Before calling Amendment No. 192, I should inform the Committee that, were it to be agreed to, I should not be able to call Amendments Nos. 193 or 194 because of pre-emption.
Perhaps I may remind the Committee of what I am trying to leave out of the Bill—these brutally simple and rather chilling words:
"The Minister may cause to be slaughtered any animal to which this section applies."
As we read in subsection (1),
"This section applies to any animal which has been treated with vaccine for the purpose of preventing the spread of foot-and-mouth disease or such other disease as the Minister may by order specify."
Those words are simple. They make no concession to anyone: man or beast. They are, as I said in my first remarks, which were pretty well drowned by the exodus of noble Lords, brutal in their simplicity. They are useful in this respect and this respect only: they contain and comprise the whole spirit of the Bill. The Government are clearly saying: "We were right last time; we are always right. But last time we did not have quite enough protection against people who invoked the law against us. This time, we shall make no such mistake. We shall have this absolutely sweeping, uncompromising provision:
'The Minister may cause to be slaughtered any animal to which this section applies.'"
I do not intend to make a long speech, but I hope that the Minister has fully received the message—from me, at any rate—that that is a brutal piece of legislation of which the Government ought to be heartily ashamed. I am sorry that they have stained the Order Paper with the Bill and seek to stain the pages of the statute book with such a horrible measure. I do not intend to prolong my remarks at this stage; nor, I imagine, will I be tempted to press my amendment to a Division on this occasion; but I beg the noble Baroness not to underrate the strength of feeling that lies behind this simple amendment, which I beg to move.
I follow my noble friend, who has clearly expressed his view on the amendment. The amendments grouped with it reinforce our concern about those words in the Bill. Members of the Committee may remember that when we considered the Bill many months ago, I cast it as the "Animal Death Bill", and the two lines to which my noble friend strongly objects underline the Government's thinking. That is a tremendous shame, because during the summer, as we reflected yesterday, the European Parliament's working group has recommended that vaccination to live should be the first choice option. But as we recommence consideration of the Bill today, that option is not for us to consider; we must consider what is before us, by which I am as appalled as is my noble friend.
While supporting my noble friend so strongly, I shall speak also to Amendments Nos. 194, 195, 201, 202, 204 and 205—I hope that I am correct about the grouping. Turning to Amendment No. 194, the Minister has the option of deciding whether or not the circumstances are right for an animal to be slaughtered. The object of the amendment is to give a terminal date to that power, so that the owner of the animal does not have perpetually hanging over him the possibility that the Minister may finally decide to slaughter.
Amendment No. 195 addresses the fact that the clause is too widely drafted and tends to give legal justification to all kinds of actions. During the most recent outbreak of foot and mouth disease, we all saw on the television and will remember with horror the chasing of cattle with motorbikes and rifles. Our modification of the clause might not make such action immediately illegal, but would sweep away the chance that a clever lawyer might be able to justify such action under the clause as drafted.
No doubt the Minister will assure us that the department would always act reasonably and in an appropriate manner, but I suggest to the Committee that that did not happen during the 2001 outbreak, and it is the same department to which we are supposed to give even greater, open-ended powers. The amendment would add the requirement to act in a "reasonable" way to the powers under the clause.
There are two issues relating to Amendment No. 201. First, there is the general objection to the Minister empowering himself to pay compensation for an act that he has ordered. Secondly, the Government can take powers to vaccinate animals upon the satisfaction of certain conditions. Then, the Government can decree that all animals—or all animals of a certain type—that have been vaccinated shall be slaughtered. There is no way in which that second action can be laid at the door of the farmer. Moreover, biosecurity is irrelevant, so how can the farmer be penalised?
I understand that, under article 1 of protocol 1 of the European Convention on Human Rights, the state may deprive a person of his possessions in the public interest only if its actions are provided for by law and are proportionate. I query the validity of the entire section. The report of the European Parliament's working group puts forward a vaccination to live policy. If that proposal is adopted, where would it leave the new section? Our amendment is supported strongly by the National Farmers Union.
Amendment No. 202 outlines the most fair form of compensation. Although it should not happen, the vaccination of an animal against foot and mouth disease may cause a fall in its market value. For example, a cow may be valued at £700 before it is vaccinated but, once vaccinated, be worth only £400. The Minister may decide later to slaughter the animal, forcing the owner to forgo the possibility that the animal's market value may have recovered.
I turn to Amendment No. 204. We wait to see what legislation the Government propose to bring in to secure full implementation of the new EU directives and of the findings of the inquiries, particularly the Royal Society inquiry. We have had the reports, but we have not received a response from the Government. I understand from the Government that that will not appear before the end of this month and that our wait may go on into next month. By that time, the Bill will have left the House. In the absence of new government legislation, we do not want to see the Government exercise such powers without referring to Parliament.
Amendment No. 205, which is our last amendment in the group, presupposes either that the Government have accepted the amendment to subsection (1) or that they have accepted that compensation should be at market value. Certainly, if the Minister decides to pay less than market value and empowers himself to do that, his action should be subject automatically to parliamentary scrutiny.
I speak to Amendments Nos. 197, 198 and 199 and also to Amendment No. 205, which we tabled jointly with the Official Opposition. With the amendment moved by the noble Lord, Lord Peyton of Yeovil, we are discussing the slaughter of vaccinated animals. We agree with the noble Lord's amendment, and I will not comment further on it, as the noble Lord has made clear the case for it.
Amendment No. 197 would strengthen subsection (3)(b) to read:
"which is otherwise reasonably required in connection with the slaughter".
That test must be put in place to allow the vets and inspectors who are making the decisions to stop and think precisely about what they are doing. They should think, "Is it reasonable to slaughter this animal in these circumstances?"
Subsection (4) of new Section 16A says that the Government must pay,
"compensation of such an amount as may be prescribed by order of the Minister".
We want 100 per cent compensation, and, in that respect, the effect of Amendments Nos. 198 and 199 is similar to Amendments Nos. 201 and 202, tabled by the Conservative Front Bench. Amendment No. 201 stipulates that compensation should be,
"the value of the animal immediately before it was slaughtered".
Amendment No. 202 says that compensation should be,
"the market value of the animal before it was vaccinated".
One way or another, the compensation must be 100 per cent, if the slaughter is ordered by government officers. Amendment No. 199 would enact that provision.
We are dealing with the issue of the slaughter of vaccinated animals. I hope that, before the Bill completes its passage through the House, the Minister will update us on progress towards the conditions necessary to make possible emergency vaccination as an alternative to extensive culling, in line with the Royal Society report. I attach great importance to that report, which signposts the way to the handling of any future outbreak by proposing the culling of infected animals or dangerous contacts, along with the use of vaccination-to-live as an appropriate alternative to extensive culling.
The Minister will recall that the report indicated that there were some issues to be solved—validation of marker vaccines, tests to distinguish between vaccinated and vaccinated-infected animals—and concluded that,
"With significant effort by DEFRA, this should be possible by the end of 2003".
We are now being asked to legislate, but we would like to be assured that we are making progress towards what is set out in the report or, if we are not, that we intend to make such progress. The issues go together. It is likely that there will be a change in policy in the next few years, and we must move forward along that line, if we are to support what is in the Bill.
Throughout the passage of the Bill—earlier this year and yesterday—I have been bewildered by the attitude of the Opposition and of some other noble Lords. For example, there were some unusually intemperate remarks from the noble Lord, Lord Peyton of Yeovil, who spoke about what the Government were saying. It is not the Government who are saying it; it is the Anderson and Follett reports. The Anderson report says:
"The animal health legislative framework should be robust, unambiguous and fit for purpose. This was not the case during the 2001 epidemic".
That supports the central proposition that the extra powers that the Government are now taking in the Bill are required. They were required even before the reports. The Government introduced the Bill knowing that we needed extra powers. The central proposition advanced in the Bill—that the powers are required—was borne out by Anderson and Follett.
I have one simple question. As a result of a decision of the House, with which I disagreed, we had to wait for the reports. Are noble Lords now saying that we should ignore them? They have already supported the central proposition that the Bill is required. Silly remarks about the "Animal Death Bill" do not help.
It is about slaughter; the noble Baroness is correct. That is blindingly obvious. The Bill was drafted because the Government realised during the 2001 epidemic that extra powers were needed. It was held up because this House said that we should wait to see the two reports before proceeding. We waited. The reports supported the Bill's central proposition that the extra powers were required. The Government have reacted to the recommendations in the reports and are tabling some detailed amendments on Report to deal with them.
Should we now ignore those reports and, as was suggested yesterday, drop the Bill, even though the extra powers are required? If—God forbid—there were a further outbreak of foot and mouth disease we would need emergency legislation within 24 hours to give the Government the powers in the Bill.
I turn to vaccination. I said yesterday that unless I am misreading the Bill, the noble Baroness, Lady Byford, is wrong about vaccination. She said that the Bill is about slaughter, which it is. It is also about vaccination. Clause 4, which is headed, "Slaughter of vaccinated animals", states:
"(1) This section applies to any animal which has been treated with vaccine for the purpose of preventing the spread of foot-and-mouth disease or such other disease as the Minister may by order specify".
That means vaccination can be used either as a pre-emptive strike to protect the animals or as a prophylactic for a whole herd or whatever.
The crucial subsection is (2), which states:
"(2) The Minister may cause to be slaughtered any animal to which this section applies".
If it said "shall cause", that would be vaccination to kill, but the Minister "may cause to be slaughtered"; that is, he has a choice. That therefore provides the option of vaccination to live. However well intentioned, the noble Baroness does not understand the Bill. It already contains a provision for vaccination to live.
This House has to make up its mind. If it wants to kill the Bill and take responsibility for doing so, it should do so, but it should not criticise the Government continually for producing a Bill specifying extra powers recommended by two independent inquiries. The Government will be amending the Bill to take further account of the recommendations in the reports. That is the proper and responsible way for the Government to behave. To do otherwise, as some Members are suggesting, would be extremely irresponsible.
I am not at all bewildered. I suspect that the likelihood of the Government accepting the amendment of the noble Lord, Lord Livsey, to insert "reasonably", is non-existent. But they are happy to make sure that it is immaterial as to whether the animals are diseased or anything else. They can go around shooting what they like. They are offended when I say that, but that is what the Bill says.
This is typical of the Government, who ride roughshod over our liberties. That is seen in the Bill. It has also been suggested that the Government made a Horlicks—if that is a parliamentary term—of the foot and mouth outbreak because they did not have the right powers. That was not the reason. They made a Horlicks because they did not ban movement for five days; because they did not call in the Army quickly enough; and because of their administration in the Ministry of Agriculture, Fisheries and Food—at that time the Queen had not changed its name—which kept alive the animals awaiting slaughter. That was nothing to do with a lack of power. It was administrative incompetence, not reading the Northumberland report and general shambolic misbehaviour.
For the Government to say, "We now need powers that we may use unreasonably if we wish"—
It is not the Government who are saying so; it is the Anderson report:
"The animal health legislative framework should be robust, unambiguous, and fit for purpose. This was not the case during the 2001 epidemic".
I do not see Dr Anderson on the Front Bench. I see Ministers of the Crown on the Front Bench, introducing a Bill full of tyrannical and unreasonable ways of behaving. It is the same Government who would like to try to remove rights to trial by jury and who are contemplating the abolition of the double jeopardy rule. They are also contemplating various other illiberal alterations to our criminal justice system. They say that the Government know best and they can do what they like without let or hindrance, immaterial and unreasonable though that may be.
The Government should think again about the Bill. I think that everyone accepts the need for a new Bill. We accept that the Anderson report must be taken into account in legislation, but on this side we are not bewildered. We happen to believe—at least, I do—that liberties of the subject are extremely important and should not be overridden by an arrogant executive.
At the risk of incurring the wrath of the noble Lord, Lord Peyton, and even the noble Earl, Lord Onslow, perhaps I may say that I understand what the noble Lord, Lord Carter, is saying. I suspect that the problem is that the language of this part of the Bill dates back to a previous era before we were taking the prospect of vaccination to live into account. Clearly, in some cases there may be good reason for a Minister to call for the slaughter of an animal that has been vaccinated.
I suggest to the Minister that it would be helpful if on Report Clause 4(2) could be expanded to read:
"The Minister may cause to be slaughtered any animal to which this section applies, if good reason can be shown why the animal should not go into the food chain".
If we are trying to improve the Bill, we want to introduce the assumption that vaccination will normally be vaccination to live. There still has to be the possibility of vaccination for slaughter, but we want to change the emphasis and the tone of the Bill, as I said yesterday.
I support Amendment No. 202. It is the only just form of compensation as matters stand. The present likelihood is that if an animal is vaccinated its value would be reduced. I hope that we will reach the point where its value is enhanced. That may come to be the case, but it is not at the moment. I strongly support Amendment No. 202 rather than Amendment No. 201, because it safeguards adequate levels of compensation at this stage. The problem is that circumstances are changing as we go through the Bill, which is taking a long time. I hope that the Minister will understand what I am trying to say about vaccinated animals being slaughtered. We need to explain why in exceptional circumstances it may still be necessary to slaughter a vaccinated animal.
I forgot to make a point about compensation for vaccination. The noble Baroness, Lady Byford, made a good point about 100 per cent compensation. She should remember that she supported a government who for BSE paid only 50 per cent of the animal's value because it was worthless as it had the disease. Eventually they had to change that to 100 per cent, because the 50 per cent policy almost certainly led to the spread of the disease. But I leave that matter on one side.
When my noble friend responds, I hope she will make it clear that the value that will be placed on the animal will be the 100 per cent value of the unvaccinated animal.
I would like to speak briefly in support of the amendment and to make some more equivocal remarks than the rather polarised remarks that we have been hearing. I am broadly sympathetic to the Bill's aims, which respond to a need to make clearer the powers that one has if one wishes to enter farms. For understandable reasons the Bill has been overtaken by events; by subsequent excellent and insightful reports and probably by actions in the EU.
We are debating only a part of a larger picture. I am in favour of the amendment because I should like the word "reasonable" to appear wherever possible, and more. I much appreciate the letters that have been put around by the noble Lord, Lord Whitty, and the sensible things that have been promised in regard to addressing some of the unanswered questions, but I wish the powers over what is euphemistically called "preventive slaughter" to be similarly spelled out for "vaccination to live".
In particular, I support the recommendations of the Royal Society report—with which I am considerably familiar, understandably—that contingency plans should be brought before Parliament for debate and approval. The Government should bring before Parliament a framework for the contingency plans which covers the principles that will be involved in handling outbreaks of such diseases in future and which looks across the broad spectrum, rather than the understandable but, by virtue of its history, imbalanced Bill that is before us. Hence my approval of "reasonable".
The noble Lord, Lord Carter, is being unfair in his criticism of the Opposition in regard to this extremely disappointing Bill. He does not seem to realise that we are in favour of good legislation and that we are trying to make this Bill better. It is a bad Bill. We are trying to make it better and to translate the reports, which are so significant, into legislation. That does not mean to say that the Government have got it right each time they have translated the reports into legislation. Under his Amendment No. 192, my noble friend Lord Peyton criticises the draconian powers contained in Clause 4, and we have every right to ask whether it is necessary to have such strong wording in the Bill.
