

technical website since it is both referenced and peer

reviewed. Even so there are stark errors within material

found in journals. Some are research errors easily identified

as above in the Villascusa paper, others in relation to

133 ibid {130}134 The Anglo Saxon Chronicles for earlier references of disease related to agriculture

41

referencing, where it is poor to none existent135 and or

simply the research article is positional, a lobbying groups

'academic' version of a position statement.136 137

This is also the reason why also as a matter of ethics

experience from practitioners in industry should not be

dismissed by academics. It leads to a paucity of professional

practice and clear gap in knowledge.

To illustrate this further the FAWC makes a point in its

research on animal welfare to take evidence from a number of

sources and then see if it is corroborated by other

interviews, direct observation or written documents. The only

evidence which receives more consideration by The FAWC is

scientific evidence via peer reviewed journals.138 These are

the methods employed by a government agency which has a

responsibility to hear all sides of the story139 they use the

135 Cooper J Criminal Law and Justice Weekly (formerly Justice of the Peace)/2007/Issue 35, September/Articles/Violence, Animal Cruelty and Human Behaviour - (2007) 171 JPN 622136 Environmental lawyers journal - who wish to give credibility to positional statements which they can refer to in a court case as being the objective truth -when it may be nothing more than a plausible story.137 Opinion-based policy employs belief, ideology and selective use of evidence as supportive of what are often a priori positions.138 FAWC Report on Evidence of Animal Welfare pg 6 point 16 and 17139 Some call this a narrative however this is not inclusive language and so is avoided here. In The National Curriculum for example narrative is a term used for fictional literary work.

42

original source of information, without any one agent or

researcher relaying his or her own interpretation of events.

Perhaps one of the most ethical ways of studying a problem of

zoonosis is by considering the whole information as a cross

disciplinary study. One such perspective is by looking at the

applicable law from treaty to practical application..

Applicable Law: From Treaty To Practical Application

Tuberculosis is one of the two highest occurring diseases in

Europe we must look further at the law available to tackle

it.140

The methodology employed in this work concerns the evaluation

of relevant documents already in existence. To this end it is

necessary to evaluate the applicable law surrounding

Tuberculosis from the very top layer to its practical

application. One of the recurrent themes in this work is to

critically evaluate what is missing regarding the control of

Tuberculosis. To understand applicable law and its application

140 WHO

43

we must first understand the governance framework in which it

lies.

Governance of the British Isles is complex and multi layered

the specific law covering the control of either animal or

human disease is devolved to the various home countries.141

Relevant international treaties signed by the British

government are subsequently devolved and interpreted

domestically per country. 142 It is only intended to discuss

matters which pertain to the application of law to England in

this work.

There is nothing in the international law-making process to

guarantee consistency between older conventions and more

recent initiatives. In practice, we have international laws,

rather than international law. Parties to the treaties are

different and there is no mechanism to simply ammend a treaty

in light of some new information emerging143 Not only is a

review of relevant law connected Tuberculosis indicated but 141 www.ordnancesurvey.co.uk/blog/2011/08/whats-the-difference-between-uk-britain-and-british-isles/142 resources.woodlands-junior.kent.sch.uk/customs/questions/britain/britain.htm this website has a particularly clear description of the situation143 Farrier D et al1 Wise Use Of Wetlands Under The Ramsar Convention: J Environmental Law (2000) 12 (1): 21

44

also a review of how it fits into the legal system in this

country..

If an over view of relevant law is considered at Treaty level

The British government has affirmed its membership of The

United Nations Development Programme.144 This programme defines

governance as the exercise of political, economic and

administrative authority in the management of a country’s

affairs at all levels. It also recognises nine good governance

principles: participation, consensus orientation, strategic

vision, responsiveness, effectiveness and efficiency,

accountability, transparency, equity and the rule of law.145

One of the mainstays of early warning functions is reporting

cases detected in countries to the global community. the

World Health Organisation (WHO)146 and the World Organisation

of Animal Health ( OIE)147 are responsible for the official

dissemination of disease information to the international

144 Democratic governance and diverging pathways to more inclusive societies 2013 year in review pdf pg 35145 ibid at {143}146 www.who.int/en/147 rpawe.oie.int/

45

community for diseases of humans and for animal diseases,

including zoonoses, respectively.148 Both WHO and the OIE work

closely with the national competent authorities under legally

binding frameworks, respectively the International Health

Regulations ( IHR) for WHO149 and the Terrestrial and Aquatic

Codes for the OIE.150

The revision extended the scope of diseases and related health

events covered by the IHR to take into account almost all

PHEIC's151, irrespective of their source and nature.

The revised regulations were adopted in 2005 A decision

instrument described in Annex 2 of the IHR (2005) is used by

Member States to decide whether an acute public health event

requires formal notification to WHO. 152

Within the operational document annex 2 it explicitly says any

potential international public health concern including those

unknown causes or sources and those involving other events or

148rpawe.oie.int/fileadmin/doc/eng/Recommendations/Third_OIE_Global_AW_Conference_in_Kuala_Lumpur_2012.pdf149 whqlibdoc.who.int/publications/2008/9789241580410_eng.pdf150 rpawe.oie.int/fileadmin/doc/eng/Advocacy_document/Advocacy_document.pdf151 Public Health Emergency of International Concern152 WHO-OIE OperatIonal FrameWork for Good governance at the human-animal interface:pg 3 part 2.1

46

diseases than those listed (T.B. is not listed) shall lead to

the utilisation of the algorithm.153 This is the tool which

places set procedures and protocols to be followed by public

health and veterinary services at national level. This tool

specifically asks the question whether the public impact of

the outbreak is serious.154 Even if the event is not unusual or

unexpected, if there is significant possibility of

international spread then this disease has to be notified to

WHO.155 Hence despite good intentions at top level treaty

level as the application of law makes its way down to national

level technical problems with that application emerge. The

very specific part which concerns this work is the absence of

protocols in place to deal with Tuberculosis by public health

and veterinary personnel at national level, which leaves an

ethical deficit of implementing the terms of relevant

treaties, and this is dealt with below..156

The ethical deficit occurs when it is considered that the

procedure for disease listing as outlined in Articles 1.1.2,

153 ibid at {148}154 ibid at {148}155 ibid at {148}156 ibid at {148}

47

1.2.1 and 1.2.2 of the Terrestrial and Aquatic Codes (2013) is only

partially done, despite having more knowledge to hand.157. This

procedure identifies two channels for listing as an OIE

notifiable disease: in the first case, the international

spread of the agent must be proven in order to be classified

as an OIE-listed disease; in the second case, the infection or

infestation must be classified as an emerging disease.158159

To date m.b. T.B. is the most pressing notifiable disease in

England and as evidence will show it is also likely to be

underestimated. 160

Certainly there has been cooperation at scientific level both

internationally and national government agency level with

regards to disease surveillance. There has also been

collaboration working on genetic mutations, vaccine

development, multi drug resistance and extreme multi drug

resistance in relation to Tuberculosis in most of its forms.161

157 One vector the meles meles has not been addressed158 The International Health Regulations (IHR, 2005), Articles 5 and 13159 G20 Ministerial DeclarationAgriculture Ministers, June 2011160www.oie.int/wahis_2/public/wahid.php/Reviewreport/semestrial/review?year=2014161 www.oie.int/wahis

48

According to OIE this should translate into concrete actions

that improve governance mechanisms, develop and promote

policies, design and implement systems and processes,

strengthen surveillance and response capacities, and target

investments at the national, regional or international level.162

In practice this is very far from the truth, even in a

developed country such as England to date the issue of T.B. is

dealt with separately by government departments.163 This in

turn leads to the missing of valuable opportunities to create

a system which properly deals with a category 3 disease. A

deficit in both practical and ethical terms. This author

participated in the discussions of the government led Cheshire

Tuberculosis Eradication Action Group (TBEAG), discussions.

TBEAG then informed the government strategy for the control of

m.b. T.B. however there was no public health input.

The absence of a public health interest on the forum panel of

technical representatives was noted and questioned. There was

162 ibid pg 5 and pg 6163 The Tuberculosis Strategy and the Bovine T.B. Strategy documents are dealt with by two separate department there are no cross references.

49

no answer given as to why the public health interest was not

represented.

The top level good intention of producing a joint strategy to

eliminate a contagious disease simply did not appear. at local

level.164 Specifically it can be argued this does not satisfy

International Health Regulations, WHA54.14 on global health

security: epidemic alert and response.165 In turn this creates

an absence of ethical consideration to the very people

intended to benefit from the formation of these treaties.

