Lords Amendment
12:45 pm

Lord Whitty (Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs; Labour)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 14A to Lords Amendment No. 14. In so doing, I shall refer to the other amendments in this group, all of which deal with the warrant procedure.

The Commons have not accepted the amendments inserted by this House in this respect. I recognise the degree of feeling on these amendments, but I emphasise that it was one of the central pillars of the Bill that we adopted a procedure which speeded up the ability to adopt strategies both on slaughter and on access for vaccination and testing purposes for the effective conduct and control of foot and mouth or any other disease. The provisions cover entry to farms for all of those purposes and in relation to the scrapie provisions as well.

Before we returned the Bill to the Commons, this House had already tabled a number of safeguards relating to the way in which the warrant procedure would be carried out. But I cannot accept the basic proposition previously carried by this House on representations to the magistrate and the delay that that would build into the system, and the unprecedented effect that it would have on other equivalent warrant procedures.

I have pointed out on a number of occasions the fact that the occupier of the premises or the owner of the livestock has other means of making representations. In particular, he has the right to make representations to the divisional veterinary manager. It has been a tendency in this House in discussing this matter previously to dismiss that as not likely to lead to any change in the situation because the DVM is merely part of the administrative structure which is carrying out—noble Lords did not put it quite this way—the diktats from the centre, and in any case it would uphold the decision of its vet on the ground.

It is worth spelling out that that was not actually the case during the last epidemic. Because of the speed of events during the control, full information was not always available. But we now know how many representations were made to DVMs and their outcome. During the outbreak, in the most contentious area—the area of contiguous cull—534 appeals, all relating to the contiguous cull, were made to the DVM. Of those appeals, 336 were upheld. In other words, significantly over half of the appeals to the DVM were dealt with rapidly and the majority were upheld. So, contrary to the view put forward in this House, in the farming press and elsewhere, that procedure provided some means of representation. It also provided a significant means of relief in cases where it was clear to the DVM that a contiguous cull was not appropriate or had been misinterpreted in the circumstances. That is a substantial indication that current provision for occupiers and the owners of livestock already gives significant protection.

Having moved to warrant procedures, were we to go the other way by requiring occupiers to make a formal representation to the magistrate, delay would be inevitable. The magistrate would need to consider the representation and take legal advice on the grounds for representation. It would slow down the process. But the key element of all inquiries and all commentary on how the operation was carried out was that it needed to be speeded up. One of the problems during the previous epidemic was that the strategy was not effectively carried out in certain areas within an effective timescale. That applies to culling for all purposes, including disease on infected premises, as contained in various amendments. It also applies to the administration of tests and of vaccines. For all those reasons, the authorities need access as rapidly as possible. Any slowdown is therefore not appropriate.

We provide occupiers with an appeal through the DVM, so their human rights are not infringed. The DVM has exercised appeals with a high degree of judgment. Even during the fraught times of the previous epidemic, over half of the appeals were upheld. Moreover, other provision exists in the form of injunctions and judicial review, neither of which are affected by our clauses. The House has been reminded many times, not least by my noble friend Lord Carter, that the Joint Committee on Human Rights has always said that the provisions do not infringe the European Convention on Human Rights.

I am aware of the strength of feeling about the matter in the House. But I am afraid that I cannot accept the views previously taken by this House on including in the Bill these representation rights and the connected rights that would have been inserted by previous amendments adopted by the House. I therefore draw the House's attention to the provision for farmers to make representations to the DVM. That is a sufficient guarantee as are the standard legal provisions on the ability to seek an injunction.

I beg to move that the House accepts the Commons deletion of those amendments and recognises that the provision that the Government seek and is now in the Commons version of the Bill will be appropriate in any future outbreak.

Moved, That the House do agree with the Commons in their Amendment No. 14A to Lords Amendment No. 14.—(Lord Whitty.)

Lord Greaves (Liberal Democrat)

rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 14A to Lords Amendment No. 14, leave out "agree" and insert "disagree".

Lord Greaves (Liberal Democrat)

My Lords, I shall speak also to Amendments Nos. 22B, 35B and 65B.

