Fivemiletown cattle kill review: Questions raised over powers and independence

The newly published terms of an independent review into DAERA’s controversial Fivemiletown cattle operation have come under immediate scrutiny over the reviewer’s powers, how the process was established and whether one reviewer is enough to command confidence.

Agriculture Minister Andrew Muir published the detailed remit on Wednesday, 12 August, appointing former Irish Chief Veterinary Officer Dr Martin Blake to examine DAERA’s planning, decision-making and implementation of the operation in which 51 cattle were destroyed on 29 and 30 June.

The terms give Dr Blake access to relevant information held by DAERA and allow him to interview departmental officials and willing external parties, while members of the public will also be able to submit evidence.

However, the Ulster Unionist Party (UUP), Traditional Unionist Voice (TUV) and Ulster Farmers’ Union (UFU) have raised different concerns about whether the process goes far enough.

Burrows called for inquiry before terms were published

Earlier on Wednesday, UUP leader Jon Burrows MLA wrote to Minister Muir calling for an independent inquiry rather than an external review, arguing that a process dealing with disputed accounts needed powers to compel evidence.

His intervention came before the terms of reference were published.

Mr Burrows said Monday’s extraordinary meeting of the Assembly’s Agriculture, Environment and Rural Affairs Committee had failed to resolve important questions surrounding the operation.

He said:

“Monday’s session of the AERA Committee did not put these concerns to rest. Officials called these animals semi-feral and Committee members pushed back, pointing to their statutory identification and TB testing history. The Department’s reading of the court order was challenged and when the Minister was asked how many shots were fired, he said that was a matter for the review.

“That is the whole problem in a sentence. He has handed a central question to a process that may not have the power to answer it. Where accounts conflict, you need someone who can compel documents and take evidence from everyone involved. That is an inquiry, not a review.”

Mr Burrows had also warned against DAERA determining the scope of a review into its own actions.

“Whoever writes the Terms of Reference decides what can and cannot be examined. If DAERA writes its own, it will be seen to have marked its own homework, and the outcome will not be believed whatever it concludes.

“The terms should be agreed jointly between the Department and an independent Chair. That is not a technicality. It is the difference between a process the farming community will accept and one it will not.”

Mr Burrows suggested former Deputy County Court Judge and former Law Society of Northern Ireland President Brian Walker for consideration as chair of an independent inquiry.

He argued that where DAERA’s own account of events was among the matters requiring examination, whoever led the process needed sufficient independence to test that account.

Burrows condemns threats and abuse

The UUP leader also drew a firm distinction between demands for accountability and threats directed towards DAERA staff and Minister Muir.

He said:

“Let me be very clear. The threats and abuse aimed at DAERA staff, and the death threat made against the Minister himself, are contemptible. There is no place for it.

“Those responsible are not helping the farmers who want answers. They are handing people an excuse to look away from the real questions. Accountability is pursued through proper process, not through intimidation.”

Mr Burrows added that departmental employees also had an interest in a process capable of reaching firm conclusions.

“The Department’s staff deserve this examined properly too. They have been placed in an impossible position and they are entitled to a process that reaches a clear conclusion rather than one that leaves suspicion hanging over them.”

Butler: ‘Minister has moved, but he has moved alone’

Following publication of the terms, UUP agriculture spokesperson Robbie Butler MLA acknowledged that their scope was “wider than many expected”, but maintained that the review fell short of the independent inquiry his party had sought.

He pointed particularly to the distinction between the reviewer’s access to DAERA officials and his ability to obtain evidence from people outside the department.

Mr Butler said:

“The scope is wider than many expected. But the Minister wrote the terms himself and chose the reviewer himself. He did not consult the Ulster Farmers’ Union, he did not consult the community that watched this happen in a field, and he did not consult those of us who have been raising these concerns on their behalf.

“This is why we asked for an independent inquiry rather than a review, and why a review falls short of it. The reviewer can speak to departmental officials. He can only speak to anyone else if they choose to come forward. He cannot compel a single witness outside DAERA. An inquiry would have had those powers from the outset.”

The published terms state that Dr Blake will be facilitated to interview all departmental officials he considers necessary. They also provide for him to interview any external party he considers necessary who is willing to provide information.

Mr Butler also questioned whether the terms explicitly covered the use of firearms during the operation.

“The use of firearms is not mentioned once in the Terms of Reference, yet on Monday the Minister told the Committee he could not say how many shots were fired because it was a matter for the review. It cannot be a matter for the review if it is not in the terms of the review.”

While firearms are not expressly listed in the scope, the terms do include operational delivery, animal welfare, staff and public safety and “dynamic decision-making during the intervention”. Whether that remit encompasses all questions surrounding the firearms used and the number of shots fired will therefore be an important test of the review in practice.

Mr Butler also called for the completed report to be published in full and laid before the Assembly on the day it is received.