The British government166 appears to have failed to implement

the good practises intended and agreed to at international

level and then applied them to local level. Instead they have

been applied at international interagency level and some

national agency level.167 More work needs to be undertaken to

provide infrastructure at local interagency level between

animal and public health which in turn is disseminated to

local TBEAG Forums (or similar) for further discussion, 164 This author was an invited member of the stakeholder discussion group165 www.who.int/quantifying_ehimpacts/publications/preventingdisease.pdf166 Sometimes this can be the political government and sometimes the civil service another study is indicated to decide where exactly inertia lies at any one point intime.167 ibid at {160}

50

dissemination of new information and future planning. Indeed

Wellington et al express their frustrations that the assay

which can be used to establish wildlife disease status has yet

to be provided to farmers.168

This then provides strong evidence that good governance and

law is developed from the ground upwards and not top down.169

That strategies must be put in place by local involvement and

local management which is staffed by local relevant

professionals and technically qualified personnel, who

understand the disease as it presents in their area.

Globalisation good intentions must translate into effective

local solutions to eliminate disease and answer the ethical

deficit..

Further the idea of one medicine one health is an old one and

still valid today. In the 19th century as cities developed

post industrial revolution there was an urgency for the

connections to be made between animal health and human health.

168 Professor Elizabeth Wellington and Dr Orin Courtenay A Novel Way to Detect Infection Status of Wildlife likely to have BovineTuberculosis (‘Badger Infection Forensics’) 2010 University of Warwick. Professor Wellington was tasked by the government to develop this test.This has been done and passed by the OIE published 2011 169 ibid at {137}

51

Documents from Hansard more than demonstrate the urgency

applied to create an overarching infrastructure of animal and

public health. 170171172Health was looked at in the round.

In the 21st century that idea is now being revisited. In the

21st century The Welcome Trust was the initial promoter of the

idea of One Medicine One health. Since July 2006 there has

been a number of conferences and workshops. However there has

been a focus on Avian and Human influenza by reason of the

grants given to the OIE by the E.U. and others and this has in

turn led to that being the focus of much research.173 While it

is not suggested that research into T.B. is a cinderella area

it is not specifically named within the decision instrument

for the assessment and notification of events that may

constitute a public health emergency of international

concern.174 Research would suggest that a pathogen capable of

genetic mutation175 is just that, and may well benefit from

explicit inclusion.170 Hansard Hours of labour in factories. lord ashley commons — march 15, 1844 171 Hansard Quarantine laws and regulations. mr john bowring commons — july 23, 1844 172 Hansard Supply—navy estimates. lord clarence paget commons — february 24, 1862173 WHO-OIE Operational Framework for Good governance at the human-animal interface:Bridging WHO and OIE tools for the assessmentof national capacities acknowledgments.174 WHO Guidance for the Useof Annex 2 of theINTERNATIONAL HEALTH REGULATIONS (2005)175 www.who.int/tb/challenges/mdr/mdr_tb_factsheet.pdf

52

The Convention on Biological Diversity (CBD), known informally

as the Biodiversity Convention, is a multilateral treaty.176

The Convention has three main goals conservation of biological

diversity, sustainable use of its components and a fair and

equitable sharing of benefits arising from genetic

resources.177 In other words, its objective is to develop

national strategies for the conservation and sustainable use

of biological diversity.

It is often seen as the key document regarding sustainable

development.178 Culling of cattle has impacted on genetically

diverse stock bulls.179

In addition Article 9 of The International Treaty on Plant

Genetic Resources for Food and Agriculture concerns as its

name suggests control over plants genetic material. 180 This

article in particular within this treaty defends the farmer

against outside interference and at the same time values local

176 www.cbd.int/177 ibid at {175}178 ibid at {175}179 www.rbst.org.uk/Our-Work/Gene-Bank180 Human Rights Review 2012

53

knowledge about the delicate ecosystem which the farmer

inhabits.

According to Argumedo and Pimbert181 In practical terms,

effectively protecting farmers’ rights and role in the

conservation and improvement of PGRFA, requires in situ measures,

through special landscapes known as “Indigenous Biocultural

Heritage Territories”. These territories protect farmers’

rights by strengthening local institutions, protecting farmer

seed and knowledge systems, and providing legal security over

land and resources. They are

managed by indigenous communities themselves, in accordance

with customary laws. They ensure local food security and

livelihoods, and encourage farmers to experiment, adapt and

innovate.

They increase opportunities for farmers to engage in both

monetary markets and non-monetary markets such as barter and

local economies based on solidarity and equity principles.182

The opportunity to work within finely tuned ethical 181 Implementing Farmers’ Rights under the FAO International Treaty on PGRFA:The need for a Broad Approach Based on Biocultural Heritage Paper prepared for the Fourth Governing Body of the International Treaty on PGRFA, Bali 14-18 March 2011182 cooperatives are a good example here

54

considerations of repaying a good deed is a matter for the

community concerned. Conversely society outside the community

who force their own values on that community without providing

good evidence based scientific reasoning are likely to be

considered unethical in their methods.183

In practical terms when expensive stock bulls are lost to

m.b.T.B. this also has an impact on genetic resources

available. Not all bulls have frozen semen and newer stock

bulls may not yet have semen saved. The stock bull cannot

easily be replaced by frozen semen, in addition a number of

heifers will require covering by bulls for successful

conception. 184

There is a possibility of a challenge to the state's

requirement to cull cattle causing harmful social and economic

disbenefit to farmers but not to euthanise or otherwise manage

diseased wildlife.185 These further steps to protect genetic

resources from animal breeding programmes would be a natural

183 Animal rights groups who are inexpert in farm animal welfare but attempt to persuade government nevertheless.184 www.rbst.org.uk/Our-Work/Gene-Bank185 Yet other wildlife is managed to mitigate negative effects by either removal or euthanasia

55

progression of this Treaty. Should this happen requirements

similar to Article 9 would protect many years of breeding work

and the state would have a duty and responsibility to ensure

that adequate disease control by the state of a artificial

protected wildlife species did not encroach on genetically

valuable herds. Much of the underpinning principles to support

this are already in place.

Other legal provision may assist the farmer to defend their

rights is Protocol 1 Art.1 of the European Convention on

Human Rights provides for peaceful enjoyment of possessions.

However Article 2 provides for the state to exert controls in

the general interest or to secure taxes or other payment due.

In this instance is it possible for the farmer to argue That

Protocol 1 Art.1 applies although it could be argued it is the

public interest to cull the farmers cattle the question

surrounding this is the states action proportionate.186 The

cattle may be culled but the state should not interfere in the

wider business of the farmer.187

186. Snook, H 2007. Crossing the threshold: 266 ways the state can enter your home, London: Centre187 When the farmer is unable to move cattle to better pasture it causes welfare problems for the cattle and financial problems for the farmer unable to sell cattleanywhere other than a red market which has financial penalties attached.

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If the states actions does so, then the farmer could argue

that its actions are disproportionate. The burden for disease

control falls on one group of society; at the same time

another lobbying group sways government opinion to continue

this policy while ignoring other reservoirs of disease.188

The farmer may further argue that there is disproportionate

attention paid to a group or class that does not incur

financial hardship189 as a result of an uncontrolled disease in

wildlife and that over consideration of a group190 that does

not bear such hardship is unethical.. A further claim to an

disproportionate state interference can be made if its

governments intention to make farmers pay for a statutory duty

of the state namely m.b.T.B. testing of cattle.191 Further if

it is governments intention to .make the farmer pay for all

testing and curb compensation for the beast lost and not

compensate for the time it takes to test or the restrictions

188 Professor Elizabeth Wellington and Dr Orin Courtenay A Novel Way to Detect Infection Status of Wildlife likely to have BovineTuberculosis (‘Badger Infection Forensics’) University of Warwick 189 Mani A,  Mullainathan S, Shafir E, et al. Poverty Impedes Cognitive Function, Science. Published online August 30 2013190 The Badger Trust191 www.bovinetb.info/cost_of_testing_and_compensation.php

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placed upon trading if disease is found, that may lead to

further strengthening of the lack of proportionate treatment

under Protocol 1 Art. 1.192

under Article 8Farmers could find further support from Article 8 of the Human

Rights Act193. This Act provides the right to respect for

private and family life, home and correspondence. It protects

the private life of individuals against arbitrary interference

by public authorities and private organisations such as the

media. It covers four distinct areas: private life, family

life, home and correspondence.194

Article 8 imposes two types of obligations on the state and

public authorities:• a negative obligation not to interfere

with an individual’s private life, family life, home and

correspondence • a positive obligation to take steps to ensure

effective respect for private and family life, home and

correspondence, between the state and the individual, the

individual and private bodies, and between private individuals

192 Human Rights Act 2000193 ibid at {191}194 Description required for those not conversant with law and serves as a reminder to others

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through law enforcement, legal and regulatory frameworks and

the provision of resources.195

The UK’s obligations

Article 8 also provides a framework for monitoring the

gathering and retention of personal data. It is designed to

ensure that the right to keep personal data from being

disclosed to third parties can be balanced against legitimate

aims of a democracy, such as crime prevention or the economic

wellbeing of society. Types of data that would fall within

the scope of Article 8(1) include census information and ID

schemes. It may be argued that any data that could identify an

m.b. T.B. outbreak on a farm to the public or third party may

constitute a breach of the of the farmer rights to privacy on

whose land the outbreak has occurred, this would provide a

contradiction with Article 10 to be discussed in a later

section.