This is the last big ditch at the end of this Bill that we must cross, or not cross as the case may be. It is the last major item of contention that has run throughout the passage of the Bill. We regret that the Government have been unable to concede, or at least to move further, on the fundamental issues behind the amendment; first, to give people the right to see the sworn information on the basis of which the magistrate will make a decision, and, secondly, the right to put their view to the magistrate before that decision is made. We want those two rights to be written into the Bill. This House approved them previously, and the other place has now removed them, which is why we are discussing them again today.

It is only three days since we had a fundamental, long debate on the matter. I do not want to repeat everything I said then or to go through the issues. But I want to pick up remarks made on behalf of the Government since then. Having read the comments of Elliot Morley as reported in yesterday's House of Commons Hansard, and having listened to the Minister today, it is clear that there are two main issues. The first is the question of delays, which we have discussed in great detail. We simply do not accept that this procedure would introduce a huge and unacceptable delay. There is a clear difference of view. Elliott Morley said:

"The risk is that we would have further delays if the court then required additional expert evidence, or if there were an application for legal aid".—[Official Report, Commons 6/11/02; col.368.]

That is reading into our proposal something that is simply not there. We are simply suggesting that people have the right to put their view directly to the magistrate who is making the decision about the warrant. To talk about courts, legal aid, et cetera, is simply to fail to understand our proposal.

There was much interesting discussion in the other place yesterday about the role of the DVM. The statistics that the Minister gave us today were cited there also. Interesting questions were put by my honourable friend David Heath, among others, about the relationship between the appeal application to the DVM against a slaughter of stock, as part of a contiguous cull or a wider cull, and the application for the warrant. From my reading of Hansard, no satisfactory answer was given to that. In particular, questions were asked about whether the knowledge that the application to the DVM had been made would be provided automatically to the magistrate. That is not clear to me, and a clear answer was not given yesterday. Secondly, it was asked whether, if the DVM upheld the appeal, the application for the warrant could still go ahead in those circumstances, and, if it did, whether the reasons for the appeal being upheld by the DVM would be provided to the justice of the peace before making a decision. The relationship between the two processes is not clear. I do not believe that it was clarified in the other place yesterday. Quite apart from the merits of this amendment, it will be helpful if the Minister could clarify it today.

My honourable friend Andrew George said yesterday that this was an acceptable and progressive measure. I would add that it is also a very modest one. It will help to increase trust on all sides in the process. It will lead to fairer decisions and therefore to fewer time-consuming appeals, whether for judicial review or to the High Court for injunctions. It is therefore likely to speed up the process rather than slow it down in critical cases. It is certainly likely to reduce the number of occasions on which disgruntled occupiers of property—farmers or whoever—try to keep people out physically and cause all that kind of aggravation.

We therefore believe that this remains a sensible although modest amendment and we would like to pursue it. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 14A to Lords Amendment No. 14, leave out "agree" and insert "disagree".—(Lord Greaves.)

Lord Jopling (Conservative)

My Lords, we have all discussed these matters on a good many occasions during the passage of the Bill through your Lordships' House. I feel just as strongly now as I have always felt in favour of the amendment as we sent it to another place.

I very much hope that at the end of the debate we shall divide on the amendment and insist on it. I also very much hope that we shall win that vote so that the amendment goes again to another place. We are in danger of getting into a protracted phase of parliamentary ping-pong.

I shall take my life in my hands and risk infuriating my noble friends, and maybe some Liberal Democrats and Cross-Benchers as well. I passionately hope that we defeat the Government, but if we are looking for a compromise somewhere, I wonder if I might have the temerity to suggest how we might arrive at one in which we who believe strongly in this can give up something and so can the Government.

I understand perfectly the problem of delay. I suggest that, in the event of the Government losing a vote on this matter and the amendment going back to another place, the Minister might use his good offices with his friends in the Government there to propose that maybe paragraph (e) could be deleted. That is the provision for the opportunity to present sworn information in person or in writing to a justice of the peace. Paragraph (d) could also be altered. I fully acknowledge that my drafting is not professional, but my suggested compromise wording is something like:

"he has been provided with an opportunity to make written representations to the justice of the peace within six hours of being informed under subsection (5)(c), excepting the hours between 8 p.m. and 8 a.m.".