The noble Lord, Lord Carter, should take his mind back to the time of the foot and mouth epidemic and remember how we on this side of the House, week in and week out, were calling on the Government to use the powers they had to get on and make decisions, and not to drag the matter out much longer than in fact turned out to be necessary. He should remember how local authorities and the Army wanted to act, and yet were prevented by the Government from getting on with stamping out the epidemic as quickly possible.
So it is quite wrong for the noble Lord, Lord Carter, to indicate that we are not entirely in support of measures required to stamp out foot and mouth should it ever—one hopes not—recur. It is sometimes right for the Opposition to criticise the language in the Bill—for example, the draconian wording that we are trying to remove under Amendment No. 192. It is notable that there is no appeal against the procedure contained in those two lines, unlike in other clauses of the Bill where at least officials have to go to a justice of the peace for approval to enter a farm.
My noble friend Lady Byford is right to raise again the issue of compensation and market value. She has explained carefully to the Committee, both yesterday and today, that, once a beast is vaccinated, at the present time it suffers a serious drop in value. We are trying to make the Government understand that. Until the food chain has accepted that vaccination is quite safe and that there is no worry at all to the consumer, there is bound to be a significant drop.
In any event, I wish we could get away from the word "compensation". The issue relative to a farmer is the loss of market value. As I have explained, I lost my sheep flock last year under the contiguous cull, and in one day I saw 45 years of bringing up a sheep flock of reasonable quality fly out of the window. One gets no compensation for the value of the herd or the flock that day, or for the next four or five years that the ewes would have been in production; one gets no compensation for loss of profit over the years. One gets only the market value on the day the stock is slaughtered. We should put into the Bill "market value" rather than "compensation", because that is where the true impact lies.
I support my noble friend Lord Onslow in his criticism of the Government in regard to the Bill. We want to see a much better Bill and we have every right to indicate, through the many amendments that we have tabled, how we think the Bill can be improved. I am very disappointed with the progress we have made in improving a Bill which is most disappointing for the farming community and, directly, for the public at large.
One accepts—or I do at any rate—that when Ministers come to this House and say that they require an additional power which they may have to use in the event of a future outbreak, we should listen to what they say and give them that power. But I should say to my noble friend Lord Carter that criticism of the way the Bill is currently drafted does not come solely from the Opposition; it comes from some of us on his own Benches who have paid close attention to the progress of the Bill.
In urging that legislation should be robust, unambiguous and fit for the purpose, Dr Anderson did not specify legislation which should be blanket and unfettered by reason. All we are asking is that the Bill be drafted in such a way that any future Minister who comes to exercise these powers is bound to pause and ask himself what is the basis of the use of that power. As presently drafted, the Bill is blanket, unfettered and, potentially, in the hands of a Minister—and we do not know who it may be at some stage in the future—capable of being misused.
The criticism is not unreasonable. It should not disappoint my noble friend Lord Carter, who is, as we all know, a very fair man. It is something that noble Lords on all sides of the Committee should want to see incorporated into the Bill now.
I totally support everything the noble Baroness said. I would have said the same but I could not have said it as well.
My noble friend Lord Peyton was totally right to bring this clause as it stands to the attention of the Committee because we cannot seek Royal Assent for the Bill in this form. That would be a monstrous imposition. The Committee will be indebted to my noble friend Lord Peyton for having raised this point.
I agree with the contribution of the right reverend Prelate. This clause has to be qualified. I, at least, would wish it to be qualified with the words "subject to the provisions of this Act". That would qualify the powers of entry provisions with which I propose to deal later on.
Perhaps I may ask for clarification in relation to Clause 4, which deals with proposed new Section 16A and the slaughter of vaccinated animals. There is a large difference between those animals which go into the food chain for meat and those animals which are used for breeding purposes. In the definition contained in the clause, there is no clarification of the difference between breeding stock and animals going for meat. I believe that there should be. If the breeding stock is vaccinated, why should there be a drop in value? I do not understand it. If vaccination works, why should there be a risk of animals being slaughtered?
We saw in the last outbreak the real problem of people querying the value of valuable breeding stock. They simply did not understand. The problem is that many people do not understand what goes into the breeding of the good, valuable stock that is part of our heritage. I should like to see a definition in the Bill to distinguish between animals used for breeding and animals used for meat.
Perhaps it would help if I set the amendments in context. The Government's foot and mouth disease control strategy is to eradicate FMD quickly. Nevertheless, one of the objectives of any disease control strategy is also to minimise the number of animals slaughtered consistent with eradication and control of the disease.
Use of emergency vaccination in future outbreaks will be a key option as part of the disease control strategy. As the Secretary of State's Statement to another place on the FMD inquiries made clear, the Government would ideally use a vaccinate to live strategy if emergency vaccination were used. Future scientific advances may allow vaccination a larger role but it could still be used only in conjunction with slaughter, movement restrictions and biosecurity.
The Government have not yet formally responded to the inquiry reports but the Secretary of State's Statement to another place on 22nd July included the following:
"Another key issue that has drawn much comment is the contentious issue of vaccination, on which both inquiries made recommendations. We can immediately accept two specific recommendations: that, as in 2001, we should ensure that the option of vaccination forms part of any future strategy for the control of FMD; and that any emergency vaccination policy should in future be not 'vaccinate to kill' but, ideally, 'vaccinate to live'".—[Official Report, Commons, 22/7/02; col. 672].
The Lessons to be Learned Inquiry and the Royal Society report recommend that future outbreaks of FMD should be dealt with primarily by "stamping out", but that emergency vaccination should be an important adjunct to this primary strategy. And the Royal Society report recommends that a vaccination policy should be on a "vaccinate to live" basis. However, we should not wish to rule out the use of a "vaccinate to slaughter" policy as there may be situations when that is appropriate.
Any development or change to UK policy on FMD vaccination has to take place within the framework of European regulations and agreed international disease control and trading standards. As noble Lords taking part in debate on the Bill are fully aware, vaccination is a complex issue. Any steps to use it would require full consideration of all the implications for the disease, the handling and control of vaccinated animals and products, and wider implications for the EU's FMD-free without vaccination status. Use of foot and mouth vaccines is prohibited unless specifically authorised by a European Commission decision following confirmation of the disease. I hope that that helps to set some of this in context.
In the general context, the noble Baroness, Lady Byford, raised the issue of human rights and EU law. The powers in the Bill are compatible with the European Convention on Human Rights. Clause 4 compensation will be payable for animals slaughtered in accordance with the convention rights. A further issue was raised by the noble Lord, Lord Williamson, to which I shall come shortly.
The noble Earl, Lord Onslow, raised a point about the report and about Dr Anderson not being on the Front Bench today. That is self-evident. It is for the Government to place before Parliament recommendations which flow from the Anderson report, and that is what we are seeking to do in the Bill.
I should be in danger of getting totally lost in these matters. We have had a large number of references to Pen-y-ghent and Pen-y-fan. Following the noble Earl, Lord Onslow, can occasionally lead those on the Government Front Bench into a blind alley.
There is a further important general point. There were cases where delay in action was partly due to the absence of certain powers which are now set out in the Bill. The question was raised by the noble Lord, Lord Peyton—as it was by the noble Lord, Lord Monro—of whether the Government needed more powers to be able to act quickly. I can assure the noble Lord on that point and shall write to him on the detail.
Turning to specific amendments, Amendment No. 192 would remove the power to slaughter vaccinated animals. This power is necessary for the conduct of a vaccination campaign, whether vaccinate to live or vaccinate to slaughter. Where vaccinated animals are subsequently shown by distinguishing tests to have been infected with the virus, they will need to be slaughtered. Such a policy is in keeping with the recommendations of the Royal Society report, as I hope the noble Lord, Lord May, will accept. I am delighted that he has joined us on this issue.
The noble Baroness made an important point. She said that an animal which has been vaccinated and which has been subsequently shown to have had the disease has to be killed. Am I right or wrong? Without meaning to be rude to the noble Baroness, I am sure that the noble Lord, Lord May, will be able to answer the point better than either she or I can. Presumably the animal is cured of the disease and is now immune, if it has had it, and therefore cannot pass it on. Is that the case? I am a seeker after information.
I used the term "have" in relation to the disease, not "have had". If an animal is shown to have the disease, or, I believe, to be a carrier of the disease—I shall write to the noble Earl if I am wrong—
It may be helpful if I intervene. If the infection is acquired at around the same time as the vaccination, that can happen. If I may lapse into pedagogic mode, that is partly why we do not vaccinate small children against measles too soon: the vaccine will not take, as they are protected against the disease by maternal antibodies, which are fading. It is quite a complex matter and there is a window in which that can happen.
I see that the noble Earl, Lord Onslow, is grateful. However, I assure him that he is not as grateful as I am for the noble Lord's intervention.
Therefore, for those reasons, it is essential that we are able to retain the option of slaughtering vaccinated animals, but any decision on the slaughter of vaccinates would be made in the light of consultation with interested parties. The exit strategy of the vaccination campaign would depend on why we were vaccinating—for example, to prevent the disease from spreading—and would also take into account a cost-benefit analysis of the different strategies.
These provisions in the Bill fill a gap in the existing legislation and make no presumption about the time at which slaughter of vaccinates would, if at all, be necessary. I therefore hope that the noble Lord, Lord Peyton, will not press his Amendment No. 192. Should he require further information after Committee stage, I shall be delighted to provide it.
Amendment No. 194 would unnecessarily restrict the Minister's ability to slaughter vaccinates. The three-month cut-off point is arbitrary to a degree. It is difficult to be certain. The provisions make no presumption about the time at which slaughter of vaccinates would, if at all, be necessary.
There may be situations in which vaccinates may need to be slaughtered over three months after vaccination. For example, we could find that animals are infected beyond that period and need to be slaughtered as part of a problem of the associated herds and flocks.
Therefore, we would be in difficulty. However, we recognise the underlying point as regards accepting an absolute limit.
Amendment No. 195 would require any action taken under the powers in this section relating to the slaughter of vaccinated animals to be reasonable. My noble friend Lady Mallalieu, the noble Lord, Lord Livsey, and others, made that point. We strongly support the principle on which the amendment is based. All our actions should be reasonable, and I hope that I can reassure noble Lords that we would always act reasonably. Indeed, Ministers have a public obligation to do so in the exercise of their duties. However, noble Lords may unwittingly be suggesting an amendment that could limit that obligation. In addition to acting reasonably, Ministers also have a public law obligation to act proportionately. If for the purposes of this legislation we were to restrict the term to "reasonable" and not include "proportionate" it could limit Ministers' obligations. I assure noble Lords that there is a legal requirement to be both reasonable and proportionate.
Amendment No. 196 would have little real effect. "Otherwise" adds clarity in this context, and it separates subsections 3(a) and 3(b), making both parts complementary and comprehensive. If "otherwise" is removed, there would be an overlap between Section 16A(3)(a) and Section 16A(3)(b), rather than the linkage of the two distinct activities.
Action may be required to enable an animal to be slaughtered and it could include entering premises, rounding up animals, verifying their identity and completing paperwork. Action that is otherwise required in connection with slaughter could include the removal of animals or carcasses from premises, and their disposal. Those lists are not exhaustive. The wording of the Bill is consistent with provisions in the 1981 Act. For example, Section 16(2)(b) deals with permitted action for treatment after exposure to infection or,
"action which is otherwise required in connection with that treatment".
It would therefore be inappropriate to accept Amendment No. 196.
Amendment No. 197 would specify on the face of the Bill that any action taken in connection with the slaughter of vaccinated animals under the new powers would have to be reasonable. The tasks concerned could include bringing machinery on to the premises, identification, valuation or disposal. I hope that I have reassured the right reverend Prelate the Bishop of Hereford that Ministers are required and are under an obligation to act reasonably and proportionately at all times. I assure noble Lords that guidance to the field on action that can be taken in connection with the slaughter of vaccinates—such as identification, bringing machinery on to farms, valuation or disposal—will specify that such action must not stray beyond what is reasonable.
Amendment No. 198 would remove the provision requiring Ministers to pay compensation for slaughtered vaccinates of such an amount as to be prescribed by order. We recognise that setting compensation at market value would significantly increase the likelihood of any future vaccination programme achieving full uptake. On that principle, and without prejudice to any future compensation policy in respect of healthy animals, the Government have decided to specify on the face of the Bill that slaughtered FMD vaccinates will be compensated at their market value as if they had not been vaccinated. Amendment No. 198 is therefore unnecessary. I hope that noble Lords are satisfied with my reply.
In response to the noble Baroness, Lady Masham, the power contained in the Bill is to slaughter to prevent the spread of disease regardless of the intended use of the animal. However, I feel that I have not given her as comprehensive an answer as she would have liked, so I will write to her as soon as possible.
Amendment No. 199 would specify that compensation for animals slaughtered under the powers in the Bill would be 100 per cent. Although the amendment does not specify what the 100 per cent relates to, I presume that it refers to the market value of the animal. As I have just said, the Government have decided to specify on the face of the Bill that slaughtered FMD vaccinates will be compensated at their market value as if they had not been vaccinated. In those circumstances, I hope that noble Lords will agree that Amendment No. 199 is not necessary.
Amendments Nos. 201 and 202 would specify that compensation for all compulsorily slaughtered animals would be 100 per cent of market value before slaughter or vaccination. I have already referred to that point and I hope therefore that those amendments will not be pressed.
Amendments Nos. 204 and 205 would convert the order-making power to specify what level of compensation should be paid for compulsorily slaughtered vaccinates from a negative resolution procedure to an affirmative one. The Government have decided to specify on the face of the Bill that slaughtered FMD vaccinates will be compensated at their market value as if they had not been vaccinated. I hope, therefore, that noble Lords will not feel it necessary to pursue these amendments.
I apologise for the length of time that I have taken to reply. I have sought to cover all the points made, and I would be grateful if any member whose point I have not covered would tell me now or later, and I will write to them as soon as possible.
I wish to make two points. First, it is clear from the contributions of the noble Lord, Lord May, and the right reverend Prelate the Bishop of Hereford, which relate in part to my Amendment No. 197, that the use, wherever possible, of the word "reasonably" would improve the language of the Bill. If the Government wish also to include the word "proportionate" it would make the Bill a friendlier piece of legislation. The Minister should not merely inform us that the requirement of reasonableness is implicit; it needs to be spelt out.
Secondly, the noble Baroness, Lady Byford, may want to comment on compensation. An important issue is the time of valuation, that is to say, whether it takes place just before vaccination, or at the beginning of the outbreak. This is a very important issue. We obviously welcome the fact that compensation at market value would be given, but it is important that the time at which valuation takes place is specified.
I have a question on which the Minister might wish to pray in aid the noble Lord, Lord May. She said that slaughter after the three-month limit might be slightly artificial. For how long does the vaccination last? If a disease is contracted, does it persist? I presume that those factors would affect the decision on whether a limit should be applied to slaughter policy.
I fear that the noble Lord, Lord May, indicated that he did not wish to speak again. Often, I have looked hopefully towards the noble Lord, Lord Soulsby, but I received no response from him either. It would be wiser for me to write on the subject of how long vaccination lasts.