Article 8 is a qualified right, so in certain circumstances

public authorities can interfere with the private and family

life of an individual. These circumstances are set out in

Article 8(2). 195 ibid {at 191}

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Such interference must be 'proportionate', in accordance with

law and necessary to protect national security, public safety

or the economic wellbeing of the country; to prevent disorder

or crime, protect health or morals, or to protect the rights

and freedoms of others.

Within the case of Huang and Kashmiri.196 the case of Edore197

is quoted where the immigration adjudicator is allowed to make

the decision of what is proportionate with all factors

considered. There is no such adjudicator with Tuberculosis

testing. If there were an adjudicator type of person, this

person may well be the veterinary personnel present who makes

the decision re the culling of diseased cattle.

However this person cannot consider the overarching financial

impact on the farmer unable to sell healthy cattle except to

slaughter . Currently the regulation only considers the cost

of the beast killed.198 There is no attempt to consider

proportionality in any other way.

196 SI 2009/2999 Huang v Secretary of State for the Home Department, Kashmiri v Secretary of State for the Home Department [2007] UKHL 11 [2007] 4 All ER 15 [2007]5 LRC 320 [2007] All ER (D) 338 (Mar) Halsbury's Laws of England 61 (5th), 618 69 (5th), 879 197 In Edore v Secretary of State for the Home Department [2003] EWCA Civ 716, [2003] 1 WLR 2979, para 20,198 www.bovinetb.info/cost_of_testing_and_compensation.php

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Here the proportionality test may well be satisfied if all

factors surrounding the control of Tuberculosis is considered

and the financial costs to the business and farmers welfare

considered in the round. The obligations placed upon the

state by the European Convention on Human Rights passes on to

all public authorities and this includes DEFRA.199

Further it can be argued obvious examples of interference with

one’s home would include a search of the premises, the

occupation of one’s house and land, and emissions or smells

which prevent someone from enjoying their home. The applicants

in Guerra v. Italy200 lived approximately one kilometre away from a

chemical factory which made products which were classified as

high-risk.201

The European Court of Human Rights found that Italy had failed

to take steps to ensure effective protection of the

applicants’ it had failed to provide residents with essential

information that would have enabled the applicants to assess

199 The Human Rights Act 2000200 Guerra and Others - v- Italy; ECHR 19-Feb-1998201 ibid at {199}

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the risks they and their families might run if they continued

to live in their homes which were exposed to danger in the

event of an accident at the factory.202

The m.b. T.B. pathogen is contagious via aerosol inhalation

among other routes of transmission and hence is similar to the

production of a dangerous gas.203 So for example a farmer being

forced to live with diseased badgers whilst his cattle are

culled for having the same disease may be dealt with under the

consideration of whether that is proportionate and whether

only partial action of culling diseased cattle whilst keeping

alive diseased wildlife is in the best interest of public

safety.204 Further, walkers in a diseased area keeping to a

path near their home at risk of taking m.b. T.B. into their

homes via shoes being worn or via the pet dog or cat. The

state may have a duty to provide information as to the risk

they may be taking under Article 8 . They may be able to ask

for information on the disease status of setts in their

202 ibid ar {199}203 An abbatoir worker in Uttoxeter Staffordshire died from m.b. T.B. as a result ofexposure to arerosol inhalation May 2013204 This may only work at the level of building public opinion concerning the need for more disease control. Badger setts with m.b. T.B. can now be determined by a assay test as per Wellington (2007).. Environmental monitoring of Mycobacterium bovis in badger faeces and badger sett soil . Appl Environ Microbiol. 73, 7471-7473.

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area.205 The owner of a pet contracting m.b. T.B. as a result

of this disease may be able to make a claim against the

government for the failure to supply accurate information with

regards to risk.206 Further in the interests of public safety

people living in rural areas not connected to farming may be

able to ask what the status of diseased wildlife is in the

area so that appropriate provision can be made to protect for

e.g. children from faeces or urine of badgers which may visit

gardens.207 Farmers may also want access to this information to

protect young children or immunosuppressant elderly in their

own families.208

Concerned householders may use Article 10, however although

Article 10 guarantees the right to “receive information”, this

Article does not require the State to provide access to

information which is not already available209

Hence the householder would have to enquire about m.b. T.B.

parishes, movement restrictions and from there any other

205 ibid at {198}206 ibid at {198}207 ibid at {198}208 ibid at {198}209 Leander v Sweden (1987)9 EHRR 433.

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research which may provide pointers to disease prevalence.210

It may well be in the farmers interest to inform the public of

the dangers posed to them.

With proportionality, Hickman, while acknowledging various

different models, identified the most common formulation to

assess proportionality as a three-part procedure. The

reviewing court must consider whether the measure was suitable

to achieve the desired objective, Whether the measure was

necessary for achieving the desired objective, and whether,

even so, the measure imposed excessive burdens on the

individual it affected211

This discussion turns on whether the objective is to stop

diseased milk from being consumed212, or whether it is the

broader issue of m.b. T.B. eradication. The OIE and WHO

principles and obligations suggest government objective is

disease eradication and not just the narrower definition of

disease free milk.213

210 Under Article 10 having knowledge of the right questions to ask appears key to obtaining pertinent information211 Hickman,T “Proportionality: Comparative Law Lessons”, J.R. 31 (2007)212 Disease free milk after all is dealt with through pasteuralisation213 ibid at {145} and { 146}

64

Whether using Hickmans definition of proportionality or by

referring back to the wording of treaty obligations the farmer

is receiving less than fairness in treatment from government.

The problem with Human Rights law is that there is now a

perception it is used by the least deserving members of

society and has subsequently lost reputation.214 Farmers who

are actually having their Human Rights eroded are the least

likely people to want to use this law.215 However this may

not always be the case given new information it is entirely

possible farmers will begin litigation.

Farmers of course work closely with the notion of

responsibilities every day from before dawn and after

sunset.216 Perhaps the scale of inequality with rights due has

tilted the wrong way in the case of the farmer.

Judicial Review as an Instrument 214 www.telegraph.co.uk/news/politics/david-cameron/11674006/Good-name-of-human-rights-has-become-distorted-and-devalued-says-David-Cameron.html215 McPhedran S Senior Research Fellow, Australian Institute for Suicide Research and Prevention, National Centre of Excellence in Suicide Prevention at Griffith University Farmer suicide isn’t just a mental health issue 216 ibid at {214}

65

As the government has signed up for an eradication of m.b.

T.B. and has failed to attempt to deal with the costly

wildlife reservoirs of m.b. T.B. in diseased badger (which is

also detrimental to the badger population) a judicial review

of British government commitments to eradicate217 m.b. T.B. may

be the easier solution. Client earth has just been successful

in its pursuit of judicial review with reference the cutting

of co2 emissions.

A similar group wishing to eradicate m.b. T.B. for a

vulnerable population unwittingly exposed to m.b. T.B. may

answer the problem. This group could potentially argue that

the population of badgers is so large that it is detrimental

to public health, the health of badgers as a species as well

as other iconic species and the environment.

217 content.govdelivery.com/accounts/USDAAPHIS/bulletins/101d17b provides a clear meaning of eradicate in relation to diseased animals

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There is a whole variety of evidence to support that view.

When it was decided that an over population of hedgehogs on

the Hebridean Isles as top species was a danger to rarer bird

species there the hedgehogs were humanely euthanised even

though the hedgehogs were not diseased.218

The destruction of hedgehogs was supported by the RSPB. Yet

earlier the RSPB however could be accused of hypocrisy by a

pro hedgehog group since it objected to the culling of an

overpopulation of cormorants in 2005.219 220

Further evidence that single species have been managed by

society to prevent over population and to enhance the species

own welfare is The Horse Act 2015. Here an over population of

feral equidae has been dealt with by local authorities having

the power to seize and either humanely rehome or humanely

euthanise horses and ponies.221

218 www.theguardian.com/environment/2007/feb/21/conservationandendangeredspecies.219 www.rspb.org.uk/Images/cslmodels_tcm9-132997.pdf220 www.gardenbanter.co.uk/united-kingdom/17501-re-saving-uist-hedgehogs-rspb-snh-slaughter-update.html221 The Horse Act 2015

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The problem would appear that leaving matters of wildlife

management to a single species group creates a unbalanced

consequence for either one species or another or indeed the

wider environment. The health of the environment as a whole

as an ecosystem is indicated.222

The balanced ecosystem is important to human health as

outlined by WHO.223 The government commitment to its treaty

obligations is to organise its response through Natural

England via Entry Level Stewardship schemes or Higher Level

Stewardship Schemes.224

One of the first surveys required to obtain HLS status

concerns the study of flora, insects and other invertebrates.

Invertebrates in particular provide a variety of food to

specific bird feeders including species of ground nesting

birds.225 While public money is spent on these surveys and

then on the maintenance of the flora and habitat which

supports the different species of desired birds this is all

then undermined by the over population of badgers protected by

222 www.who.int/globalchange/ecosystems/en/223 ibid at {221}224 Spotlight on SSSIs Working towards the goals of Biodiversity 2020 Issue 6 – June2015225 ibid at{223}

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other legislation.226 This contradiction of legislation is a

problem. It appears as a mockery of the time effort and

public money which is spent to keep the English ecosystem in

harmony.