That proposal may infuriate some of my friends, who may accuse me of selling the pass. As one who has spent time looking for compromises in one role or another, I wonder whether this is a compromise that the Government might accept in another place. Having said that, I passionately hope they are defeated when we come to a Division.

Earl Peel (Conservative)

My Lords, before my noble friend sits down, perhaps he can explain his proposal further. His wording refers to written evidence. Presumably if the occupier or his legal representative were prepared to attend in person, that would also suffice.

Lord Jopling (Conservative)

My Lords, that was the pass that I may have sold. My proposal to delete subsection (5)(e) might take away the opportunity for those concerned to appear in person. That is exactly why I felt the dagger poised over my heart.

Lord Monson (Crossbench)

My Lords, I have a possible alternative compromise that goes even nearer the Government's position. Following the helpful explanation by the noble Lord, Lord Whitty, I can just about see that the Government might possibly have a case for wanting paragraphs (d) and (e) deleted, but I can see no case for trying to truncate paragraph (c). Why on earth should not the farmer be given a full explanation for the issuing of the warrant?

Lord Carter (Labour)

My Lords, I was interested to hear how the noble Lord, Lord Greaves, thought the amendment would work. I am told that it would be a new procedure in the magistrates' court. It is unprecedented to allow representations on a warrant. He dismissed the idea of legal aid. Does he also dismiss the idea of legal representation? Is the farmer to do this himself in person? If not, and if he requires legal assistance, presumably he would also be eligible for legal aid. The noble Lord seems to brush that aside.

I am not sure what procedure the noble Lord envisages for the representation to be made in front of the magistrate. It is probable that a farmer who wished to do that would intend to seek some legal help. The procedure is unprecedented. I am sure that the noble Lord has thought through exactly how his proposal would work in a magistrates' court.

I do not apologise for replying to the point that I made before about the report of the Joint Committee on Human Rights. It is an important committee. The House understandably and correctly calls it in aid when the committee criticises the Government. We should bear in mind its conclusions when it supports the Government.

I am grateful to the noble Earl, Lord Peel. I do not have the Hansard for our previous debate in front of me, so I shall have to paraphrase his memorable words. He said that we are not talking about human rights here; we are talking about justice. That threw a new light on the whole legal process.

Finally, speaking as an ex-Chief Whip, we know that if the Conservatives and the Liberal Democrats vote together they have 100 more votes than the Government, if everyone is here. Everyone will not be here, but there will still be enough to defeat the Government. If the amendment is sent back, an interesting situation will arise. We know that the Opposition can defeat the Government if they vote together on any occasion on which they wish to do so. We then have to reflect on the previous convention that we used to observe that the elected Chamber should finally have its way. I hope that that will not be called into question with ping-pong. If there is a vote I hope that we win it. If we do not, the House will have to think very carefully about what happens when the amendment comes back.

Lord Campbell of Alloway (Conservative)

My Lords, the noble Lord, Lord Carter, keeps referring to the fact that the Joint Committee said that this was not incompatible with the Bill as drafted. It is not. Nobody has said that it is. The noble Lord misses the point that it is the implementation of these provisions by the Secretary of State that can engage and inevitably will engage the convention requirements if they do not accord with the minimum requirements of natural justice. They engage not only the convention provisions, but the very heart of our own administration of justice.

I agree with the noble Lord, Lord Jopling. I had already crossed out paragraph (e) because it is not essential. We are concerned with the absolute bare minimum essentials of our administration of justice. I shall go on voting and voting for this, even if I go down, because I cannot conceive of the injustice. If you cannot have a copy of the sworn information and an opportunity to make some representations, the issue of that warrant—as I think I have said before—is merely a rubber stamp for slaughter. That is wholly unacceptable.

I hope that I can have the attention of the noble Lord, Lord Carter, for a moment, because he also dealt with the minutiae of procedure. Perhaps I may point out to him that it is the obligation of the Secretary of State to devise and implement a procedure that accords with our principle of natural justice. It is for him to do that, in his own interests and in the interests of the farmer or the occupier. If the Secretary of State does not do so, the High Court has a supervisory jurisdiction to strike down the wrong decision.

