DEFRA'S NORTH KOREAN TACTICS

11:00 - 19 May 2008
http://www.westernmorningnews.co.uk/
http://tinyurl.com/4d4uu7

Sometimes losing an important case teaches one more than a good win.

The result of the case of the Queen (on the application of Higher Burrow
Organic Farming Partnership) v Defra could not have been more
unsuccessful for the dairy farmer applicant but did teach me a lot about
Defra views on livestock farmers of this county.

I was approached by five farmers before Christmas, all of whom had dairy
herds where they had a very small number of positives to the
old-fashioned bovine TB skin test and a very large number of positives
to the new gamma interferon blood test.

All of them thought that something needed to be done about the disparity
between the two different sorts of tests. The scientific evidence was
that the test should overlap to a very much greater extent than had
happened in practice. I felt that clearly something very major had gone
wrong with the testing or the action of the test in each of those cases.
One of the cases had a statistical chance of being correct of 1/130,000,000.

These days when one takes on Defra one gets disclosure early on in the
process of Defra's internal documents in relation to how their decision
was taken. To be fair to the Defra vets, in all of these cases they had
considered the results of the tests and found them to be completely
bizarre and suggested to their superiors that re-testing take place.

It was only when one reached the level of the senior members of the TB
testing team in London that the decision was taken that the policy had
to be upheld at all costs - that they would never re-test.

The policy was very slightly altered later on to the effect that they
would re-test where there was evidence that something had gone wrong
with the testing procedure. By this they meant that the protocols which
they have historically used for testing, in other words what happens to
the blood once it is taken and at what temperature it is kept, should be
adhered to.

The scientific evidence that I obtained, not just from the UK but also
from abroad, was to the effect that the tests could not possibly be
correct and that it was in the interests of science to find out why the
tests were not working in accordance with the usual scientific parameters.

The case finally came on for hearing in April when the judge decided
that he was not competent to deal with the scientific evidence, but that
he did not need to because the only basis on which a test should be set
aside was if Defra's policy objective was met. In other words it could
be shown that something was wrong with the test.

What this therefore means is that if you have a blood test and a skin
test carried out together and the results are completely incongruent
with each other - in other words a very much larger number of positives
are shown by the blood test - the only way that you will be able to set
this test aside and have a re-test is to show that the testing protocols
have not been met. This means following the vet around while the tests
are carried out and in videoing it, together with taking the
temperatures of the blood products when they are put into the boxes to
be sent off to the laboratory.

It is, of course, impractical. Any farmer who does have concern about
this issue would, however, be well advised to get hold of the testing
protocol.

I have conducted judicial reviews against Defra for the best part of 20
years and I have never seen a case defended as vigorously as this one.
Defra made it clear that they were in no way going to be told what to do
by some dairy farmers, even when what was being asked of them was
relatively modest and in the view of all objective observers completely
reasonable.

I would applaud Defra's objectives in trying to control new outbreaks in
four yearly testing parishes (which is the main use to which the blood
test is now put), but they do need to consider all the reasons why new
outbreaks might be happening, rather than simply transfers of animals
into a herd, as appears to be their thought process at present.

I did have to pinch myself at various times during the course of the
case as I did think that I had by some magical process been transferred
to North Korea when reading the documentation coming from Defra. In my
view only a change of government is likely to lead to a change of this
policy - and farmers will have to do their best to survive until the
electorate can have its opportunity in expressing a view.

Tim Russ leads the agricultural team at Westcountry lawyers Clarke Willmott