Other laws which directly affect the farmer is cross

compliance. The statement by DEFRA in its preamble to Cross

Compliance is enlightening in terms of the documents standing

in law.

'This guide is our interpretation of cross compliance rules.

It is not a definitive statement o the law. Only the courts

can give this..' 227

This would surely suggest that the government wishes to

maintain its own guidance document may not be factual and

indeed may contain interpretive inaccuracies.228 229 230

226 The Protection of Badgers Act 1992227 The Guide to Cross Compliance in England 2014 complete edition228 “Code of Good Agriculture Practice for the Prevention of Pollution of Water”.229 The SSAFO Regulations Guidance Notes for Farmers growers and land managers230

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Cross Compliance rules are also set within a framework of

more than 121 Laws directly affecting the farmer when

attempting to farm in England. Agriculture and hence law are

derogated in Wales, Scotland and N. Ireland and can be quite

different in approach. These laws also include environmental

laws regulated, principally by the environmental agency.231

Cross compliance rules and regulations is central to

government policy on farming.

It is not intended here to compare and contrast these all

these laws as this would require a much bigger project.

However there a number of laws which specifically concern the

management of T.B. in cattle and general farming in

England.232 233

One of the main laws is the EUDirective 64/432/EEC however in

its introduction this directive itself defers to GATT234 agreed

measures to reduce barriers to international trade in animals.

One of these was that the World Trade Organisation would

231 www.gov.uk/government/organisations/environment-agency/services-information232 the Tuberculosis (England) (Amendment) Order 2014.233 Directive 64/432/EEC234 General Agreement on Tariffs and Trade

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recognise the OIE as the body setting animal health standards

and guidelines.

Whilst the OIE possesses no legal authority, scientifically

based justification is required for deviations from these

standards.235236

Other important information specified concerns the national

budgetary allocation for the eradication of bovine

tuberculosis and the breakdown of the allocation. The OIE

considers not enough is spent on zoonosis disease control

across a broad spectrum of diseases.237 At this time it may

also be prudent of a government to begin to understand what

the delay in implementing good measures to eradicate disease

has done to farmers health and welfare. Evidence of this is

beginning to be formalised suitably for its use by the

academic community.238

235 The Modification of Technical Annexes of Council Directive 64/432/EEC to take account of Scientific Developments regarding Tuberculosis, Brucellosis and EnzooticBovine Leucosis236 The OIE passed the none invasive m.b. T.B. test in 2011 hence government can useit as opposed to SCITT237 www.reuters.com/article/2014/12/03/health-birdflu-oie-238 The FAWC secretariat has requested to see this research upon completion

71

Within EU law part of Article 3 of Council Directive

77/391/EEC of 17 May 1977 the objective for each state is to

be T.B. free and that a state should have a plan to eradicate

this disease. The plan must list the measures taken to

accelerate , intensify or carry through the eradication of

bovine tuberculosis. In addition a state should specify the

measures to combat and prevent this disease. 239

Other relevant Law puts in place the regulations by which T.B

testing takes place240241242 Ministers have agreed a number of

priorities for improving compliance with and enforcement of

the controls in place to tackle bovine TB in England.243 This

document merely tightens the regulations on farmers re their

absolute compliance it fails to mention the disease reservoir

in wildlife or the government's commitment to One Health and

239 This Article specifically says eradication and not simply control.240 Tuberculosis (England) (Amendment) Order 2012241 Cattle Compensation (England) Order 2012242 The Individual Ascertainment of value (England) Order 2012243 Bovine TB Eradication Programme for England Compliance and Enforcement Priorities for 2012/13 latest publication

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its implementation, discussion on how to tackle methods of

disease spread via other vectors or to tackling MDR T.B.244245246

What happens is unrelated documents discussing the problem of

T.B. rather like numerous incomplete jigsaw puzzles .

Meanwhile the protection of one disease vector meles meles is

discussed only under legislation on the protection of

Badgers.247 Hence there is clear ethical problems when

considering these particular laws.

One of the most stark contradictions within the suite of laws

is GAEC 3 contamination of groundwater248 this is where slurry

is required to be covered thus preventing overflow when it

rains.249 However in the Villaescusa paper250 among others it is

clear that slurry kept in dark conditions as per environmental

requirements actually contributes to T.B. Due to the T.B. in

244 Multi drug resistant Tuberculosis245 World Economic Forum has placed it alongside terrorism and climate change on itsglobal risk register.246 Although that is touched on in other unrelated documents which will be discussedin a separate section247 “Badgers and bovine TB” DEFRA pdf248 The guide to cross compliance in England 2015249 The Code of Good Agricultural Practices For The Prevention of Pollution of Air Soil and Water DEFRA pdf250 Villaescusa, R Ana (2007) A cohort study of bovine tuberculosis in cattle in South West England. PhD thesis, University of Warwick

73

the covered slurry pit not being naturally killed by

sunlight.251 This means that the unsuspecting farmer as a

requirement of other environmental rules252 can be spraying

contaminated slurry back onto land that his valuable cattle

will graze later on. . Should wildlife interact with T.B.

infected slurry, the cross contamination continues.253 The

farmer has no other option other than to empty full slurry

pits. Dark conditions in Badger setts also create ideal

conditions for the survival of T.B. and create an impossible

environment for the control of a diseased sett by any other

method other than humane euthanasia.254 This is a clear

contradiction between the rules which places the farmer in an

impossible situation.

Further other ethical problems may exist within Cross

Compliance rules which contribute to the farmer being

overwhelmed with contradictory regulation, however setting

this out is too large a project for this paper .

251 ibid at {249}252 ibid at {247 and 248}253 ibid at {247 and 248 and 249}254 In setts where disease is present. Disease status can be established according to the Wellington research

74

In this study SMR1, SMR2, SMR 3, And GAEC 3255 can be seen to

be most important however the other cross compliance rules may

also apply in certain circumstances and this depends on

whether the farm is mixed arable and livestock and what

livestock are kept.

What this study will show is that the rules set out to protect

the environment in one respect actually damage the same

environment and compromise bio security of livestock and hence

animal welfare at the same time. In other words the rules

enable a reservoir of disease to flourish.256

The farmer has no option under the rules to opt out of bad

practice imposed by government. In the main the farmer manages

the complex law which s/he has to follow, law which has a top

down remote feel to it. There is strict liability regardless

of whether the farmer makes an error or the farm is

overwhelmed by flood water. This leads to much anxiety to a

farmer generally trained in the production of food and not the

navigation of complex law. It is argued by organisations which

255 The guide to cross compliance in England 2015 DEFRA256 ibid at {249}

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represents farmers that no other industry has to contend with

such burdensome regulation whilst faced with conditions beyond

his or her control.257

In addition to cross compliance there are nearly 4 pages of

Statutory Orders which Animal Health can draw upon in order to

carry out procedures unrelated to T.B. and could be operated

in conjunction with T.B. provision at their discretion.258 To

further understand the inappropriate application of laws with

reference to m.b. T.B. and m.T.B.we must first look at ecology

and specifically the ecology of disease.

Understanding The Ecology of Disease

To fully understand scientifically why a disease presents now

when it didn't before means a review of the ecology of

pathogens and diseases is necessary in the context of today.

Ecology is the study of the interactions of organisms with

each other and with their environments. Disease ecology is a

branch of ecology which studies the interactions among

257 www.farminguk.com/News/New-MPs-must-back-plans-to-reverse-burdensome-regulation-NFU-urges258 Written document received from Animal Health Shrewsbury as a result of F.O.I request as a result of this author's flock being selected for the National Brucellosis Survey

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pathogens, the animals they infect, and their shared

environment. Whenever an attempt is made to manage human and

animal diseases, to reduce their socioeconomic or their

ecological impacts, it is done by trying to manipulate aspects

of the ecology of those diseases.

Thus, disease ecology is the branch of science that is most

important to people responsible for disease management or

control. The notion of disease ecology often is portrayed as a

triangle of interactions. between host, environment and

pathogen.259260

An example of this is the way The Nipah Virus entered the

human population.261 This was well researched and advice

provided concerning the use of best practice to prevent

another outbreak.262 To date no such evaluation and

institution of best practice has ensued with the case of m.b.

T.B. in the control of the badger population to protect both

food production and the human population in England and

259 Training manual on wildlife diseases and surveillance. Workshop for OIE NationalFocal Points for Wildlife.260 An example of this Nipah Virus in Malaysia, 1998261 ibid at {245}262 Malays J Pathol. 2007 Dec;29(2):63-7.Lessons from the Nipah virus outbreak in Malaysia.Looi LM1, Chua KB.

77

Wales.263 Historical precedence has pointed to when the badger

was seen as a pest and controlled, its potential to infect

domestic animals or humans was low.264 Lower numbers created

more space for the remaining individual badgers where there

was less likelihood of transmission of disease both to clean

badgers and other mammals. Given what we understand about

ecology we then must turn to government policy and strategy to

learn more why despite good up to date scientific knowledge

older practices continue.