I shall write to the noble Lord, Lord Livsey, about the timing and the process of determining the value—of which the Government are committed to paying 100 per cent—and I shall send copies of the letter to other noble Lords.
I am always nervous about answering at the Dispatch Box on a question to do with legal advice on whether laws depend implicitly or explicitly on the use of particular words. I understand the point that the noble Lord, Lord Livsey, makes. If the legal advice is that it would not present any problems, I undertake to look at whether we could come back to "reasonable" and "proportionate", but if there is going to be a battle between the noble Lord and the lawyers, I fear, speaking from the Dispatch Box, that I may fall slightly towards the lawyers.
The noble Baroness has adopted a most accommodating bedside manner. She has been very unprovoking and has given us no reason to complain on that account. However, I fear that in the content of her speech she has said very little to ease my anxieties. Throughout her remarks she has given no sign of her awareness of the feelings that underlie the amendment and that have been provoked by the clause. The noble Baroness looks puzzled. If she wishes me to expand on that I shall gladly do so.
I fear that I gave the noble Lord the wrong impression. I understand the strength of feeling and I shall read carefully everything that has been said. I appreciate that some very strong views have been expressed.
That is some relief to me. I am obliged to the noble Baroness for her undertaking to read what has been said. I, too, shall read her speech with the utmost care to make sure that I have not missed some nugget that would cheer me up, but I fear that that is not the case. The noble Baroness started by saying that she was going to put the matter in context. To continue with my reference to her bedside manner, that was a good way of smoothing the sheets down so that the patient could be comfortable. However, it does not make me entirely at ease with what is left.
I, too, should like to put the matter in context. The noble Baroness has to accept that, even before the epidemic, the reputation of MAFF was not perfect. It did not enjoy a reputation of reliability, integrity and all the rest of it with the farming community. That was the start. The handling of the epidemic was far from immaculate. Even the Government have from time to time admitted that mistakes were made—and they certainly were.
Much has been made of the Anderson report, which called for a requirement that powers be clear and unambiguous. That does not mean that anything that is both clear and unambiguous is unobjectionable. There is no doubt that the clause is very clear and unambiguous, but that is not all that Anderson said. He did not say that anything that met the requirement of being clear and unambiguous would be all right by him—very far from it.
I remind the noble Baroness that the Bill and my amendment were drafted before the Anderson report was visible and long before the Royal Society report. The point that I wish to labour is that the feeling generated in the past is still there and very much alive. The subsection that I should like to delete says:
"The Minister may cause to be slaughtered any animal to which this section applies".
There is no mention of "reasonable". Putting the word in would not necessarily make the provision unclear or unambiguous. The Government and any authority wielding such powers must make some concession to the unease that is felt about somebody getting it wrong. No government, let alone this one, are in a position to say that Ministers never make mistakes. Most Ministers' careers are dotted with mistakes. A Minister coming clean and saying, "Yes, I am sorry, I made a mistake" is rather rare, although that does not mean that it does not happen.
I apologise for making one further point. I should like to be absolutely clear that the noble Baroness is not inhibited by any shortcomings of mine and fully realises the widespread depth of feeling about such provisions. I may have fallen short in my description of it. I hope that she will fully understand what she is really up against. Some gesture should be forthcoming from the Government at a later stage of the Bill.
I do not want to prolong my remarks, but I must apologise to the noble Baroness for the fact that in my zeal on my first amendment I omitted to mention Amendment No. 196, which is also in my name. Subsection (3)(b) contains the words,
"which is otherwise required in connection with the slaughter".
What is the value and meaning of "otherwise"? Is it a weasel word, or is it merely for decoration? If the latter, it could conveniently be omitted. If, on the other hand, it is a weasel word, perhaps the noble Baroness can explain its inward meaning.
I apologise to the noble Lord, Lord Peyton, for not having made clear that I had spoken to Amendment No. 196, as it was grouped with the others, although the noble Lord did not speak to it. If, as I fear, he finds my answers slightly short of satisfactory, I shall of course write to him on the subject and try to sort it out.
I accept the strength of feeling in the Committee on the issue of reasonableness. That is why I told the noble Lord, Lord Livsey, that if I am able to have due regard to that and to respond to the feeling of the Committee I shall do so. I shall take that issue away. I hope that the Committee will accept that I am making that statement in good faith.
I should like to come back a little on the Minister's response, for which I am grateful. I am slightly surprised that her colleagues—if I may so call them—in the Box cannot answer the question. We have included a three-month time limit in the provision because, as I explained earlier, we feel that the commitment should not be open-ended. In other words, without the amendment, the power could apply nine months or even one or two years after vaccination.
Earlier, the noble Baroness, Lady Masham, spoke about the importance of breeding stock which is extremely valuable and takes years to build up. It would be undesirable if the threat of losing that stock were to hang over farmers for an unspecified period. Do the Government have plans to address that issue? If not, I should be grateful if the Minister would clear up the position and provide us with more guidance before we return to the issue on Report.
I give that undertaking. I failed to deal with the point earlier not because the officials in the Box failed to supply an answer but because it arose while I was on my feet and I did not have time to consult. Had I known that the noble Baroness would return to the point, I would have consulted the Box while the noble Lord, Lord Peyton, was speaking. I shall of course take up the issue.
moved Amendment No. 206:
After Clause 4, insert the following new clause—
"NATIONAL CONTINGENCY PLAN
In the 1981 Act the following section is inserted after section 36—
"36A NATIONAL CONTINGENCY PLAN
The Government shall prepare and regularly maintain, in consultation with interested public and private bodies, a national contingency plan for foot-and-mouth disease and other specified diseases, which shall be laid before Parliament.""
Amendment No. 206 is our proposal for a national contingency plan. As Members of the Committee who were in the Chamber yesterday know, the Government have indicated that they will propose their own national contingency plan. I hope that that position has not changed overnight.
We are asking the Government to,
"prepare and regularly maintain, in consultation with the interested public and private bodies, a national contingency plan for foot-and-mouth disease and other specified diseases, which shall be laid before Parliament."
We are asking that such a plan be prepared, regularly updated and maintained in consultation with other bodies. Yesterday, the Minister said that the Government are giving such a commitment. We are pleased that they have accepted the weight of our arguments.
Anderson devoted a whole chapter to contingency planning and made six associated recommendations. One of his major criticisms of the 2001 foot and mouth outbreak, made on page 34, was that although the then animal health contingency plan had been checked in 2000, implementation of the Drummond report recommendations was proceeding slowly. I hope that the Minister will be able today to update us on subsequent developments. The obvious inference is that the department must be answerable frequently and openly to a higher authority.
According to the National Audit Office report, on page 29, the national contingency plan had been approved in July 1993. The work in 2000 consisted mainly of updating contact names, telephone numbers and minor facts. Work had in fact been done on local plans, but four of the 19 plans had not been updated in years. I am sure that Members of the Committee will be disappointed and concerned by that fact.
The National Audit Office report says that the contingency plans coped in areas where the outbreaks were small but not in the worst-hit areas where many more farms were affected. I beg to move.
I support Amendment No. 206 and its proposal for a national contingency plan. In the interest of brevity, I should point out that many of these points were debated yesterday in relation to our Amendment No. 99 and Amendment No. 103A. In those debates Ministers told us that a national contingency plan was an integral part of their plans and would be outlined in due course. I support the amendment and trust that the Government will keep their word in relation to yesterday's assurances.
I, too, support the amendment. However, I ask the Minister whether it is not a European Union requirement for the British Government to have a contingency plan for foot and mouth disease that must be periodically revised and approved by the European Union? Was that not done with the July 2000 version? I ask the noble Baroness, Lady Byford, whether the contingency plan applies to all animal diseases or only to foot and mouth disease, as does the current contingency plan?
I should first apologise for not being present for the beginning of the debate. As I indicated yesterday, the Government intend to table an amendment that is not dissimilar to Amendment No. 206. Although I should like to finalise this with my legal advisers, the intent of our amendment will be in line with the requirements of Amendment No. 206.
An interim foot and mouth contingency plan is currently available and will shortly be not so much finalised as continually updated. In answer to the noble Countess, Lady Mar, the foot and mouth contingency plan will serve as a template for the control of other diseases. In addition, however, specific contingency elements will be developed to deal with other diseases. That point would presumably be covered by Amendment No. 206, and it will certainly be covered by the amendment that we shall table.
In principle, therefore, I am at one with the noble Baroness, Lady Byford. With the leave of the House, I shall table an appropriate amendment on Report.
I thank the Minister for that clarification. The noble Countess, Lady Mar, was right to raise a point which I have specifically dealt with in my amendment. Under "National contingency plan", the amendment states that,
"In the 1981 Act the following section is inserted after section 36."
Designated as Section 36A, it states that,
"The Government shall prepare and regularly maintain, in consultation with interested public and private bodies, a national contingency plan for foot-and-mouth disease and other specified diseases, which shall be laid before Parliament."
I am satisfied with the Minister's reply and look forward to his tabling of the government amendment. I am also extremely grateful. Ministers have appreciated the weight of our argument and are moving forward on this occasion. I beg leave to withdraw the amendment.
The purpose of Amendment No. 207 is to probe the intentions of the Government as to the status of the legislation that is proposed in the medium term. When the Bill was first put forward there was a very clear impression given that it was interim legislation and that it would at some stage be replaced, supplanted or added to by further legislation following the reports of the Anderson committee, the Follett report and so on. Indeed, we are now promised a report from the committee of the European Parliament which many of us are looking forward to reading.
A long time ago—it seems a long time ago—back in January when we had the Second Reading of the Bill, there was considerable discussion and debate as to whether the Bill should proceed. My noble friend Lady Miller of Chilthorne Domer is recovering from a serious operation. I am sure that the whole Committee joins me in wishing her a good recovery so that she can once again take her place in the Chamber. At Second Reading she moved an amendment which would have had the effect of delaying consideration of the Bill. Subsequently the noble Lord, Lord Moran, invoked a procedure which I believe had not been used within living memory—not even that of Members of this Chamber—and, as a result, the Committee stage was postponed for several months.
At Second Reading the Minister made some comments which I wish to quote as they are pertinent to the question we are discussing. He said,
"We look forward to learning the longer-term lessons that those investigations will yield ... in relation to those lessons about which we are already aware, we should take steps to rectify the situation now. That is what the Bill is about".—[Official Report, 14/1/02; col. 838.]
He added, at col. 842, that,
"the Bill reflects the lessons already learnt from foot and mouth disease; the need for us in the coming months to have a full armoury of weapons, should the disease recur".
We have heard that constant refrain from the noble Lord and the Government. I believe that that view is broadly shared in the Chamber. The noble Lord referred, also at col. 842, to,
"the time when we can take into account the full outcome of the inquiries which we have set up to look into the disease and the lessons learnt on a longer-term, more strategic basis. At that point— this is the part I emphasise—
"I have no doubt that the Government will need to come forward with both legislative and operational proposals in more comprehensive detail".
Yesterday the Minister said in his statement that,
"I should make clear that our comprehensive response to the Lessons to be Learned and the Royal Society inquiries were intended to be published in late October or early November and I cannot pre-empt the publication of that response ... However, we have given priority consideration to those aspects of the inquiries that could impact on the Bill".—[Official Report, 7/10/02; col. 22.]
The Minister also referred to various government amendments that would be brought forward.
There is an interesting question concerning the status of the legislation now as regards the Government's intentions. Is this still regarded—as I believe many regarded it six months ago—as interim legislation which will be replaced, or is it permanent, long-term legislation? Will any further legislation that results from the Government's consideration of the Anderson, Follett and, no doubt, other inquiries that will emerge later this year—very soon later this year, one hopes—be additional legislation building on the Bill or will it be replacement legislation in some kind of omnibus Bill that takes over from this Bill? In other words, is this Bill a short or medium-term answer to the immediate problems to allow the Government to deal with a new outbreak or outbreaks of other diseases should they occur—heaven forbid—in the interim, or is it intended that this legislation will still be on the statute book in 10 or 20 years' time? The purpose of tabling the amendment I am discussing is to probe the Government's intentions. It is important that we know the position. I am not sure that we have yet received a clear statement from the Minister on the matter. I beg to move.
I add my weight to the question that the noble Lord, Lord Greaves, has raised. I believe that we all agree that we are in some difficulty as regards debating this Bill at this time. I too should be grateful if the Minister would clarify the Government's thinking on that aspect of the Bill and on the sunset clause that is proposed. I look forward with interest to hearing what the Minister has to say.
I pick up a point made by the noble Lord, Lord Greaves. Presumably, as far as the Government are concerned, the deliberations of the Anderson and Follett reports are of a voluntary nature. They can interpret those reports as they wish and they can introduce legislation accordingly. However, I refer also to the deliberations of the European Parliament. As I understand the position, those recommendations will be compulsory and the Government will have to introduce legislation accordingly. Whichever way one looks at the matter one can assume only that further legislation will be needed to finish the business with regard to foot and mouth.
The noble Lord, Lord Greaves, asked a number of questions, not all of which I can answer. However, I shall try to put the matter in perspective. When the Bill first appeared—some time ago now—it was still, as I said yesterday, under the shadow of the disease. It was considered to be needed urgently in order to cover the situation should an outbreak recur. In the event, Members of this Chamber delayed the Bill until after the reports we are discussing had been received.
The comments I made at an earlier stage of the Bill, to which the noble Lord referred, were made without knowledge of the detailed recommendations of the reports. However, the reports endorse the central provisions of the Bill. The reports also cover some other aspects, either directly or implicitly, which are not in the Bill. There are a number of problems with animal health legislation, some of them alluded to yesterday, which the Government will have to take into account in developing our animal health strategy over the next few months. Until that strategy has been developed we shall not be clearer as to what type of additional legislation will be required and whether that legislation will be additional to the Bill—or the Act, as I hope it will become—or whether it will be consolidating legislation which will incorporate the Bill and other legislation. That decision has yet to be taken.
The clause we are discussing is clearly a sunset clause, and a fairly short-shrift sunset clause at that. It presumes that we shall have legislation on the statute book in the parliamentary Session after next. Given the history of animal health legislation and the difficulties that have arisen in that regard, it would be unwise of any government to commit themselves to such a sunset clause. As the main provisions of the Bill are endorsed by Anderson and the Royal Society, I do not wish to call it interim legislation. It may be incomplete legislation but I suspect that the long-term legislation will either keep the Bill in place or broadly incorporate its powers. Therefore, I do not believe that it is appropriate to include a sunset clause. I certainly do not believe that it is appropriate to include a short-term sunset clause, as proposed by the noble Lord, Lord Greaves.
Clearly, the position will have to be reviewed in the light of the development of the animal health strategy taking into account all the points made in the reports, our experience and, indeed, as the noble Earl indicated, the European developments which will emerge in a few months' time. As of now, I believe that the main provisions of the Bill will be fairly longstanding. However, as regards the exact nature of the subsequent legislation, I cannot give any clearer an answer than I have just attempted to provide. Therefore, I resist any attempt to insert a sunset clause into the Bill.
