Animal Health Bill

– in the House of Lords at 4:50 pm on 22nd October 2002.

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Consideration of amendments on Report resumed on Clause 1.

[Amendment No. 2 not moved.]

Photo of Baroness Byford Baroness Byford Conservative 5:10 pm, 22nd October 2002

moved Amendment No. 3:

Page 1, line 9, leave out "thinks" and insert "decides"

Photo of Baroness Byford Baroness Byford Conservative

My Lords, Amendment No. 3 asks the Government to think again and substitute the word "decides" for the word "thinks" on page 1, line 9, of the Bill. I apologise for labouring the point but I am concerned that the Bill should stand the test of time. By now the noble Lord, Lord Whitty, must know every dash, comma, dot and interpretation of it. I am sure that he recalls clearly the many arguments that we put forward at different stages. I am also certain that he knows exactly what he has or has not committed the Government to. However, three or four Ministers down the road and after a couple more departmental reorganisations, I fear that all that detail will be lost. Therefore, I am anxious that we make it clear on the face of the Bill that where the Minister is required to take an active part in the decision-making, he does so. The Bill currently states,

"the Secretary of State thinks".

I believe that that is parliamentary language, but I hope that the Minister will accept the word "decides" that I propose as it clearly implies that the Secretary of State will go through a conscious and rational process. I beg to move.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I support the amendment. It governs the exercise of powers, which are referred to in Amendment No. 19. I refer to the exercise of powers under Clauses 5 to 7.

The word "thinks" confers an absolute discretion which is not justiciable, whereas the word "decides"—that is, a decision—is justiciable and affords judicial review as to the grounds of the decision. A decision would have to be based on some ground and that ground would be a report from an inspector or a series of inspectors' reports. That could be safeguarded on judicial review and that would afford a reasonable measure of safeguard within the law. As I say, I support the amendment.

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, the group of amendments we are discussing concerns the debate in Committee which became famous for the depth of its philosophical insight as regards whether something was material or immaterial and what "immaterial" meant. No doubt the Government will shortly move their amendment to remove the word "immaterial". However, there were two aspects to the "immaterial" debate. One concerned the question of what the word meant—the Government amendment deals with that matter and makes it starkly clear—the other concerned whether what it meant was or was not a good thing.

It is our view that new Section 1A is badly phrased. The Government are saying in effect that certain things do not matter in any decision whether to slaughter. In other words, anyone who says that an animal cannot be slaughtered because it is not infected, has not been in contact with or exposed to infection or has been vaccinated will be told to go away because those things do not matter. It appears that any animal can be slaughtered which the Secretary of State in his or her wisdom thinks should be slaughtered. We have tabled an amendment to make clear that animals can be slaughtered only under certain circumstances. We believe that animals can be satisfactorily treated with vaccine against foot and mouth disease. We have tabled the amendment to establish the difference in thinking between ourselves and the Government. I do not think that there is a cat in whatever's chance of the Minister accepting the amendment but it is an important statement of principle and illustrates why the fundamental philosophy behind the Bill is wrong.

Photo of The Earl of Onslow The Earl of Onslow Conservative 5:15 pm, 22nd October 2002

My Lords, one cannot possibly have someone just thinking something. I give the noble Lord, Lord Whitty, the benefit of the doubt in that I know that he thinks about what he is doing. Whether he thinks correctly or thinks wrongly is a matter of judgment as between my judgment and his, both of which may be wrong. The point is that Ministers must decide, not just think. A decision implies intellectual rigour. For the benefit of those of a less historical frame of mind than myself, it was Abbe Sieyes who said, "gouverner, c'est choisir"; in other words, to govern is to make decisions. So governments have to make decisions and be held accountable for those decisions. The noble Lord, Lord Whitty, has to decide a matter, not just to think in a woolly way. I know that his intellectual processes are rather more rigorous than that, but perhaps those of some of his successors might not be.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

My Lords, I was astonished when the noble Lord found it impossible to accept the noble Countess's amendment. Here is one which I should have thought is almost equally easy for the Government to accept. As has been pointed out, the word "thinks" is very subjective. Indeed, one of our problems is that the Government do not seem to have thought enough about the Bill. Perhaps they should rethink it altogether. However, on the face of it, to use "thinks" as opposed to "decides" seems to me to introduce a quite unnecessary piece of vagueness. If the Government do not accept so simple a measure as this amendment, all I can say is that it is just one more instance of the Government being absolutely wedded to a stonewall defence of a very bad Bill.

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

My Lords, this group of amendments includes some issues of terminology which one can argue about and one of serious principle. As regards the issues of terminology, the Government's Amendment No. 4, which I shall move shortly, recognises that the use of the term "immaterial" in the Bill as currently drafted gives rise to a somewhat negative response. We did not intend to imply that the relevant issues did not matter, rather that they would not determine the matter. They could well be taken into account and they may well be the most important issues but they will not of themselves determine or constrain the relevant decision.

The right reverend Prelate the Bishop of Hereford is no longer present. He promised us a Te Deum with regard to the amendment. That reflects the view of the House that the word "immaterial" is offensive. Therefore, I hope that noble Lords will accept my amendment to remove it.

I should like to be as accommodating with regard to Amendment No. 3. It may appear a little perverse of me not to be. I assure the noble Baroness that I engage in conscious and rational decisions, as I know that she sometimes doubts that. On this occasion, the problem is that the clause is an amendment to the Animal Health Act and consistency with the phraseology of that Act is necessary. Throughout, that Act uses the word "thinks". Whatever weight one may put on the views of the noble Earl and the noble Baroness, my advice is that we should maintain consistency. Therefore, with regret to some extent, I cannot agree to Amendment No. 3.

With Amendment No. 5, we come to an important issue of principle. The noble Lord, Lord Greaves, rightly said that the issue is not whether we use the word "immaterial" but what processes are involved. The amendment would reverse the intent of the clause, which is, as I said in relation to the previous group of amendments, to give effect to the clear recommendation of the Anderson inquiry that the Government should unambiguously give themselves powers to carry out preventive slaughter in certain situations. That is what the clause attempts to do. I know that some noble Lords oppose that but if the House believes that we are following the advice of the committees that we commissioned, it should agree to the clause and its intent. Amendment No. 5 would reverse that and constrain the slaughter powers to what they currently are. I know that that is what the noble Lord, Lord Greaves, wants, but it is not what the Anderson committee advised us to do and it is not what the Government advise the House to do. I therefore most strongly resist Amendment No. 5.

Photo of Baroness Byford Baroness Byford Conservative

I do not know whether I thank the noble Lord for that response to my amendment, which I regard as an important amendment. It would give powers to the Minister to slaughter. Proposed new Clause 1(2) states:

"In sub-paragraph (1) . . . after paragraph (b) insert—

'(c) any animals the Secretary of State thinks'".

I am not minded to press the amendment to a vote but, in view of the slight encouragement in the Minister's response, I hope that he will ask the department to consider the proposal again. The issue is not about the word "immaterial"—we shall come to that later and I do not want to labour it at this stage. The Bill will give the Secretary of State powers relating to animals that he "thinks"—rather than "decides"—

"should be slaughtered with a view to preventing the spread of foot-and-mouth disease".

That is an important issue, not a minor one. I thank those noble Lords who supported the amendment. I hope that the Minister will seek further advice and return to the issue at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Labour

My Lords, I have to inform noble Lords that if Amendment No. 4 is agreed to, I cannot call Amendment No. 5 for reasons of pre-emption.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I thank the Minister for having listened to the arguments that were advanced in Committee. We support the amendment.

On Question, amendment agreed to.

[Amendment No. 5 not moved.]

[Amendment No. 6 had been withdrawn from the Marshalled List.]

Clause 2 [Extension of power to slaughter]:

[Amendment No. 6A not moved.]

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

moved Amendment No. 7:

After Clause 2, insert the following new clause—

"DISEASE CONTROL (SLAUGHTER) PROTOCOL

In the 1981 Act the following sections are inserted after section 32A (as inserted by section 2 above)—

"32B DISEASE CONTROL (SLAUGHTER) PROTOCOL

(1) This section applies to a power exercisable by the Secretary of State under—

(a) paragraph 3(1)(c) of Schedule 3;

(b) such other provision of that Schedule (as amended by an order under section 32A(1)(a)) as the Secretary of State by order specifies;

(c) such other provisions of this Act relating to the control of disease as the Secretary of State by order specifies.

(2) The Secretary of State must prepare a document (the disease control (slaughter) protocol) indicating—

(a) the purposes for which any power to which this section applies will be exercised;

(b) the principal factors to be taken into account in deciding whether to exercise the power;

(c) the procedure to be followed in deciding whether in any circumstances or description of circumstances the power is to be exercised;

(d) the procedure to be followed by persons who have functions in relation to the exercise of the power;

(e) the means by which a particular decision to exercise the power may be reviewed.

(3) After preparing a draft of the disease control (slaughter) protocol the Secretary of State—

(a) must send a copy of the draft to such persons and organisations as he thinks are representative of those having an interest in the exercise of the power;

(b) must consider any representations made to him about the draft by such persons and organisations;

(c) may amend the draft accordingly.

(4) After the Secretary of State has proceeded under subsection (3) he must publish the protocol in such manner as he thinks appropriate.

(5) The Secretary of State must from time to time review the protocol and if he thinks it appropriate revise the protocol.

(6) Subsections (2) to (4) apply to a revision of the protocol as they apply to its preparation.

(7) The power to make an order must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(8) It is immaterial that anything done for the purposes of subsections (2) to (4) is done before the passing of the Animal Health Act 2002.

32C PROTOCOL: EXERCISE OF POWERS

(1) A power to which section 32B applies must not be exercised unless the protocol mentioned in that section has been published and has not been withdrawn.

(2) Any act which is done in contravention of subsection (1) is done without lawful authority.

(3) If a person who has any function in relation to the exercise of a power to which section 32B applies fails to act in accordance with the protocol he is not by reason only of that failure liable in any civil or criminal proceedings.

(4) But the protocol is admissible in evidence in such proceedings and a court may take account of any failure to act in accordance with it in deciding any question in the proceedings.""

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

My Lords, the purpose of the amendment is to help to allay the concerns expressed in this House and elsewhere about the use of the new slaughter powers. It places in the Bill our commitment to publish a disease control (slaughter) protocol, which will indicate the procedures that the Government will follow if we decide to exercise the new preventive slaughter power and the relevant factors that we will have to take into account when deciding to exercise that new power. The intention is to consult fully on the protocol with all stakeholders. As experience and science change, it could be reviewed regularly.

Another condition is that the new preventive slaughter power could not lawfully be used without the prior publication of the protocols; in other words, we could not use the powers without explaining in what circumstances we would do so. Our intention is that the use of the new slaughter power should be as open and transparent as possible. With the publication of the protocol, coupled with the requirement to publish reasons for using a preventive power, the Bill will achieve the reassurance that has been sought from a number of quarters about how the powers in Clause 1 will be used. I beg to move.

Photo of Lord Greaves Lord Greaves Liberal Democrat

moved, as an amendment to Amendment No. 7, Amendment No. 7A:

Line 14, leave out "prepare a document" and insert "make an order"

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I seek advice from someone: am I speaking to all of the amendments grouped with Amendment No. 7A? The noble Lord, Lord Carter, nods his head. He seems to be running proceedings today, so I shall accept his advice. I am grateful to him—on this occasion, at least.

I turn to the purpose of Amendment No. 7A and those grouped with it. As the Bill is drafted, the disease control (slaughter) protocol is a document on which the Secretary of State will consult and he will take account of what people say but he will be able to issue it in whatever way he wishes—he will be able to publish it in whatever form he thinks necessary. We seek to change that and make the document an order or statutory instrument that is published in the normal way for statutory instruments; that is, it would be subject, if the amendment is agreed to, to the negative resolution procedure, which would not be terribly onerous. However, the statutory instrument would be presented to Parliament and could if necessary be debated by Parliament. We believe that that is a necessary safeguard in relation to a high-profile and controversial matter. It would ensure that the Government know that there is a backstop if what they propose in the protocol is not acceptable. The statutory instrument could be debated by Parliament and in extremis rejected by Parliament.

We are not proposing a huge step; we do not believe that our approach will prevent the Government from doing what they want to do. We believe that it is a democratic safeguard, which, in this case, should be provided. That is what Amendment No. 7A would do. It is the core amendment in this group.

Most of the remaining amendments in this group would change the word "protocol" to "regulations". It has been suggested that the word "protocol" is too weak and that the word "regulations" would be more appropriate. I have no strong feelings about that—our advice is that the word "regulations" is better than "protocol". Amendment No. 7A is at the heart of the matter and we seek to push the Minister in relation to it.

Amendment No. 7D in this group also suggests that, as part of the protocol, the Minister should have to state the reasons for carrying out a cull of animals rather than deciding on vaccination or other options. In a sense, this forms part of the debate that we had earlier today. It had to be raised at this point because it affects a new amendment proposed by the Minister. However, the issue forms part of the vaccination debate and I hope that the Minister will be able to accept Amendment No. 7D, or, at least, the principles behind it, and to write it into the protocol.

I begin by referring to the protocol in wider terms. We believe that the disease-control protocol and the contingency plan, which, in a later amendment, the Minister will propose should be on the face of the Bill, are both important documents. We have already seen the draft protocol and the interim contingency plan and believe that the criticisms expressed about the Bill and its lack of balance apply in both cases. In both, the emphasis is still heavily on slaughter and heavily against vaccination. We accept that the Minister is moving slowly towards accepting vaccination as an option, but it seems to us that the balance that we require is not there.

I consider the contents of the protocol and the contingency plan, which we shall discuss later, to be crucial. That is another reason why we believe that the protocol should be made by order. We believe that it should be a statutory instrument and debatable by this House and by the other place. I beg to move.

Photo of Lord Moran Lord Moran Crossbench 5:30 pm, 22nd October 2002

My Lords, I want to ask the Minister a question, of which I had given him notice, relating to the amendment. With regard to this amendment, this new clause and other clauses of the same nature in the Bill, it would be helpful to all noble Lords to know the relation of the Bill to the work on foot and mouth now being carried out in Brussels.

When I spoke in the debate on 7th October, I mentioned that Commissioner Byrne had said that a draft directive was to be put forward, but, of course, at that stage I had not seen it. Now I have, thanks to the noble Lord, Lord Plumb, who kindly lent me his copy. I made a copy of the draft for myself and arranged for the Library also to have a copy so that it could make it available to other noble Lords. It is a very long and detailed draft, which no doubt the Minister and his department will consider and discuss.

However, I do not understand how the Bill fits in with the impending directive. In particular, I do not know when it is likely that the directive will come into force. But it seems to me that, if the Bill is passed in the relatively near future, there is a danger that it may become out of date and be superseded by powers that the Commission will propose that the EU as a whole should take in relation to the whole European Union. It is clearly proposing that arrangements should be made to cover the whole Union with regard to foot and mouth and possibly other animal diseases. It would be a great help to me and, I imagine, to other noble Lords to know how the Bill meshes with the impending directive, when the directive is likely to be issued and whether the Bill will be affected or unaffected by it.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, perhaps I may add one or two points to those made by my noble friend Lord Greaves and also mention one or two issues which the noble Lord, Lord Moran, raised. We feel very strongly that protocols do not have enough force. My experience of protocols in legislation occurred, in the main, during the passage of the Government of Wales Bill in the other place. When the Secretary of State was at a somewhat loose end when asked difficult questions, he said that a protocol on the matter would be introduced, and we had a long list of protocols. I would not say that they amounted to pages and pages but there were certainly large numbers of them. That is why we feel strongly that force should be given to this matter.

The other general point that I want to make is that the title refers to disease control, but then references are made only to slaughter. I do not want to pre-empt anything that the noble Lord, Lord Plumb, will say because he, too, very kindly showed me the draft EU directive. However, I shall mention one item in the directive which concerns control by vaccination in the case of a disease spreading severely.

