Annex A Legislative Powers
Overall Powers
68. The legislative basis under which Scottish Ministers will act to control HPAI and LPAI in poultry is, predominantly, the Avian Influenza and Influenza of Avian Origin in Mammals (Scotland) Order 2006 ( SSI No 336) and the Avian Influenza (Slaughter and Vaccination) (Scotland) Regulations 2006 ( SSI No 337,. These provide powers to slaughter birds on infected and dangerous contact premises, to set up movement control zones both on suspicion and confirmation of disease, and to enforce stringent biosecurity. The legislation also allows less onerous measures in certain circumstances where this will not, in veterinary judgement, compromise effective disease control, and the use of vaccination. The exact boundaries of the zones and the measures required within them would be placed on the SEERAD website so that anyone could check the precise details. Further information on the zones can be found in Annex B
69. In addition to the above, Scottish Ministers will use the powers in the Avian Influenza (H5N1 in Wild Birds) (Scotland) Order 2006 ( SSI 2006 No 196) (as amended by SSI 2006 No 237) to apply prevention and control measures should the highly pathogenic H5N1 strain of the AI virus be discovered in wild birds in Scotland.
70. For ND the relevant legislation is the Diseases of Poultry (Scotland) Order 2003 (Statutory Instrument 2003 No. 354), as read with the Animal Health Act 1981 (as amended). In the case of ND two zones (a 3km Protection Zone and a 10 km Surveillance Zone) will be set up.
Powers of Entry
71. In order to prevent or limit a fast spreading animal or bird disease, it may be necessary to enter land or premises to take action. Entry may be required as a matter of urgency because of the nature of the disease. Inspectors may need to check animal/bird movement records; and/or take samples; treat the creature; vaccinate; or slaughter. The Animal Health Act 1981, and secondary legislation made under it in respect of a particular disease, contains a number of powers relating to the entry of land or premises, and who is authorised to do so. For example, in the 1981 Act, see sections 16 (treatment after exposure to infection), 30 (provisions supplemental to control of zoonoses), 63 (general powers of inspectors), 64 (powers of inspectors as to poultry) and 64A (powers of inspectors relating to Community obligations). Some of these entry provisions have been revised - in particular - by section 12 of the Animal Health and Welfare (Scotland) Act 2006 which has inserted new sections 62G (Powers of entry: Scotland), 62H (Warrants) and 62I (Entry and warrants: supplementary) into the Animal Health Act 1981.
72. Section 62G provides an explicit power of entry for the purpose of ascertaining whether a power to slaughter, conferred by or under any provision mentioned in subsection (3), should be exercised or doing anything in pursuance of, for the purpose of, or in connection with, the exercise of that power. In relation to the power to enter premises used exclusively as a dwelling house, 24 hours' notice of the intended entry is to be given unless the case is one of urgency.
73. Section 62H makes provision, when entry is resisted, for the issuing of warrants by a sheriff or justice of the peace and the conditions which must be satisfied to obtain a warrant. Where the conditions are satisfied, a sheriff or justice of the peace may issue a warrant authorising an inspector appointed or authorised by the Scottish Ministers to enter, if necessary using reasonable force, any premises to ascertain whether a function conferred on the Scottish Ministers or an inspector by or under the 1981 Act should be exercised or doing anything in pursuance of, or in connection with, the exercise of that function. A warrant must be executed at a reasonable hour unless the inspector thinks the case is one of urgency.
74. Section 62I contains supplementary provisions where an inspector enters any premises under the powers conferred by or under the 1981 Act or under a warrant under section 62H including the provision that the inspector may take such persons or equipment as the inspector considers necessary. It also includes a provision for the inspector to require assistance by any person on the premises as detailed in subsection (4). If the inspector enters any unoccupied premises the inspector must leave the premises as secure as the inspector found them.
Powers to restrict Access (See Annex G)
75. The Land Reform (Scotland) Act 2003 establishes rights of responsible access to land and inland water for recreation, passage and other purposes. Local authorities have the duty to assert, protect and keep open and free from obstruction any route or means by which access rights are exercised. In the event of an outbreak of a disease such as Avian Influenza/ Newcastle Disease, these rights may be restricted within the Protection Zone.
76. Any specific closure of land or restriction of access rights may only be declared by Scottish Ministers within a part, or whole, of the Protection Zone. It is an offence under section 73 of the Animal Health Act 1981 as amended, punishable in accordance with section 75 of that Act, to erect unofficial signs preventing or deterring access rights. Any local authority seeking the approval of Scottish Ministers for the closure of paths, etc in their area should contact the disease Strategy Unit in Pentland House, Edinburgh.