However, it does not end at that point because the Bill pre-empts that jurisdiction only to the extent that you cannot stop the slaughter of the animals, but it does not pre-empt the jurisdiction of the High Court later to adjudicate on the matter. The High Court will say that there was a manifest injustice, and order compensation for the animals that have been slaughtered because the owners have been caused misery. I know that the noble Lord, Lord Carter, is a farmer and that he understands all about the practical problems involved, which I do not; indeed, I have never pretended to do so. However, I do understand the rudiments of justice. There is no reason for this disagreement: the delay is minimal.

As for the question of representation posed by my noble friend Lord Peel, I should have thought that the man could go along himself, unrepresented, so long as he is allowed to appear before the magistrate and has the grounds for the warrant with him. I am not insisting on an elaborate legal procedure; I am insisting on the bare minimum concepts of justice.

I ask the Minister to reconsider the matter. I know that he has heard me on the issue before, and the House has been patient with me on previous occasions, but some of us simply cannot accept this. It is not a question of confronting the Government. We are trying to help the Government to do what they should do; namely, to administer the statutory provisions of the first and second conditions and to do so within the rules of fair and due administration. That is all we ask.

The Countess of Mar (Crossbench)

My Lords, I support noble Lords in their defence of the original amendment, although I may perhaps agree about paragraph (e). The noble Lord, Lord Carter, speaks with great authority. We have huge respect for him as a former Chief Whip, but sometimes he talks a lot of rubbish.

A magistrate does not have to sit in the splendour—

Lord Carter (Labour)

The noble Countess has used an unparliamentary phrase.

The Countess of Mar (Crossbench)

I apologise to the noble Lord. But he misleads the House when he says that people have to go to a magistrates' court in order to make an application to a magistrate. In fact, a magistrate can deal with such matters in his dressing gown, complete with bedroom slippers, while sitting in his armchair at home. There is no reason why Farmer Giles, say, should not make such an application dressed in his Wellington boots and an old jacket. The process should not take many minutes.

It may be helpful to the House if I point out that mistakes are made. Of all the infected premises that were culled out, 41.2 per cent in Wales, 34.5 per cent in Scotland, and 20.6 per cent in England were incorrectly diagnosed. As for the percentage of farms tested positive for FMD, in Wales the figure was 7.4 per cent, in Scotland the figure was 7 per cent, and in England the figure was 16.3 per cent. So hundreds of farms were culled out when there was no disease present. The farmers were aware of the situation, but had no means by which they could gain redress at that time.

The Minister will have rather a difficult task in trying to prove his point. The noble Lord, Lord Carter, may well call upon precedents, and other measures, but your Lordships also have a duty to perform in ensuring that the law is right before it is enacted.

Baroness Byford (Conservative)

My Lords, I rise to speak to the Motion moved by the noble Lord, Lord Greaves. As noble Lords will remember, the original amendment gathered support from all sides of the House. It is not a party-political issue. We are only sorry that the noble Baroness, Lady Mallalieu, is not able to be present today. If she were here, I am sure that she would strongly support us. If I remember correctly, I believe she said that it is no use appealing after your animals are already dead, because they are gone. We should bear that in mind.

I am intrigued by my noble friend's suggestion. As ever, he is a very wise person and a very experienced parliamentarian. As he was speaking, I wrote myself a little note saying, "At the end of the day it is the art of the possible". Perhaps the Liberal Democrats will look again at this amendment. I hope that we send it back to the other place. But, should it be returned to us, perhaps those in another place will consider the suggestions that have been made—for example, that paragraph (e) might be an area that we could revisit.

There are a few important issues that I wish briefly to mention. First, I should remind the House that we are not talking about killing infected animals; we are talking about healthy animals. Secondly, the Government keep saying that they believe this provision would cause delay. I believe that the noble Baroness, Lady Mallalieu, said that it may be a small delay. There will be delay because, in any event, the DVM must make representations to magistrates. I cannot see the difficulty at that point in the farmer, or someone speaking on his behalf, being there at the same time so that such a discussion can take place. I accept that there may be a few minutes extra delay, but both matters could be dealt with at the same time.