Clearly, many different tools are used in controlling disease. If one is to have a disease-control slaughter protocol, then perhaps one should consider disease-control in other respects, too. I believe that that is important and it was underlined in the Royal Society report by Sir Brian Follett, who said something similar to what I said in relation to the EU proposal. In view of what the Minister said earlier about testing and matters of that kind—I believe that we shall return to those issues in this debate—perhaps in a year or 18 months we shall be given definitive explanations of these matters. None the less, we believe that the protocol could be cast far more widely, that it should be ordered and, at the same time, have rather more force.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I, too, support the amendment in the names of the noble Lords, Lord Greaves and Lord Livsey. The meaning of the word "protocol" is woolly when applied to legislation. It is also far more firm to make an order rather than prepare a document. I believe that this group of amendments should definitely be supported.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I want to say a few words about the amendment. First, I should like to hear the Minister's response concerning the difference between a protocol and an order. I believe we all accept that that needs to be clarified. We need to be told where one or the other might fit in and whether the protocol or the regulations are stronger. I suspect that regulations are stronger than a protocol, but my legal language is not very good.

Secondly, following the point made by the noble Lord, Lord Moran, is the Minister in a position to give us an indication as to when a response will be made by our Government to the European Parliament's working group 5A, to which we referred earlier? That would help. Can he also say when the European Parliament is likely to put forward the proposal formally? At present, it is at a working group stage. I know that this is the Report stage of the Bill but it is difficult for us to comment on the matter because we need to hear what the Minister has to say. Therefore, I hope that any questions will be raised before the Minister sits down because we need clarification on those points.

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

My Lords, this group of amendments seeks, as the noble Lord, Lord Greaves, said, to turn the protocol into secondary legislation.

The protocol is designed to explain what needs to be taken into account when these new powers are used. These new powers relate to slaughter. We already have powers which relate to vaccination. The protocol is therefore only used to explain the circumstances in which the new powers would be used. It will not describe or constrain the whole strategy. It may well be that in most circumstances vaccination would be the preferred option. It will describe where we might in present circumstances use these new powers and only these new powers because that is the only part of the legislation that requires this degree of explanation.

Explanation is not the same as secondary legislation. It is more flexible than secondary legislation. Circumstances will change. The nature of the disease and outbreak may change and experience abroad may change. Indeed, to turn to the point made by the noble Lord, Lord Moran, there may be developments at the European level which would need to be taken into account in the protocol. It is unlikely that there will be developments in Europe that would give us more powers than we already have on vaccination, or more powers than we need—if we adopt the clause as it stands—on slaughter. The balance may well change as the EU moves more in favour of vaccination than has been the case historically. But it will not alter the fact that we need both powers.

As to the timetable of European consideration, the proposition has just been put on the table and the discussion is ongoing. It could be some time before we get to a position where this is substantively discussed at the political level and a considerable time after that before it has been through the parliamentary and the Council of Ministers processes and actually passes into European legislation.

At that point the protocol may need to reflect that development, but we are not at that stage now. We are unlikely to be at that point for some considerable time. So we must recognise what the protocol is for. It is an explanation, not a legislative tool. If we were to change its nature, it would be a piece of legislation, albeit secondary legislation, subject—as I believe the noble Lord, Lord Greaves, suggested—to the negative procedure, which would need a positive decision in order for it to be debated in the House. Although it would be a relatively low-key piece of legislation, if the circumstances of animal disease control changed we would have to change the provisions.

That is not what we need in this process. For those who may be the recipients of action under the clause we need to explain what are the limits, what things need to be taken into consideration and when were the Government to decide to go down the slaughter road. Turning that protocol into secondary legislation does not seem to be appropriate. I believe that it would be somewhat strange in terms of legislative procedures were we to go down that road. I suspect that the Delegated Powers and Regulatory Reform Committee would have to take a view on the matter. Therefore, I hope that the noble Lord, Lord Greaves, will not pursue this and that we shall have the protocol relating to this particular new power and not to the totality of the strategy of disease control.

The noble Lord, Lord Greaves, asked why we have used slaughter rather than vaccination. The protocol is intended to cover the general issue of matters that have to be taken into consideration. The next group of amendments relates to explanation in particular circumstances. The noble Lord's Amendment No. 8A—which I have already indicated I propose in principle to accept—states that the Secretary of State must include an explanation of why he proposes to use slaughter rather than vaccination. It is not appropriate to include that in a provision that sets out what has to be taken account of in the protocol. I hope that with that explanation this group of amendments is not pursued.

Photo of Lord Greaves Lord Greaves Liberal Democrat 5:45 pm, 22nd October 2002

My Lords, I thank the Minister for that explanation. He has strengthened my view that this should be a document that is placed before Parliament. The protocol, at the moment, would be a document which is published and issued by DEFRA in the name of the Secretary of State, but in which Parliament has no locus whatever.

The Minister said that it would be an explanation of where the slaughter powers may be used and that that is different from secondary legislation. But secondary legislation very often is a matter of clarifying, explaining and setting out in more detail—which surely this will involve—what the primary legislation actually means and how it will be carried out. Secondary legislation is very often of that nature. So it seems to me to be appropriate.

The Minister also said that the legislation may have to change. Of course it may have to change. That is very often why secondary legislation is used in particular cases. To put something in concrete in primary legislation might prevent easy change, whereas secondary legislation is a relatively easy process of changing the details of legislation. There is no question of doing that quickly. Subsection (6) of the Minister's proposed new clause covering the disease control (slaughter) protocol states that if the Secretary of State wishes to change the protocol:

"Subsections (2) to (4) apply to a revision of the protocol as they apply to its preparation".

Those subsections state that the Secretary of State has to prepare a document. He will have to prepare the revision of the document. It must indicate the purposes for which any power to which it applies will be exercised; the principal factors to be taken into account; the procedure to be followed in deciding whether in any circumstances or description of circumstances the power is to be exercised; the procedure to be followed by persons who have functions in relation to the exercise of the power; and the means by which a particular decision may be reviewed. So it is complicated stuff. That has to be published.

Then the Secretary of State has to consult. He must send a copy of the draft to such persons and organisations as he thinks are representative of those having an interest in the exercise of the power; consider those drafts; and amend the draft accordingly. So it will be quite a time-consuming procedure anyhow. Therefore, it is not something that can be done in a matter of days, or two or three weeks.

Turning this into the normal kind of parliamentary order, secondary legislation or statutory instrument—of which we receive great long lists every week, and look at some of them and wonder what they mean—is hardly a major imposition. But it does mean that the protocol, and amendments to the protocol when they occur, are laid before Parliament. We and Members of the other place will have a chance to look at them and, if we feel that they are wrong, to raise that matter. That is a fundamental safeguard. It is not a great imposition on the Government; it is hardly any imposition whatever. What the Minister says strengthens my view that this is what we should do. I therefore beg leave to listen to the Minister for a minute.

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

My Lords, I have had the advantage of seeing the draft protocol. It is in a form that is intended to explain the use of the new power rather than to give traditional and more precise powers, which is the normal purpose of secondary legislation. Can the noble Lord, with his knowledge of secondary legislation, see how that protocol, which has been generally welcomed, could be turned into secondary legislation? I cannot see that. There are other ways that Parliament might wish to debate it, but as a piece of secondary legislation I do not think that that will work. It would certainly not be normal procedure in this House or in the other place.

Photo of Lord Moran Lord Moran Crossbench

My Lords, before the Minister sits down, he has not answered the question that I put to him. I realise that it will inevitably take some time for the process of the draft directive to go towards finality. But, for the purposes of the Bill, is he proposing simply to ignore the work that is going on, or does he envisage a short life for the Bill until that comes through?

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

No, my Lords. If the approach adopted at European level has legal force, it will come through the normal process for dealing with European legislation. The point I am making is that whatever strategy the European Commission decides in future that we should follow, it will require both powers of slaughter and vaccination. It may shift significantly, as Commissioner Byrne has implied, towards vaccination in the wider sense, even if slaughter is used for the diseased animals and their immediate circle. But it will require both powers, so the clause will not be affected. In all circumstances, we will need the option of those powers; the European Union may direct us to a greater priority for one set of powers than for the other, but we shall need both.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, before the noble Lord sits down—

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I remind your Lordships that my noble friend the Minister has finished responding and has sat down. The noble Lord, Lord Greaves, raised an issue and my noble friend was merely clarifying it. On this occasion, the Minister has long since sat down.

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I thank your Lordships for those multiple interventions. The Minister may well be right to say that the way in which the protocols are phrased at present is not appropriate for statutory instrument. If the amendment were carried, we might well have to rephrase it in the language appropriate for statutory instrument, but the basic content and substance of the protocol is appropriate for an instrument before Parliament. I seek to test the opinion of the House.

Photo of Lord Murton of Lindisfarne Lord Murton of Lindisfarne Conservative 5:51 pm, 22nd October 2002

The Question is that Amendment No. 7A shall be agreed to. As many are of that opinion will say, "Content". To the contrary, "Not-Content". I think the Contents have it. Clear the Bar.

Division called.

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

Tellers for the Contents have not been appointed, pursuant to Standing Order 53. A Division therefore cannot take place, and I declare that the "Not-Contents" have it.

[Amendment No. 7B not moved.]

Photo of Earl Peel Earl Peel Conservative

moved, as an amendment to Amendment No. 7, Amendment No. 7C:

Line 22, after "exercised" insert ", which shall include the application of such methods of detecting disease in animals as may be available"

Photo of Earl Peel Earl Peel Conservative

My Lords, in moving the amendment I start by declaring an interest: I own land on which livestock farming takes place.

I welcome the Minister's amendment, Amendment No. 7, in principle, but there undoubtedly remains a strong divergence of opinion about the most effective methods of controlling foot and mouth disease.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, perhaps the noble Earl would give way for a moment. I hope that noble Lords who need to have conversations will leave the Chamber. We on the Front Bench cannot hear the noble Earl.

Photo of Earl Peel Earl Peel Conservative

My Lords, the noble Baroness seems to have had a miraculous effect on the House. A deathly hush has come upon us.

To repeat, there remains a divergence of opinion about the most effective methods of controlling foot and mouth disease. Even after the recent epidemic with all its horrific consequences, there is still no line on whether slaughter or vaccination is the most effective approach—although earlier we decided that vaccination would clearly be a preferable option.

However, if there is one point on which we can all agree, it must be that every effort has to be made to mitigate the slaughter of uninfected animals. From everyone's perspective, the sight of those mass slaughters must be reduced to a minimum. They had a traumatic effect on rural people, farmers and visitors. The whole country was deeply moved by what it saw. Inevitably, many thousands of animals were slaughtered that were not infected by foot and mouth disease. It is incumbent on all of us to ensure that that does not happen again. Many figures are bandied around, but I read recently that only 1 per cent of slaughtered sheep were actually infected by foot and mouth disease.

Consequently, I am certain that everyone wants a sufficiently rapid diagnostic testing system to be developed that can be used on the farm, thus determining whether foot and mouth disease is present before a wholesale slaughter is undertaken. Such a mechanism would bring enormous confidence to the relationship between the State Veterinary Service and the farming industry and reduce the conflicts and tensions that inevitably build up during such traumatic times.

In his letter of October 14th to me, the Minister kindly confirmed that there were two types of rapid test for the presence of the foot and mouth virus. One of the tests is described by the Minister as,

"a pen-side test that takes 15 minutes and is similar to home pregnancy tests".

That is an interesting turn of phrase; perhaps the Minister has more experience of such matters than I have. The other method is more sophisticated. I shall not describe it to your Lordships; I certainly do not understand it. Although a portable version of that method has now been developed in the USA, it is still relatively difficult to perform in field conditions. Clearly, it is only a question of time before the difficulties are overcome or a company comes forward with an alternative foolproof system. My amendment would include in the Government's amendment, Amendment No. 7—relating to the disease control protocol—the provision that, when such methods become available, their use will be mandatory.

In his letter, the Minister said:

"When validated diagnostic tests for field use become available, DEFRA will ensure that the State Veterinary Service has access to them".

I welcome that important first step, but there is a world of difference between allowing access to something and giving a firm commitment to use it. Given the enormous implications of the slaughter policy, it would be odd—to say the least—or even disingenuous not to use appropriate equipment that would give a foolproof answer as to whether such methods were necessary. Apart from anything else, the saving to the Government in compensation alone, if unaffected animals were not slaughtered, would be enormous. If such equipment were available and the Government were satisfied that it worked, it should be incumbent on vets to use it. Why have it, if it is not to be used to optimum effect?

I leave your Lordships with a final thought. We should imagine the case of a farmer who has had his herd destroyed in circumstances in which it was deemed expedient to do so. How will he feel, knowing that such a testing system existed and that officials chose not to use it? A lingering doubt will remain with that farmer for the rest of his life.

When we were discussing Amendment No. 1, tabled by the noble Countess, Lady Mar, I scribbled down something that the noble Lord, Lord Carter, said. He said that the Government would grasp with both hands any opportunity to find ways of preventing mass slaughter. My simple amendment would go a long way to achieving what the noble Lord seeks. I beg to move.

Photo of The Countess of Mar The Countess of Mar Crossbench 6:00 pm, 22nd October 2002

My Lords, I support the noble Earl's amendment, although I would go further and say that the Government should use expertise from outside government. The Minister and the noble Baroness, Lady Mallalieu, will remember that Dr Colin Fink approached DEFRA with a test that would have differentiated between vaccinated animals and animals that were diseased. Because the scientists in DEFRA had not invented the equipment themselves, they would not hear anything about it. I summarise drastically what happened, but I do not wish to see it happen again. We must use the most up-to-date equipment available, and that requirement should be written into the Bill.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, I strongly support the noble Earl's amendment. It is far-sighted, and, as he said, it does not commit the Government to immediate action. When the technology is in place, it should be used.

Professor Fred Brown worked at Pirbright on various tests for foot and mouth disease. However, because of funding difficulties there, he now lives and works in the United States. The testing that has been referred to is at an advanced stage. There may soon be two alternative tests available, one of which was referred to earlier. The amendment is prudent and would ensure that, when such technological advances were made, we could benefit from them.

One of the principles enunciated in the draft European Commission report is that rapid diagnosis is a key factor in tackling and preventing the disease. The amendment would assist that process.

Photo of Lord Carter Lord Carter Labour

My Lords, the noble Earl was kind enough to quote what I said about an earlier amendment. That was, of course, a personal view. Although I support the Government, I no longer speak for the Government.

We all understand what the noble Earl is driving at, but I am not sure that the amendment is required. It will be interesting to hear the Minister's view. The government amendment is rather complicated. Subsection (2)(b) of the proposed new clause refers to,

"the principal factors to be taken into account in deciding whether to exercise the power".

Before the government officer can exercise the power of slaughter, he or she must take into account all the principal factors. If there is a diagnostic test available and the Government have decided not to use it, which would be extraordinarily unlikely, the Government would not be taking the principal factors into account, as that would be one of those factors. I suspect that the Government would be subject to judicial review on that. I shall be interested to see whether my noble friend agrees.

Subsection (2)(b) of the new clause already deals with the point that the noble Earl made so persuasively. The amendment is, therefore—to use a favourite word that appears in all briefings—otiose.

Photo of Lord Peyton of Yeovil Lord Peyton of Yeovil Conservative

My Lords, my noble friend Lord Peel has already fallen over backwards to be reasonable and modest in his amendment. I was pleased that the noble Lord, Lord Carter, seemed to agree with it. My noble friend's proposal—he will correct me if I misunderstood—is that, if effective diagnostic equipment is available, it must be used. My noble friend nods his agreement; I am relieved that I have got it right. The amendment seems reasonable.

The Government will, once again, convey the wrong impression, if they do not accept the amendment. They will give the impression that they are wedded to culling and that they are reluctant to accept anything that dents the armoured plating of their attitudes. I shall be shocked if the Minister cannot accept such an exceedingly modest amendment.

Photo of The Bishop of Hereford The Bishop of Hereford Bishop

My Lords, I studied the face of the noble Lord, Lord Carter, and of the Minister while the noble Earl spoke. I expected to see them wreathed in smiles and with their arms open to welcome the amendment.

The amendment is sensible and desirable. It is not otiose. As the noble Lord, Lord Carter, said, subsection (2)(b) of the new clause refers to,

"the principal factors to be taken into account in deciding whether to exercise the power".

However, if we are to take into account the state of diagnostic testing as a factor, why should we not say so? There is something strange about the way the Government are declining to say what they say they believe. They are wanting it to be assumed; to be taken for granted.

I can see no conceivable justification for the Government not accepting the amendment. It has the advantage of providing for the steady development of the science which we know is continuing. It is not asking for anything which is beyond where we actually are—the point made by the noble Lord, Lord Carter. We are in a changing situation. Amendment No. 7C provides for the best available diagnostic testing to be used at whatever stage we have reached when the need arises. I hope that the Government will accept the amendment.