In reply to the noble Earl, Lord Peel, I believe that the conclusions of the European Parliament's committee of inquiry, if that is what it is, will not be binding on anybody. It is simply a committee of inquiry, as I understand it, which is producing a report. If the result is future directives or legislation from the European Parliament or otherwise in Europe, that would be binding. The noble Lord, Lord Plumb, knows more about these things than I do and he agrees with me. He is nodding. I am grateful to the noble Lord.
It was an interesting clarification, but I am not sure that it was what many of us wished to hear. Nevertheless, on the basis of that clarification I beg leave to withdraw the amendment.
This amendment examines the situation as we find it in the Animal Health Act 1981. It amends subsection (3) which refers to treatment and the power of entry and enforcement in the Bill. The subsection omits the words from "taking with him" to the end.
I wish to probe the Minister's mind, if I am in the correct part of the Bill. I know that I shall be corrected if that is not the case. Section 16(2)(b) of the Animal Health Act 1981 has been referred to. It states,
"which is otherwise required in connection with that treatment, and for the purpose of exercising those powers any officer of the Minister may, subject to the production of his authority on demand, enter any land or premises taking with him such persons, if any, which he considers requisite".
My interpretation is that, subject to the production of his authority on demand, he may enter any land or premises, full stop. That is what will remain as a result of the words in the 2002 Bill. That indicates that no persons will be taken with him as he considers requisite. I wonder about the background to that and why these changes are asked for. I beg to move.
This is a formulation which we have used elsewhere in the Bill and therefore I defend its consistency. It alters the provisions of the 1981 Act. The effect of the amendment would be to revert to that Act which states that the officer may take with him any such other persons, if any, which he considers requisite. Apart from the arcane language, I believe that the matter is better expressed by what we have in this Bill, that the inspector may take with him or her such other persons as he thinks necessary to give him assistance as he thinks necessary. In other words, what is requisite or not is related to giving the inspector assistance and not necessarily to anybody for any other purpose which the inspector may feel inclined to bring along with him.
In effect it restricts what was previously the situation, but it does so in a very specific way. The noble Lord may say that it is a relatively minor change and why bother, but it is consistent with what we have said elsewhere in the Bill and I would rather leave it that way.
"If a justice of the peace is satisfied on sworn information in writing"— that is one justice of the peace. The evidence is given on oath, but not verbally—
"that the first condition is satisfied and that the second or third condition is satisfied he may issue a warrant authorising an inspector to enter any land or premises".
I wonder whether the matter should go before a petty sessional court with at least three justices of the peace sitting. That may be too elaborate. I ask the Government to consider not cutting down legal proceedings to the bare minimum contemplated here. I am not entirely without hope that the Minister will respond positively. I beg to move.
I cannot oblige the noble Lord, Lord Peyton. The whole point of the new provision in the Bill is that we get swift decisions. The stipulation that there should be three justices of the peace rather than one will inevitably lead to delay in convening such a court in certain circumstances. It would go well beyond the normal case where one justice of the peace is sufficient in an application for a warrant in other circumstances. It would be unprecedented to apply that to these circumstances.
Having said that and having recognised the noble Lord's anxieties, we have tabled amendments which clarify the range of conditions on which a warrant may be granted. They should ensure that the powers are subject to a clear, transparent and rigorous test of reasonableness and that the overall balance, such as the public interest, is taken into account with the private interests and those of the farmer or stockholder. We are clarifying the issues which the justice of the peace will have to take into account. Adding two further JPs to a situation where one is trying to overcome the disease would slow down the process. It would therefore be contrary to what is intended by these changes in the procedure.
I believed that I was very reasonable in that I admitted that I was asking for a full choir. I realise that was being a little optimistic. I sensibly and modestly said that I would not insist on that. I hoped very much that the noble Lord would be moved by my accommodating attitude and do likewise. I am a little disappointed. Other people are likely to be affected by this procedure and they are not going to be represented. They will have no chance to object. I wonder whether it would not be wise for the noble Lord, for the sake of appearances, to look at this matter again. As I said, I am not asking for the full choir, but for somebody to be there to see that things are done as they should be. One justice of the peace is minimal.
Presumably, the degree of the noble Lord's "reasonableness", which I am always willing to acknowledge, is to move from requesting three justices of the peace to requiring just two JPs. Admittedly, that would make it slightly more likely that they could convene such proceedings, but it would still slow down the process. In all other warrant proceedings, one justice of the peace is sufficient. Therefore, because speed is of the essence in this particular case—and provided that the JP is required to observe "reasonableness" in the way that our amendment will provide for—I believe that one JP is sufficient in these circumstances. I regret that I cannot be as reasonable as the noble Lord suggests; indeed, even compromising at one-and-a-half would be beyond me.
In moving this amendment, I shall speak also to Amendment No. 238, both of which relate to Clause 6. The latter are reflected in identical amendments; namely, Amendments Nos. 244 and 267, which relate to Clause 7. I understand that there is an instruction in the brief of the Deputy Chairman of Committees to point out an error in Amendments Nos. 238 and 267. Both amendments refer to Article 9 of the European Convention on Human Rights, whereas reference should be made to Article 8 of the convention. I have been informed that there was to be an instruction in the brief of the Deputy Chairman of Committees to draw attention to that error. However, perhaps I may do so myself at this point.
Each set of amendments is complementary and relates to the exercise of the power to enter land or premises to slaughter. It engages the right to respect the family life under Article 8(1) of the convention. We are in a curious situation at present. The scheme of this Bill was devised in a national emergency for slaughter, but it amends the 1981 Act which was introduced when there was no national emergency. Slaughter is extended from that Act by amendment to deal with the national emergency to protect the spread of disease.
We have now moved to the stage when there is no national emergency and, apparently, vaccination is to be preferred to slaughter. The importance of that is as follows. What is reasonable and proportionate in a time of national emergency may not be reasonable and proportionate at some other time. It depends upon the circumstances. There must be a procedure which affords that flexibility. Without reverting to the first amendment of my noble friend Lord Peyton, the lack of flexibility in that clause was the root of the trouble.
In that context, the Minister said yesterday that the same powers of entry are required for both vaccination and slaughter. I understand that. I also understand that in a time of national emergency such powers must be of a certain quality, but that, at a time which is not a national emergency, they have to be of another quality; in other words, there has to be a flexibility reflected in the procedure which is acceptable under Article 8(2) of the convention on human rights.
It is no use the Minister pointing out to the Committee that he has already certified the Bill as being "compatible with the Convention rights". I shall shortly refer noble Lords to two passages in the Tenth Report of the Joint Committee on Human Rights, which takes another view. The position here is that one has to show under Article 8(2) that the Bill's provisions, or the implementing machinery under a code of practice, are necessary in the interests of the economic well-being of the country and are proportionate to that end.
So, what happens? A justice of the peace issues a warrant on the sworn information that the three conditions are satisfied. He authorises an inspector to enter using reasonable force, and to require any person on the land or premises (under pain of fine and imprisonment for refusal) to give such assistance as he thinks necessary under the slaughter warrant.
Amendments Nos. 211 and 244 say that when the warrant is served it must be accompanied by the information on which it was sought. If that is not complied with, there will be massive scope for the abuse of power, which it would be totally unacceptable to leave in a statute. Indeed, it simply could not exist. Apart from the wretched convention on human rights, it is contrary to our whole concept of justice that anything like that should be tolerated. It means that when the man receives the information—that is, the sworn information on which the warrant is issued by the justice of the peace—he can say, "But it's not true: I am going straight off to the High Court to ask for an emergency hearing". I can assure the Committee that you always get it; indeed, you can get it at the drop of a hat. An emergency hearing would be convened and it would be held up by order of the High Court, or given a stay under judicial review—a mandatory order against the executive. It is done very often.
However, if you do not have the knowledge and if you do not have in your hand the sworn information, what on earth can you do? That is the force of the argument behind Amendments Nos. 211 and 244. The latter are related to Amendment No. 238, which is double-barrelled. It refers to the penal section: if you refuse to comply with the request of the inspector, you may receive six months' imprisonment and/or a fine. Those are the provisions in Clause 6(12). As corrected, Amendment No. 238 states:
"The provisions of subsection (12) shall not create an offence if in the circumstances failure to give such required assistance was a reasonable and proportionate response having regard to the provisions of Article 8 of the European Convention on Human Rights".
The following new paragraph states:
"The Secretary of State may issue a code of practice as to the nature and extent of the requirement for assistance under subsections (8) and (9) which shall be subject to affirmative resolution in both Houses of Parliament".
That resolution could accommodate various circumstances, such as a national emergency and the change to when there is not a national emergency. It could operate through the equivalent of an Order in Council. It would import the very flexibility that is missing in the Bill but which has to be included if it is to work in a just and reasonable fashion.
That is what these amendments are all about. I do not want to take up much more time but there are two passages from the 10th report of the Joint Committee on Human Rights which are straight in point on both amendments. I have to declare an interest—or lack of interest—as a member of that committee.
The first reference is from paragraph 27. It states:
"However, we consider that it would be desirable for a copy of the information sworn by an inspector in support of the application for a warrant to be served on the occupier, together with a copy of the warrant, when the warrant is executed, in order to reduce the risk of arbitrariness and to make judicial review of the warrant an effective remedy for any violation of Convention rights. With the same ends in view, we consider that the term of the Protocol, proposed in the Government's consultation paper on the implementation of powers under the Bill . . . should be capable of being received as evidence in relation to any issue to which they may be relevant in any proceedings, like the Codes of Practice which deal with many other areas of public administration, including entry to premises in the course of criminal investigations. Such proceedings would include applications for warrants and judicial review of warrants . . . If these safeguards are provided, we conclude that the provisions of the Bill would be unlikely to give rise to an unavoidable incompatibility with rights under . . . Article 8".
The other passage, which, fortunately, is shorter, is from paragraph 21. It states:
"we do not consider that there is a serious risk of these provisions of the Bill being incompatible with Convention rights in theory or in practice. However, we believe that legislation which confers apparently wide powers or imposes apparently wide liabilities should make clear the limitations which are imposed by Convention rights. This is desirable in the interests of legal certainty and the notion of the rule of law, ideas which are central to effective guarantees of human rights. Express clarification on this point could be provided by an amendment to the Bill without ... affecting the policy which the Bill seeks to advance or the balance of interests which it embodies. Accordingly, we draw the matter to the attention of each House".
Something has got to be done about this. It is no use the Government saying, "We have certified that this is fully compatible with the ECHR". The matter goes well beyond that; it goes to the root of justice. I beg to move.
I was going to say a few words in support of Amendment No. 212, which appears in the name of my noble friend Lady Byford, but, having listened to my noble friend Lord Campbell—I have every sympathy with the very persuasive argument that he put forward—I have to point out that if we supported Amendment No. 212, by which an occupier would be entitled to present sworn information in person or in writing to a justice of the peace, he or she would not be able to do so unless he or she had had access to that information beforehand. That is covered by the amendment of my noble friend. The two amendments, as I see them, are symbiotic.
I return to the letter of 25th September, which the Minister kindly sent to those of us who are interested in the Bill. He gave, or implied, certain assurances, some of which have clearly not materialised in the government amendments. For example—I have already referred to these two instances—there is no obligation, under the government amendments, on inspectors to serve copies of written evidence that is put before the magistrates to the occupiers. Secondly, occupiers have no right to put their case to the magistrate; that matter is covered by my noble friend's amendment.
Without wishing to put too fine a point on it, there is no doubting the fact that a great deal of friction has built up during the course of the foot and mouth crisis between the inspectors and the Government and the rural community and farmers. Suspicion prevails; some of it is justified and some of it is clearly not justified. However, that is the case.
I realise—the noble Lord, Lord Carter, was absolutely right to make this point—that the Bill's primary aim is to give the Government the necessary powers to carry out their responsibilities when dealing with a crisis such as the foot and mouth outbreak. Of course its contents should be based on lessons learnt and the recommendations that flow from the expert inquiries. However—I stress this point—it should also be seen as a chance to build bridges and to restore confidence between the farming community and the new department. MAFF has gone and we now have DEFRA. I see the Bill as a real opportunity to give rural communities confidence in DEFRA.
It is totally unreasonable to deny an occupier the opportunity of having access to the evidence that has been submitted to the magistrate. Such evidence will, in many cases, completely change the lifestyle of an individual; we have seen so many cases in which farmers have become totally distraught as a result of foot and mouth. A consequence that flows from that is that natural justice demands that the same occupier should have the chance to respond—that is suggested in the amendment of my noble friend Lady Byford—and therefore the opportunity to put his or her case to that magistrate.
I really do not believe that that is an unreasonable request. This is a perfect opportunity for the Government to demonstrate that they wish to work closely with rural communities. Both amendments are essential and would send the right message. I sincerely hope that the Minister will consider them very seriously.
The amendment and the following two groups of amendments are very important parts of the Committee's discussion. The amendments are about what happens when a decision is made, or when a potential decision is made, by magistrates to issue a warrant to a person acting on behalf of DEFRA to go on to a farm or land and slaughter or do other things to the livestock there. Slaughter is the most important issue—people are most concerned about it.
Although an improvement on what exists in the Bill and despite going some of the way to meet what is required, I do not believe that any of these amendments, including the government amendments which we shall discuss later, are adequate. I hope that we can return to the matter on Report.
As I understand it, the amendment in the name of the noble Lord, Lord Campbell of Alloway, suggests that people should be given the information or sworn statement on which the magistrate makes the decision at the point when the warrant is exercised and people enter the land. That, it seems to me, is too late. The crucial issue is that addressed by the next group of amendments tabled by the noble Baroness, Lady Byford; that is, people should be entitled to make representations to the magistrate before the decision is made. I believe that that can occur without causing a huge delay in the whole process—a matter which clearly concerns the Minister.
However, in order for that to happen, surely the details of any other information provided to the magistrate should be made available to the owner of the livestock before, or when, he makes his own submissions. I believe that under the amendment of the noble Lord, Lord Campbell, the information would be provided too late so far as concerns that process. I still believe that the information should—
I did it on purpose. I envisaged the emergency situation. Things have to move quickly in a national emergency. I may have been wrong but that is how I saw it. I believed that the minimum safeguard was that, if the information was made available then, one could say, "No, it's wrong. I'm going to seek emergence". But I quite agree—if one wants to play it the other way round, that is a matter for the Committee. But if one does that, one detracts from the emergency aspect.
I am grateful to the noble Lord. I was going on to say that, if it were impossible for the information to be provided at an earlier stage, then, as the noble Lord said, as the minimum requirement it should be absolutely necessary for it to be provided at the time the warrant was served. If people want to take further action, they must know on what basis a decision has been made. Without such a provision, I do not believe that the rules of natural justice are being applied.
I support what the noble Lord, Lord Greaves, said. Of all the areas of the Bill which trouble me, this one troubles me most. I am perhaps trespassing into subsequent groups of amendments with which we are about to deal. However, whatever the method and at whatever stage it is done, it seems to me that some way must be found to provide that the farmer or owner of the animals who is on the receiving end of such an order at some stage has all the evidence that is placed before those who make the decision and that at some stage he is given an opportunity to be heard. Perhaps the stage at which that happens is not so important, although ideally it should happen at the earliest possible opportunity. I hope that, in considering this and later groups of amendments, there will come a point at which the Government can say that there are ways in which that can be achieved.