Chapter 2

Government Policy on T.B.

Government policy surrounding T.B. eradication and control is

currently found in a number of recent policy documents. There

is both an m T.B. strategy document for human health and a

strategy for the eradication of m. b. T.B. in livestock. 265266

263 Prior to the 1970's m.b. T.B. figures were low to negligable Ministry of Agriculture archived data264 ibid { at 250 }265 T.B. Strategy Public Health Indicators Public Health England March 2015266 The Strategy for achieving Officially Bovine Tuberculosis Free status for England April 2014 DEFRA

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In 2014 the government has produced a statement on the

current disease status of all species of T.B. published by

Public Health England. This is a national report, there are

also certain regional Reports mainly concerning London and

areas of the Southern Counties. There appears to be no

separate reports for the Midlands or Northern English

Counties. As the National Report explains, incidence of all

species of T.B. is not restricted to London and Southern

counties.267 The report has concerns about latent T.B. and

multi drug resistant T.B. and this is exemplified in the

2015 /2020 T. B. strategy. This strategy makes no mention of

the One Health commitments and the local organisation required

to implement treaty commitments. Further it mentions

collaboration but this is only between health agencies and the

voluntary sector within human medicine.268 There is no mention

of the links between

267 There is now monitoring tools county by county which benchmarks incidents of disease and presentation of T.B. using specific categories of research questions. This is in its infancy and the research questions have not been refined sufficiently at this early stage. Failure to ask appropriate questions now may well leave valuable data lost to later evaluation.268 Evidence into action: opportunities to protect and improve the nation’s health Public Health England October 2014opportunities

79

m. T.B. m,b. T.B. MDR and the ability of the T.B. organism to

mutate. 269

The T.B. strategy document highlights the way the disease

presents in England, other home countries in the British Isles

are responsible for the management of their own health budgets

and policy..

It is stated that while 10% had a social risk factor eg a

history of homelessness, alcohol or drug abuse, or

imprisonment this means that 90% did not present with any one

of these risk factors. The above figures should make for

worrying reading not least because the document from Public

Health England does not appear to explicitly discuss the

implications and ethical considerations this picture

represents. There are few details of how this 90% is

tracked.270

Latant T.B. is also described as a problem. Follow up after

diagnosis is not complete although patients are not contagious

269Collaborative Tuberculosis Strategy for England 2015 to 2020 this document givesthe impression Tuberculosis related matters have all been considered. 270 ibid at {264}

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during this time should there be a health trigger they will go

on to be contagious often for sometime before further

diagnosis has been established. Most tests take 44 days

before returning positive. This is concerning, in the case of

people contracting m.b.T.B. from their pet cats271 39 people

were found to have had contact with the nine infected cats,

with only 24 people accepting testing. There was no

compulsary screening or continued monitoring. Two were found

to have active TB in their systems, and are responding to

treatment. There were two additional cases of latent TB,

meaning the people had been exposed to TB at some point but

did not have an active infection (latent T.B. can be triggered

into active T.B. later in life as a result of a further health

related trigger event).272 Analysis of the samples of active

TB from the humans and the infected cats by the AHVLA showed

the M. bovis was indistinguishable.273

271 Gunn-Moore, DA, Gaunt, C & Shaw, DJ 2013, 'Incidence of Mycobacterial Infectionsin Cats in Great Britain: Estimate from Feline Tissue Samples Submitted to Diagnostic Laboratories' Transboundary and Emerging Diseases, vol 60, no. 4, pp. 338-344., 272 www.nhs.uk/news/2014/03March/Pages/First-cat-to-humans-TB-infection-spread-reported.aspx273 https://www.gov.uk/government/news/cases-of-tb-in-domestic-cats-and-cat-to-human-transmission-risk-to-public-very-low. This case report does not mention latent T.B. carriers or those refusing follow up testing.

81

This means that 15 people refused to be tested with unknown

consequences. Further it is not known whether the latent

carriers in this case participated in follow up checks. From

the evidence of this one case this may mean overall incidents

of T.B. and latent T.B. may well be underestimated.274 275 A

further point of concern found within relevant research is the

incidents of MDR T.B. frequently those with the disease arrive

from other countries where MDR T.B. is prevalent this has an

unknown risk factor associated with it in terms of the spread

of the mutated version of T.B. which is untreatable.276

Evidence from communities in North America show that

Tuberculosis is considered a very serious disease and attracts

restrictions of access and movement into and within those

communities.277278

274 ibid at {272}275 www.gov.uk/government/publications/common-animal-associated-infections-quarterly-report-2014 interestingly this outbreak has not been listed in the zoonosis quartely reports for 2014276 Raviglione, M. M.D., and Smith I, M.B., Ch.B.XDR Tuberculosis — Implications forGlobal Public HealthN Engl J Med 2007; 356:656-659February 15, 2007DOI: 10.1056/NEJMp068273277 Thombley, M JD, MPH. Stier,D JD Developing aMenu of Suggested Provisions for State TuberculosisPrevention and Control Laws,” held inAtlanta, Georgia on February 4-5, 2010,278 More work into the legal and ethical problems associated with this is suitable for another project

82

While the Public Health T.B. strategies attempts to build a

regional to local structure including micro local structure

with a number of agencies in England, there is no attempt to

connect and dovetail these efforts with the potential of

unregulated disease in wildlife or the specialist veterinary

services who have scientific evidence concerning that.279

One of the problems with MDR pathogens is that it can jump

species280 which then underlines the need for a One Health

approach. Currently government strategy is silent on these

matters.281

Further salient government policy comes from its policy on

disease prevalence models.282 The health needs of a population

derive from the prevalence of diseases, i.e. the numbers of

people suffering from different types of illness.

Looking only at the numbers of patients currently being

treated for a disease does not show the true prevalence and

impact on the population’s health. At any given time there are

279 T.B. Strategy Public Health Indicators Public Health England March 2015280 Silvia A. Piñeiro, Ph.D.Microbial Food Safety Team (HFV-157)Division of Human Food SafetyOffice of New Animal Drug Evaluation 2010Cartagena de Indias, Colombia pub by U.S. Food and Drugs Administration281 There is no reference to this either in the government's T.B stategy or Bovine Eradication Strategy documents282 www.apho.org.uk/DISEASEPREVALENCEMODELS

83

many people who have a disease but are not aware of it because

they have not yet been diagnosed.283

A robust and well-researched disease prevalence model can help

commissioners to assess the true needs of their community,

calculate the level of services needed and invest the

appropriate level of resources for prevention, early

detection, treatment and care.284

Prevalence models provide estimates of underlying prevalence

derived from population statistics and scientific research on

the risk factors for each disease.

The models can also be used to support case-finding by

identifying those areas where detection rates are low and

targeting enhanced diagnostic activity on them.285 The models

also feature in the PHOs'286 National General Practice

Profiles, which also include the ratio of the measured

prevalence from GP QOF disease register to the expected

prevalence from the models. This indicator helps to identify

under-diagnosis and supports measures for detection (case

283 ibid at {281}284 ibid at {281}285 ibid at {281}286 Public Health Observatory

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finding). Prevalence models and observed vs expected ratios

are also included in NHS comparators, which is available to

registered users only with an NHS email address.287 If a cross

disciplinary approach is to work all professional stakeholders

need to have access to all data and not just NHS

professionals.

Unfortunately even though there is policy on certain disease

types including: Cardiovascular Disease, Chronic Kidney

Disease, Chronic Obstructive Pulmonary Disease, Coronary Heart

Disease, Diabetes, Hypertension and Stroke there is remarkably

no disease prevalence model on T.B.288 There is from March 2015

the development of T.B. Strategy Monitoring Indicators tool

which has been developed by Public Health England to allow

local information about key T.B. monitoring indicators for the

Collaborative T.B. strategy 2015/2020 to be easily assessed.

The indicators will enable users to see how their areas are

performing against other localities and track their

performance overtime.289 What these indicators do not show is

where the monitored people are and what their professions are

287 www.apho.org.uk/DISEASEPREVALENCEMODELS288 ibid at{286}289 T.B. Strategy Public Health Indicators Public Health England March 2015

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and to what extent there is continued spread of disease while

the patient is still contagious.290 Further within the annex of

contributors to this report science and scientists from the

veterinary perspective were absent.291 Reference is also

missing from Wellington et al assay work which provides a none

invasive testing procedure which can also test house dust for

Tuberculosis. This omission despite the evidence for One

Health One Medicine approach being crucial to zoonotic disease

control

Clearly the One Medicine One Health approach is in its very

early days of development and the disease has got a hold well

in advance of any practical measures to halt its spread.292

290 This should be known by PHE even if confidentiality is given. Also none cooperation by the patient is not explicitly included or any control measures whichmay be necessary to protect the wider public's health. The latter point raises many ethical questions and what if any legal tools are available. This is however amatter for another project.291Collaborative Tuberculosis Strategy for England 2015 to 2020 Annexe 3.