Photo of Lord Crickhowell Lord Crickhowell Conservative

My Lords, I have not intervened previously, but surrounded in my part of Wales by farms where sheep were culled when they were certainly not infected, I feel strongly about these issues. I agree with the right reverend Prelate the Bishop of Hereford, who has played a notable part in debates and knows more about the issues than any one of us.

I, too, noted the remarks made in an earlier debate by the noble Lord, Lord Carter. My reaction was different to that of my noble friend Lord Peel. I am sure that if the noble Lord, Lord Carter—a man who has great experience in agricultural matters—was in charge and coping in the local area, he would act as he says all Ministers are bound to act. However, enough happened during that episode for us to have considerable doubts that those in charge will always act sensibly or will take account of the requirements unless they are clearly spelled out. The experience that we encountered during that lamentable episode should encourage the Government to write down the rules very clearly so that there can be no doubt where responsibilities lie—not just of Ministers sitting in this place, or presiding over the state, but of those who administer the business on the ground. I support my noble friend Lord Peel. I hope that he will press his amendment.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I support my noble friend's modest amendment. I hope that it is accepted by the Government in the light of the costs and the emotional stress and strain experienced last time. We all agree that we do not want to go through that again. The tremendous advances in science are recognised. I hope that the weight of argument put from all sides of the House will enable the Minister to accept this humble amendment.

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

My Lords, I am sorry to disappoint. The amendment is to a new clause which states what aspects should appear in the protocol. Clearly, subsection (2)(b) and (c) would need to involve the circumstances of the technology for testing. They would be principal factors in subsection (2)(b). The circumstances under which the power is exercised are in subsection (2)(c).

The amendment proposed by the noble Earl, Lord Peel, would constrain either one of those provisions. The House will be familiar with the argument—a legalistic one—that if one designates certain of the principal factors or certain of the circumstances, other circumstances do not have the same weight in law. It is already an indirect procedure, but its inclusion would suggest that subsection (2)(c) in Amendment No. 7 was limited by reference to the technology rather than anything else.

The noble Earl described precisely where we are in terms of technology. There are twin-track operations, but neither has yet reached a point where they could be "rolled out" for full field application with full validation for our own, EU and OIE purposes, in a crisis or emergency. It is hoped that that will soon be the case. Even then the availability and the application will take time to be generalised. Therefore, a situation could arise where in some circumstances of an epidemic, diagnostic testing would be available. In others, because of the typography, the limit of the kits, or the limits of the people who could use the kits, diagnostic testing could not be used. Therefore, a degree of flexibility is required.

I assure the noble Earl, Lord Peel, that subsection (2)(b) which relates to principal factors and subsection (2)(c) which relates to circumstances, includes using up-to-date technology and the protocol can spell that out. To put it in this clause would limit the terms of the protocol and therefore limit the facts that the Secretary of State would be bound to take into account in pursuing a slaughter option. I understand why the proposition is put forward. In certain circumstances, the protocol may move to a position that says testing is mandatory. Until we get to those circumstances it is not sensible to put that on the face of the Bill as a limiting prescription of what should and should not be in the protocol.

Therefore, I hope that on both procedural and operational grounds the noble Earl, Lord Peel, will not pursue the amendment.

Photo of Earl Peel Earl Peel Conservative

My Lords, I thank all noble Lords who have supported me. I am particularly grateful for the intervention of the noble Lord, Lord Crickhowell, who, I know, has not played a great part in the Bill but whose knowledge is well respected. I am grateful for his words.

The noble Lord, Lord Carter, in his inimitable fashion, managed to produce what I can describe only as the Chief Whip's smokescreen. It is effective; we have seen it many times before. The noble Lord basically says that my amendment is unnecessary. Perhaps it is unnecessary, but let us not worry if we have a belt and braces. Nothing could be more effective. I do not understand what the noble Lord was trying to achieve by his remarks.

The issue is the point made by the Minister. We have not, as yet, reached a situation where such diagnostic tests are effective. I acknowledge that; we all acknowledge that. Amendment No. 7C is designed to ensure that when they are up and running and are effective they will be used. I repeat: what is the point of having them if we do not use them? It should be incumbent on the veterinary service to use that. The noble Lord, Lord Carter, says that my amendment compromises flexibility. I simply do not subscribe to that view. I wish to test the opinion of the House. I beg to move.

On Question, Whether the said amendment (No. 7C, as an amendment to Amendment No. 7) shall be agreed to?

Their Lordships divided: Contents, 186; Not-Contents, 127.

Division number 2 Private Parking: Ports and Trading Estates — Animal Health Bill

Aye: 184 Members of the House of Lords

No: 125 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

[Amendments Nos. 7D to 7Q, as amendments to Amendment No. 7, not moved.]

On Question, Amendment No. 7, as amended, agreed to.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip 6:30 pm, 22nd October 2002

moved Amendment No. 8:

After Clause 2, insert the following new clause—

"EXPLANATION OF PREVENTIVE SLAUGHTER

In the 1981 Act the following section is inserted after section 32C (as inserted by section (Disease control (slaughter) protocol) above)—

"32D EXPLANATION OF PREVENTIVE SLAUGHTER

(1) This section applies to a power exercisable by the Secretary of State under—

(a) paragraph 3(1)(c) of Schedule 3;

(b) any other provision of that Schedule as amended by an order under section 32A(1)(a).

(2) The Secretary of State must not exercise a power to which this section applies unless before he first exercises the power in relation to any description of circumstances he publishes his reasons for the exercise of the power in relation to the circumstances of that description.

(3) If the Secretary of State does not comply with subsection (2) in relation to any description of circumstances anything done in connection with the exercise of the power in such circumstances must be taken to have been done without lawful authority.""

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, we all hope that the Government will never have to have recourse to the preventive slaughter power, but should we have to do so we must be open about the reason for using it. That is the reason for the amendment. It will enshrine in the Bill a requirement for the Secretary of State to publish the reasons for using the new slaughter power in any given set of circumstances before the power is exercised. We fully intend for any use of the new slaughter power to be as open and as transparent as possible.

It may be for the convenience of the House if I speak briefly to Amendment No. 8A, which is grouped with this amendment. We have already made clear that vaccination will be considered as a disease control option in any future outbreak. It follows that if we decide that the new slaughter power should be used, in publishing the reasons for using it we must explain why the alternative options are not appropriate. However, we understand the concern that mention of the reasons for not using vaccination should be explicit on the face of the Bill. We therefore accept the principle of Amendment No. 8A and give a commitment to make the necessary amendment to the Bill at Third Reading. I beg to move.

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I am provisionally grateful to the Government. I shall be eternally grateful if I am happy with their wording. I am sure that my wording is brilliant and far better than anything the Government can come up with. But I do not expect them to agree to that and I await with interest the Government's amendment at Third Reading.

Photo of Lord Plumb Lord Plumb Conservative

My Lords, I welcome the requirement for an explanation of preventive slaughter in Amendment No. 8. This is related to everything that we have discussed today. An explanation of that policy is important because it makes it more transparent for those concerned with the problem.

Subsection (2) obliges the Secretary of State first to publish his reasons for the exercise of his or her power to carry out a preventive slaughter. In principle, this is extremely important because we are likely to be dealing with animals in a firebreak hole, which may well be some distance from the outbreak of the infection. At the very least, the owners of such, almost certainly healthy, animals deserve a satisfactory explanation of why the Secretary of State proposes to slaughter them. As I am sure we all accept, the decision has to be based on sound, published veterinary and scientific advice, and not on wider factors such as social and economic considerations.

Subsection (3) of the proposed new Section 32D states that if the Secretary of State does not comply with the requirement to publish a statement of reasons before proceeding to slaughter, then his or her action must be taken to have been done without lawful authority. I merely ask: what does that mean? The animal will have been slaughtered; is it intended that the owners will be able to sue the Secretary of State for damages because he or she had failed to comply with the procedure set down in statute? I pose the question. We should welcome clarification on this point.

I believe that we have to find a description of "circumstances", to include details of the area affected. That could mean that if the epidemic spread, the Minister would have to make separate statements for each area—for Devon, for Warwickshire, for Cheshire, for Cumbria, or wherever it may be. Therefore we need to proceed and push for the detail of where the Secretary of State will publish and for what reasons. Will he or she use various regional offices, NFU offices and so on, to do that? It is a matter that must be taken further.

My only other point relates to subsection (2) of the preventive slaughter clause in Amendment No. 8. I should like an explanation of the explanation. Subsection (2) states:

"The Secretary of State must not exercise a power to which this section applies unless before he first exercises the power in relation to any description of circumstances he publishes his reasons for the exercise of the power in relation to the circumstances of that description".

What on earth does that mean? I have read it several times—and I read into it—but I am concerned for those who may be affected by the Bill who are reading it for the first time. They may think that a bit of gobbledegook has been written into the Bill that is totally unnecessary and uncalled for. In accepting the amendment—I am delighted that Amendment No. 8A, which completes the clause and which we fully support, is to be accepted—I would merely ask the Minister to consider rewording subsection (2) and putting it into English.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I support the noble Lord, Lord Plumb. The Plain English Campaign would love this for its gobbledegook prize.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I should hate to fall foul of the Plain English Campaign. Noble Lords have probably read the text too often. The first time I read it, the text seemed absolutely clear. If one continues to read it, it may become less so. I shall consider whether there is a simpler way to express its meaning. I believe that it means that the Secretary of State may not do what he or she is not legally entitled to do. But that is my precis, and I shall check. It does not sound to me like lawyers' language.

In answer to the first question of the noble Lord, Lord Plumb, the subsection does not of itself create a right to damages. It means that the Government need to take it into account. They could obviously be subject to court proceedings should that be appropriate in individual circumstances. It is almost impossible to answer a hypothetical question in this context. What would happen if a Secretary of State acted without his or her power is an impossible question to answer because it would depend on the circumstances. We are defining in the legislation the powers that the Secretary of State will have. If the noble Lord is not happy with that explanation, I shall write to him and send copies of the letter to other noble Lords.

Whether it should be an area-by-area publication because of regional and local variations will of course depend entirely on the circumstances. Whether it was an outbreak such as that in the 1960s, where it was contained geographically, or whether it affected a wider area or dispersed areas, would govern the way publication was made. But publication would have to be reasonably available for those who needed the information.

On Question, amendment agreed to.

[Amendment No. 8A, as an amendment to Amendment No. 8, not moved.]

Clause 3 [Slaughter of vaccinated animals]:

[Amendment No. 9 not moved.]

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

moved Amendment No. 10:

Page 2, line 40, leave out from "compensation" to end of line 41 and insert "in accordance with subsections (4A) and (4B).

(4A) In the case of an animal treated with vaccine for the purpose of preventing the spread of foot-and-mouth disease—

(a) if the animal was infected with foot-and-mouth disease the compensation is the value of the animal immediately before it became so infected;

(b) in any other case the compensation is the value of the animal immediately before it was slaughtered.

(4B) In the case of an animal treated with vaccine for the purpose of preventing the spread of a disease specified by order under subsection (1) the compensation is of such an amount as may be prescribed by order of the Secretary of State.

(4C) In arriving at a value under subsection (4A) above no account is to be taken of the fact that the animal had been treated with vaccine as mentioned in that subsection."

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

My Lords, in moving this amendment, I shall speak also to Amendment No. 13.

I said earlier that, in adopting a vaccination strategy, the Government's presumption would be that a vaccinate-to-live strategy would be appropriate, but that there could be circumstances in which a vaccinate-and-kill policy might still be necessary. In those circumstances—the circumstances pursued in the Netherlands during the last epidemic—the question arises of compensation for animals which are vaccinated and are then compulsorily slaughtered.

There are strong grounds for clarifying that position. There is, in particular, a need to ensure maximum compliance with the vaccination process in the first place: if animals subsequently had to be slaughtered, farmers would receive the same compensation as they would for non-vaccinated animals. That is what the amendment prescribes. I commend it to the House.

Amendment No. 13 would simply add a reference to the order-making power for diseases other than foot and mouth; namely, the proposed new subsection (4B) in Amendment No. 10. As we discussed in Committee, the position regarding compensation for other diseases is not consistent with the 100 per cent compensation in FMD cases; so different considerations would apply. The amendment simply makes the cross-reference. So far as concerns foot and mouth, Amendment No. 10 would make it clear that 100 per cent compensation would be available in that case. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I thank the Minister for writing to us on this amendment. His letter clearly said that he had listened to the weight of argument about the levels of compensation for slaughtered FMD vaccinates. We are grateful to him for introducing this amendment. It helps to allay the fears of farming colleagues outside this Chamber.

I should still like to draw the House's attention to the rider which the Minister adds to his letter. It relates to a matter that we shall need to address in the long term. I do not raise this issue to worry the Minister now. He said that we should be aware that the general and wider issue of harmonising compensation regimes for animal diseases are being reviewed. The way in which these matters are taken forward may be a subject for debate at a later date. In the mean time, I thank the noble Lord for having listened to the weight of argument in Committee and for his courtesy in responding to us all.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, we on these Benches thank the Minister for introducing this provision. We feel that it offers great assurance following our earlier debates.

The issue of the valuation of vaccinated animals is very important. I point out to the Minister that the supermarket industry ought to take due note of what is going on. During the last foot and mouth outbreak, it was said that there was no market for vaccinated animals. If this is done properly, the supermarkets will take due note and will pay a fair price. What happens in this respect may give the industry grounds for confidence.

Photo of The Countess of Mar The Countess of Mar Crossbench 6:45 pm, 22nd October 2002

My Lords, I find it extraordinary that there is still dispute as regards what the supermarkets think about vaccinated animals. Animals are being vaccinated all the time. We give our sheep Heptovac vaccinations twice a year against all kinds of nasty diseases. Poultry are vaccinated on a regular basis—as are cattle. What on earth is different in people's minds between vaccination for foot and mouth and all the other vaccinations? I am very pleased that the noble Lord has seen fit to introduce this amendment. I am grateful to him.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, I agree totally with the noble Baroness that we need to banish this idea, and the Government have it in their power to do so.

On Question, amendment agreed to.

Photo of Baroness Byford Baroness Byford Conservative

moved Amendment No. 11:

Page 2, line 40, leave out from "compensation" to end of line 41 and insert "equal to the full market value of the vaccinated animal at the time of vaccination or at the time of slaughter, whichever is the greater."

Photo of Baroness Byford Baroness Byford Conservative

My Lords, this amendment is grouped with Amendment No. 15 standing in the name of my noble friend Lord Peel.

The recent foot and mouth outbreak has now been analysed in three fact-finding reviews: that of the National Audit Office; the Anderson inquiry; and the Follett inquiry. All three agree that analysis of the figures indicates that action—and inaction—by the Government and by government departments resulted in the slaughter of millions of healthy, unaffected animals.

On the face of it, the owners and keepers of contiguously culled animals were innocent of any active involvement in the spread of foot and mouth. Their animals were not infected; there were no dangerous contacts involved. The decision to end the lives of most of those animals was not taken by vets or farmers to spare them unnecessary suffering. It was taken in pursuit of a government reaction to the situation that they faced. Even the slaughter on official welfare grounds was caused by government-imposed restrictions, not by any failing on the part of the farming community or the vets responsible for the health and well-being of those animals.

Farmers lost income. They incurred costs for which they had not budgeted, not least on expensive disinfectants—some of dubious worth. Their cash-flows were seriously disrupted and many are still suffering emotionally. Many of those affected have received no compensation at all. More successful farmers than I would say that there are three major decisions which govern their success each year: what to grow; when to start; and when to harvest. In the case of animals, that is rendered as: when to go to market.

If the Government interfere, they should do so in a way which gives farmers the best possible recompense, while at the same time maintaining openness in their calculation. The Government were not ready for the foot and mouth outbreak. The rules on compensation had not been examined for some time—or had not been examined seriously. Mistakes were made, as has been recognised by the Government and by the Minister. I agree that this should not happen again. But do not penalise the farmers of the future for the inadequacies of the past. I beg to move.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, the valuation exercise has been interesting. Some valuations are turning out to be extremely silly. It is self-evident that if you put a pile of pound notes in front of someone and say, "Help yourself", that person will help himself. You cannot blame people for helping themselves. As was reported in The Times this morning, the National Audit Office has cited cases of major over-valuation and over-compensation. That brings government, the farming industry and everyone else involved into disrepute.

