Clause 1 - FOOT-AND-MOUTH DISEASE
Animal Health Bill
2:30 pm
Mr Richard Bacon (South Norfolk, Conservative)
It is a great pleasure to speak for the first time in Committee with you in the Chair, Mr. Conway.
There has been much talk about balance, to which the hon. Member for South-East Cornwall (Mr. Breed) has just referred. The Minister referred several times to proportionality. I would like to examine that more closely, because it bears directly on some of the amendments.
The concept of proportionality clearly entails a notion of balance and of a proper relationship between means and ends. Case law gives us greater detail about the tests that should be applied in determining whether an act is proportionate. There are three basic principles: first, whether the disputed measure is the least restrictive that could be adopted in the circumstances; secondly, whether the means adopted are necessary to achieve the end and whether they correspond to its importance; and, thirdly, whether the challenged act is suitable and necessary for the achievement of its objective and does not impose excessive burdens on the individual.
Let me take those points in turn. First, according to the Bill, the disputed measure is not the least restrictive possible in the circumstances. Amendment No. 86, which would exclude animals kept constantly indoors, might help to make the actions more proportionate, or less restrictive, but the Minister rejects it. A pig farmer in my constituency keeps his pigs in the tightest conditions of biosecurity, and as a result he was not exposed to classical swine fever, even though it came to Norfolk, or to foot and mouth—Norfolk was blessedly free of foot and mouth. None of that would matter under the terms of the Bill, if there is no proportionality in it.
The truly draconian nature of the Bill becomes more evident when we look at the second principle--that the means adopted should correspond to the importance of the end and be necessary to achieve it. As the hon. Member for South-East Cornwall said, the word ``immaterial'' crops up in the Bill. My hon. Friends and I want to amend that. One of our amendments seeks to specify that whether animals were affected or suspected of being affected
``must be taken account of and subject to judicial review''.
The Minister rejects that, too. He has already said that he thinks that it would not be practicable to have a judicial review and slaughter afterwards if the Government's case were found, and that a judicial review would take place after slaughter. However, article 6(1) of the European convention states:
``In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly''.
If one is to go against that, one ought to have a pretty good reason for doing so. We have seen as much with the anti-terrorist legislation that is before the House. There has been debate on the Home Secretary's seeking to introduce derogation from the European convention on the ground that there is an extreme emergency.
Interestingly, even where a derogation is sought, the circumstances in which it is appropriate are circumscribed by law. As an article in a recent book, ``Human Rights—An Agenda for the 21st Century'', points out, the
``main requirement posed by the derogation regime, for there to be a legitimate derogation from otherwise protected rights, is that the circumstances in which the derogation has been effected constitute an exceptional threat. A derogation justifying emergency cannot be just any crisis. It has to be a truly extraordinary exigency, a `public emergency threatening the life of the nation'.''
The article continues by addressing directly the question of proportionality:
``The overarching requirement . . . is . . . further strengthened by the principle of proportionality that forms another fundamental pillar of the derogation regime. Even when an act of derogation may be justified under the human rights conventions, the State does not enjoy an unfettered discretion with respect to the derogation measures that it wishes to pursue. Such measures can only be taken `to the extent strictly required by the exigencies of the situation.' This means that derogation measures employed by a government must be proportional''—
I emphasise the word ``proportional''—
``to the particular threat, both with respect to degree and duration.''
The extraordinary point about the Bill is that the Government are not even seeking a derogation. On the front page, the Secretary of State says:
``In my view the provisions of the Animal Health Bill are compatible with the Convention rights.''
Even if the Government had sought a derogation, they might well be on dodgy ground legally, because they would not have unfettered discretion. They have not sought a derogation, however, although they have claimed the most extraordinary and sweeping powers for themselves.
The third issue is whether the challenged action is suitable and necessary for the achievement of its objective, and does not impose excessive burdens on the individual. Some hon. Members may be familiar with the Rosemary Upton case, which, according to the Ministry, was even more serious than a contiguous premises case. It was said that Rosemary Upton was a dangerous contact, and the Ministry was adamant that her remaining animals had the disease and would therefore have to be destroyed as quickly as possible. Throughout that case, Rosemary Upton offered to let the Ministry blood test her animals in order to check its strenuously asserted belief. The Ministry rejected that opportunity, however.
After listening to the argument for three days, the High Court was satisfied that the right way forward was the testing that Rosemary Upton had offered all along. The Ministry's application for an injunction was dismissed and it was ordered to pay all Rosemary Upton's costs, which it would hardly have been expected to do had she been behaving in a dangerous or irresponsible way. In other words, the requirement that the challenged act does not impose excessive burdens on the individual was not met either.
I do not know why the Government were given legal advice to the effect that the Bill does not contravene the European convention on human rights—perhaps the lawyer who offered it was drunk at the time. It seems extraordinary to suppose that the Bill is not in very serious breach of the convention. It was not the Conservative party that introduced the convention into English law. Many warnings were issued at the time that there would be all manner of unsavoury repercussions. The Government have made their own bed and I am afraid that, if the amendments are not accepted, they will have to lie in it. Should the Bill become law in its present form, it will not stand and the Government will have to go back to the drawing board.