Consultees and respondents pg35 Responses to the consultation about the ‘Collaborative Tuberculosis Strategy’ (39), that ran from March to June 2014, were received from 111 bodies including a number from individuals, organisations and multi-stakeholder events. None were from the Veterinary Science Community. Also forexample Professor Wellingtons none invasive assay test which can be used to assessTuberculosis contamination in the human environment via house dust is missing from the references section of the strategy document pg 42 to 45 292 In Africa 20% of cattle have contracted the human form of Tuberculosis for example.

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Government Position Statements

E.U. Statement on m.b.T.B. Eradication

In 2006 the European Commission issued a guidance report which

states alternatives to vaccination should be implemented

without any delay and the role of infected wildlife addressed.

Under the EU funding agreement, the EU would provide up to 50

per cent of the funding for an effective eradication plan.

The report titled Eradication of Bovine Tuberculosis in the

EU. provides key policy decisions of the E.U. 293 This report

states an active approach to the removal of TB-infected

wildlife and the urgent development of alternative means of

preventing transmission of TB from this source to cattle is

proposed.294 In addition it also states it has now been

reliably demonstrated that the persistence of an infected

wildlife reservoir that enters into contact with cattle is a

major obstacle to the eradication of TB.295 Further it clearly

states this obstacle should be addressed in tandem with the

293 SANCO/10067/2013 Working Document on Eradication of Bovine Tuberculosis in the EU Accepted by the Bovine tuberculosis subgroup294 ibid at {292}295 ibid at {292}

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measures implemented in relation to the cattle population.296

While policy exists at E.U. level there is little in the way

of translating this into action as Wellington et al have said

the assays exist to detect whether there is Tuberculosis

present in slurry, badger faeces, cattle faeces, or house dust

but to date this is not being acted upon by the British

government.297 298 It then goes on to say the persistence of TB

in these wildlife populations impedes the effective

elimination of the disease.299 The critical scientific point

here underlines the ethical deficit current apparent when

government deals with this disease.

British Government Strategy to m.b. T.B. in England

Within the approach to m.b.T.B. the following government

strategy has been put in place where it sets targets by which

296 ibid at {292}297 E. M. H. Wellington.et al). IsMycobacterium bovis in the environment important for the persistence of bovinetuberculosis? Biology Letters 2: 460-462. Doi: 10.1098.rsbl.2006.0468298 Travis Emma R.; Gaze William H.; Pontiroli Alessandra; et al. 'An Inter-Laboratory Validation of a Real Time PCR Assay to Measure Host Excretion of Bacterial Pathogens, Particularly of Mycobacterium bovis', (2011) PLoS One, 6 (11), (1932-6203) 299 Eradication of Bovine Tuberculosis in the EU.pdf

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we can measure progress towards achieving OTF300 status for

England.

The Strategy is comprehensive using all available tools to:

contain m.b.TB in the high risk area and progressively reduce

its spread, thereby increasing the number of m.b.TB-free

herds, maintain the commercial viability of herds in the high

risk area, maintain consumer confidence and exports without

undermining the detection and control of m.b.TB, reduce the

risk of spread of the m.b.TB to currently free areas, rapidly

find and eliminate m.b.TB wherever it occurs, reduce and

eliminate the spread of TB from badgers, identify and apply

management practices that minimise transmission risk within

herds, deploy market measures, regulation, incentives and

deterrents to reduce the risk of disease spread due to

movements.301302

The Secretary For DEFRA also states that the Strategy will

simply not work without addressing the reservoir of TB

infection in badgers.

300 Officially Tuberculosis Free301 The Strategy for achieving Officially Bovine Tuberculosis Free status for England April 2014 DEFRApdf302 The Tuberculosis (England) Order 2014 No. 2383

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The option of using injectable (sic) badger vaccine has been

available since 2010.303 According to DEFRA, it is estimated

that a third of badgers in endemic areas are infected with TB;

it is known that the vaccine does not cure them and that they

remain free to spread TB. Despite the fact that injectable

badger vaccination does not entail all the licensing criteria

landowners must meet to carry out culling, there has been no

widespread deployment either by farmers or NGOs. This may be

because vaccinating badger kits underground, the best

candidates for vaccination, is an almost impossible task.304

Research suggests that a BCG vaccination programme would

assist to protect badgers from the pathogen and would remove

the need for humane euthanasia.305 For vaccination to work a

substantial number of individuals would have to be caught and

injected. The practicalities of this could be the real

problem. Indeed would that procedure be humane to a wild

animal or is it appeasing a misplaced anthropomorphic

sentiment. 303 Robinson P et al BCG vaccination against tuberculosis in 1 European badgers (Meles meles): a review a Department of Agriculture and Rural Development, Veterinary Epidemiology Unit, NIreland304 ibid at {302}305 BCG Vaccination Reduces Risk of Tuberculosis Infection in Vaccinated Badgers andUnvaccinated Badger Cubs Stephen P. Carter et al Published: December 12, 2012 DOI: 10.1371/journal.pone.0049833

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When the pet cats were humanely euthanised earlier last year

there was public acceptance that this was the only immediate

solution. The BCG vaccine itself is not infallible and does

fail in people 306307 308309the question becomes is the cost and

difficulties associated with vaccination of a wild animal to

be its down fall. Human adults in particular do not respond

well to vaccination. Indeed BCG vaccination has between a 0%

and 80% success rate. Certain strains of M. tb are more

virulent than others and BCG vaccine efficacy is impaired in

mice infected with these high-virulence strains310 It would be

difficult to know which strain is evident in each sett without

testing and should it be assumed that it was a BCG susceptible

strain according to a field study in Gloucestershire, 24% of

badgers still tested positive to a blood test for T.B. after

vaccination.311

306 www.thetruthabouttb.org/tb-stories/amy/307. Poyntz Hazel C Non-tuberculous mycobacteria have diverse effects on BCG efficacy against Mycobacterium tuberculosis Tuberculosis Journal 23rd December 2013pdf308 Abebe, F. and Bjune, G. The emergence of Beijing family genotypes of Mycobacteriumtuberculosis and low-level protection by bacille Calmette-Guerin (BCG) vaccines: is there a link?. Clin Exp Immunol. 2006; 145: 389–397309 ]Lopez, B., et alA marked difference in pathogenesis and immune response inducedby different Mycobacterium tuberculosis genotypes. Clin Exp Immunol. 2003; 133: 30–37310 Dr. Lee Riley, professor of epidemiology and infectious diseases at UC Berkeley's School of Public Health Gene mutation leads to super-virulent strain of TB Proceedings of the National Academy of Sciences, Dec. 8 2003311 BCG Vaccination Reduces Risk of Tuberculosis Infection in Vaccinated Badgers andUnvaccinated Badger Cubs Stephen P. Carter et al Published: December 12, 2012 DOI: 10.1371/journal.pone.0049833

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A vaccine would not, guarantee that all vaccinated animals are

fully protected, and some may still contract the disease and

this still leaves the possibility of the further mutation of

the pathogen.312 Another major problem is the practicalities of

injecting enough badgers. Also badgers can only be vaccinated

successfully if disease free, this means that newly born kits

are the best candidates for vaccination. These young badgers

are exactly the vaccination candidates that stay underground

away from the traps set.313 314Vaccination cannot cure T.B. and

as per the cases of the pet cats with m.b. T.B.315 the only

solution is humane euthanasia.316 Further should all badgers

be vaccinated successfully how would we know the extent of

that success and would we become complacent about a disease

that has the capacity to mutate317. These are both the

scientific and ethical questions surrounding the use of

vaccination programmes with wildlife, where vaccination can

lead to a deadlier strain of Tuberculosis emerging.318

312 World Economic Forum has placed antibiotic resistance alongside terrorism and climate change on its global risk register.313 ibid at {259}314 This is also understood and commented throughout the governments own m.b. T.B. strategy315 www.bbc.co.uk/news/health-26766006 pet cats catch Bovine T.B.316 Bovine tuberculosis in domestic pets What this means for you pdf317 ibid at {309}318 The Riley results were unexpected because prior studies pointed to the mce1 operon, the collection of genes that researchers disabled in the TB bacteria, as animportant virulence factor that helped the organism invade cells. Researchers

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Based on first veterinary principles and supported by

modelling, it is expected culling is more effective than a

badger vaccination programme; continuing the policy of badger

culling in endemic areas learning lessons from the pilots in

2013.'319 Despite this there has not been any roll out of

culling and that leaves an ethical problem.