Surely it is essential that the basis of the valuation is clear and precise. It should not be open to doubt. Following the last outbreak, some people did not receive money; I am afraid that others received too much. It would be wrong for those involved in the farming industry not to recognise that. I hope that this amendment will make the basis of the valuation clearer from everyone's point of view. I hope that we are talking about a fair market valuation—that is important—not an over-inflated one, but even less an under-inflated one. That is what we must aim at. In that way, people will not use the valuation as a means of blaming others when things go wrong—which happened to a certain extent in the last outbreak.

Photo of Earl Peel Earl Peel Conservative

My Lords, it may be helpful if I speak to Amendment No. 15. It is grouped with Amendment No. 11.

Disregarding any changes that the Minister wishes to implement in the future—we have seen further evidence of that in the press today; some noble Lords may find it somewhat disquieting—at present the Government compensate owners at the full market value. However, with vaccination likely to play a much greater role in any subsequent outbreak, the compensation issue becomes less generous. Farmers may find themselves worse off if their animals are vaccinated but not slaughtered. Amendment No. 10 deals with slaughtered animals which have been vaccinated. Amendment No. 15 deals with those animals which have been vaccinated but are not slaughtered because they did not contract the disease.

As many noble Lords will be aware, there was some debate during the foot and mouth crisis as to whether vaccination was a viable or desirable option. It has always been alleged that the Prime Minister met with Ben Gill, the President of the National Farmers Union, to discuss the issue. Ben Gill said that he would be happy for vaccination to take place provided that those animals were accepted into the food chain. I understand that that idea was dropped for the simple reason that retailers, in particular the supermarkets, said that they were reluctant to accept such animals.

I am sure the Minister will tell us if that is a gross simplification of events. However, if there is any truth in the matter, it highlights the difficulty for farmers with vaccinated animals. There appears to be a stigma against vaccinated animals. Farmers are likely to be worse off and they will receive no compensation unless the animals are slaughtered.

Another possible situation is that a two-tier market may develop by which farmers are paid a lesser rate for vaccinated stock. New subsection (4C) of Amendment No. 10 states:

"In arriving at a value under subsection (4A) above no account is to be taken of the fact that the animal had been treated with vaccine".

One can deduce from that that the Government are aware that discounted values for vaccinated animals exist, and are likely to exist, thus creating a two-tier market. Should such cases occur, surely the whole vaccination policy will become discredited and farmers will be encouraged to pursue the old slaughter policies—the one thing that we are attempting to get away from.

I fully acknowledge that this a difficult issue for the Government. I also believe that on medical grounds there is no reason why vaccinated animals or their produce should not enter the food chain. But this reluctance to accept vaccinated animals appears to exist. That conflicts with the point which the Minister explained in his letter to me which states:

"The acceptance of products from vaccinated animals entering the food chain is critical to the viability of a vaccinate-to-live policy".

I am sure we all subscribe to that.

It is a probing amendment. I acknowledge that for the Government to embark on a full compensatory scheme for vaccinated animals would be totally inappropriate. However, we have a real problem which needs to be addressed. How do the Government propose to overcome the problem and give those farmers with vaccinated animals the confidence that those animals and their produce will be received into the food chain without discounted values? Presumably discussions are taking place with the Food Standard Agency, the Consumer Council and in particular the retailers. We deserve an explanation as to how the problem can be resolved if the Government will not step in to offer compensation, thus discriminating against those vaccinated animals when there is compensation for slaughtered animals.

We deserve an explanation from the Minister as to how he and his department will ensure that vaccinated animals are not discriminated against in the market place; otherwise I fear that the vaccination scheme will be discredited. Farmers will lose confidence in it. That is the one message we do not want to give out.

Photo of Lord Monro of Langholm Lord Monro of Langholm Conservative

My Lords, I support the noble Earl. There is consumer resistance to beasts which have been vaccinated or given hormones in order to fatten. The public are naturally suspicious about anything unnatural occurring to livestock.

Now is the time for the Government to be clear about the exact procedures if—heaven forbid—there were another outbreak. There is added concern about the future valuation of livestock, with a corps of valuers and fixed prices for a cow, ewe, ram and so on. As I have said in previous debates on the Bill, the word "compensation" is an anomaly. While one is paid a sum of money for the value of the sheep or cow on the day it was slaughtered, it in no way compensates for the loss of profits over the three or four years ahead from a flock of sheep or a herd of dairy cattle.

The Bill should state clearly who will do the valuation: whether it is to be a mutual decision between the farmer and the department or from a national list of valuers. Is the valuation to be undertaken as at present? There has been some criticism but in the early days by and large it was fair. Farmers want to know the position as regards vaccinated stock. As the noble Earl said, there will be repercussions on the value of a beast which has been vaccinated because the public do not like the thought of buying vaccinated meat.

Photo of Lord Jopling Lord Jopling Conservative

My Lords, the noble Countess reminded us that there is a long precedent of animal products which have been injected with all kinds of vaccines coming into the food chain. Sheep are routinely injected for pulpy kidney disease and other sheep diseases. There seems to be no problem about their coming into the food chain. Anyone who knows the industry knows that animals injected with these vaccines come commonly into the food chain.

I hope that the Minister will outline the measures taken to protect the public who are offered vaccinated meat. I assume that before a vaccine for farm animals is licensed for use by the agricultural industry, the relevant scientific bodies have examined, tested and monitored it, and that the Minister is told that it is safe to put it on the market. I imagine that such vaccines are subject to the same process as medicines that are licensed for human use. I hope that the Minister will tell us whether the foot and mouth vaccine has been the subject of studies comparable to those carried out previously on the other vaccines to which the noble Countess and I referred. I am not sure what the monitoring process consists of, but we need to know at this stage whether the foot and mouth vaccine has been cleared by the scientific bodies.

As the noble Earl, Lord Peel, said, Amendment No. 11 is a probing amendment. The same applies to Amendment No. 15. Everything depends on what the Government mean by the words at the bottom of page 2 of the Bill—

"compensation of such an amount as may be prescribed by order of the Secretary of State".

Everything depends on what the Minister tells us about the Government's intended approach. If the basis is not satisfactory, we must return to the matter at Third Reading to ensure that specific terms on the exact amount that the Government have in mind, which the House and Parliament understand, are written into Clause 3. If there is just a vague assessment of the amount, we ought to insist at Third Reading on inserting a much more specific provision.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I am horrified to feel so many negative vibes. What is the farming community doing? It should be promoting its animals and saying that they are being vaccinated to keep them healthy and to provide the public with healthy meat.

In response to the noble Lord, Lord Jopling, of course the Medicines Control Agency vets the medicines that are given to animals just as much as it does our medicines. Why are we farmers not saying that our animals are being kept healthy by vaccinating them? Why are we whinging about supermarkets? Why are we not telling them that there is nothing wrong with vaccinated meat?

I can see no reason for the amendment of the noble Earl, Lord Peel. There is no need to compensate for a vaccinated animal that is still healthy. The farming community must get up off its bottom and stop expecting the Government to do absolutely everything for it. We hear constantly about what the Government must do. I agree that the Food Standards Agency can encourage and support, but it is up to us as farmers to promote our products. We are not doing that; we are expecting somebody else to do it throughout.

Photo of Earl Peel Earl Peel Conservative

My Lords, before the noble Countess sits down, is she telling us that to the best of her knowledge— which, we acknowledge, is very considerable—that there is no two-tier market between non-vaccinated and vaccinated animals, and that retailers show no prejudice towards vaccinated animals?

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, the only real two-tier market that I know of is the organic and non-organic one. Some organic animals are vaccinated but most are not. That is the only time when there should be a two-tier market.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, during the foot and mouth outbreak, vets in Argentina stated clearly in an interview that all meat leaving Argentina, as a susceptible country, had been vaccinated. I am pretty sure that some of it found its way from certain regions of Argentina to supermarket shelves in this country. We need to be forthright in acknowledging that vaccinated meat is available already and that if British animals are involved, a two-tier market should not occur. The noble Earl is quite right to table a probing amendment on the matter to see what the Minister says about it.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, before the noble Lord sits down—and I know this is a trick—discussion about inoculated Argentine animals has taken place in the House previously. At that time, the noble Lord, Lord Whitty, said that he would respond to me on the issue. I am not making an accusation, but I feel that he was not entirely sure of the facts. I hope that the noble Lord can press the Minister to answer the question on inoculated animals from Argentina, Uruguay, and other countries, which I am certain are coming into this country. You will appreciate that I am trying to get around a procedural point.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, the noble Earl should know that it is two strikes and he is out.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, I can only say to the noble Earl that I have already made that point.

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

My Lords, during his first, helpful intervention, the noble Earl, Lord Onslow, pointed out that there were problems with the compensation system. Those problems are being addressed.

Amendments Nos. 11 and 15 suggest that we create a two-tier compensation system. However, rather than end a tendency to a two-tier market of vaccinated and non-vaccinated meat, such a system would encourage it. The noble Earl, Lord Peel, over-simplified history but nevertheless it was indicated at one point that food-chain processors and supermarkets would not accept vaccinated meat or milk. As the noble Countess spelt out, that is not rational nor is it practised. Indeed, to answer the noble Earl's second point, consumers in supermarkets here and throughout Europe do not seem to differentiate between vaccinated meat, which is imported in accordance with European standards, and non-vaccinated meat. So, there should not be a problem; there is only a slight hangover problem.

The point is made not just in my letter to the noble Earl. The Follett report by the Royal Society states that if we are to adopt a vaccinate-to-live policy as mainstream, meat and meat products from vaccinated animals must enter the food chain normally; that is to say, on the same terms as the product of a non-vaccinated animal. That is a pre-condition to the success of a vaccination-to-live policy. It is rational, and, if we are all to support a vaccinate-to-live policy, it would be helpful for the farming industry, retailers and processors to make that clear. I hope that we support it; in which case it would be inappropriate to have separate prices for vaccinated and slaughtered animals. Compensation for vaccination as such would not therefore arise. To do something different, as the noble Earl's amendment suggests—as, to an extent, does the noble Baroness's—would be to go in the wrong direction. We should encourage the industry as a whole—the whole food chain, including consumers—to accept, as in practice they do, that vaccinated meat and meat from a healthy animal are one and the same in quality and in every other regard. That is a sine qua non of an effective general vaccinate-to-live policy.

I hope that I have answered the point and that it will not be pursued.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, the Minister will realise that we were seeking clarification. It is difficult when half the people do not understand the implications of a vaccinate-to-live policy. I agree with the noble Countess, Lady Mar, that there are chickens and all sorts of other regularly inoculated meats coming in. One of our problems is that it is common practice, but people are not aware of it. The House needs to recognise that the foot and mouth outbreak highlighted many myths and misunderstandings about the way in which some of our livestock are produced. I hope that the Minister takes that point away and considers it. People saw animals burned on pyres and thought that there was something wrong with the meat. That is why the issue has arisen.

The Minister is aware that we are pressing for a vaccinate-to-live policy. However, unless we all understand the options and deal with the issue head-on, the public will feel that many questions are left unanswered.

I am grateful to the Minister for his response to the amendment. I hope that what other colleagues have said shows that there is still a hurdle to overcome. We need much better general understanding of the issue. Although I accept that vaccination was mentioned last time the issue was raised, the Government did not answer the question then. They said that they would take the view of the industry and of consumers, but there was no outcome. The issue has dragged on and here we are six months later without it having been answered or addressed.

I hope that the amendments have given us a chance to clarify the current position and the Government's thinking on where we are going. Before Third Reading, the industry and others interested in the issue will have a chance to make representations to us if they are still unhappy. I am grateful to the Minister for what he said, but we still have quite a long way to go. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I must tell your Lordships that if Amendment No. 12 is carried, I cannot call Amendment No. 13 because of pre-emption.

Photo of Baroness Byford Baroness Byford Conservative

moved Amendment No. 12:

Page 3, line 4, leave out subsection (6) and insert—

"( ) No order may be made under subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament."

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I shall speak also to Amendment No. 40. Disease of any kind is costly and emotionally racking. In the normal course of events, it is dealt with case by case in an atmosphere of practised care. When disease assumes epidemic proportions, regular routines are superseded. Regional and national priorities take precedence and obviously the Government take the lead. Whatever happens, Parliament should be required to examine the proposed actions and do its best to ensure that they are timely, proportionate, well managed and even-handed.

The Bill uses the positive resolution procedure for orders authorising slaughter to prevent the spread of disease, orders instigating vaccination against foot and mouth and orders for testing samples from animals possibly affected by diseases other than foot and mouth. Why, then, have the Government chosen to water down the effectiveness of Parliament's scrutiny on three issues: compensation for the slaughtered or vaccinated animals; orders under the scrapie provisions; and the additional diseases on the list in the schedule?

Will the Minister clarify the situation? I do not see why some issues require positive resolutions and others fall under the negative resolution procedure. The aim of the amendments is to tease out the Government's thinking. I beg to move.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip 7:15 pm, 22nd October 2002

My Lords, obviously, during the drafting of a Bill there has to be discussion about which parliamentary procedure is most appropriate for individual provisions. We felt that the negative resolution procedure was the most appropriate level of scrutiny for both the issues highlighted by the noble Baroness.

The noble Baroness referred to the need for matters to be dealt with in a timely way. That is one factor. However, some parliamentary scrutiny is retained. It is a matter of judgment.

The House has the benefit of the considerations of the delegated powers scrutiny committee. The fact that the committee did not object to the provision shows that it understood, on balance, the judgment that was taken.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I thank the noble Baroness for her response. I have to ask again whether the Delegated Powers and Regulatory Reform Committee has examined the Bill since it was altered in Committee, or are we assuming that it considered only the Bill as originally designed?

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, my understanding is that the provisions to which the noble Baroness refers are not new and therefore the delegated powers scrutiny committee has already had an opportunity to consider them.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I thank the Minister for that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Earl Peel Earl Peel Conservative

had given notice of his intention to move Amendment No. 15:

After Clause 3, insert the following new clause—

"COMPENSATION FOR VACCINATED ANIMALS WHICH ARE NOT SLAUGHTERED

In the 1981 Act the following section is inserted after section 16A (as inserted by section 3 above)—

"16B Compensation for vaccinated animals which are not slaughtered

(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 Secretary of State may by order specify under section 16A of this Act, and which the Secretary of State has not caused to be slaughtered.

(2) For any animal to which this section applies the Secretary of State must pay compensation in respect of any diminution in the value of the animal which is attributable to the treatment of the animal with vaccine.""

Photo of Earl Peel Earl Peel Conservative

My Lords, I have spoken to the amendment and I moved it earlier, but I should like to take this opportunity to reply to what the Minister said. I was a little disappointed—

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I believe that the noble Earl has to move his amendment in order to have it before the House. He may not speak to it unless it has been moved.

Photo of Earl Peel Earl Peel Conservative

My Lords, I moved the amendment earlier.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, the noble Earl spoke to the amendment, but he did not move it.

Photo of Earl Peel Earl Peel Conservative

My Lords, in that case, I am sure that the noble Baroness is absolutely right. In proposing the amendment, I shall respond to the comments made by the Minister.

I was a little disappointed by what the Minister said; he did not appear to recognise what I believe to be the possibility of a two-tier market. I was extremely interested to hear the noble Countess, Lady Mar, say that it was up to farmers to persuade the supermarkets. Farmers have been trying to persuade supermarkets for a long time, without a great deal of success. I hope that we shall be able to ensure that the difficulty of a possible two-tier market will not manifest itself.

I was simply seeking an unequivocal assurance from the Minister that if such a difficulty arose, his department would make every effort with the consumer councils, the Food Standards Agency and all the various bodies concerned to ensure that the farmers with vaccinated animals received an amount equivalent to that received by farmers selling non-vaccinated animals or their produce. I hope that the Minister will do that, but I cannot see much point in pursuing the issue now.

[Amendment No. 15 not moved.]

Clause 4 [Scrapie]:

Photo of The Countess of Mar The Countess of Mar Crossbench

moved Amendment No. 16:

Page 3, line 11, at end insert—

"(2) The Schedule shall not come into force until either—

(a) transmissible bovine spongiform encephalopathy is found to occur naturally in sheep, or

(b) there is a reliable biochemical test that differentiates fully between scrapie and bovine spongiform encephalopathy, or

(c) the route of transmission of scrapie becomes known."