I also remind noble Lords that the evidence presented in the National Audit Office's June 2002 report clearly states that,

"the three main factors contributing to delays in slaughter were: shortages of resources, of vets, of value men, of slaughtermen, and equipment".

Under inspection and diagnosis protocols, the report goes on to state that,

"occasionally delays may have occurred when laboratory tests or initial tests were inconclusive".

Initial requirements for such visits are also set out in the report; namely, that the department's vet should check on all livestock before carrying out a detailed clinical examination of the infected animals.

The NAO lays down those three causes of delay very clearly. Therefore, the Government should not say that their amendment, which we are trying again to reject, will solve the problem. That was not the main cause of the problem last time: the problem was as stated in the NAO report. Let us not be misled by that particular argument. My noble friend Lord Jopling said that he feels as strongly now on these matters as he did previously. I share that feeling. As each day goes on and I become more tired, I feel it even more strongly. I hope that other noble Lords will support this Motion.

My noble friend Lord Campbell of Alloway is quite right: what we are looking for is basic, natural justice and what should be seen to be done on people's behalf. Although the noble Lord, Lord Whitty, claims that 346 representations to the DVM out of the 534 were upheld, does he recognise that a large number of those were upheld only after they had been won through a High Court case? I am referring in particular to MAFF v Upton. Such decisions are not much use after the animals have already gone. We have therefore brought back our proposal, which I believe that the Government should now accept.

I return to an earlier point. We are trying to ensure that the public can feel that all new legislation is fair and just. Neither noble Lords nor, I suspect, millions of other people believe that this provision is fair and just. I hope that we shall resolutely say to the Government, "We think that you have it wrong. We hope that, after this short debate, you will think again". We are anxious to build bridges. We have had the Curry investigation into the future of food and farming, and the noble Lord, Lord Haskins, has been appointed to examine the way in which DEFRA works. The Government seem to be saying, "We are approaching these issues with a blank sheet and nothing has been finalised. We are here to talk and to listen. In this case, however, we are not willing to listen". I hope that noble Lords are resolute in this matter.

Lord Whitty (Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs; Labour)

My Lords, I am as always willing to listen. I am not, however, willing to take on board an amendment, or a reversion to an amendment, that would seriously undermine our ability to control future disease. That is what noble Lords on the Opposition Benches are proposing.

The noble Lord, Lord Greaves, referred to this as a last ditch, and the noble Baroness, Lady Byford, asked us to try to bridge it. Frankly, however, there is a difference of approach here that is very difficult to bridge. I have tried to point out that the concessions and changes which we have already built into the legislation—such as what the magistrate has to take into account—already provide a huge number of safeguards. I have also pointed out, as my honourable friend Elliot Morley has pointed out in another place, that, even without these new safeguards, the rights of a significant number of livestock owners are already protected by the DVM administrative procedure under the previous regime.

The whole point of this Bill is to enable us to administer more effectively control mechanisms—whether vaccination, testing or slaughter, and regardless of the status of animals—to achieve the rapid curtailment of a disease that is enormously damaging to the whole of the livestock industry and to the economies of huge swathes of rural England.

I know that the noble Lord, Lord Campbell of Alloway, and others feel very strongly about the human rights dimension of this. However, I do not believe—nor, as I said, does the Joint Committee on Human Rights believe—that these provisions infringe those human rights. The provisions that already exist for appeal to the DVM clearly demonstrate that that process upholds the ability to raise those issues.

Lord Campbell of Alloway (Conservative)

My Lords, I have no interest to declare; I have just resigned from the Joint Committee on Human Rights. However, I know the Committee's reports as I have read them all. The noble Lord is under a misapprehension. It is true, as I tried to explain once, that the Bill as drafted does not infringe human rights. It is the implementation of it without regard to natural justice which also engages articles of the convention.

Lord Whitty (Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs; Labour)

My Lords, I accept that point. We are, however, dealing with the Bill which is before us. In the Government's judgment and in the judgment of the Joint Committee, nothing in this Bill infringes human rights. As I have also pointed out, the way in which this process is operated—under the administrative appeal, if one cares to call it that, to the DVM—clearly upholds human rights without infringing or jeopardising the ability to deal with this disease as rapidly as possible.