The ethical problem created concerns farmers and vets who are

put in danger by large animals which dislike being injected.

both injuries and deaths have occurred using the current

method of T.B. testing320. Further ethical problems arise with

the government does not inform farmers that an alternative

safer method of testing is available.321

expected that mutating the mce1 genes would impair the pathogen's ability to infectthe mice. Instead, the bacteria became more deadly.319 The Strategy for achieving Officially Bovine Tuberculosis Free status for England April 2014 DEFRApdf320 SCITT321 Wellington et al A Novel Way to Detect Infection Status of Wildlife likely to have BovineTuberculosis (‘Badger Infection Forensics’) REF 2014 pdf This report also says the noninvasive test devised by the Wellington team has been passed and used by VisaVet (European Centre for Veterinary Health, EU Agency) The Irish government, The Tanzanian veterinary service, and after a workshop accepted by DEFRA 2013. DEFRA have simply not rolled it out to farmers who are forced by law touse the more dangerous test

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The possible problem from governments point of view is that

once the sensitive test is used the incidence of all types of

human and bovine T.B. will be made clear. This in turn may

mean that a substantial part of the wildlife is now infected

probably via the host animal meles meles.

This also may mean that the cost of clearing the country of

this disease becomes huge both in monetary and political

terms. Nevertheless the tide of newly acquired information

cannot be turned back and a government will have to face

consequences perhaps both of judicial review or claims of

negligence and from many more different sections of society as

well as farmers.322...

Other stakeholders position statements

The Farmers

Farmers groups have pointed to the lack of roll out of all

sections of the Bovine T.B. Eradication Strategy. However

this will only partially answer the problem. A complete 322 Claims may gain more political momentum and success via a public enquiry than success through tortuous liability in the first instance. Were farmers deaths necessary when a simpler testing regime for cattle passed by the OIE was availablefrom 2011

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review of Environmental Laws, Bovine T.B. Regulations, The

Animal Health Act and Animal Welfare Law is required to

address the contradictions now to be found within these

laws.323 324

Farmers groups also point out the lack of consultation with

regard to the recent sentencing guidelines public consultation

process where the CPS met with a ideological positional group

of lawyers in London325 326but failed to meet anyone outside

London other than magistrates.327

The ethical deficit in the way Sentencing Guidelines were

prepared without all stakeholder involvement is stark.

Further the result of the partisan consultation is that

farmers face strict liability regardless whether the slurry

pit was overwhelmed by rain water or flood328 or whether the

event was by human error.329 The ideological positional

323 Contradiction: potential cross contamination by diseased slurry kept in dark conditions as encouraged by cross compliance rules324 Contradictions between Animal Welfare Law and m.b. T.B. testing regulations and testing protocol325 UKELA326 Some selected London based stakeholders were consulted, but none regionally Indeed some London based meetings were cancelled through lack of support.327 As a result of an F.O.I. request with the CPS letter of reply dated 14th February 2014328 This attracts a low/no culpability tariff even though the event was out of control of the farmer329 the two circumstances are not distinguished

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Environmental Lawyers Association (UKELA) was given a preview

of guidelines at a meeting in London330 The meeting involved

the CPS331 and UKELA. The CPS failed to mention this was going

to happen when asked about previews of information and the

appearance of preferential treatment332333.334 This not only

shows preferential treatment of one stakeholder over against

others consulted in London, but the complete absence of

regional stakeholders. On both accounts there is an ethical

deficit. There is also an ethical deficit in the way the CPS

sought to curtail who it was going to consult with on the

grounds of cost.335 A good example of an organisation who

should have been consulted with is The Agricultural Lawyers

Association either in London or regions. Other obvious

organisations not consulted is the Scientific groups such as

The Wellington team who could supply both verifiable and

reproducable (sic) data on environmental routes of

contamination and hence the implications for Sentencing

Guidelines.

330 27th February 2014331 The actual name of the CPS representative is inhand332 replies to Freedom of Information requests333 This author was provided with the information surrounding this preview by the UKELA 334 The C.P.S. also failed to consult the Agricultural Lawyers Association 335 ibid at {325}

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According to the Farmers Union the experience of other

countries shows that when the disease is dealt with in the

wildlife “host” at the same time as the cattle, it can be

beaten.'336 This provides ethical concern when a partisan

ideological approach to law continues into the treatment

of disease.

Farmers further point out financial problems occur where a

farm is shut down for long periods of time and there is

currently no compensation offered for this. It is this

financial hardship which has caused depression and suicide

among farming communities.337 338

The Farming Advisory Welfare Committee

336 Minette Batters for The NFU 27th May 2015 scientific review that supports this is found elsewhere337 Mani A,  Mullainathan S, Shafir E, et al. Poverty Impedes Cognitive Function, Science. Published online August 30 2013338 www.griffith.edu.au/health/australian-institute-suicide-research-prevention/news-events Suicide is more than a mental health issue.presentation by Samara McPhedran Australian Institute for Suicide Research and Prevention, National Centreof Excellence in Suicide Prevention at Griffith University

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The Farming Advisory Welfare Committee undertook to obtain

opinion on the association between Animal Welfare Law and the

Health and Well Being of farmers.339 When the secretariat was

asked why m.b. T.B. testing and the health and welfare of

farmers was not included in current consultation the answer

was the Farming Community Network was dealing with this. A

simple review of the FCN website shows that this is a website

offers practical advice and does not undertake research of its

own.340 This means that the knowledge they have concerning

farmers situation is kept to itself. While confidentiality

has its place, a government organisation needs to have

knowledge of the effect of any laws upon the farmer and

his/her wellbeing.

Keeping confidentiality while publicising the effect of laws

is an ethical dilemma, however there are technical ways of

complying with these issues whilst also reporting the effects.

A government organisation such as the FAWC is best placed to

do this and the research concerning the law surrounding m.b.

339 FAWC's report into Animal Welfare and The Farmers Health and Well Being pdf340 http://www.fcn.org.uk/resources

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T.B. and the effects of the health and wellbeing of the farmer

must return to that organisation so that research can be

effectively reported to a wider audience.

Position statement from The Badger Trust

The Badger Trust points to The Protection of Badgers Act 1992

and alleges an increase in prosecutions of badger related

offences as a result of pilot culls in its position

statement .

Perhaps the most interesting part of this statement341 is the

inaccurate assumption that the countryside is owned by the

state or the public. This is not the case the countryside is

a rural industry landscape which is largely privately owned by

businesses engaged in food production342. The responsibilities

341 The badger Trusts open letter to Elizabeth Truss Secretary of State For The Department of The Environment Food and Rural Affairs342 In 1908 only 12 percent of agricultural land was worked by owners; the bulk of it, 88 percent, was farmed on atenancy basis. By 1972 the owner-occupied share of farmland had risen to 56 percent,

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of that land and its upkeep falls entirely on the shoulders of

the owner and not the state or the public. The public do not

pick up the bill for lost business and hence income.343

Ethically if the public were made responsible for the cost of

allowing diseased wildlife to roam without check, assuming

that is what the majority of public wants, that would be the

way forward.

Another legal tool which may be employed but in a novel way is

a person's general negligence-based tortious duty which is to

refrain from unreasonably causing damage to another person or

others' property. Here liable for damage occurs when it was

reasonably foreseeable that an action might cause such damage

to a person of a class to which the claimant belonged. 344

As such, the law of negligence similarly requires a minimum

standard of care whenever it is reasonably foreseeable that

conduct might injure another, thereby protecting people from

injury.345

343 www.gov.uk/compensation-for-animals-culled-to-control-animal-diseases344 ibid at {40}345 ibid at {40}

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This may apply to those badger supporters who by mistake

believe they can protect the badger often by sitting on a

badgers sett. In fact they could be creating damage by cross

contaminating the disease free badger sett and other sites by

walking through contaminated faeces and urine first. Given the

accepted scientific assay available to provide a conclusive

test as to where Bovine Tuberculosis is located, evidence,

could be proven by the testing of boots and clothing using the

same test.346347 It is not assumed that all badger groups once

they realise the possibility to distinguish the diseased

badger sett from the healthy sett would want to damage the

very animal they support and would wish no harm. Other

individuals may need further persuading using legal penalty.

Veterinary Perspective

The main guiding principle for the veterinary personnel is

first do no harm.348 The ethical question for veterinary

personnel is the T.B. test of value if the animal is a beef

animal going straight to slaughter. Health checks on the

carcass post mortem distinguish between healthy and unhealthy

346 via using the Wellington assay test347 or a photograph of a group being in the area of a diseased sett348 See www.rcvs.org.uk at “Veterinary Surgeons>Education”.

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sections of carcass in any event, and regardless of any known

health event whilst the animal was still alive. Unhealthy

parts of a carcass are dyed unfit for human consumption and

discarded.

The ethical question for the veterinary personnel is when

another none invasive test is available, is it ethically

correct to continue with the invasive test which is also

inappropriate for unhandled cattle, and especially so for

cattle moving straight to slaughter.349 Indeed veterinary

personnel not only face a personal ethical dilemma, but

potentially could be sanctioned by their own professional

organisation if they continue to use the invasive SCITT

procedure when another none invasive method is readily

available.350 The ethical consideration has a backdrop injuries

and deaths of farmers and multiple injuries to veterinary

personnel sustained during m.b.T.B. testing procedures using

SCITT.

349 Discussions with veterinary surgeons suggest this is an area of concern350 This is unlikely if a commonsense approach is employed however it is an area of consternation for the veterinary professional

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The Role of Science

The role of science is pivotal in this study. Scientists by

their very nature are sceptical of anything new or novel.