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, in moving this amendment, I shall speak also to Amendment No. 17, tabled in the names of the noble Lords, Lord Greaves and Lord Livsey, and to Amendment No. 18, which stands in my name. In addition, I propose to speak to Amendment No. 48. Although it has not been included in this group of amendments on the groupings list, this amendment refers to "genetically susceptible sheep" and, therefore, applies to this grouping. I apologise to the House for not picking up that omission before this point.

I am deeply unhappy about this part of the Bill. We are being asked to legislate on the basis of incomplete knowledge. The science of genetics is new, fascinating and exciting. However, it is in its infancy. This part of the Bill seems to be based upon the obsessive supposition that sheep are the hidden repository for BSE, which, in turn, is the cause of variant CJD in humans.

We know that scrapie has been endemic in the UK national flock for more than 250 years. I am reliably informed that it was mentioned in the Bible. Humans have eaten almost every part of the animal for all of that time; indeed, one of my childhood treats was poached sheeps' brains on toast. Scientists have repeatedly tried to infect sheep with BSE by natural means and have failed. They are now saying that perhaps their susceptibility to scrapie is masking a susceptibility to BSE. How long is a piece of string? What exactly is the risk? Are we not more in danger of obliterating a part of the genetic pool of our sheep flock—a pool that has been built up over many centuries to provide us with wool and meat of excellent quality from sheep that are hardy and good mothers and well adapted to our regional variabilities?

Among others, the noble Lord, Lord May, advised us in Committee to exercise caution. We have only to look at the DEFRA website. After a brief description of the work being done on the Cheviot flock at the Institute for Animal Health in Edinburgh, the author of the website acknowledges:

"Cheviots' coating for alanine at [codon] 136 (with glutamine at 171) are still susceptible to certain different strains of scrapie (often called 'C-type scrapie') as well as BSE ... Thus, because it seems as if resistance is not absolute, breeding policies that aim to produce one particular genotype may produce a population that is resistant to one strain of scrapie, but render the flock more susceptible to other strains".

I am very concerned about this situation. The website continues:

"Breeding sheep that are homozygous for arginine at codon 171 may therefore prove to be beneficial in an effort to increase scrapie resistance, but gene frequencies in some breeds will inevitably render some breeding programmes difficult if other desirable characteristics are not to be lost in selecting for scrapie resistance".

I have in mind resistance to foot rot, which is a horrible disease in sheep. It is extremely painful for the animal, and very prevalent. The website also points out that that there are sheep in Australia and in New Zealand that are genetically susceptible to scrapie, and yet both those countries are considered to be scrapie free.

The website directs us to the Scientific Opinion of the Scientific Steering Committee of the European Commission, entitled The Policy of Breeding and Genotyping of Sheep—that is to say, the issue of whether sheep should be bred to be resistant to scrapie. This opinion was adopted by the committee in July 1999. I shall resist the temptation to precis the whole paper, interesting though it is. In its conclusions, the working group concludes that,

"the possibility that sheep may harbour a latent scrapie infection exists"— at this stage, a possibility, not a certainty. The paper continues to say:

"If BSE would have infected sheep, which is not certain today, and if BSE transmits and behaves in sheep in a manner similar to scrapie, for which there are some experimental indications, then a similar strategy for BSE and scrapie should be adopted"— there are many "ifs".

The working group recommends that the European Union should analyse and evaluate the breeding programmes current in a number of European countries, including the United Kingdom; and that individual EU countries should start to genotype large numbers of animals in order to acquire a view on the distribution of the genotypes in their national flocks. I know that this is already being done in the UK: we know which breeds of sheep are more susceptible to scrapie than others.

The working group further recommends that strong consideration should be given to the use of appropriate resistant strains of sheep, coupled with the development of, and extensive use of, validated diagnostic tests. I know that that is beginning to be done under the National Scrapie Plan. However, there is a "but", which I consider to be rather a big but. The group says:

"Before embarking on large scale breeding of sheep towards maximal resistant genotypes, according to the different breeds involved, consideration should be given to the phenotypic characteristics".

I am sorry that the noble Duke, the Duke of Montrose, is not able to be with us this evening. However, I gather that he is making a good recovery from his operation. I wonder whether noble Lords recall him telling us about the Scottish Blackface sheep. There has not been a case of scrapie in Scottish Blackface sheep, yet, according to current knowledge, they are very genetically susceptible. Are we going to wipe out 95 per cent of the Scottish Blackface sheep in order to fulfil the requirements of this part of the Bill?

For many years MAFF, and now DEFRA, monitored flocks of sheep and herds of goats—I had to bring goats into my remarks—under a voluntary scrapie scheme. We have never belonged to this scheme. I have to tell the Minister that we have now withdrawn from the National Scrapie Plan. My husband became very unhappy about the way that the plan was going, and about the requirement that we should kill nearly one-third of our sheep because they were susceptible. Therefore, as participation was voluntary, we have now withdrawn.

Sheep from designated "scrapie monitored" flocks have been regarded as scrapie free. For breeding purposes, scrapie-free sheep command a premium. Many of these sheep fall into the "susceptible" category, and I have mentioned the Scottish Blackface breed. We still have a good deal to learn about TSEs and genetics. I fear that we are about to run before we can walk. Our successors will never forgive us if we wipe out a whole chunk of biodiversity, especially our rare breeds, for reasons about which we are presently unsure; in other words, does scrapie cause BSE and does BSE cause CJD? I beg to move.

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I am pleased to support the amendment moved by the noble Countess. In doing so, I shall speak to Amendment No. 17, which is tabled in my name and that of my noble friend Lord Livsey of Talgarth, and also comment briefly on Amendment No. 18.

In many ways, from an emotional point of view, many of us would like to support Amendment No. 18. However, if the House were to pass such an amendment, it would extend the constitutional powers of this Chamber somewhat; in effect, it would be tantamount to denying the Government legislation to which they are entitled. Therefore, we are unable to support the amendment on those grounds. However, we support Amendment No. 16, which has been moved by a Member of this House who possibly knows more about this subject than most noble Lords in this place. The noble Countess's expertise proved to be extremely valuable during the Committee stage.

In tabling Amendment No. 17, we are seeking to take account of the extended and fascinating debates on the subject that took place in Committee which I am sure many of us found both educative and interesting. It was necessary to undertake considerable research in order to be able to take part in such debates, but that experience was most interesting. Two issues emerged during our discussions in Committee. I shall not go into the technical details involved because we are on Report and such information has been reported in Hansard.

The first point is that the science involved is only partially understood, but its understanding is increasing quite quickly. Indeed, the whole understanding of genotyping, and so on, is relatively new and has only been really understood in recent years. However, like the science surrounding it, such understanding is progressing at a rapid pace. When the Minister wrote to me about scrapie—a copy of his letter was sent to other noble Lords—he set out a large number of research projects that are currently underway. We all look forward to reading the results of such research.

The emphasis, however, is always on the statement, "We look forward to seeing the results of this or that". The fact is that we still do not know a very great deal. In two, four or five years, an approach that seemed necessary may no longer seem necessary. The fact that the science is changing quickly is one reason to support Amendment No. 17. We believe that the clause and schedule relating to scrapie should come into effect only on an affirmative resolution of this House and of the other place. The amendment would ensure that, should the Government decide to implement the provisions, we are able to ask whether the provisions as set out in the Bill are still appropriate.

Another point which clearly emerged from our consideration in Committee was that the Government themselves are not clear on exactly when they want to bring this legislation into effect. Various noble Lords asked the Minister for a date, but he—in his usual charming way, trying to sound positive—evaded the issue. He did not clearly tell us whether it would be six months, one year, two years or three years. One reason he gave for being unable to answer was that the voluntary National Scrapie Plan is still in its early stages. One reason he gave for wanting Clause 4 as a backup was that it would encourage people to take part in the National Scrapie Plan, take-up for which, in its first year, has not been as high as he had hoped.

Noble Lords and others have suggested that there are many good reasons for low take-up. In the aftermath of the foot and mouth outbreak, for example, people have had other things on their minds. We said that the plan may gather pace, and the Minister agreed. However, he said that he wants this legislation on the statute book so that people are aware of the plan. He wants the legislation essentially as a stick, with the National Scrapie Plan as a carrot. Although carrots may not be the right image to use in relation to all animals, I am sure that the goats owned by the noble Countess, Lady Mar, would eat them as well as almost anything else. It is the carrot-and-stick approach.

We are saying in Amendment No. 17 that the House, having scrutinised the Bill and attempted to persuade the Government to improve it, should let the Government have this legislation. When they seek to put the legislation into effect, however, we should as a precaution require them to explain why they are seeking to do so. An affirmative resolution would achieve that objective. It would not be a huge imposition on the Government and it would not cause substantial delay.

Scrapie is not a rampaging, highly infectious disease, but an endemic disease which has been around for perhaps 200 or 300 years. Although we want to get rid of it as best as we can, we should have time at the appropriate stage to reflect on whether the Government's objectives are right. Amendment No. 17 would achieve that objective. It would enable the House to consider not only the issues raised in Amendment No. 16, but issues that may arise in the future. Given continuing research, we may not yet know what those issues will be. We therefore ask the Government to accept Amendment No. 17 as plain common sense.

Photo of Baroness Byford Baroness Byford Conservative 7:30 pm, 22nd October 2002

My Lords, my name is linked with that of the noble Countess, Lady Mar, in proposing Amendment No. 16. I shall not rehearse the issues raised by the amendment, as the noble Countess has already done so very fully and eloquently. I believe that the Minister is already well aware of the noble Countess's reservations about TSEs and the scrapie provisions.

I feel that we have made some progress, albeit only a little, in that the Government now recognise that rare breeds are a special case. I think that they must therefore realise why so many of us are concerned about the scrapie provisions. As we have consistently made our case in relation to these provisions—on Second Reading, in Committee and today—I would be disappointed if the Minister did not accept some of these amendments. There is genuine concern, both inside the House and outside it, about the provisions—which, as other noble Lords have said, are not emergency provisions. Scrapie therefore differs from some of the matters that we dealt with in Committee and on Report. We support Amendment No. 17, and I hope that the Government will accept it.

As I said, I do not need to add anything to the very clear remarks on Amendment No. 16 made by the noble Countess, Lady Mar. She and I share great concern about the whole issue of scrapie. Noble Lords may remember, for example, our earlier explicit debates on the research done on cow brains that should have been done on sheep brains. However, that is in the past. Research is currently being done to investigate specific scrapie issues, but it is not yet finished and only partly understood. It therefore seems only sensible to restrict the way in which these provisions are implemented. Accordingly, I support this group of amendments, particularly Amendment No. 17, which will be moved shortly by the noble Lord, Lord Greaves.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, the rigid criteria in Amendment No. 16 would prevent the acceleration by compulsory means of the National Scrapie Plan, which aims to reduce and eventually eradicate scrapie from the GB national flock. This initiative is strongly endorsed by the stakeholder groups and by SEAC. Let us not forget that scrapie is an extremely nasty and invariably fatal neurological disease. Measures to eradicate it are supported by the vast majority of stakeholders.

I accept that the noble Countess, Lady Mar, is not one of those who supports the plan. However, there remains a theoretical risk that BSE could be found in sheep, masked by scrapie. It is therefore important to achieve a flock that is resistant to scrapie, and to BSE if it is there, within an acceptable time span. To activate these powers only when the presence of BSE is confirmed would be akin to closing the stable door once the horse has bolted.

We shall, of course, involve all stakeholder groups in discussions of what would be a practical time-scale for the introduction of compulsory powers. I therefore cannot accept this amendment.

I turn to Amendment No. 17. Order-making powers in the scrapie provisions will be subject to the negative resolution statutory instrument procedure. I tell the noble Lord, Lord Greaves, that requiring an affirmative resolution procedure for activation of the entire clause is unnecessary and would be very time-consuming. He asked when the clause will be activated, and the reply remains, only as and when it is deemed necessary. However, I assure him that there would be public consultation in advance of the activation of these powers so that all interested organisations could comment.

I turn to Amendment No. 18 and some of the aspects of Amendment No. 48. This part of the Bill deals with the powers to enable us to safeguard human health by making sheep resistant to TSEs through a speeding up of the National Scrapie Plan. The National Scrapie Plan is a long-term programme aiming to reduce and eventually eradicate scrapie from the national sheep flock. It is strongly supported by the sheep sector and other stakeholders. It is also endorsed by SEAC and the Food Standards Agency. At present it is voluntary. Farmers who enter it have their sheep genotyped to establish whether they are genetically resistant to scrapie, with breeding controls then being imposed on susceptible sheep, as the noble Countess recognised. It remains a theoretical risk that BSE could be found in sheep, masked by scrapie. It is important therefore to achieve a flock which is resistant to scrapie—and BSE, if it is present—within a reasonable time span. We shall continue to involve the sheep industry in discussions on what the practical time-scale should be.

The Food Standards Agency has specifically called on the Government to speed up TSE eradication in this country. The Bill would give us the powers, if necessary, to accelerate the process by compulsory means. Supplementary regulations would need to be made before we could activate the powers. I must stress that we would consult all stakeholders before we activated the powers and would discuss the time-scale.

Phenotype characteristics were mentioned. The Government's Amendment No. 51 will ensure that genotypes are taken into account when considering applying a restriction notice. I am sure that the noble Countess knows that, although the European Commission published proposals which set minimum requirements for EU-wide genotyping involving initial voluntary participation, becoming compulsory at a later date, they have been subject only to fairly limited discussion and the outcome is uncertain.

I say to the noble Baroness, Lady Byford, that we discussed with the industry in great detail the issue of rare breeds. That is why the exception has been made. If we listen to the industry and have regard to its view about rare breeds, but that is then used as an argument to change the whole policy, the Government may be tempted not to listen. I know that the noble Baroness would not want that and will be pleased that we have reached an agreement on rare breeds.

We are unable to accept the amendment. Ultimately, the Government must be able to safeguard human health, respond to the Food Standards Agency, to the future of our sheep industry and to its role in the rural economy.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I listened with great care to what the noble Baroness said. I say again that there is still not a shred of evidence that sheep scrapie causes CJD in humans. It is all supposition and theory. I could float a theory that multiple sclerosis was caused by sheep and huge amounts of money could be spent investigating that. We still have not got to the bottom of the matter.

I refer again to phenotyping. Every single sheep was killed in Iceland and sheep that were apparently scrapie free were brought in. Scrapie is now again found in certain valleys in Iceland. Shetland has a high incidence of scrapie in sheep. Yet, as I said, Scottish Blackface sheep do not appear to get scrapie. In Australia and New Zealand sheep do not appear to get scrapie. We need to look not only at genetics but also at phenotypes. Certain animals may have a genetic propensity to contracting a disease but they do not actually get it. We need to know why they do not get it. Much research needs to be devoted to that.

I am perfectly happy to withdraw my amendment but I wholeheartedly support that of the noble Lords, Lord Greaves and Lord Livsey. I shall also withdraw Amendment No. 18 when we reach it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Greaves Lord Greaves Liberal Democrat

moved Amendment No. 17:

Page 3, line 11, at end insert—

"( ) This Part shall not come into effect unless an order has been laid before, and approved by, a resolution of each House of Parliament."

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I say two things to the noble Baroness, Lady Farrington. First, to avoid any doubt, we on these Benches wholeheartedly support the voluntary National Scrapie Plan—let no one think or suggest that we do not. Secondly, as we would expect, the noble Baroness explained to us in some detail the amount of public consultation that would be undertaken before the provision we are discussing was brought into effect. However, that nullifies her argument that introducing an affirmative resolution would cause huge delay. The preparatory processes could clearly take place at the same time as that. The additional delay involved in having an affirmative resolution is not that great in the context we are discussing. I beg to move.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I did not deploy the argument that such a measure would involve delay, but rather the argument about it being time consuming and unnecessary in the context of the widespread consultation.

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I am grateful to the noble Baroness. However, any time that was consumed would be our time. I argue that that would be time well worth spending. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 17) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 103.

Division number 3 Private Parking: Ports and Trading Estates — Animal Health Bill

Aye: 97 Members of the House of Lords

No: 101 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 18 not moved.]

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip 7:56 pm, 22nd October 2002

My Lords, I beg to move that the House do now adjourn during pleasure. In moving this Motion, I suggest that the Report stage begin again not before 8.55 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.57 until 8.55 p.m.]