Lord Willoughby de Broke (Conservative)

My Lords, the noble Lord gives us no reassurance on the implementation of appeals through the DVM. As my noble friend Lady Byford pointed out, however, the majority of those successful appeals were carried out after the Government had lost the Upton case—the Grunty the Pig case. Prior to that, most of those appeals were dismissed. It was only after that that the DVM realised that it had no grounds for upholding continuation of the contiguous cull.

Lord Whitty (Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs; Labour)

My Lords, that is a strange and erroneous interpretation of that case. However, even if everything that the noble Lord, Lord Willoughby de Broke, has just said were true, in future outbreaks, the magistrates would have to take those decisions into account—as the adjustment in the outlook would have to be taken into account—when they considered appeals. So I do not think that that point destroys my central argument.

In their positive response to the Government's response yesterday to the inquiry reports, noble Lords accepted that we are moving to a more positive, constructive and engaging way of dealing with future disease. The basis of that approach is the availability of a range of possible weapons against disease, among which vaccination should be given greater priority. However, to be able to vaccinate and test as well as to slaughter, we need these powers of entry, and we need those powers to be operational and to be rapidly deliverable. As I said, one criticism which the inquiry made and many people underlined during our campaign against the disease was that we were not carrying that out quickly enough and that we were therefore allowing the spread of the disease.

The noble Lords, Lord Jopling and Lord Monson, have suggested some compromises, none of which is before us now. If I understood the noble Lord, Lord Jopling, aright, although he would delete the part of the amendments that constitutes probably the largest element of the delay, he would then build in a six-hour delay, excluding the period between 8 p.m. and 8 a.m. The noble Lord may wish to correct me, but I believe that that exclusion could amount to 18 hours' delay. In dealing with such a virulent disease which can spread as rapidly as this one, a delay of 18, 12 or even six hours is an important restraint on the authority's ability to curtail the disease. I do not think that the farming community, if it thought about it, would be prepared to accept that as part of the normal procedure in dealing with this disease. The Government's judgment is that it would certainly not be in the livestock industry's interests to build in the restraint to the process for dealing with any future disease.

Therefore, although I understand the passion on the other side of this argument, I think that the proposal is seriously misplaced. It is certainly not in the interests of the livestock industry of Great Britain. I should therefore hope that noble Lords will not press Amendment No. 14B, but will agree to Commons Amendment No. 14A.

Lord Greaves (Liberal Democrat)

My Lords, I thank all noble Lords who have participated in this debate, to which I listened carefully. I have been trying to decide whether any of the points raised today have not been adequately dealt with by any of those who spoke, and I have come to the view that there are very few. I shall not repeat the points that others have made. It is time that we made a decision on this matter.

I must, however, challenge one of the Minister's comments. He said that these amendments seriously undermine the Government's strategy. That is nonsense. We have gone out of our way to be as modest as we can, precisely because we do not wish to undermine the strategy. We are talking about a few hours at the very most. It is therefore incorrect to suggest that the amendments would drive a coach and horses through the provision. As we all know, in the most recent outbreak, the delay had nothing to do with this kind of procedure but everything to do with administrative competence or incompetence. That is the issue that will determine whether a future outbreak can be dealt with properly. Our ability to do that will not be determined by whether or not people have absolutely minimal rights—not to go to court, as the noble Lord, Lord Carter, suggested, but to express their point of view when the magistrate is making the decision.

The only other thing I want to say is that I hope that the measure will be sent back to another place. I hope that, when it is, or if it is, the Government will seriously consider some of the compromises that have been suggested because I believe that compromise is possible here. If the Government make some effort to compromise, I shall certainly accept that. Clearly, I do not want to be here until this time tomorrow sending the measure backwards and forwards and I am sure that no one would support such a step in the Lobbies. Having said that, I ask the House to agree to Amendment No. 14B.

Viscount Allenby of Megiddo (Crossbench)

My Lords, the original Question was that this House do agree with the Commons in their Amendment No. 14A to Lords Amendment No. 14, since when an amendment has been moved to leave out "agree" and insert "disagree". The Question is that this amendment be agreed to.