I believe that on the whole in this country we are governed by consent. That consent involves acceptance of the law. One of the big problems experienced during the recent outbreak of foot and mouth disease was that people were "jackbooting" their way on to people's premises and killing the animals without the consent of the owners.
Contrary to the belief of some noble Lords whom I have heard speaking in this House, most farmers do not regard their animals as goods to be exchanged for money. They build up affection for them. When one has had a herd of Friesian cattle, for example, for 30, 40 or 50 years, one knows every single animal in the herd, one knows all their personalities and one talks to them. To be told overnight that one's animals will all be killed is an extremely shocking experience. We know that that shock still runs through the farming communities where foot and mouth disease spread.
The Bill as currently drafted and, indeed, the new amendments tabled by the noble Lord, Lord Whitty, do not necessarily invoke consent in the farming community. I ask the noble Lord to think very carefully about the amendments both in the name of the noble Lord, Lord Campbell, and in that of the noble Baroness, Lady Byford, before he rejects them outright.
I disagree with the fundamental proposition of the noble Lord, Lord Campbell of Alloway, that there is a distinction between emergency and other situations. In my view, if foot and mouth disease breaks out in this country, we have an emergency situation. It does not matter whether it involves 60 premises or one. We need to act quickly and we need to stamp it out quickly by whatever method—slaughter or vaccination—is considered appropriate. Therefore, I do not believe that that distinction applies.
The purpose of the procedure that we have adopted here is to speed up the process whereby, where there is conflict between the stockholder or farmer and the authorities, the authorities can apply to a justice of the peace. Clearly this is a conflict situation and, clearly, in such a situation there is not consent. That is why we must deal with it. In the vast majority of cases, reluctantly and with great trauma in many cases, farmers recognised that we needed to act quickly and therefore entry was granted. However, in a few cases, some of which threatened to hold up effective disease control, entry was not granted. That is a conflict situation.
However, speed is still of the essence. The provisions that I am tabling, first, require the authorities to inform the occupier what is required of him and the reasons for it and, secondly, if he refuses entry, then the justice of the peace must be convinced of the inspector's or the authority's claim.
I do not believe that representations are provided for in any other warrant procedure. Many warrant procedures are subject to far less time pressure than exists when one is trying to stamp out a grotesque disease. Therefore, I believe that building in sworn statements, representation—I know that that comes under a separate group of amendments—or other potential delays is not a sensible way in which to approach the matter.
In our own amendments we have indicated what needs to be conveyed to the occupier and what the justice must take into account when making a decision as to whether or not to grant a warrant. However, I do not consider it necessary to build in a process which would slow down that procedure. As I said, no other warrant procedure requires copies of the information to be provided and, in essence, there is no difference in principle. The justice of the peace must consider all the relevant factors.
It is also the case that the powers provided here have precedence in other enforcement regimes, in particular, in the Food Safety Act 1990, which may be regarded as equivalent to this situation but possibly less fraught in terms of how rapidly one would need to act and the consequences of not acting. Therefore, I believe that precedence, logic and the need for speed rule out the type of provisions which the amendments of the noble Lord, Lord Campbell of Alloway, indicate he would like to see.
The Joint Committee on Human Rights concluded that, provided those safeguards were built in, it did not believe there was a serious risk that the provisions of the Bill would be incompatible with the European Convention on Human Rights, either in theory or in practice. The committee suggested one particular way of ameliorating the situation; we have suggested others in terms of what the justice must take into account. The central conclusion of the committee was that, given all the circumstance, those powers are compatible.
In terms of Amendment No. 267 and requiring assistance, we have tabled an amendment to restrict a person from whom assistance is required in those circumstances to those who are keeper of the stock or their employees. The requirement would have to be reasonable.
We have built in many safeguards, but to have another legal turn of the loop, as is required by these amendments, would not be appropriate. It is not required for the procedure to comply with the European convention and could be detrimental to the process of controlling the disease.
Before the noble Lord, Lord Campbell, replies perhaps I may ask the Minister about the warrants. Thank goodness I am not a lawyer, but it seems to me that generally warrants are for purposes such as search or investigation or for seizing property or for arrest or for such purposes that are not as terminal or as permanent as going on to land and slaughtering livestock. The nature of the action to be taken leads some noble Lords to question whether a normal warrant procedure needs further safeguards built around it in this case. If I am wrong, perhaps the Minister can take advice and tell me of circumstances where warrants are issued that are analogous to entering a farmer's land and slaughtering all the sheep or cattle.
I notice that Section 16 of the Act relates only to vaccination. Therefore I do not feel as strongly about these amendments because the animals will not be killed instantly. In relation to later amendments, where there are slaughter powers, I shall be more concerned. It seems that there can be slightly different requirements for vaccination-only purposes as opposed to slaughter requirements.
I take that point. It was within my concept of the flexibility of the code of practice, the code of procedure or form of amendment. I quite agree that there has to be flexibility as to how the matter is operated. I am grateful for the contribution on warrants which is absolutely right. There is a fundamental distinction between a warrant for the slaughter of a herd of animals and an ordinary warrant. I must not take the time of the Committee because it is totally apparent from the speech of the Minister that he will not budge an inch. He is going to stand by his attitude, which has been typical in relation to this Bill, and tough it out. I shall not take the time of the Committee today, but I shall test the opinion of the House on another occasion if I am given leave, for which I ask, to withdraw the amendment.
Amendment No. 212 could have been linked with the amendment of my noble friend Lord Campbell of Alloway, but I felt strongly that he had an additional point to make and if he wished to divide the Committee I did not want my amendment to fall with his. To a certain extent we debated this matter on the previous group of amendments. This amendment comes with backing from the farming community who strongly feel that there should be a chance to have,
"present sworn information in person or in writing", put before the justice of the peace. Some noble Lords may remember that in the foot and mouth outbreak some farmers were threatened and hassled to allow their animals to be killed and in a couple of instances I believe that some animals were culled by mistake because the department made a map reading error.
These amendments are not tabled lightly, nor without sincerity. I shall take no more time at this stage as I want to hear whether the Minister has anything additional to say. I note the good contributions made by noble Lords. My feeling is that these issues are so important that I do not wish to put them to a vote at this stage, but I want to hear what the Minister has to add. I beg to move.
As I indicated, this amendment, along with the provisions proposed by the noble Lord, Lord Campbell, would slow down the process. I do not believe that a sufficiently strong case has been made in this situation, as distinct from all other warrant-granting situations, for providing for representations to be made. Reverting to the previous debate, the noble Lord, Lord Greaves, said that no other warrant proceedings are quite the same as this. I suspect that that is true in the sense that animals are not slaughtered, although I would need to make a thorough assessment of all previous law, much of which goes back many centuries. However, in the economic sense there are equally draconian measures that can be carried out in terms of warrants. Businesses can be closed down as a result of the grant of a warrant under the legislation to which I referred—the Food Safety Act 1990. One can take measures that would close down a business just as much as one would close down a livestock farmer by slaughtering his flock or herd. So I do not believe that the precedent is made.
Reverting again to the previous debate, my noble friend Lady Mallalieu asked for representations to be allowable at some point. Representations are allowable; they are allowed not to a judicial body but to the district veterinary manager and that would be at the point where the initial decision was being queried. The stockholder is not entirely without the ability to make representations under our procedures. The whole situation will be governed, when the Committee adopts, as I hope that it will, the amendments that we have tabled on the issues to be taken into account by the justice, on the procedure for issuing the initial notice and, when I lay the amendments, on the protocol governing slaughter. There are all those restraints on the way in which we carry out the measures. To override those and to build in another legal diversion that would slow down the process when all those safeguards will be built in could not only be detrimental to disease control but would also undermine the real interests of the farming sector.
We are not dealing with animals that are infected or that are dangerous contacts, but animals in the firebreak situation. What delay does the Minister envisage being caused by providing a copy of the evidence that will be presented to the magistrate and telling the farmer at what time the application is to be made? How much time will be lost by putting that safeguard into the process?
In this context we are not dealing with the sworn evidence, but with representation. Representation and the legal right to representation brings with it the right to have time to take legal advice on the representations and to have a reasonable time to draw up the facts. That in itself is a potentially delaying process and it could be argued that failure to provide adequate time for those representations would be a delaying process. It is wrong to say that that does not lead to delay. One cannot instantaneously provide for an effective means of representation without envisaging the possibility of delay. Therefore, any legal rights to representation would potentially bring that danger.
I am sorry that the noble Lord seems unable to grasp the thread that has run through every single objection to the Bill; that is, that the animals whom human beings love and have bred for years are not the same as, for example, a cheese store. The noble Lord prays in aid the Food Safety Act. I have been directly concerned—not personally—with two cheese businesses which have been closed down under the Food Safety Act by these very provisions.
A farmer losing his stock is very different from a cheesemonger losing his cheese stock, which can be replaced quite easily and to which there is no sentiment attached. It is the emotional connection between the farmer and his animals which requires the Bill to be much softer than the harsh terms of, for example, the Food Safety Act. Will the Minister take on board that the problems with the foot and mouth outbreak arose because people were jackbooting into farms, upsetting the farmers and not understanding their concern for their animals? That is why we have objected so strongly to the Bill.
I shall of course read Hansard carefully. I am shocked. I think that the Minister is saying that the situation is such that there is no time to have any regard to the rules of natural justice under the law. I have never heard such a proposition in any sense. But I shall read Hansard carefully. If that is the attitude of the Government on this issue, it will be a very serious matter. I have never heard it suggested, even in these circumstances, that there just is not time to give anyone the information or the chance of an emergency hearing. I cannot accept that a Bill in that form could pass through this House.
Perhaps I may refer the Minister back to the letter he wrote on 25th September. He has been dogmatic in his response. As my noble friend said, he has clearly given the impression to the Committee that he has no intention of giving at all on these amendments. Yet, within the annex of that letter, there was an indication from the Minister that the two specific problems that we are discussing would be considered by the Government. At that time he was being a little more pragmatic. Clearly, something has happened between the writing of the letter and his addressing the House; I wonder what it is.
The letter indicates a number of safeguards we propose to build in plus—referred to in the annex—the proposition that we should have a protocol on the procedure for slaughter. That is different from giving a right to representation in every case where proceedings are adopted. To return to the point made by the noble Countess, clearly no one who was involved with this disease could walk away from it without recognising the extreme trauma that many farmers and others went through in the eradication of it. It is also regrettably true that the failure to control the disease at various points during the epidemic, both in this and in other countries, led to far more problems and animal owners suffering by the consequent slaughter of their animals than would have been the case had disease control measures been effectively carried out. That is why we seek to speed up the process. It is to protect the large number of farmers who potentially might be affected.
The provision requiring sworn statements was dealt with in the previous group of amendments. That would be a delaying factor. The provision that we should have a legal right to representation, which we are dealing with in this group, could be an additional delaying factor. One can see the consequences of that, in terms of the slowness in controlling the disease, would be much more trauma, distress, animal disease and economic damage. That is why we propose these changes. We are not suspending natural justice; we are trying to build in reasonable requirements on how both the officer and the magistrate carry out their roles. But we are trying to avoid the possibility of building in delay and thereby undermining the whole disease control effort.
In order to get matters into perspective, can the noble Lord remind the Committee in how many cases where court proceedings were either threatened or invoked during the recent foot and mouth disease did the animal owners concerned have animals which were eventually infected by foot and mouth disease?
I have given that figure several times and the noble Countess has queried it several times. It was not the number of cases that ended up in court, but the number that were delayed by people thinking that they had the ability eventually to go to court. In most cases people either eventually complied or the local vets looked at the situation again as is provided by the representations to the DBM and changed their minds. In some cases changing their mind was the wrong thing to do because some of their farms also ended up being infected.
I am perfectly prepared to write to the noble Countess and give her those figures again. But the issue is not how many ended up in court but how much of a delay was built in because people thought they could eventually go to court and avoid the culling of these animals.
I have to say that I think that is a thoroughly unsatisfactory answer to a very genuine debate on these two amendments. Members of the Committee will understand why I was very concerned that at this stage we would not be looking to put them to a vote. The Minister in his response said that he did not think there was—I cannot remember his exact expression—enough emotional weight to it. For goodness sake, we can all raise our voices and speak a little louder. I ask the Minister not to be under any illusion that we in this Chamber—and I suspect many outside—feel bitterly disappointed with the debate that has just taken place. At this stage I do not intend to push the matter to a vote. However, I strongly urge the Government to reconsider their responses in the light of what has been said in the Chamber today. I cannot give the noble Lord a stronger warning than that. I am very serious. I beg leave to withdraw the amendment.
moved Amendment No. 212A:
Page 3, leave out lines 28 to 37 and insert—
"(5) The second condition is that each of the following applies to the occupier of the premises—
(a) he has been informed of the decision to seek entry to the premises and of the reasons for that decision;
(b) he has failed to allow entry to the premises on being requested to do so by an inspector;
(c) he has been informed of the decision to apply for the warrant.
(6) The third condition is that—
(a) the premises are unoccupied or the occupier is absent and (in either case) notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or
(b) an application for admission to the premises or the giving of notice of intention to apply for the warrant would defeat the object of entering the premises."
In moving Amendment No. 212A, I shall speak also to Amendments Nos. 233A, 235A, 245A, 254A, 262A, 279A, 283A and 292A. The amendments deal with some of the qualifications to which I referred in the earlier debate. Their purpose is to ensure that in future disease outbreaks we are able to take swift and rapid action but, at the same time, introduce safeguards substantially to reinforce the conditions under which a warrant can be awarded.
Taken as a whole, the changes satisfy the need to ensure that the powers are subject to a rigorous and transparent test of reasonableness and that the overall balance—this is a balance of public interest—takes proper account of the rights of the farmer.
The provisions in Amendment No. 212A spell out clearly how the officer in the first place carries out the giving of notice. The subsequent amendments add to that in terms of the issues that a JP has to take into account. I shall not say any more at this point since these are the safeguards that I have been referring to over the past half an hour.
I am sorry again to be unhappy with the proposed words; I accept the Minister's genuineness in trying to table an amendment that we all find satisfactory. I have three comments to make about the amendment. I object to the third condition in new subsection (6). It refers to,
"notice of intention to apply for the warrant has been left in a conspicuous place on the premises".
I find that totally unsatisfactory. Who defines what is a conspicuous place? Someone may enter the premises and unwittingly move the notice. The Government must table a much better worded provision. Other amendments suggest that the notice should be given to the person whose property it is or the person who looks after the animals. The wording of the amendment is most unsatisfactory.
Will the Minister explain further the choice of words in proposed new paragraph (b):
"object of entering the premises"?
Premises can be anything. As the Minister will be aware, many farmers have had to diversify to keep their heads above water. So in properties, other businesses will operate freely and independently that are nothing to do with the farmer concerned, but there is no definition of what premises the Government seek to include.
Before I move on, Amendment No. 235A states:
"A warrant issued under subsection (3) must be executed only at a reasonable hour".
We have discussed hours and tabled many different amendments about them, but here again we have an amendment that states, "a reasonable hour". It would help the Committee enormously if the Minister would respond to those three queries. I am most unhappy about the first.
"the premises are unoccupied or the occupier is absent".