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

moved Amendment No. 19:

Before Clause 5, insert the following new clause—

"EXERCISE OF POWERS

(1) On or before entry upon land or premises under the provisions of sections 5 to 7, a copy of the sworn information shall be presented with the warrant for entry.

(2) On conviction of an offence under section 16(16) (inserted by section 5 of this Act), 66A(2) (inserted by section 6 of this Act) or 62F(8) (inserted by section 7 of this Act) of the 1981 Act the court is to be satisfied that the required assistance was reasonable and proportionate in all the circumstances.

(3) The provisions of subsections (1) and (2) may be suspended by statutory instrument subject to affirmative resolution of each House if requisite in the national interest.

(4) In implementation of sections 5 to 7 of this Act the Secretary of State may issue a Code of Practice as to slaughter, and vaccination, of animals a draft of which has been laid before Parliament and approved by resolution of each House."

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, this amendment is concerned with the exercise of powers under the Bill. Proposed new subsection (1) seeks to ensure that the information on which the writ of entry is granted is presented with the writ, save at a time of national emergency, which under subsection (3) would suspend this amendment. It would be suspended by Parliament under statutory instrument.

In a sense, this is—I do not know how to describe it—a quadrilateral Bill. It is concerned with the slaughter or vaccination of animals, either in times of national emergency or at any other time. There is no precedent for such a Bill. Either we have emergency legislation or we do not. Therefore, there is no precedent for the amendment, which, when there was no national emergency in the opinion of Parliament, would restore to Parliament the business of Parliament and, to the judiciary, the business of the judiciary.

At the outset, I should explain with gratitude that long before today I had a constructive and enjoyable discussion with the noble Lord, Lord Whitty. Although we cannot agree on most things, and probably never shall, we agreed on one thing—that this was a matter that should be dealt with through this type of amendment and not scattered around the Bill, as it was at Committee stage. We agreed that it was certainly a matter which had not been debated and which was worthy of debate. Naturally, the noble Lord never gave any form of commitment.

The exercise of powers is geared to slaughter under Clauses 5 to 7, albeit mitigated by the amendment of the noble Countess, which now gives priority to the policy of priority of vaccination. That exercise of powers is governed by Clause 1(1) as amended, Clause 1(2), and Clause 1(3) as amended. But, as amended, what should be done to prevent disease is dependent upon what the Secretary of State thinks, which is not justiciable on judicial review, and not upon what he decides, which would be justiciable under judicial review. As I said previously, there is here an absolute discretion.

What the Secretary of State decides is justiciable because the grounds for his decision are subject to judicial review. What will the grounds be? They will be some reports of inspectors or veterinary practitioners. They may be in-house reports from the department, which, of course, would be privileged. But the reports of the inspectors and the veterinary practitioners would not be privileged. They would be examined by a court in order to decide where, for example, a decision to slaughter—not to vaccinate—was such as any reasonable Secretary of State properly directing himself could have made.

That information would have been incorporated in a report on which the application for a writ of entry was granted, which is not disclosed until after the animal has been slaughtered or vaccinated. This at a time when Parliament, by statutory instrument, has not declared a state of national emergency under Subsection (3) of the amendment.

I understand the noble Lord's position as a Minister of the Crown; he must understand mine as a very ordinary lawyer who has led his life and earned his living at the Bar. The noble Lord said in Committee that Ministers have to act reasonably. But one cannot really rely on that because every six months or so the High Court decides otherwise and returns a decision for reconsideration.

The noble Lord, Lord Whitty, in total good faith, suggested that the word "thinks" was used—it is obviously in his brief, but that brief is a little unsatisfactory—because it was used in the 1981 Act. That Act was not geared to slaughter in a national emergency. Therefore, when the noble Lord says—again obviously from his brief—that it was used to maintain consistency in drafting when drafting amending legislation, with respect, that makes no sense at all.

The court must be satisfied that priority—and I give one example again—was given to the policy of vaccination to live. That is the effect of Amendment No. 1 of the noble Countess, whom I am delighted to see at this hour in her place. One can ask the noble Lord—I asked before—what is this resistance? What was restrictive about her amendment? Was it just that the court would have to be satisfied that the requirements of the amendment had been complied with? I do not know.

It comes to this. Unless the amendment were to be accepted in principle, the Secretary of State gives no reasons for slaughter. The owner or keeper can never know the grounds on which entry was granted for slaughter unless, after slaughter, there is a judicial review. But that is small comfort either to the animals or to the keeper.

There would be no judicial hearing of any kind—no appeal to the court that granted the warrant, no judicial review and no safeguard. This at a time when there is no national emergency. And what are the grounds? Delay. And what would be the delay? It would be minimal. Similar considerations to failing to give required assistance under pain of fine and imprisonment are referred to in subsection (2) of the amendment.

Under subsection (4) there are the codes of practice which no doubt, particularly in the light of the amendment of the noble Countess, will be issued to deal not only with aspects of the system likely to be sought on slaughter but also on vaccination. Assistance which is not given renders those who fail to give it liable to fine and imprisonment.

The 29th paragraph of the 10th report of the Joint Committee on Human Rights was referred to in Committee but, as I seek to make a constructive case, perhaps by leave I may again refer to one short passage from it. It states:

"We consider it desirable for a copy of the information sworn by the 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"— a word that I have never used, but I have taken it straight from the report—

"and to make judicial review of the warrant an effective remedy for any violation of Convention rights".

That is the advice of the committee.

In conclusion—I apologise for speaking at such length at such an hour—other than at a time of national emergency, all of your Lordships will appreciate that the separation of powers is the bedrock of our unwritten constitution, of which this House is the sole guardian. For the sake of administrative convenience, in fulfilment of the Quentine prophecy, what has happened? Parliament proposes to confer its powers to the Executive and to stifle the powers of the judiciary. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, my noble friend raises important issues. He has spelt his case out clearly so, apart from supporting the thoughts behind his well-presented case on the use and exercise of the powers, I shall not elaborate. He has clearly covered it all.

I hope that the Minister will be able to allay some of our fears. As my noble friend said, there will be no appeal until after the animals have been slaughtered. It is not an emergency. As I said, a writ of entry will not be disclosed until after the animals have been slaughtered and, with vaccination now playing such a high part in consideration of future disease control, we ask the Minister carefully to consider the new clause. I look forward to hearing what the Minister has to say.

Photo of The Bishop of Hereford The Bishop of Hereford Bishop

My Lords, perhaps I may speak briefly in support of the noble Lord, Lord Campbell of Alloway. With respect to the noble Lord, he cited paragraph 27 of the Joint Committee on Human Rights report, but it is significant. That report was, on the whole, favourable towards the Government and not unduly critical of the provisions of the Bill even as originally drafted. Many of your Lordships were surprised by the tolerance for what appeared to be infringements of human rights in the Bill, but the Joint Committee took the line that we may be faced with a crisis and that severe measures were justified.

However, one of the clearest sections of the report suggests that such information should be served, and it is extremely important that that should be done. Granted the general tenor of the report, it is particularly significant that that recommendation is so clear. For that reason, I strongly support what the noble Lord said.

Photo of The Earl of Northesk The Earl of Northesk Conservative

My Lords, perhaps I may add my support to that for my noble friend. It strikes me that the progress of the Bill has been somewhat unusual. The great virtue of the amendment—the Government should appreciate this virtue—is that it draws the distinction between what might be described as normal statutory powers and those required in a national emergency. In so doing, the amendment guarantees that due judicial process—and, indeed, natural justice—is adhered to.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I, too, willingly support the noble Lord, Lord Campbell of Alloway. In what may be regarded as rather a long speech, I heard the noble Lord, Lord Carter, whispering, "Are they paid by the minute?". We all think that about the lawyers in this House, because they all tend to go on a bit. That is a stock joke about them. However, the noble Lord, Lord Campbell, does himself a disservice by saying that he is just an ordinary lawyer. He is by no means an ordinary lawyer and he would not be in your Lordships' House if he were. His service to the House has proved otherwise. The noble Lord made some valid points. He pulled together many factors that should have been pulled together in the earlier stages of the Bill's progress.

I must make one major criticism of the Minister. The big amendments that we have considered this evening have been too big for Report stage. We needed more time to discuss them, and we have failed the farming community by not being able to discuss them properly. I am disappointed that we did not have the amendments when we were in Committee, as we should have done. After all, the Minister had all summer to produce the amendments.

The noble Lord, Lord Campbell of Alloway, made some good points in his amendment, and they should be accepted.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, we agree with that. The amendment refers to sworn information, required assistance, suspension by statutory instrument and the provision of a code of practice for slaughter. Those relate to important principles, and they have rightly been brought to our attention. The addition of such principles would strengthen the Bill and the rights of individuals who stand to lose a great deal and have some of their liberties infringed.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) 9:15 pm, 22nd October 2002

My Lords, I appreciate that the noble Lord, Lord Campbell of Alloway, has moved the amendment in an attempt to provide a general clause that would qualify a large part of the Bill, rather than doing it section by section. The noble Lord has raised certain principles. Neither the specific details nor the mechanism that the noble Lord proposes is appropriate, and I shall explain why. The noble Countess, Lady Mar, may have a point about the lateness of some of the amendments, but I have tried to keep noble Lords who were involved with the Bill informed of my intentions.

Our amendments meet many of the anxieties expressed at earlier stages, particularly those relating to the warrant procedure and the use of slaughter powers. Since the Bill was first produced and since the noble Lord, Lord Campbell of Alloway, produced his previous version of the amendment, we have committed ourselves to serving a copy of the warrant on the occupier at the time of entry; keeping a warrant record; limiting the definition of persons from whom an inspector can ask assistance; publishing the animal disease slaughter protocol that we discussed this evening; and requiring the Secretary of State to publish reasons for adopting slaughter powers. Those are all substantial constraints on the powers about which the noble Lord expresses continued anxiety. There are now substantial procedures that Ministers and government authorities must go through to exercise the powers to which the amendment refers.

The problem with the mechanism suggested by the noble Lord is that it defines a situation in peacetime, as opposed to a situation of national emergency. The powers are not for peacetime. A foot and mouth disease epidemic will—automatically, immediately and instantaneously—be a national emergency, as would be an outbreak of any of the other diseases referred to at various points in the report to which the same approach might be extended. Therefore, we are discussing powers that would be exerted in a national emergency in any case.

A national emergency could come upon us suddenly, and it would cause severe delay to oblige the Government to come to this House and to the other place to seek approval to suspend the provisions of the clause in order to trigger the necessary powers. That delay would be right at the beginning. We are not talking about a delay in the operation of powers of entry, slaughter or vaccination; the amendment would mean that, right at the beginning of an outbreak of foot and mouth disease, the Government would not have access to the full plethora of measures that this Bill and other legislation would otherwise provide.

When foot and mouth disease broke out, one of the major criticisms of the Government was that we did not act quickly enough. The criticism was that we did not have the powers immediately to hand, so that we could deploy them in a policy of slaughter or, as advocated by many—including, in the light of the reports that we have received, the Government—vaccination. If we had had to seek powers, we might as well have relied on emergency powers in the first place.

The disease is no respecter of parliamentary timetables. Despite what many of us may think, this House sits for only half the year, in terms of the number of days. In terms of the number of hours—hours are important, when disease breaks out—it sits for rather less than that. It may not seem to be thus sometimes, but that is the case. Noble Lords may recall that, on the day that foot and mouth disease broke out, we heard a Statement from my noble friend Lady Hayman; the other place was not sitting. Had we to come to Parliament to trigger the powers that we considered necessary, what would we do if the disease broke out at a time that was not convenient for your Lordships or—even more likely—convenient for the other place?

Therefore, I do not believe that the mechanism proposed by the noble Lord, Lord Campbell of Alloway, of "unsuspending" the powers—if I can use a word that is probably not in the dictionary—would work. Either the Government directly put the limitations in the Bill or we accept that the limitations already proposed, and some others that we are about to debate, will limit the power.

It is important to recognise that those powers will be exerted only when there is an outbreak of a serious disease or, in the immediate period, in relation to foot and mouth disease. Therefore, the distinction between peacetime and a national emergency is theoretical because the powers will be used only in a period of national emergency. While I appreciate the attempt to put a general provision on the face of the Bill, the mechanism chosen by the noble Lord would not be appropriate.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I thank the noble Lord, Lord Whitty, for engaging in a constructive discussion. Frankly, that is the only way in which we can resolve constitutional affairs in this House. I thank all noble Lords on all sides of the House at this hour who have supported the amendment.

I do not want to take much time, but there is a problem which has been acknowledged by the noble Lord, Lord Whitty. It is a novel situation in which in peace-time an emergency situation can arise at any time. The Bill, as he put it, covers both. There is no necessity for any distinction—I hope I do not do an injustice and I invite the noble Lord to intervene if I am wrong—to be made because the Minister will always operate the matter fairly, sensibly and reasonably.

With respect, that does not accord with my experience at the Bar. I have spent half my time fighting cases where Ministers have not acted reasonably, sensibly and so forth. I quite understand that the noble Lord, Lord Whitty, and many others believe that they do. But I know they do not. I say in an irenic spirit that we start from different ends. We look at the matter from different ends of a telescope.

The idea of having a statutory instrument in this extraordinary dual situation or quadripartite situation is not unusual from a constitutional point of view. If there is an emergency situation it is not a Minister of State who decides; it is Parliament. The only way that can be done quickly—and I agree with the noble Lord that it must be done quickly—is by Parliament, at the drop of a hat, bringing forward a statutory instrument. That is all that is needed. I am not asking that the noble Lord should agree with me—I do not believe he ever will—but that he should take time to consider the debate and give a further response to the points that I have raised.

When bringing a case before the Appellate Committee of your Lordships' House we had to present a written case and at the end give brief reasons. Those reasons were most difficult to draft because of the perversity of the noble and learned Lords who always looked at the end first. My brief reason for objection as regards the Bill is that it sets an untoward precedent which affords a manifest injustice. I ask the Minister to muse on that perhaps with some understanding.

In view of the general support that I have received, which I did not expect or seek, from all sides of the House, and in view of the hour, I beg leave to withdraw the amendment so that we may continue a debate on the basis of further constructive thought.

Amendment, by leave, withdrawn.

Clause 5 [Treatment: power of entry]:

Photo of Lord Greaves Lord Greaves Liberal Democrat 9:30 pm, 22nd October 2002

moved Amendment No. 20:

Page 3, line 34, leave out from "informed" to end of line and insert "in writing of the decision to apply for the warrant and of the reasons for that decision including a copy of the sworn information, and has been notified of the time and place at which he may make representations to the justice of the peace about whether the warrant should be issued"

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, Amendment No. 20 heads a group of amendments most of which stand in the name of my noble friend Lord Livsey and myself. They attempt to tackle some of the problems highlighted by the noble Lord, Lord Campbell of Croy. I am sorry, I meant the noble Lord, Lord Campbell of Alloway. I hesitate to suggest that the two have anything in common—well, not a great deal. I had better get on before I dig my hole much deeper.

These amendments attempt to tackle some of the problems which the noble Lord, Lord Campbell of Alloway, highlighted—and some other problems, too—based around the decisions taken on them by magistrates, the serving of the warrants and the right of people to make representations to the magistrates. They also attempt to deal with the related issue of what happens when premises are unoccupied or the occupier is absent.

In respect of those and other areas, the Minister has made considerable changes to the Bill since it first came to your Lordships' House. He has built in many "constraints", as he called them. However, in this area most of them have not been constraints as much as clarifications. They are welcome because the position is now much clearer. Attempts have been made to make the procedures used in different circumstances more uniform and much of what the Minister has done has led to greater openness in the Bill. That, too, is most welcome.

However, there remains a series of deep concerns about what happens when people wish to enter premises either for the treatment of animals, for the slaughter of animals or for the testing of animals. The provisions relating to those three areas are substantially uniform and these amendments would make uniform changes to them. The first amendment requires the reasons for the decision to be provided in writing. We believe that that is important and that a copy of the information should be provided, as mentioned by the noble Lord, Lord Campbell of Alloway.

My second point concerns the ability of people to make representations to a JP. The letter sent to noble Lords by the Minister implied that the Lord Chancellor's Department does not have a high opinion of this suggestion; that different procedures apply for obtaining warrants generally and for making representations to JPs and magistrates, and that it was not a good idea.