The terms currently state that the report and DAERA’s response will be published subject to legal, data protection and other relevant considerations, and provided to the Assembly and its AERA Committee.

TUV: review lacks power to compel evidence

TUV leader and North Antrim MP Jim Allister was also critical of the process, describing it as “little more than a desktop review”.

Mr Allister said:

“It has no power to compel witnesses, nor demand production of papers. Thus it can and will be controlled by departmental reins. And that with ‘terms of reference’ written by the department itself. Sir Humphrey Appleby couldn’t have arranged it better.”

The terms do, however, state that the reviewer will have full access to all relevant information held by DAERA, including records associated with the operation, operational plans, risk assessments and briefing material.

The distinction at the centre of the political criticism is therefore between access to DAERA’s own information and personnel, which the terms provide for, and legal powers to compel evidence or testimony from parties outside the department.

UFU calls for wider panel of experts

The Ulster Farmers’ Union has taken a different approach, saying it has no reason to question Dr Blake’s integrity or ability but renewing its call for additional independent panel members.

UFU president John McLenaghan said:

“Dr Blake brings significant experience and expertise to the review as a former Chief Veterinary Officer for Ireland and the UFU has no reason to question either his integrity or his ability to undertake this work.

“However, given the scale and complexity of the incident, we remain of the view that it is difficult for any one person to undertake a review of this nature in a way that is completely independent.”

The union wants expertise including legal and animal welfare representation, practical farming experience and other independent voices brought into the process.

Mr McLenaghan said:

“For the UFU, independence is about more than simply being independent of DAERA. It is also about ensuring the review draws on the expertise of a broader panel who are independent of the types of roles, systems and enforcement operations that are being examined and who can look at the entire process in the round.”

The UFU said its Animal Health and Welfare Committee and Executive will consider the terms of reference further in the coming days.

What the Fivemiletown review will examine

Despite the criticism surrounding its powers and structure, the published remit is extensive in the areas Dr Blake has been asked to consider.

The review will examine:

• Governance and decision-making — including DAERA’s oversight and the appropriateness of the arrangements that informed the operation.

• Legal and procedural compliance — whether the operation complied with the relevant legal framework, departmental procedures and accepted standards of public administration.

• Alternative approaches — what other operational options were considered before the intervention.

• Planning and risk management — including operational plans, risk assessments and preparations.

• Decisions on the ground — including dynamic decisions made as the operation developed on 29 and 30 June.

• Animal welfare — including whether welfare considerations were appropriately balanced against DAERA’s legal obligations and operational practicality.

• Staff and public safety — how risks to those carrying out the operation and the wider public were assessed and managed.

• Communications and engagement — including DAERA’s dealings with stakeholders.

• Reputational risk — how the department considered and managed the potential impact on public confidence.

• Lessons for future cases — identifying improvements for the way future Deprivation Orders are handled.

Dr Blake is specifically tasked with assessing whether DAERA appropriately balanced legal obligations, animal welfare, operational practicality, staff safety and public safety.

What evidence can Dr Blake access?

The terms state that the reviewer will have full access to all relevant information held by DAERA.

That includes relevant legislation and court orders; departmental policies and operational guidance; records associated with the operation; operational plans; risk assessments; briefing material; and other relevant records.

He can also consider evidence presented by elected representatives, individuals and stakeholder organisations, as well as media coverage and public commentary surrounding the department’s actions.

Dr Blake will be facilitated to interview any DAERA officials he considers necessary to understand what they did and why.

External parties can also be interviewed where Dr Blake considers their evidence necessary and they are willing to provide information.

The reviewer is additionally expected to consider relevant good practice and comparable approaches elsewhere.

Members of the public can submit evidence

People with evidence of what happened during the Fivemiletown operation on 29 and 30 June will be able to submit it directly to Dr Blake.

A dedicated email account is to be established by the reviewer, with its details to be announced separately.

Mr Butler encouraged witnesses and anyone holding relevant evidence to use that opportunity, saying:

“The more first-hand evidence he receives, the harder it will be for anything to be quietly set aside.”

What happens when the review is finished?

Dr Blake’s report must summarise the evidence considered, set out findings against the review’s objectives and identify both examples of good practice and areas requiring improvement.

It must also provide an independent assessment of the adequacy of DAERA’s governance, decision-making and operational delivery and make recommendations for future operations.

DAERA expects the review to be completed by early autumn, or sooner if possible.

The report will then be submitted to the department.

Subject to legal, data protection and other relevant considerations, both the report and DAERA’s response are to be published and provided to the Northern Ireland Assembly and its Agriculture, Environment and Rural Affairs Committee.

The full Terms of Reference can be read here.

With the remit now public, the argument has moved beyond whether the Fivemiletown operation should be independently examined.

The central question is now whether the review’s scope, evidence-gathering arrangements and independence will be sufficient to establish what happened, why key decisions were taken and restore confidence among those demanding answers.