What does that mean? Does it mean that the person does not live on the premises concerned? Perhaps he owns two farms at either end of the village but everyone knows where he is—he has not absconded and is not an absentee in a real sense but is simply not present on the premises concerned. It requires much tighter wording to allow for the case in which people reasonably know where the person is although he is not actually present. Otherwise, in circumstances of panic, chaos and, in many cases, a desire to get on with the job—as happened during the recent foot and mouth outbreak—it is easy for people to go by the words written on paper, not the spirit behind them. So the provision must be written more tightly so that people cannot abuse it simply because someone who is present in the village or area of the land is not on the premises. That is one concern.
Our second concern relates to new paragraph (b), which states:
"an application for admission to the premises or the giving of notice of intention to apply ... would defeat the object of entering the premises".
Obviously, if a raid is conducted on premises where it is suspected that drugs are being kept, people do not give notice or go to a magistrate to return later because the suspects will have gone and will have taken the stuff away. Everyone knows that under most circumstances in which warrants are issued, people go to hammer on the door—or, more likely, they take one of those fancy new machines that hammer the door down.
We are not discussing such circumstances. It may be that it is suspected that people may remove their stock—that appears to be what the provision covers. They may have a dozen sheep, put them in a van and drive them away, so that they are lost. I cannot imagine that that will happen often, but it may in some circumstances. In that case, the paragraph should spell out rather more clearly what is covered. Otherwise, what does the provision mean and in what circumstances does the Minister think that it may be invoked?
Having said that, and sharing the concern of the noble Baroness about those two paragraphs, which need to be reconsidered, we welcome the movement that has been made in the wording of the earlier new subsection in the amendment and the subsequent amendments linked to it in the group, in which the wording is better than that proposed before. It is improved, clearer and fairer. A little progress has been made and it would be churlish not to thank the Minister for achieving that. But paragraphs (a) and (b) still give rise to great concern. Like the noble Baroness, Lady Byford, we ask the Minister to reconsider them to try to achieve an improved wording between now and Report.
I am also worried by new subsection (6)(b), in which we look into a black hole of ministerial subjectivity. I share the understanding articulated by the noble Lord, Lord Greaves, that the provision is presumably to be written into the Bill in case the occupier absconds with the stock, barricades the place or takes some other action that would impede the visit of the inspector. But if that is possible in any case, it may be possible in every case. The clause could perfectly well be invoked to say, "We shall never give notice because it is always a possibility that the chap will have made off with the stock or will barricade the place so that we cannot get in."
The chances of exploiting new subsection (6)(b) are enormous and potentially dangerous. Of course, a few rogues may behave like that, but the provision should not be written into the Bill. It is extremely dangerous to allow it to be invoked by anyone at any time. Perhaps I am being pessimistic; but I have learnt from the noble Lord, Lord Peyton, that I must not be optimistic.
Perhaps I may return the compliment to the right reverend Prelate. I was just wondering what was happening to me when he suddenly came out with that wonderful phrase, "a black hole of ministerial subjectivity." Then I understood: I had a sense of falling, falling and never coming to a stop. I am most grateful to the right reverend Prelate.
Like the noble Lord, Lord Greaves, I appreciate the Minister's attempt to soften the provision; I have been critical of the Minister on other provisions. But I, too, am concerned about new paragraphs (a) and (b). For example, what happens if the person is out shopping or working? We discussed in relation to the part of the Bill covering scrapie the question of premises being unoccupied.
Perhaps the Minister can help us by telling us what sort of situations he envisages falling under new paragraph (b). The police already have powers to prosecute anyone who moves animals during an outbreak of foot and mouth disease. If it is already known that animals are on the premises—which presumably it will be if a warrant is applied for—and inspectors turn up at the premises and no animals are present, the owner or keeper can be prosecuted for moving them. So what other situations does the Minister envisage? I should be grateful if he would tell the Committee.
Could my noble friend the Minister deal with the interesting point made by the right reverend Prelate in his response? I heard the phrase "black hole of ministerial subjectivity". I am sure that the noble Lord, Lord Peyton of Yeovil—and others, too, perhaps—thinks that every Minister spends all his time in a black hole of ministerial subjectivity. I can assure him that that is not the case—in this Government, at least.
It would be helpful if my noble friend could confirm that all Ministers are subject at all times to a public law requirement to behave with reasonableness and proportion. That is an important point. If they do not behave in that way, they are subject to judicial review. So, it is not feasible that Ministers would exploit the proposed subsection (6)(b) in the way suggested by the right reverend Prelate. If they did, they would be in breach of their obligations under public law.
That tempts me to intervene. I had the impression that the noble Lord, Lord Carter, had been earning point after point of merit from the Government during the passage of the Bill for the marvellous and gallant way in which he has saved them from almost impossibly bad argument. Now, he has said something that runs contrary to the spirit—if that is the right word—of the Bill. The words, which will be inscribed in Hansard, will also be inscribed in my memory; I shall be tempted to use them again and again.
My noble friend Lord Carter makes a point that is an essential qualification to all the concerns that have been expressed about paragraphs (a) and (b). In general, the rest of the amendments have been welcomed.
Not only is the Minister obliged to behave reasonably and not descend into the black hole into which the right reverend Prelate tempted us, but his officers are also required to do so in the circumstances. They must reasonably ensure that, if there is nobody there, they have made every effort to find the most conspicuous place to leave the notice and ensure that they arrive at a time at which it could reasonably be expected that the occupier would be there. That goes back to the other point, in the later amendment, about reasonableness. At an earlier stage of the Bill's passage, we discussed whether it was correct to identify certain hours as reasonable for office workers and for farmers. We take that point about reasonableness, and that is why it must apply to farming practice and to the hours thought likely to be kept by the occupier. Throughout, we must behave reasonably.
That also applies to the definition of premises. There is no point in having access to premises that have nothing to do with the carrying out of the vaccination, culling or blood testing covered by the powers included at various points in the Bill. Reasonableness runs through it all. Despite the deep suspicion that several noble Lords expressed about the motives and behaviour of departmental staff, we are all subject to the reasonableness criterion.
Most concern expressed related to the proposed new subsection (6)(b). Regrettably, there will, as the noble Lord, Lord Greaves, said, be a few rogues about. Some will try, if they get too much notice of the matter, to use the notice of application for warrant to avoid the implications. That might mean moving the animals around, or it might mean some other means of preventing the application of disease control measures. We must provide for that in the Bill, but, again, reasonableness applies. We could not, as the right reverend Prelate suggested, treat every farmer as being likely to use the notice of application for warrant as a reason for trying not to comply with the law. That is not the normal behaviour of the farming community. However, for a particular case, for which there was prior intelligence or previous behaviour that indicated that it might happen, it would be reasonable for an officer to vary the procedure to avoid that result.
I am happy to say to the Committee that we will consider the precise wording of the amendment to see whether there are ways in which we could avoid raising anxieties of the type mentioned by the right reverend Prelate. However, we need a power to vary procedure for cases in which intelligence suggests that a farmer or stockholder might take evasive action, were he to receive early notice of an application for warrant. That is why proposed subsection (6)(b) is there. However, as with all the other provisions, it is, as my noble friend Lord Carter said, subject to the requirement to behave reasonably.
I ask the Minister to pay particular regard to proposed subsection (6)(a) and to how officials will notify people. I am unhappy with the phrase "conspicuous place on the premises". As I said, there are, sometimes, 10 or 15 businesses in one highly developed area. What if somebody left a message for somebody else in the wrong building or left a message for the wrong person? Of all things, that provision should be tightened up. I hope that the Minister will bear that in mind.
The Minister said that an officer or inspector—I cannot remember which—could vary the power. Those were his words. That goes almost to the heart of the problem, as it relates to the exercise of the power. I do not object to the creation of the power; we need it for a national emergency. It is the exercise of that power that worries me. Can the Minister consider how that relates to flexibility and the way in which it is administered? It is not a difficult concept, but it is difficult to draft.
It seems to me that, if the Minister's amendment is accepted, several amendments later on the list will fall. One of those is Amendment No. 216, which stands in my name. In it, I have suggested that it might be sensible for details of the time and place at which a magistrate will deal with an application to be given to the occupier so that he might have the opportunity to make representations at that time. The law should not run its course behind closed doors.
Will the Minister consider amending his amendment on Report, so that it incorporates something on the lines of Amendment No. 216 that will give the occupier of premises the opportunity to know where and when the application is to be made? Surely, it is only fair that someone whose premises are to be taken over should have the opportunity to hear the case before the magistrate and to make representations if he feels that it is unfair. This is my only opportunity at this stage to raise that matter. I realise that my amendment—or something like it—cannot be made, if the amendment that we are debating now is agreed to. It would be helpful if the Minister could tell us whether on Report he would give a fair wind to a similar amendment to his amendment.
Although I had thought that the noble Lord, Lord Jopling, was ever present at this debate, he was probably not in the Committee when we previously discussed representation. I would not be prepared to accede to an amendment such as his Amendment No. 216—which, as he rightly said and the Deputy Chairman of Committees indicated, would fall were this group of amendments to pass—for the reasons I have spelt out before.
Any right of representation runs a risk of slowing down the process and is unprecedented in other forms of warrant application. There is no good reason—indeed, there are good reasons in the opposite direction in terms of the need for speed and the effective carrying out of disease control measures—why normal warrant procedures should be varied in this case. I would therefore not be inclined to accept the noble Lord's amendment were we not to pass Amendment No. 212A and go on to debate it. I regret to say that neither am I prepared to table a further amendment in that respect. The other safeguards I have built in, plus the protocol we propose, in my view provide adequate safeguard.
It is not entirely a matter for me. The Deputy Chairman of Committees read out the amendments that could not be taken were this one to be passed. They are Amendments Nos. 213 to 222. I beg to move.
I hope that I am technically correct in continuing because I am trying to make an insertion. With the increasing sophistication of testing methods and the fact that a great deal of livestock will probably be dealt with by on-farm testing, the chances for error other than human error will be greatly reduced.
It is a widely accepted rule that anyone who suffers due to negligence or mistake of another must receive adequate compensation. Even this formula would hardly cover in this case the value of the animals and the loss of production. The Government obviously believe that farmers have to be goaded into behaving in the way the state wishes. I am sure that the Minister does not really believe that, but that is the feel outside the Committee.
It appears that the Government wish to believe that their servants are always perfect and behave impeccably. I am sure that most of them try to do so, but the truth is that few farmers have to be goaded and a few state servants have to be restrained. That is why the amendment has been tabled. I beg to move.
We wish to support the amendment. If animals are mistakenly slaughtered, which has occurred in the past, farmers should receive compensation to the level of 100 per cent of the full market value under the amendment's conditions. There is nothing worse to learn from farmers and their families than that their stock has been mistakenly slaughtered: it is a feeling of absolute despair. The amendment can never mitigate that feeling but it at least provides some redress. It is essential to this legislation.
While I appreciate that we have strayed into slaughter, vaccinations, and everything else in previous debates, this amendment relates specifically to slaughter. Clause 6 is about vaccination. Whatever the merits of the argument, the amendment is in the wrong place. I hope I need say no more to the noble Baroness for her to withdraw it and perhaps resubmit it in the right place.
Amendment No. 226 and the related amendments seek to make clear what an inspector is entitled to take on to the premises. They are needed in order to permit expressly an inspector to take any equipment he requires on to the premises. Although it may be presumed that an inspector may carry relevant equipment, there is in theory potential for dispute over whether an inspector can carry equipment into premises unless we specify in the Bill that he is entitled to do so. The amendments are for the avoidance of doubt. I beg to move.
I must have stumbled into one of the "black holes of ministerial subjectivity" referred to by the right reverend Prelate the Bishop of Hereford. We have suddenly made a dash: we moved from Amendment No. 212A and the amendments grouped with Amendments Nos. 214 and 219 were missed out. I do not know quite how that happened, but when one is in a black hole of ministerial subjectivity, all sorts of terrible things can happen. I am not sure whether it is my fault, the Minister's or even that of my noble friend on the Front Bench.
However, I now have the pleasure of moving Amendment No. 229. Some of my amendments have erred on the side of optimism having regard to the Government's prejudice against reasonableness—I admit that—but this amendment is absolutely reasonable beyond any possible ministerial doubt. I can hope only that the Minister will not dream of allowing to continue on the statute book a clause such as the one we are now discussing whereby a representative of the Minister is entitled to ask for such help as he requires in entering premises. It stands to reason that he ought not be able to expect relief from someone who is quite incompetent to give it. I hope that the noble Lord will accept the amendment. I beg to move.
The only reason I am not prepared to accept the noble Lord's amendment—which is clearly based on the rather open-ended implications of the clause as it stands—is that the amendments to which the Deputy Chairman referred are my amendments and will do the job better. They restrict the kind of person from whom an inspector can require assistance to an owner or occupier, the person in charge of the stock or a person employed by the stockholder or the person in charge of the stock. That limits considerably the clause as it stands and builds in the fact that, because of the way they are employed, such people would be capable of rendering some assistance to an inspector. We believe that that is a better way of dealing with the matter than the method proposed in the noble Lord's amendment.
Before the noble Lord sits down, the Committee should consider one point. Of course one accepts what the Minister has said in relation to an owner and employees, but I know of a case which occurred during the previous outbreak of foot and mouth disease where the medical condition of a farmer meant that he was unable to assist in such a situation. As someone who has spent long hours toiling in the fields, I have back trouble, as do other people in the farming industry. Sometimes farmers are physically unable to assist, whether or not they would like to. This is perhaps without, in that sense, the description given by the Minister.
All the amendments that I had before me to deal with today have fallen. It is a relief to stand up for a moment and to at least participate in the discussion. I would have loved to have participated in some of the discussions which took place earlier, but we have now reached a stage of some repetition. I hope that all the points that have been made have been recognised and will be used. Certainly we shall come back to many of them when we get to Report stage.
This may seem a small amendment because it is a question of word adjustment—that is, to leave out "assistance as he reasonably needs" and to insert "personal assistance as is reasonably necessary". As the noble Lord, Lord Livsey, said, there are times during an outbreak of foot and mouth disease when tensions are running high, when there are difficulties in the farming family itself, when there are difficulties between the farmer and the inspector or those who are coming in to take over and be responsible for the removal of stock and so on. We must remember the considerable stress and tension that exists among the farming families, the workers and so on, the minimum amount of labour and therefore the isolation that many suffer.
At such a time, most will not hesitate to co-operate with veterinary inspectors in handling the stock and the equipment that is so essential and necessary at times when speed is of the essence. As the Minister reminded us in the course of previous discussions, assistance and the speed of operation is important—but only as is reasonably necessary. It may seem trivial, but to the people concerned it is a matter of importance. I beg to move.
While not dissenting from much of what the noble Lord, Lord Plumb, said, again I believe that my Amendment No. 232 is better. Whereas the amendment of the noble Lord, Lord Plumb, seeks to insert the wording "personal assistance as is reasonably necessary", my Amendment No. 232 seeks to insert the words "may reasonably require". There may be some doubt about the meaning of "personal" in such circumstances and I believe that my wording is better. Taken together with my subsequent amendments, it deals with the issue more effectively. So while I accept the argument, I do not accept the amendment.