It may be that the three areas should be treated differently and that provisions for making representations are needed only in cases of slaughter. The Minister may say that slaughter is often very urgent, as is vaccination, but there is a difference between the purpose of a warrant for entry for slaughter and any other warrant—that is, that its effect is irrevocable and terminal. In most other cases, no matter what unfortunate things may happen to people—they may be arrested, have their property removed, or whatever—the situation can be reversed. In the case of slaughter, it cannot. It may be said that the same is true in cases of treatment, although clearly the remedy and effect being sought is a great deal less traumatic.

I concede that uniform amendments to these different categories may not be the way forward. We are still searching for an ideal way of providing, in such traumatic circumstances, adequate civil rights to the owners, the farmers and the occupiers concerned, in a way that will not seriously affect the purpose of the operation. We all accept that at the height of an epidemic speed is of the essence.

In proposing the amendments, I do not believe that we have achieved a final, ideal solution. I do not believe that the Bill as it stands is adequate for meeting people's concerns or that the amendments on these matters put forward from other sides of the House have yet achieved the ideal. More discussion and thought is required. However, the problem is there; it has to be faced up to and improvements still have to be made to the Bill.

As to the question of what should happen where people turn up at unoccupied premises or where the occupier is absent but it is known, or it can reasonably be found out, where he is, the Government have not yet come forward with an adequate solution to this problem. If you go to a village and want to get access to a farm—and the farmer is in that village or nearby and can be easily found—it is not reasonable simply to put up a notice at the unoccupied premises and to go away and assume that it has been seen. That is not reasonable in those circumstances.

If it is known that the owner is a long way away and cannot be contacted, or if his telephone number cannot be found or he cannot be contacted easily on the telephone, that is a different circumstance. But where he can be contacted, either because he is nearby and people know where he is or because a telephone number on which he can be contacted is known—and is perhaps displayed on the premises—it is not reasonable to ignore that and to proceed as though he was not there.

We believe that these questions need to be answered. We hope that the Government will look to see whether they can come at least some way towards meeting us on them. These are matters to which we shall have to return at Third Reading. I beg to move.

Photo of Baroness Mallalieu Baroness Mallalieu Labour

My Lords, the noble Lord has introduced his amendment with great diffidence, but he has put his finger on an aspect of the Bill that has greatly troubled me, as I indicated in Committee, and continues to do so.

One of the lasting legacies of the foot and mouth outbreak, which has led to continuing resentment, was the sense of powerlessness in the face of the authorities on the part of those faced with people attempting to get into their premises to slaughter their stock.

I accept that a balance has to be struck between the need to control disease urgently and the rights of the owners of the animals—the landowners and farmers. I appreciate that the paramount consideration in the Minister's mind—stung as he and his colleagues were by criticisms of their department—is that they should have the powers to act as swiftly as possible.

However, we are talking not about diseased animals, not about animals which are dangerous contacts, but about those that are healthy and which the Minister is considering using as some form of "fire-break". It seems to me that the minimum that those farmers should have the right to expect is to be told why entry to their premises is required and what the basis of the application is; to be told when and where the application is to be made; and to be given a chance to be heard.

The Minister said in Committee that that would cause delay—and so it will; but it will be a minimal delay in the circumstances. It is always inconvenient to authorities when lawyers are brought in. But surely, if you are going to destroy someone's healthy stock, which is the proposal here, you must give that person the opportunity to be heard at an early stage of the warrant.

This is not a parallel with an arrest warrant or a search warrant. If granted, it will result in the destruction of the animals. As the noble Lord, Lord Greaves, has said, what on earth is the point of subsequent judicial review if your herd is lying dead on the floor of your barn?

These amendments may not be perfect, but they strike at a matter which I urge my noble friend the Minister to address. If it is not addressed, that feeling of powerlessness in the face of the authorities will be translated into this Bill as well, and he will be storing up even greater resentment if these powers—heaven forfend!— ever have to be used in the future.

Photo of Lord Jopling Lord Jopling Conservative

My Lords, I could not agree more strongly with the noble Baroness. The amendment picks up points in amendments that I tabled in Committee. I felt strongly that it was essential that anyone who found that his premises were about to be entered by the authorities and his livestock killed should have the right to know when he could make representations to a justice of the peace. I strongly support the suggestion that an occupier should be,

"notified of the time and place at which he may make representations", to a magistrate. Such a provision is essential.

It could, of course, mean a delay. I accept that. I hope that in replying the Minister will not stress that aspect too much. If the process is properly organised, the delay could be very small indeed. Writing these kinds of provisions into the Bill has the added advantage that farmers will be less likely to make appeals in an attempt to avoid their livestock being killed.

In this context, I was struck by the Minister's letter to the noble Countess dated 17th October. The letter is headed "Animal Health Bill". The Minister has headed a number of paragraphs in the letter "Appeals information from North Yorkshire". I live in North Yorkshire. Happily, my farm was not affected by that dreadful outbreak. As I told noble Lords in Committee, we had outbreaks of foot and mouth disease less than 10 miles from us to the east, north and west but, happily, not to the south into the great pig-producing areas of the Vale of York. Happily, the disease did not strike us.

However, in North Yorkshire there were a good many appeals. In the letter to the noble Countess, the Minister refers to 55 local appeals. The Government repeatedly referred to those appeals as being in the Thirsk area. It caused huge offence in the area where I live. The Minister may recall my correspondence with him. In an extraordinarily ignorant way, the Government referred to all those appeals as being in the Thirsk area whereas many were not.

I have not referred to this issue in previous debates. However, I wish to put on record today that the way in which the Government referred to so many of the outbreaks in North Yorkshire as being in the Thirsk area—they were not—caused huge offence. Many were many miles from the Thirsk area where I live.

I declare an interest. Many years ago, as a young man I was a member of the NFU executive for the Thirsk branch. I commend the Government, at last, for referring to North Yorkshire rather than the Thirsk area. I apologise to noble Lords for perhaps appearing too parochial, but the offence caused by the Government's ignorance needs putting right. The reference in the paragraphs in the letter to "Appeals information from North Yorkshire" (rather than the Thirsk area) will be widely welcomed. It is a situation where there is great rejoicing when the sinner repenteth.

Photo of Earl Peel Earl Peel Conservative

My Lords, I, too, support the amendment. In terms of balance and natural justice, it is in many ways the most important amendment to the Bill that noble Lords will address.

It is imperative that there should be a fair balance between the occupier and those who wish to enter his land and, if necessary, slaughter his stock. I can see no reason whatsoever why the occupier should not have information which is available to the justice of the peace and be able to attend such a meeting to present his case. That seems to me basic and natural justice.

It is important to note two supporters of the amendment. The noble Lord, Lord Jopling, is a former Minister of Agriculture. If he can support the amendment, knowing the implications involved, I see no reason why the Government cannot accept it. If the noble Baroness, Lady Mallalieu, is not concerned from a legal perspective that unnecessary delays are likely to take place, that is another good reason why the Government should accept the amendment. In Committee, I made the relatively mundane but important point that it is appropriate that the Bill gives the new department an opportunity to show the farming fraternity that they care and that they consider farmers' viewpoint. This amendment, almost more than any other, displays that feeling of mutual trust. It is for that reason, more than any other, that I regard it as an imperative part of the legislation. I see no reason whatsoever why the Government should reject it. It is fundamental, and I hope that the Minister will listen very carefully to what has been said.

Photo of The Bishop of Hereford The Bishop of Hereford Bishop 9:45 pm, 22nd October 2002

My Lords, there are two points in this amendment. The first picks up on the matter that we discussed in connection with Amendment No. 19, which relates to providing a copy of the sworn information to the person whose premises are being approached. Clause 62B(1) of the Bill as it is printed provides:

"If a justice of the peace is satisfied on sworn information in writing that the first condition is satisfied . . . he may issue a warrant".

There is no reason why the sworn information should not be taken with the warrant. The Minister said in response to the noble Lord, Lord Campbell of Alloway, that the process would involve a delay. It would involve no delay at all, because if the sworn information is available there is no reason why it should not be taken to the farmer with the warrant.

The second question is whether that person should have a right of representation. The Minister will say that that will involve delay, and it will. It could be done within a tight period, which need not be longer than 24 hours. When that minimal delay, with the enormous gain in good will that there could be if the possibility of representation were offered, is compared with the inordinate delays that took place last year, it is as nothing. We would have less delay and there would be an enormous increase in good will. This makes real sense. Arguments that the provision of sworn information would create delay are unsustainable. Of course there would be some delay if there were a possibility of representation, but it would be well worth it in order to achieve the good will.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, we are discussing an important group of amendments, and I do not think that the noble Lord has disconnected his first amendment from that group. Rather facetiously, I thought about the length of time that MAFF took to reply to my letters. However, under the noble Lord, Lord Whitty, correspondence comes back and forth much more quickly than it used to do. He has seen an improvement in that regard. The delay in issuing information in writing may not be as great as it would have been if MAFF still reigned supreme. There is no problem with having pro forma letters, on which dates and times can be inserted. There should be no delay in that regard, so the Minister cannot plead delay as a problem. The noble Baroness, Lady Mallalieu, pointed out that we are not talking about slaughtering animals, but about vaccinating them, and about having healthy animals. A little delay will not hurt.

I strongly support Amendment No. 20A, which the noble Baroness, Lady Byford, tabled. In this situation I can see no reason why an application for admission to premises giving advance notice would defeat the object of entering premises. We want farmers' co-operation; we do not want to upset them or to cause more problems. Amendment No. 20A should certainly be accepted.

The other amendments all apply to dealing with occupiers who are absent. The noble Lords, Lord Greaves and Lord Livsey, have done a good job pulling this group of amendments together and I support them.

Photo of Lord Carter Lord Carter Labour

My Lords, this discussion has been very interesting to listen to, but I am a little surprised that not a single contributor has referred to the 10th report of the Joint Committee on Human Rights—a committee that includes the noble Lords, Lord Campbell of Alloway and Lord Lester of Herne Hill. The committee examined this aspect of the Bill very carefully. The report says:

"As Article 8(2) [of the ECHR] has been interpreted by the European Court of Human Rights, an entry to premises, or the issue of a warrant, must, in order to be justified— a) be in accordance with the law, b) be intended to advance one of the legitimate aims listed in Article 8(2), and c) be a proportionate response to a pressing social need to pursue that aim".

The committee then examined all the procedures and requirements in the Bill—including the requirement to obtain a warrant from a justice of the peace before entering premises without the occupier's consent and without giving notice, and all the rest of it—and concluded that it was satisfied that the powers the Government are undertaking do not impinge on human rights. That was before the amendments introduced by my noble friend the Minister. I am surprised that not one person who has contributed to the debate or supported the amendment has referred to the fact that the Joint Committee of both Houses, which contains great specialist knowledge and expert advice on human rights, does not find that the powers contained in the Bill contravene human rights.

Photo of The Bishop of Hereford The Bishop of Hereford Bishop

My Lords, I have just quoted from that report. I had it in my hand and referred to Paragraph 27, as did the noble Lord, Lord Campbell of Alloway. What the noble Lord says is simply not true; two Members of this House have quoted from that report.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, the right reverend Prelate beat me to it. I thought that perhaps we had been listening to a different debate. I was only cross that I had not brought my copy of the report in with me, so I was very glad that the noble Lord referred to it.

We strongly support Amendment No. 20. I shall speak also to Amendment No. 20A. Noble Lords from all sides of the House have raised genuine concerns about this part of the Bill. It is one of the most important aspects that we shall consider. The noble Baroness, Lady Mallalieu, spelt the issue out simply. Why is the entry required? Where? When? Is there a chance to be heard? The point cannot be made more briefly or directly. That sums up everything that we said in Committee and are saying again tonight.

We are all anxious to avoid the unnecessary killing of healthy animals if at all possible. We need to give those whose animals may be killed in this way the chance to be heard and to be told what is going on. My noble friend Lord Peel referred to basic and natural justice, which seems to be missing in this bit of the Bill. He felt that the Government had an opportunity to reach out and restore some of the confidence that has been shaken in the farming industry. As I go around, the same frustrations are often raised with me: do the Government understand or care or do they not really mind whether we produce our own food and have our own livestock? Would it not be easier to get rid of the whole lot? There is great concern. It would be immensely helpful if we could allay some of those fears.

In Committee the Minister told us that his legal advisers are not in favour of placing more than is strictly necessary on the face of the Bill. Our contention is that paragraph (b), which would be deleted by Amendment No. 20A, is not only unnecessary, but likely to encourage the sort of behaviour by officials that leads to even greater suspicions and recalcitrance on the part of those whom they are trying to investigate. Many will remember one or two incidents that happened during our last outbreak. A farmer has a flock of sheep. The inspector wants to check them for foot and mouth. The inspector phones up and there is nobody at home. His task is urgent, so he goes to a JP and seeks a warrant using the first condition and the second part of the third condition as an excuse. If he is successful, he will have been spared the palaver of giving the farmer notice of entry and the reasons for it. Clearly, as other noble Lords have observed tonight, reasons must be given and there must be some recourse available.

If feelings are running high locally, does the Minister recognise that this is what I call a "Catch-all-22" with regard to my Amendment No. 20A? I thank the noble Countess, Lady Mar, for her support. I believe that the Minister has enough powers under the Bill without paragraph (b). Therefore, when he responds, I hope that the noble Lord, Lord Whitty, will accept our argument.

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

My Lords, I respect the views expressed from all parts of the House on the issue, but I disagree with them very centrally. We are talking about one of the powers in the Bill that I personally feel was lacking the last time round. The noble Lord, Lord Jopling, referred to misinterpretation of what we call the "Thirsk area". I am not quite as repentant as he suggests, but the statistics certainly relate to North Yorkshire and the patterns of the area because that is the way we keep statistics. However, the occasion of the Thirsk outbreak would, of course, cover the wider area. Thirsk was a new outbreak in that the outbreak in the west of North Yorkshire had been there for some time.

The outbreak in that area of North Yorkshire was both new and very dangerous. As the noble Lord rightly said, it threatened the pig herds of East Riding and of the East Midlands. Moreover, had the disease moved in the wrong direction, we would have been involved in mandatory slaughter or mandatory vaccination—and, therefore, market negation at that point—of all the pigs in those intensive pig farms. As a consequence, many people's livelihoods would have been substantially destroyed.

The noble Baroness says that we must make a gesture that recognises the concerns of the farming community. I should point out to her that all the Bill's provisions are aimed at protecting livestock farming in this country. All the Government's actions were directed towards that aim—some of them worked, but some of them did not work well. However, there was too much delay in the culling of contiguous premises and this threatened the whole process. There are people who object to the contiguous cull, and who say that vaccination is required. But vaccination would also require swift action in these areas.

I do not believe that any Minister of agriculture faced with a new outbreak that threatened huge parts of the pig and livestock industry in a key part of the country would have been happy with the fact that delays were built into the process which threatened to slow down the way in which the disease was being controlled. Those people who we are trying to protect in such areas also have human rights and, indeed, rights to their property. Therefore, it is important for swiftness to be written into these procedures.

It is also important for reasonableness to be included. We have accepted that greater safeguards on reasonableness should be built into the Bill than was the case with the original format. We have written that into the legislation in terms of the conditions of the warrant procedure, and in many other parts. As my noble friend Lord Carter pointed out, the original Bill was not challenged in this respect by the Joint Committee on Human Rights. We have made it more "bomb proof" from the human rights point of view as a result of these additional safeguards.

The key issue here is representation. Inevitably, delay arises from the ability to make representations on this procedure. As the noble Lord, Lord Greaves, was good enough to mention, it is also true that that does not apply in any other warrant procedure. Moreover, speed is not so much of the essence in some of those other procedures as in the case where one is trying to control a raging epidemic. I should stress that these provisions do not take away all rights from the occupier; indeed, he has the right to make representations to the DVM; the right to seek a High Court injunction, which could block a warrant; and, although this is post facto, there is also the judicial review process as a fall-back. So it is not the case that there is no means of redress, or of delay, open to the occupier.

In normal circumstances, however, the process that we are proposing—the warrant-issuing proposal, which very closely follows warrant-granting proposals in other contexts—is the swiftest way of getting the authority to act. That is what we need. We accept that people have to act with reasonableness, but we also have safeguards in that regard. The magistrate, for example, has to have regard to reasonableness in all aspects of the matter. So we do have a balance between swiftness and reasonableness. To go further and build in an inevitable delay in terms of representations is a safeguard too far for me and could endanger large parts of the rest of the livestock industry. I do not believe that it would in any sense be in the interests of the farming community to build in that delay.