They demand rounds of tests not only of the new procedure but

also tests which test the test.351352353354355356357358

351 Young, J. S., Gormley, E. and Wellington, E. M. H. (2005). Molecular Detection ofMycobacterium bovis and Mycobacterium bovis BCG (Pasteur) in Soil. Appl. Environ.Microbiol. 71, 1946-1952. 2005 ibid at {259}352 2) Courtenay O., Wellington E. M. H. (2008). Mycobacterium bovis in the environment:Towardsour understanding of its biology. Cattle Practice. 16, 122-126.353 ibid at (310)354 Courtenay O, Reilly LA, Sweeney FP, Macdonald DW, Delahay RJ, Wilson GJ, CheesemanCL, Keeling MJ & Wellington EMH. (2007). Limitations of targeted badger culling based onthe detection of environmental Mycobacterium bovis. Vet. Record 161, 817-818. 355 Sweeney F. P., O. Courtenay, V. Hibberd, R.G. Hewinson, L.A. Reilly, W.H. Gaze and E.M.H.Wellington (2007).. Environmental monitoring of Mycobacterium bovis in badger faeces andbadger sett soil using real time PCR, confirmed by immunoflourescence, immunocaptureand cultivation. Appl Environ Microbiol. 73, 7471-7473. 356 Pontiroli, A., Travis, E. R., Sweeney, F. P., Porter, D., Gaze, W. H., Mason, S., Hibberd, V.,Woodbine, K., Holden, J., Moore, S., Courtenay, O., Wellington, E.M.H. (2011). MultioperatorDNA extraction trials lead to improved quantitation of Mycobacterium bovis in theenvironment. PLoS One 6 (3):e17916. 357 ibid at (311)358 Tuberculosis epidemiology and novel transmission routes in rural Tanzania. NIHInternational Collaborations in Infectious Disease Research (ICIDR) U01. RFA-AI-09-010(2010-2014), US$3 mln. Joint with University of California, San Francisco; SokoineUniversity of Agriculture; Muhimbili Medical Research Center, Tanzania. PI Wellingtonhttp://projectreporter.nih.gov/project_info_description.cfm?aid=7901697&icde=17402708

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Once round upon round of such testing protocols have been

completed and accepted by the international body of scientists

which govern the procedure, a signatory state, is able to

implement that procedure.

Science and political will are thrown into sharp contrast when

there is inaction by the state concerned. Inertia by the

state merely means problems surrounding disease and disease

control increase. Strategy documents in themselves are merely

words without further action on all parts of the document.

Lack of will or inertia of any description lets down good

scientific work and lets down the society which has asked a

government to act to eradicate a particular disease in this

case m.b. T.B. and m. T.B.

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Chapter3

Recommendations

1) The replacement of the invasive SCITT with the none

invasive assay testing procedure as devised and exhaustively

tested by the Wellington team.. Further delay may mean the

higher likelihood of litigation from farmers frustrated by

inaction and being put in unnecessary danger. That the farmers

who have suffered injury since 2011 when the procedure was

accepted by the OIE may have cause to bring a claim against

the government. In any event when the procedure was accepted

in 2013 by DEFRA there is no doubt as to the efficacy or

reliability of the procedure. Even so the procedure still is

not being made available in this country. A number of legal

avenues with regards to a claim is now possible. Further

delay may evoke further ethical questions and an increased

cost to the government of litigation.

2) A public Health TBAG and TBEAG meeting and discussion

crossing disciplines. More meetings to discuss up to date

105

scientific evidence from public health and veterinary science

sources.

3) A whole scale review of fragmented m.b. T.B. regulations,

environmental laws and animal welfare laws with clear public

consultation to ensure contradictions are discussed and law

properly written. A review of the ethics of how the CPS

conducts its consultations with the public is also overdue.

4) Revisiting cross compliance rules which clearly have an

ethical deficit both towards the farmer on a number of

accounts and also the environment. Not only are farmers

compelled to contaminate their own land if they have a m.b.

T.B. outbreak, but also if they do not comply to cover slurry

pits and so preventing overspill in high rainfall, sentencing

guidelines make it clear there is strict liability, seen as

low culpability and no culpability on the CPS Sentencing

Guidelines. Here farmers can be fined regardless of whether

there was an extreme weather event causing over spill or human

error.

5) Better designed research on bio security on farms. This

must include considering the effect of walkers moving through

106

industrial used farm yards, the effect of unknowing walkers

and dogs using footpaths between areas of diseased setts and

healthy setts.

6) Understand the ability of m. T.B. to change into m.b. T.B.

and vice versa. The building of disease prevalence models to

accommodate this is required.

7) In light of MDR and XMDR antibiotic resistance the disease

prevalence models should also include the potential for

Tuberculosis to mutate and form resistance.

8) A disease prevalence model should also be devised to

understand the economic impact on public health and

agriculture.

9) The necessity to destroy T.B. positive wildlife since

cremation kills the pathogen

10) Developing One Medicine One Health Strategies to help

focus attention on disease eradication before it becomes too

difficult and costly to control

11)That artificial compartmentalisation of professional

research is a problem. There must be a mindset of open data

for the professions to cross reference research data. There 107

is also much debate about what research papers are published

in journals and what is left out, and this can compound the

whittling away of valuable information which could potentially

be corroborated by, not only a cross disciplinary approach,

but also by the equal treatment of the industry professional

expert witness testimony. There must be a cultural shift in

the acquisition of knowledge. The poorly referenced, poorly

researched article published in a journal directed at

magistrates, must not be considered by academics as having

more weight than the testimony of an industry professional.

Such practice is heuristic and unethical.

12) That the FAWC should look at the effects of relevant laws,

rules and regulation on farmers health and welfare, and since

farmers lives and welfare are so close to the welfare of their

livestock, change the focus and name of the FAWC to Farmer and

Farm Animal Welfare Council. It is farmers that look after

livestock and not single species pressure groups. And if

there needs to be an organisation which considers farmers and

farm animals welfare, another organisation by implication,

must look at the effect of environmental laws rules and

regulations which impact farmers health and well being.

108

Conclusion

Government has a responsibility to ensure that information it

receives is a true representation of a situation and consults

a spectrum of stake holders.. Looking at the example of the

FAWC it does endeavour to do this. With the court and justice

system this does not seem to be the case. There is evidence

of a miscarriage of justice by the very people charged with

carrying out best practice in a public office, in this case

the CPS. This has been clearly identified in this work as

being a cause for public concern. The government must look at

what its agencies in the justice system are actually doing and

ensure that multiple miscarriages of justice are corrected.

It is a matter of ethics for an agency to act in a none

partisan manner, with any partisan approach having potential

to interfere with scientific best practice. The CPS made an

assumption who and what was appropriately qualified to

provide evidence to their 'public consultation'. This

assumption appears in turn to be made on the basis of self

labelling by a particular lawyers group.

109

To those working in industry which requires scientific and

technical knowledge this is seen not only as a let down, but

also of questionable ethical standard from a publically funded

organisation..

Based on research evidence found in a partisan journal or

article, farmers may be criminalised if this 'research' is

presented as fact in a court by either the lawyer or expert

witness, and accepted by the magistrate..

The farmer has no such ethics journal or article to draw upon

in reply. Criminalisation and victimisation by stealth

occurs, and it is both difficult and expensive to defend.

Hence injustice is compounded. There are other steps in the

legal process that adds to this injustice and strict liability

is certainly one. Regardless whether the incident was the

fault of the farmer or not the farmer is fined and

criminalised regardless. It gives the impression of a remote

justice system, detached from all parts of society except that

small section which it identifies with in an ideological

and/or idiosyncratic way. Strict liability for incidents

surround farming and environmental laws and/or animal welfare

laws must be revisited and open to transparent discussion.

110

Uniquely in this work cruelty has to be looked at in the

round. Systemic ethical failings identified throughout this

work have meant that the farmer and veterinarian surgeon are

bearing the consequences of a small section of society's

belief system. Small sections of society identified as being

without appropriate technical training or scientific

qualification, cherry picking what is cruel, and defining what

is ethical.

The concern is, this unqualified work, has led to excellent

scientific research from the Wellington Team, which has been

tested and retested being left in limbo by the government. As

a result there is government inertia, instead of dealing with,

in a considered technical and scientific manner, the huge

problem of Tuberculosis in wildlife in England.

The consequences for the farmer are most profound and

potentially life threatening. There are legal remedies that

the farmer can take. Veterinarians may have recourse through

their professional associations as well as legal remedies.

111

The recall of the TB Eradication Action Groups is an essential

part of disease control. There needs to be open stake holder

discussion in light of new scientific developments.

An objective review of the laws identified in this work in the

round is certainly indicated. This has to be a fair, ethical

and transparent public consultation which involves all

stakeholders. Government must consider the excellent technical

and scientific evidence available to them as a priority. We

must learn the lessons from history, the law must catch up

with scientific knowledge without further delay, and within

any ethical discussions surrounding any variety of

Tuberculosis, science must be the final arbiter.

112

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