It is at least something that the Minister accepts the argument on an occasion such as this. I have a sense of relief that the first time I stand up my argument is accepted. The Minister claims that he would like fewer words than the ones I have suggested. I disagree with him—I have that privilege—in the same way as he disagreed with me over my wording. However, I beg leave to withdraw the amendment.
As I have spoken to this amendment during the discussions on the previous two amendments, I beg to move it reasonably formally.
moved Amendments Nos. 233 and 233A:
Page 4, line 8, at end insert—
"(9A) The following persons fall within this subsection—
(a) the occupier of the premises;
(b) a person appearing to the inspector to have charge of animals on the premises;
(c) a person appearing to the inspector to be under the direction or control of a person mentioned in paragraph (a) or (b)."
Page 4, line 10, at end insert—
"( ) If the inspector enters any premises by virtue of a warrant issued under subsection (3) he must at the time of entry—
(a) serve a copy of the warrant on the occupier of the premises, or (if the occupier is not on the premises)
(b) leave a copy of the warrant in a conspicuous place on the premises."
On Question, amendments agreed to.
Amendment No. 234 is a precise amendment which seeks to ensure that warrants will remain in force for a week rather than for a month as it presently stands in the legislation. Given that the diseases with which we are dealing are all infectious diseases, clearly if we cannot deal with a situation within hours, or at least one day, there is something radically wrong if it has to lie for one month. We believe that the amendment will help to speed up the process, which is what the Minister desires. I beg to move.
Although it may be desirable to carry out most of the actions the ministry is being empowered to carry out within a week, at the height of an epidemic it may well not be able to do so. The amendment would mean an additional delay in terms of reapplying for a warrant after seven days.
The one-month validity of the warrant procedure is standard in all other warrant arrangements. For the reasons I have stated, I do not see an overwhelming reason to vary that—although I agree that the objective must be to carry out the action in significantly less than a week if we possibly can.
I thank the Minister for that reply. It would depend on how effectively the authorities carried out what was desired in the warrant during that time period. The legislation should be tightened up to ensure that effective speed is of the essence. I note what the Minister says. I know the protocol in relation to normal warrants lying there for one month. I beg leave to withdraw the amendment.
In seriousness, we discussed this matter yesterday and I do not understand why the Government do not accept the amendment. It is surely basic that a warrant should be dated by the justice of the peace who signs it. We do not want warrants lying around without a date on them. In my opinion all warrants should be dated, and I am sure that most are.
My only doubt concerns the point at which they are dated. Without being a member of the police force or working in the courts, it is difficult to prove that the dating of warrants is ever open to conjecture. There are, however, persistent tales of warrants being applied for, obtained and held undated until required.
Our concern is simply to ensure that in matters relating to the Bill any warrant issued is dated at the point of signature. It is, we believe, immaterial whether the date is added to the form as part of its production process or whether it is added by the magistrate during the signing process. All that matters is that it should be he or she who signs the relevant form. I beg to move.
Can the Minister confirm the legal situation in regard to magistrates signing warrants? In a different context, I have seen a warrant signed by a magistrate where the details were left for whomsoever was concerned to fill in. I was frankly appalled. So, even if the normal practice is for a magistrate to sign and date a warrant—which I imagine it is—there should be a reference on the face of the Bill.
The amendment proposed by my noble friend has broad support on all sides of the Committee. The noble Lord on the Liberal Democrat Front Bench has supported it, and we have heard support from the Cross Benches.
I hate to say this to my noble friend, but I do not think that the wording of her amendment follows her argument. She said that a magistrate should date a warrant when he signs it. The amendment does not state that. As I read it, it leaves it open for a magistrate to sign the warrant and date it at a different time.
I hope that the Government will accept the amendment. It seems eminently sensible. Perhaps we can return to it on Report. If the amendment could be changed to the effect that the warrant should be dated by the justice of the peace at the time of signing, that would seem to fulfil the words that my noble friend used. I hate to argue with her because my admiration for her is unbounded; however, I believe that that would be an improvement. I hope that the noble Lord, Lord Livsey, agrees.
I strongly agree that this type of rider should apply in this case. After all, in relation to a previous amendment the Minister spelt out the desirability of a warrant lying for a one-month period. It would make the situation far more precise if the magistrate not only signed the warrant but dated it as well.
My advice is that this amendment or any similar provision is unnecessary. It is already general practice. It is not specified on the face of other Acts containing references to warrants that the magistrate shall date the warrant, or that anyone shall date it, at the point at which it is granted. That is the practice.
I hear what Members of the Committee say about the matter. I shall re-examine it. I do not think that the wording of the amendment would cover all circumstances in any case. I need to double-check the legal advice—which is normally: if a provision is unnecessary, do not include it. If that is indeed the case, I shall need to report back. I take some of the arguments that clarity as regards the length of time and the date from which a warrant should run could be quite important. I shall examine the matter again.
I am grateful to the Minister. I am grateful also to my noble friend Lord Jopling. He rightly points out something that we missed. I indicated our intention and I apologise that we have not defined the amendment tightly enough. I thank the Minister for his response and look forward to his proposal.
He referred to current practice, but the feeling on all sides of the Committee is that we are dealing with something slightly different from a commodity or whatever else a warrant may concern. Any help that the Minister can give to reassure those who are likely to have their animals killed would be of great benefit. It would be a great addition to the Bill. At this stage, I beg leave to withdraw the amendment.
moved Amendment No. 235A:
Page 4, line 12, at end insert—
"( ) A warrant issued under subsection (3) must be executed only at a reasonable hour unless the inspector thinks that the case is one of urgency.
( ) In relation to any premises to which entry is obtained by virtue of a warrant under this section the Secretary of State must retain for a period of not less than 12 months beginning with the day after entry—
(a) a copy of the warrant;
(b) a copy of any record of the steps taken to effect entry to the premises and the actions taken on the premises by the inspector and any other person entering the premises with him."
We must remember that the amendment refers to vaccination. I therefore question the first subsection:
"A warrant issued under subsection (3) must be executed only at a reasonable hour unless the inspector thinks that the case is one of urgency".
In relation to vaccination, surely issuing the warrant "at a reasonable hour" is enough. I cannot foresee any situation in which such a warrant should be issued in the middle of the night. I ask the Minister to reconsider this provision in the light of the whole Bill. I cannot see that a state of urgency would arise requiring a warrant relating to vaccination to be issued at some unearthly hour.
If we are to adopt pre-emptive vaccination as a key disease control measure, I envisage circumstances in which failure to gain access could jeopardise the whole vaccination strategy in a firebreak situation. For example, during the last outbreak, we contemplated vaccination when the disease appeared to be moving in the direction of the pig population of the East Riding. Had we engaged in a firebreak vaccination, the plan could have been undermined if we had missed significant premises because a person was not available at a particular hour. Admittedly, in most circumstances, vaccination would not be quite as urgent as culling. However, in some circumstances it might be, which is why the emergency override is included.
I wish to speak also to Amendments Nos. 266 and 294, because they, too, deal with adding the insert, "unless there are mitigating circumstances". Upon examination, the paragraph is an extremely bold and bleak statement. For example, if I, the inspector, demand that you, the Minister, the occupier of the land and the keeper of pigs, help me to round them up and you refuse, you are committing an offence. However, when asked to help, you could be trying to keep a sick horse or dog alive until the vet arrives, helping an elderly relative who has fallen, or be fresh from the accident and emergency department after having fallen yourself. Regardless of the circumstances, I, the inspector, have demanded assistance and you have refused and so an offence has been committed.
I do not think that the Government intend that to happen as a result of the Bill. We talked about reasonableness, and the noble Lord may refer me back to that. However, I hope that the Minister can take on board the five additional words that are proposed.
Amendment No. 264 is an alternative response, for which the general argument is the same. However, at this stage I wish to move Amendment No. 236, and the same argument applies to Amendments Nos. 266 and 294. I beg to move.
I support the noble Baroness's amendment. It goes to the heart of what the noble Lord, Lord Livsey, was talking about earlier.
I think immediately of my neighbour, who is now well into her 90s, but, when she was well into her 80s she and her sister, who is a year younger, kept a flock of sheep. Both were crippled with arthritis and unable to go out and about. People in the village helped them with their sheep whenever they needed it. My neighbour and her sister were able to keep an eye on the animals, but, when they needed help with them, they had to ring someone else. Although they were the keepers of the animals, they would have been unable to help with them. Those and other circumstances that the noble Baroness mentioned need to be taken into account, and it is not reasonable to expect elderly people to tend a flock of sheep. I urge the Minister to take that into account.
Even a few hours ago, I would have hoped that the Minister would accept this reasonable and modest amendment, which was so charmingly moved. The Minister said earlier that reasonableness runs through all of this. I hope that his dictum is of general application. Am I misquoting him? I thought that I heard him say that just now—I woke up, so great was the shock. I hope that his wonderful statement was not so narrow in its focus as to be almost meaningless. I cherish the hope that it has a broad application. I cannot believe that the Minister would be so obstinate—I almost said pig-headed—as to refuse the amendment.
I support the amendment. Six miles from where I live in North Yorkshire, during the last foot and mouth disease outbreak, a farmer's son-in-law, in his 40s, died from a heart attack while rounding up a flock of sheep. He should not have been rounding up the sheep. That example shows that in some cases people should not carry out certain activities. I hope that the Minister accepts this reasonable amendment.
I strongly support this amendment. Subsection (12)(a) states that a person commits an offence if he is required to give assistance under subsection (9). We have included in subsection (9), through Amendment No. 233, which we have already agreed, the occupiers of the premises.
Modern agriculture involves far fewer people working on the land, so many farmhouses are occupied by people who have nothing to do with farming. If an inspector asks for assistance from someone who is the occupier of a farm but who has nothing to do with the farm, he falls under this provision. If an inspector asks a farmhouse occupier who is disconnected from agriculture for help with cattle or sheep, under the Bill as it now stands, that person would be committing an offence if he refused. It would be a perfectly fair mitigating circumstance if that person said, "I am only the tenant of the farmhouse; I have nothing to do with the farm; I have never had anything to do with cattle, sheep or pigs, and I am sorry, but go and find someone else to help, because this has nothing to do with me".
The same might apply to premises formerly used as farm workers' houses on a farm holding, of which there are many. It is important to include a provision to let a person off committing an offence if there are mitigating circumstances. I hope that the Minister will accept that.
Perhaps the noble Lord has not looked over the page at the rest of Amendment No. 233. Paragraphs (b) and (c) meet his point. There is reference to,
"a person appearing to the inspector to have charge of animals on the premises".
There are alternatives to the occupier. Paragraph (a) is not the only provision in the amendment. Paragraphs (a), (b) and (c) need to be considered together.
"The following persons fall within this subsection—
(a) the occupier of the premises".
That is what I have been talking about. I was not referring to paragraphs (b) or (c). I was applying my argument entirely to paragraph (a) under Amendment No. 233. I am trying to exempt those who may have no connection to the animals on the premises. I therefore support my noble friend's amendment.
I support the amendment. I shall speak from a small amount of private experience. I have a few sheep at home. Because we live in Surrey, I also have some stables, which are rented. Those stables are part of my premises. Is the inspector entitled to ask a 14 or 15 year-old girl to round up sheep for slaughter? If she says no, will she be committing a criminal offence? That is what the Bill appears to say. I think that such a young lady—or her parent or guardian or somebody left in local charge—would have mitigating circumstances for saying no. As the noble Lord, Lord Jopling, said, there are many occupiers of agricultural premises who are only indirectly associated with agriculture, or even not associated at all. What about somebody who is staying in a farmhouse on a B&B basis? There are a lot of those, particularly in the Yorkshire Dales, where the noble Baroness, Lady Masham, lives. The Government plead reasonableness to avoid their own affairs being put into the Bill. I do not understand why they will not allow others to use reasonable excuse. That is double standards. It is a great pity and does not do credit to Her Majesty's present advisers, but I suppose there is nothing I can do about that.
I should have thought that the Government would jump at the opportunity of an escape clause. We do not want to make people commit offences when there is a perfectly good reason why they should not be involved. The amendment sensibly suggests that there could be mitigating circumstances. The prosecuting authority would not prosecute if there were mitigating circumstances. They would say that it would be a waste of court time, police time and everybody else's time. The amendment would be a valuable addition to the Bill on the issue of alleged offences.
The comments of my noble friends Lord Jopling and Lord Onslow about people on the land who may have nothing to do with the farm should be followed up. People should not be walking about farms during a foot and mouth epidemic, but nowadays, when there is so much encouragement for people to walk on farms or wherever they want to go, they could be walking across a farm and then be eligible to assist in rounding up cattle under the Bill. It would be ridiculous for them to be involved.
This simple amendment would surely be a valuable escape route for those who are not involved in the farm and should not be prosecuted under the Bill.
It might also be helpful if we had a definition of "premises". I have looked in the Animal Health Act 1981, but it contains no such definition. The Government could help to clear the issue up in relation to the change of agricultural usage of land and buildings by tabling an amendment on Report with a definition of "premises".
The circumstances that the noble Lord, Lord Monro, and some others have described clearly could not apply now that we have passed Amendment No. 233. As my noble friend Lord Carter pointed out, all this is subject to Amendment No. 232, which we have just passed, which says that officers and inspectors "may reasonably require". It would not be reasonable for them to require a stable girl to round up cattle or to require a stockbroker who had bought a farmhouse to go out and round up sheep. It would also not be reasonable to enter premises that had nothing to do with animals.
I shall probably regret waking up the noble Lord, Lord Peyton, but this strain of reasonableness is not only my general assertion; we wrote it into this part of the Bill about half an hour ago. The courts and those contemplating bringing prosecutions are used to assessing whether people have behaved reasonably. If we put in mitigating circumstances, there will be all sorts of suggestions as to what such circumstances might be. Relying on reasonableness, as we have agreed to do, is the most appropriate way of dealing with the issue and will meet virtually all the anecdotal concerns raised in the past 20 minutes.
Amendment No. 232 says that the inspector "may reasonably require". The person whom he reasonably requires to do it may equally have reasonable reasons and mitigating circumstances why it would be totally wrong for him to do it. We are talking about those who have reasonable reasons for not carrying out a reasonable requirement because there is somebody else to do it. That is a logical progression.
I do not think that the Minister wants to come back again on the amendment. I thank all those who have contributed to this important section of the Bill. I always take the Minister to be a reasonable man, but on this occasion I am not happy with his response and I beg leave to test the opinion of the Committee.
This amendment addresses an issue that arises in new subsection (12) on page 4 of the Bill. First, however, I should like to express some uncertainty about the Bill's political correctness. The subsection states that,
"A person commits an offence if ... he is required to give assistance and ... he fails to give it".
The "person" seemingly can only be male. I know from the 2001 outbreak, however, that some of the most feisty contestants were female farmers who made their point very clearly indeed. Perhaps the Minister will consider changing the wording to "the person ... is required" and "the person ... fails to give it".
In this amendment we seek to change the wording of paragraph (b) so that the new subsection states:
"A person commits an offence if ... he is required to give assistance and ... fails to give it without good reason".
