Defra began a consultation today which proposes to introduce pre-movement testing for cattle heading to or from common land.

The Tuberculosis (England) Order 2007, made under the Animal Health Act 1981, provides for precautions to be required to be taken against the spread of tuberculosis (TB) in cattle. These precautions include, in art. 9, the TB testing of cattle prior to movement to another premises. However, art.9(3)(a) of, and paragraph 2 of the Schedule to, the Order, confer an exemption from pre-movement testing for movement of cattle:

  • between the common and the commoner’s holding;
  • between the common and another commoner’s holding;
  • between commoners’ holdings.

The consultation is one of several initiatives in recent years to tighten up on these controls, although this is the first to emerge in a consultation paper. The consultation notes that, “Since those untested animals may then mix freely with cattle from other herds grazing on the same common, the risk of disease spread on the common and when the cattle return after grazing the common is one that we must address.” The risk is described as ‘difficult to quantify (but not negligible)’.

The consultation says that it recognises the impact that the universal introduction of pre-movement testing (both ways) would have on often economically vulnerable farm businesses, and considers some mitigations:

  • an option for a waiver for movements from the common to (but only to) the commoner’s holding subject to a distance limit;
  • substitution of post- for pre-movement testing of movements from the common to the commoner’s holding (presumably, if the waiver is either abandoned or not applicable owing to the distance threshold);

Even so, the proposals are unlikely to be met with enthusiasm by those still turning out cattle on to common land. Cattle have already vanished from most upland commons (with notable exceptions in areas such as Dartmoor), yet grazing with cattle can offer significant biodiversity benefits, and is sometimes included in agri-environment prescriptions. Where cattle are turned out on to commons during the summer months, the requirement for biannual testing (annual testing if eligible for the waiver) could further marginalise commoning, leading to a further decline in the extent and diversity of common grazing. It could also add to the costs of the widespread use of cattle in conservation grazing schemes of common land, although the rules are different where grazing is done by a single grazier under agreement with the common owner (rather than in exercise of rights of common).

The option for a waiver on movements could help. The limit on the distance over which the waiver can be exercised is presumably intended to exclude commoners who rent out their rights to third parties from distant farms, or who agist cattle on the common: in theory, such practices may well be unlawful anyway, since rights of common may not be let for a term of more than two years under art. 2 of the Commons (Severance of Rights) (England) Order 2006, and agistment on commons is a pretty grey area at common law.

In the most extreme scenario, a commoner who daily turns out cattle through the farm gate onto the common, and brings them back in each evening (admittedly now a rarity) would simply have to stop.

It may be that these proposals are particularly targeted at the relatively few lowland commons which provide good quality semi-intensive grazing and where large numbers of cattle are still turned out by multiple commoners: in such cases, the commoners’ holdings may be remote from the common itself, the rights may be held in gross (so that the location of the commoner’s holding is irrelevant), or the rights may be formally or informally let out to third parties. If so, it’s not hard to perceive the potential risk. A question for the consultation is whether the risk merits the same measures on extensive or upland commons where few commoners turn out cattle: indeed, it seems these controls would apply even where there is only one commoner keeping cattle on the common. It may, however, be hard to devise a way to apply controls to some commons but not others, without an administratively demanding exercise to review each common on a case by case basis.

No doubt commoners’ representatives, as well as commoners themselves, will make their views known during the consultation, which closes on 10 January 2014.