There may be many good reasons why assistance cannot be given, and it would be extremely harsh if good reasons were not taken into account. We believe that the amendment would be a perfectly good addition to the paragraph. It is a small but necessary adjustment. I beg to move.
Many of the arguments that I deployed in relation to Amendment No. 236 apply to this amendment. Given that the authorities are required to act reasonably, they can only require reasonable action on behalf of farmers and others. If the farmer has "good reason", it will not be reasonable for the officer to take action against that reasonable farmer. In this amendment, as with "mitigating circumstances", we are in danger of repeating something that is already both implicit and explicit in the Bill—the requirement on the officer to act reasonably. I am therefore not prepared to accept the amendment.
The amendment would make a very precise addition to the provision, requiring good reasons for acting. Although we could discuss the definition of "reasonableness" and "reasons" I shall not detain the Committee with such discussion. I have heard the Minister's comments, and I realise that they will be on the record. I shall therefore expect the Government to interpret the provision as the Minister has explained it. Nevertheless, I regret that he has not accepted this amendment which is a small but necessary addition. I beg leave to withdraw the amendment.
The noble Lord on the Front Bench just now inspired us all with new hope when he said that reasonableness ran through the whole matter. Those words are so welcome coming from that source that I feel that one ought never to lose an opportunity to repeat them just in case they were only a dream.
I hope that the noble Lord's reasonableness will come to my aid in what I now seek to do. Subsection (1) of new Section 62A states:
"An inspector may at any time enter any premises for the purpose of—
(a) ascertaining whether a power conferred by or under this Act to cause an animal to be slaughtered should be exercised".
I know that the statute book is absolutely packed full of the most inelegant, ugly and awful language. I hope that the noble Lord will stir himself and his officials to see whether it would be possible to put this point a little more simply. That is all that I ask in this amendment.
I refer also to Amendment No. 240. There is no need for me to detain members of the Committee for any length of time as I know how anxious they are to get on to the next business. Subsection (1) of new Section 62A further states:
"An inspector may at any time enter any premises for the purpose of— ... (b) doing anything in pursuance of the exercise of that power".
What on earth do the words "doing anything" mean? What does the Minister contemplate that the inspector might do that makes it necessary to entitle him to do anything? That is a reasonable question. I do not think that I need to repeat it. It seems to me that the Minister is obviously shaking his head in bewilderment as he does not know the answer. However, I hope that he may be able to explain why that particular subsection is necessary. I repeat the words,
"doing anything in pursuance of the exercise of that power".
What on earth is the Minister contemplating? I beg to move.
I speak in complete support of my noble friend Lord Peyton on this issue which, as he said, constitutes a small alteration but a very meaningful one for the people concerned. My noble friend set the tone well and we shall remember this debate. As has been said, reasonableness has run through it. I have tabled an amendment which deals with the same kind of issue. Therefore, I shall not move it when we reach it as the matter is already covered. I hope that the noble Lord, Lord Whitty, will take note of some of the points that we have raised. We shall certainly take note of them. If he disagrees with them, we shall bring them back at a later stage. The matter we are discussing is of particular importance. Therefore, I hope that the noble Lord will accept the small amendment proposed by my noble friend Lord Peyton which is nevertheless of considerable importance to many people who look forward to reading a report that states, "We understand the problems that you face".
"Page 4, line 17, leave out subsection (1)".
We have been told of all the amendments that would be pre-empted were that amendment to be accepted. I believe that the noble Lord meant to refer to line 19 of subsection (1). However, the amendment is tabled in such a way that, were it accepted, it would remove the whole of subsection (1) and would also nullify subsection (2). I am not sure what the noble Lord has in mind as such a process would wreck the whole of the clause. However, he may have a case to argue as regards the wording of line 19.
Wrecking the whole clause would be a matter of comparative indifference to me. I would lose no sleep over that. Indeed, it would give the Minister every opportunity to bring back something more elegant at the next stage. However the noble Lord reads the amendment, perhaps I may make it clear what I am objecting to. I would like to delete subsection (1)(a). I also ask the Minister to explain what subsection (1)(b) is about.
The noble Lord need not bother about this at all. I am exceedingly broad minded. All the noble Lord has to do is to say that if he believes my amendment is badly drafted he will return without hesitation at Report stage and move something which he knows will be satisfactory to me and to Members of the Committee.
I was well aware that the noble Lord is broad minded, but I thought for one moment that both he and the noble Lord, Lord Carter, were being excessively modest by saying that it was a small amendment. As it stands it deletes the totality of the slaughter powers in the Bill, which is a pretty immodest amendment. In this context one would be forgiven for using the term "wrecking amendment" because the provision is a major pillar of the Bill.
It may well be that the noble Lord can sleep easy in doing that. However, it is not what he intended, as I understand it. I would have to resist that proposal entirely. One cannot do that and at the same time accept the broad conclusions of the Anderson and Follett reports, and the Government's response to those reports, as indicated in the Bill. There is no way in which the Committee could accept this amendment without recognising what it is doing.
I address the points which the noble Lord was making in terms of the reduced form of his amendment and not what is described in the Marshalled List of amendments. I believe that he is specifically objecting to Clause 7(1)(b), which states,
"doing anything in pursuance of the exercise of that power".
I could say that it means what it says. It does not mean that an inspector can do anything. He can do anything which enables him to carry out the powers of slaughter in this context. It is the same form of words as regards the powers for vaccination or blood-testing. It does not mean that the inspector has carte blanche to do absolutely anything, but to carry out the powers conferred on him by the Bill and by the Animal Health Act. I suspect that that is not a satisfactory explanation for the noble Lord, but that is all the words mean. They are no more sinister than that. In any case, the amendment as it stands would leave such a colossal hole in the Bill that I would have to advise the Committee strenuously to reject it.
I am very tempted to take the opportunity of being destructive. The Bill deserves to be destroyed. Nevertheless, I am sufficiently broad minded and I do not want to put the Minister to endless trouble to revive this horrible creature should I do it mortal harm. However, I would be very content if he accepted my regret that by a slip of the pen I went slightly further than I had intended. I am quite prepared to say that. Other people have done much worse things in your Lordships' House and from the Minister's Bench, too! I am prepared to be reasonable. I withdraw the amendment in the constant hope that the noble Lord will look at the clause to see whether it should be tidied up and made a little clearer. I do not like the provision of "anything he wants to do" in a Bill.
In a sense I believe that this amendment has already been dealt with, but I make no apology in following it through again. In the debate the noble Lord, Lord Jopling, the noble Earl, Lord Onslow, and many others made the point as regards dwellings and the effect on them in the event of an outbreak of foot and mouth disease. We are well aware of the fact that farmers are encouraged, and many forced, to diversify and therefore many farm buildings have been converted into medium-sized businesses or offices, storage and so forth. That could create an embarrassing situation in the event of a temporary take-over by inspectors or the police.
It is therefore difficult to be precise in law in establishing the fact. The noble Lord, Lord Carter, made reference to the fact that it is those in charge of the animals who are in control. When there is tension on the farm and one is surrounded by people who are carrying out their respective roles in different buildings, it becomes difficult for entry and for people to know what their position is. Others are isolated. It is difficult to be precise in law on this issue. We have to register the important problem, which is the growing concern as this development spreads to the farmer and the occupier of the building. I beg to move.
I also support this amendment. One of the sadder impacts of the economic situation in the countryside is that many farmhouses have now been sold off and do not have anything to do with the farm itself. Their occupiers are non-agricultural and very often they have some of the farm buildings as well. I believe that this amendment defines those kinds of situations. I fully support it.
I understand what is said in this amendment. I have a piece of paper which tells me that this matter has already been covered, but I have temporarily lost it. It indicates that there is a definition of "premises" in the Bill. The premises in this context are those which are relevant to the purposes of the warrant. Therefore, it would not be appropriate to use powers to enter premises which do not house animals or which it was not necessary to enter in order to carry out the purposes of the warrant, be it for vaccination or slaughter.
Obviously, there may be some complications to that in that private houses may house animals, but access to them would have to be reasonable and proportionate. Any houses which were not concerned with animals and therefore with the purposes of the warrant, would not come within the definition in Clause 7 of the Bill, which is the closest we come to a definition of "premises" for the purposes of this Bill.
This additional provision would cut across that although it is attempting to achieve the same purpose. The matter is already covered by the Bill as it stands.
We have one or two definitions of "premises" in the Bill. There is a reference in the scrapie section of the Bill which states,
"premises includes any land, building or other place".
As regards infected premises, there is reference to premises constituting an infected place at a given time as that which is in force in the notice. I believe that that was the reference to which the Minister was speaking. We need a tighter definition. I shall be grateful if the Minister will take this matter back and look at it.
Perhaps I may express my support for the remarks just made by the noble Countess, Lady Mar, and add the following suggestion for the Minister's consideration. In an effort to be helpful, I should point out to the noble Lord that Amendment No. 242 states:
"In this section and sections 62B, 62C and 62D premises excludes dwelling houses and buildings being used for non-agricultural purposes".
I hope, therefore, that the noble Lord will reconsider the matter and ensure that such buildings are included. Otherwise, as the years go by, this will develop into an ever-growing issue. Although we shall return to this matter on Report, I beg leave to withdraw the amendment in the hope that the Minister will look again at the matter.
After the word "satisfied" in Section 62B(1) of the 1981 Act, this amendment seeks to insert the words,
"and having heard representations from the owner and keeper of the livestock should they choose to make them within the given timescale".
It is most important that such representations should be allowed and that a timescale should be established within which they could be made.
As I am on my feet, I hope that it is in order for me to speak also to the other amendments under this grouping which are tabled in my name and that of my noble friend. Perhaps I may begin with Amendment No. 250, which seeks to insert in new Section 62B(4)(c) of the 1981 Act the words,
"after due effort has been made by the inspector to establish contact with the owner if he is away from the premises".
Without such wording, it seems to us that forced entry into premises would be the order of the day and could cause an animal to be slaughtered. It is obviously common sense that every effort must be made to contact the owner of the premises.
Amendment No. 253 seeks to substitute the word "week" for the word "month" in relation to the length of time that a warrant can remain in force. We have already debated this issue in a different context and stated that that is the period we wish to see in the legislation. I stand aside as regards Amendment No. 256, because it has been jointly tabled with the Conservative Opposition. I am sure that the noble Baroness and the noble Lord will wish to be involved in the moving of that amendment.
Amendment No. 277 contains the same wording as Amendment No. 243. It addresses the power of a warrant to authorise a veterinary inspector to enter premises, if necessary with reasonable force, in order to take tests and samples. The amendment seeks to ensure that the owners of the premises must be given a chance to make representations. We believe that they have a fundamental right to do so.
Amendment No. 288 refers to new Section 62F(4) of the 1981 Act, which requires,
"any person on the premises", to help in the process of taking tests and samples. Our amendment would ensure that only the owner and employees could do so, not "any person". Finally, Amendment No. 295 relates also to the taking of tests and samples. At present, the Bill states:
"A person commits an offence if", he or she fails to give assistance in the process of taking tests and samples. This amendment returns us to what has been playing on the gramophone, so to speak, most of the evening; namely, the words "without good reason". It seeks to ensure that someone commits such an offence only if he fails to give assistance "without good reason".
I apologise to the Committee if I seem to have jumped the gun as regards the amendments to which I have just referred. However, they all fall within the group headed by Amendment No. 243, which is the main amendment. I beg to move.
I have no objection to the noble Lord speaking to all these amendments at this time. They were grouped with Amendment No. 243, and many of them follow a progressive theme. However, most of them have already been mentioned in earlier debates. In relation to Amendment No. 243, we are dealing with representation to magistrates. I do not wish to rehearse that ground at great length, but I believe that the provision of rights to representation could undermine the whole disease control approach and that the other built-in safeguards are preferable.
Amendment No. 250 returns us to the question of whether inserting words like "due effort", "mitigating circumstances", or whatever, would improve the general requirement of the inspector and the officers to act reasonably. Before they determine that the owner is uncontactable, they must have acted reasonably in order to ascertain whether or not the owner could be contacted or when he or she would return. If the matter ever reached the courts, that would be taken into account. All that seems to me to be subsumed under the general duty to act reasonably.
I believe that we have debated the issue of whether the duration of the warrant should be one week or one month. Although I understand the argument, I do not see an overriding need to alter the general warrant procedure that calls for a period of one month. Indeed, one can conceive of circumstances in a really bad epidemic where we would not be able to carry out all the necessary action within the period of one week.
Amendment No. 277 also deals with representation, although it relates to slightly different circumstances. Again, I have outlined why I do not believe the right of representation is appropriate in the context of controlling an epidemic. As regards Amendment No. 288, we made clear in an earlier amendment that the requirement for assistance should be reasonable and limited to the keeper of stock. Therefore, the possibility of asking someone extraneous to co-operate with officials will not arise. Indeed, if we limited it solely to the owner of the livestock, we would be confining the provision even more tightly than is the case with the subsection that we adopted earlier. I do not believe that the proposed wording would improve the words that we adopted under Amendment No. 233.
On the phrase, "without good reason", since officers are required to act reasonably and to take account of other people's reasonable behaviour, the phrase is superfluous. If it were inserted in the proposed place, one would have to put it in all sorts of other legislation and other parts of the Bill. The lawyers and those concerned with parliamentary draftsmanship would resist that strenuously. I understand what lies behind the amendments but they would not add to the Bill.
"representations from the owner and keeper", could be spelt out in relation to a given timescale and that the amendment contains the correct procedure. I note what the Minister said about that and some of the other amendments to which I referred. On his latter remarks and those on Amendment No. 250, the river or stream of sweet reason that seems to be flowing through this debate has again been prayed in aid. In certain circumstances, the matter should be spelt out. In relation to Amendment No. 250, that might involve forced entry into premises to slaughter an animal without contact with the owner of the premises; that is a pretty serious situation with which to be confronted. However, I do not doubt that these matters will arise on Report. In view of that, I beg leave to withdraw the amendment.
moved Amendment No. 245A:
Page 4, line 33, leave out from beginning to end of line 1 on page 5 and insert—
"(3) The second condition is that each of the following applies to the occupier of the premises—
(a) he has been informed of the decision to seek entry to the premises and of the reasons for that decision;
(b) he has failed to allow entry to the premises on being requested to do so by an inspector;
(c) he has been informed of the decision to apply for the warrant.
(4) The third condition is that—
(a) the premises are unoccupied or the occupier is absent and (in either case) notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or
(b) an application for admission to the premises or the giving of notice of intention to apply for the warrant would defeat the object of entering the premises."
On Question, amendment agreed to.
moved Amendments Nos. 254A and 255:
Page 5, line 3, at end insert—
"(6) A warrant issued under this section must be executed only at a reasonable hour unless the inspector thinks that the case is one of urgency.
(7) In relation to any premises to which entry is obtained by virtue of a warrant under this section the Secretary of State must retain for a period of not less than 12 months beginning with the day after entry—
(a) a copy of the warrant;
(b) a copy of any record of the steps taken to effect entry to the premises and the actions taken on the premises by the inspector and any other person entering the premises with him."
Page 5, line 8, at end insert—
"(b) such equipment as he thinks necessary."
On Question, amendments agreed to.