On the face of it, there is a slightly different argument in relation to unoccupied premises, which some of these amendments deal with. I can certainly understand that people might feel that they could be caught out if they were inadvertently down the road when the inspector called. There again, however, the authorities will have to act with reasonableness, and the magistrates will have to be persuaded that the authorities acted with reasonableness. It would not be reasonable if the inspector failed to contact the occupier although he knew, or could reasonably be supposed to know, that the occupier was easily contactable although he or she was not on the premises. The magistrate could find that that was not reasonable, and a court could subsequently find that it was not reasonable. The thread of reasonableness, therefore, already runs through all of these powers.

We therefore do not need this additional requirement. It could even be counterproductive to impose a requirement of reasonableness in relation to this power when there is no such requirement in relation to the other powers. In normal situations, reasonableness runs through all of the qualifications to the actions of the authorities.

We have a situation in which swiftness is essential, and in which reasonableness has been built in substantially more than it was in the original Bill—which was itself in this respect given a very clean bill of health by the Joint Committee on Human Rights. But noble Lords wish to build in another safeguard which will inevitably cause delay. I do not think that there is a strong human rights argument for doing that. Rather, I think that the human rights and property rights of the rest of the farming community need to prevail over the view that we should provide the occupier of particular premises with an additional delaying process. Such premises may not be diseased, but in the judgment of the authorities—and regardless of whether they are adopting a vaccination or slaughter policy—they are an essential part of preventing the spread of the disease.

Therefore, despite the widespread support on all sides of the House for this group of amendments, I cannot accede to their central point. In the light of what I have said, I hope that they will not be pursued.

Photo of Lord Greaves Lord Greaves Liberal Democrat 10:00 pm, 22nd October 2002

My Lords, although I was not terribly encouraged by what he said, I thank the Minister for that reply. I thank all noble Lords who took part in the debate. I also thank the Minister for taking part, but not for what he said. I tell the noble Baroness, Lady Mallalieu, that I am not usually known for being diffident; perhaps I need some time after the dinner break to get going again.

I have several comments on the Minister's reply. I do not think that any of us are challenging the central powers which he seeks. We are certainly not trying to do so in these amendments. He said that the central point of the Bill was to provide the Government with powers that the Secretary of State lacked in the recent outbreak. We are not challenging those powers. We are simply considering some of the ways in which those powers should be constrained to ensure reasonable behaviour.

I am not sure that the discussion of human rights and the Human Rights Act is a fundamental aspect of this debate. I see the Human Rights Act and the European Convention on Human Rights as a floor below which things should not fall. If things are seen to fall below that, a contravention or problem will arise which clearly has to be dealt with.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, I wish to add to my noble friend's remarks. I believe that, when talking about speed, the Minister mentioned delays that may occur as a result of representations being made to magistrates. However, in rural areas magistrates are easily accessible. I believe that that argument is the thin end of the wedge in terms of claiming that such a process would take a long time; it would not.

Photo of Lord Greaves Lord Greaves Liberal Democrat

My Lords, I am grateful to my noble friend for those comments. As regards the point that I was making about human rights, just because something does not obviously and immediately contravene the convention and the Human Rights Act does not mean that it should automatically take place. Many things which we would not wish to see occur, or would wish to see improved, would not fail the very stark test of contravening the Human Rights Act and the convention. That is a slight red herring.

The Minister said that a thread of reasonableness runs through everything—the whole of life, all legislation, the whole of government, everything that government officials ever do, everything that magistrates and everyone connected with them ever do, and through everything that people contracted to all those bodies ever do. If that was the case, we would not need any laws at all as everyone would behave completely reasonably under all circumstances. We could simply rely on a system of voluntary mutuality for us all to behave reasonably with everyone else and the world would be a rather more ideal place than it is now. The reason we have laws and rules and regulations is that often people do not behave reasonably. Even when they are meant to behave reasonably, they behave in an arbitrary manner or they behave in an unreasonable manner unwittingly because of the circumstances in which they find themselves.

We must remember that the powers we are discussing, particularly the slaughter powers and the compulsory vaccination powers, will be exercised under conditions of great stress—stress for communities, farmers, people who own livestock and occupy the relevant premises, and stress for the whole community. I refer also to stress among magistrates and everyone else. We all observed what happened in last year's outbreak. In such situations people are under great stress. When they are under great stress, they do unreasonable things. All kinds of unreasonable events occurred that should not have taken place under the rules that were laid down. Therefore, we can assume that in stressful circumstances human beings will behave in ways which are not only unreasonable but which they regret later.

The idea that the whole world is wonderful and everyone is reasonable is not something that I can accept. It seems to me that if the rules require reasonableness—I refer in that connection to unoccupied premises or to premises where people are absent—there is no harm in including that in the Bill. If it is not included, it may be said of certain people, "They may be at the church just down the road but they are not on the farm and therefore we shall ignore them", or, "They may be on their other holding at the other end of the village", or, "They may be in the pub", or, "They may be at their grandmother's across the road", or whatever. Simple inquiries may ascertain where the relevant people are and enable a warrant to be served in a proper way. When people are under stress and under great pressure to achieve things quickly, standards slip and, therefore, that is when it is even more important that the rules put the matter in black and white. As I say, I do not agree with the Minister's comments as regards unoccupied premises.

I believe that the House will want to return to these issues. There may be a fundamental division of opinion. The Minister may say that he cannot go even halfway to accommodate us, or accommodate us at all. If that is the case, there will have to be a showdown. I should regret that because it would be helpful if we could achieve some consensus in this area. Despite what the Minister said, perhaps during the next fortnight some efforts may be made to achieve that. I give notice that this matter will have to be debated again. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Byford Baroness Byford Conservative

moved Amendment No. 20A:

Page 4, line 1, leave out paragraph (b).

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I listened with care to what the Minister did—or did not—say in response to my amendment. This matter involves a catch-all situation and extra powers will given to the Minister, although I do not believe that he needs them. I am not happy with the Minister's response and I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 20A) shall be agreed to?

Their Lordships divided: Contents, 30; Not-Contents, 41.

Division number 4 Private Parking: Ports and Trading Estates — Animal Health Bill

Aye: 28 Members of the House of Lords

No: 39 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 21 not moved.]

Photo of Baroness Byford Baroness Byford Conservative 10:20 pm, 22nd October 2002

moved Amendment No. 22:

Page 4, line 16, after "of" insert "the affected"

Photo of Baroness Byford Baroness Byford Conservative

My Lords, in moving Amendment No. 22, I shall speak also to Amendments Nos. 29, 37 and 56. Perhaps I may point out to noble Lords that Amendment No. 56 appears twice on the groupings list. However, I believe that it is relevant to this group and therefore I shall speak to it now.

I accept that the noble Lord, Lord Whitty, amended the wording of the Bill to reflect some of the concerns expressed by myself and other Members of the House. He has not, however, gone far enough to protect people on a farm from the demands of overwork and perhaps being harassed by an inspector, who in turn is being hassled by a boss to achieve the object set him.

The amendment seeks the insertion of the words "the affected" animals—not "infected" animals. We contend that not everyone would feel able to give assistance to an inspector needing help. He would be quite within his rights, as they are currently laid down in the Bill, to call upon, for example, a stable girl, or a daughter or someone living in the household, to assist. She might well be doubly qualified because she has charge of some other animals on the premises. But she might well have nothing to do with the animals that the inspector wishes help with; for example, a stable girl who for particular reasons is petrified of cows, and, knowing little about them, is not able to give the kind of help that the Minister through his inspector seeks. If such a person is coerced into helping and an accident occurs while giving that assistance, who will be liable? Who covers someone who, when asked to give assistance, is perhaps not able and not capable of giving it?

In Committee, the Minister clarified and narrowed the number of people who can be reasonably expected to give assistance. But because the Bill refers to "animals" rather than "affected animals", I believe that the Minister would welcome the insertion of this word. I beg to move.

Photo of Lord Jopling Lord Jopling Conservative

My Lords, I support my noble friend on this. The Bill at the moment states:

"The following persons fall within this subsection—

(a) the occupier of the premises", and then,

"a person appearing to the inspector to have charge of animals on the premises".

There are so many ways that one could have people on premises in charge of animals who have nothing whatever to do with animals which might or might not be affected in a foot and mouth outbreak.

Nowadays, far fewer people in the countryside are involved in agriculture than when I was a young man and starting farming in the 1950s. As a consequence, there are on a good deal of farms premises that are part of the farm but which are let for entirely non-farming purposes.

I cite an example from the top of my head. Let us say that a house on a farm is part of the farm premises and is occupied by someone who carries on a business breeding dogs—nothing whatever to do with the farm but occupying premises that are part of the farm. Why should someone be involved in all of the legislation who appears to the inspector,

"to have charge of animals on the premises", when that person may have charge of the breeding of dogs on the premises but knows nothing about cattle, sheep or pigs kept on the premises?

The amendment is entirely appropriate. The Bill should state that the only people who fall under the subsection are persons appearing to the inspector to have charge of animals on the premises that are affected by the outbreak that we are discussing.

As I speak, I can think of another example. A farm that neighbours mine in North Yorkshire has set up a side enterprise in which they breed and sell ornamental fish. When they come to stay, my grandchildren love to go to that farm either to look at or to purchase fish for their aquarium. But those fish are animals.

Nowadays, people on farms are considering alternative enterprises. Years ago, I was one of the first Ministers to encourage alternative enterprises on farms and give public money to support them. Because there was insufficient money to be made from farming, many farming families have arranged for interested people to occupy houses or other premises to carry out enterprises which, through a rental, provide revenue for the farming business but which are totally separate and run by different people from the farming enterprise.

I have cited two examples—dog breeding and fish breeding—that could perfectly well fall under the provision. I plead with the Minister to understand the point. He may not have previously considered such a situation, although I thought that we explained it in Committee. Something must be done to detach from the legal process and legislation people who are totally separated from the enterprise of the farm on which animals are or could be affected by an outbreak of disease. We should concentrate the effect of the law on those who are solely concerned with animals that may be affected by the disease. I hope that the Minister will take that point.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I have much sympathy with the amendment moved by the noble Baroness, Lady Byford, but I suspect that the Minister will refer us to the parent Act, which tells us what are animals. It includes neither dogs nor fish. It would be helpful to make the amendment, but, unfortunately, the noble Lord, Lord Jopling, went off at a tangent.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, I spoke at some length in Committee, so I shall be brief. There are other situations: there are cottages on farms that have become empty and farmhouses that have fallen empty. In our part of the world, many barns have been converted into accommodation. An inspector who came from a different area, where there were farm animals, might appropriate the help of some of the people living there. Opposite where I live, there is a barn complex in which 12 people live. Yet there are animals close by. The amendment would be sensible.

Photo of Lord Whitty Lord Whitty Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) 10:30 pm, 22nd October 2002

My Lords, the noble Countess made my point for me, although she took the effect away with her subsequent sentence.

I thought that I explained previously that in this context and others we were working on the basis of the Animal Health Act 1981 in which animals are defined as animals being susceptible to the disease. That does not include horses, fish or dogs. If we qualify that by saying "affected animals", there will be an argument about which of the susceptible animals are affected by the order or by the requirements of the inspector. It would be a confusing amendment as animals are already defined as animals that are susceptible. All such animals could be covered by a request for assistance. The amendment is not appropriate.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I am disappointed that the Minister considers my amendment inappropriate. I heard what he said, and it is an oversight on my part that I did not re-check. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Byford Baroness Byford Conservative

moved Amendment No. 23:

Page 4, line 29, leave out "issue" and insert "approval by the justice of the peace, which date shall be clearly visible on the warrant"

Photo of Baroness Byford Baroness Byford Conservative

In moving Amendment No. 23, I shall speak also to Amendments Nos. 28, 35 and 54.

When we discussed my amendment, Amendment No. 235, in Committee, it evoked support from all parts. The Minister promised to re-examine the matter, and I acknowledged that there needed to be more work on the wording. As it now stands, the amendment would tie the date on the warrant firmly to the date on which it was approved. I seem to remember that the noble Lord, Lord Carter, said that my previous amendment did not mean that the warrant had been signed and approved on the same day. I remember that the noble Countess, Lady Mar, said that some warrants were available pre-signed. It was not my intention to allow that. I hope that the new amendments will be accepted and will provide greater clarity.

At the time, the Minister invoked legal advice to the effect that the Bill should not contain unnecessary material. I agree, but this phrase is not unnecessary. The foot and mouth disease outbreak brought into the open the hostility of the Government towards the farming community. There was deep suspicion and unhappiness on all sides, as there still is. We have heard evidence that magistrates signed undated warrants. Detective novels, some of which have been filmed or televised, suggest that that practice still goes on, and we should say that it should not. To make sure that it does not, it should be made clear in the Bill that it is illegal. I beg to move.

Photo of Lord Jopling Lord Jopling Conservative

My Lords, I shall listen with enormous interest to what the Minister says, if he decides to oppose the amendment. It would take extraordinary ingenuity to find reasons to oppose my noble friend's proposal. What possibly could be wrong with putting on the document the date on which it was approved by the justice of the peace, which should be clearly visible on the warrant?

Should the Minister seek to oppose the amendment he is being unnecessarily pedantic. I cannot conceive a single reason why it should be opposed. Even the noble Lord, Lord Carter, is assiduous in supporting the Government's line during the proceedings of the Bill to the extent that some of us wonder whether he is still on the Government's payroll. Even the noble Lord, Lord Carter, could not think of a single reason to oppose the amendment, which I consider the most reasonable amendment put before your Lordships today.

Photo of Lord Carter Lord Carter Labour

My Lords, the noble Lord obviously has not noticed: I support the Government only when they are right.

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

My Lords, this section of the Bill has been strengthened to include a requirement that the authorities must retain a copy of the warrant, a copy of the record, any steps taken to effect the warrant to enter the premises, and actions taken on the premises. That is compared with the last time we discussed this issue. The Bill will be strengthened and those records will need to be kept for at least 12 months. Therefore, if there is a dispute concerning the date, that will be covered by those additional requirements.

However, I must say that my legal advice remains the same. There is no requirement for this provision to be stated on the face of the Bill, but I cannot think of any other rational argument against the amendment. Therefore, I am prepared to accept it.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, the Minister has made my night. I have to tell him, if he hadn't, I would have voted again, and happily lost again. I am grateful to him—I know we have laughed in rejoicing—but it is a simple amendment that will be warmly welcomed. I thank the Minister warmly for that.

On Question, amendment agreed to.

Clause 6 [Slaughter: power of entry]:

Photo of Lord Plumb Lord Plumb Conservative

moved Amendment No. 24:

Page 5, leave out lines 6 and 7 and insert—

"( ) In this section and sections 62B, 62C and 62D "premises" excludes dwelling houses and buildings being used for non-agricultural purposes."

Photo of Lord Plumb Lord Plumb Conservative

My Lords, Amendment No. 24 refers to the exclusion of dwelling houses and buildings being used for non-agricultural purposes. The amendment follows, in practical terms, many of the sentiments that were expressed in Amendment No. 20 proposed by the noble Lord, Lord Greaves, supported by the noble Baroness, Lady Mallalieu, as well as many of my noble friends on this side of the House, on warrant to access.

The question is: what do they find when they get access? They find a very different situation that is moving rapidly on a regular basis. Increasingly, premises encompass activities which have nothing to do with the farming business. The farmhouse may have been sold off to a businessman or even an NHS consultant. The farmer and his family may have moved to the cottage that formerly housed the cowman, and so forth. We all understand the regular and continual move that is taking place and putting premises to alternative use.

Many outbuildings have been renewed and restored, and rented to companies employed in the advance of modern technology. I could take many from this House to farms near me in the Midlands where that is taking place at a rapid pace. Many of the enterprises use techniques and equipment which demand an environment that is more reminiscent of a food factory than a primary producer. It should be clear that inspectors have no right to demand entry to premises which they are told are not part of the farm; nor to those which indicate by name-plate signs in the window and so forth that they are separate entities.

This will become an ever-growing problem. It is part of the diversification process that is taking place. In today's business of farming, it is inevitable that it will continue. It will create a problem—I can see it coming—because of the enormous change in the use of buildings. I hope that the Minister will therefore accept our amendment. I beg to move.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

My Lords, I support the amendment. It is important and it spells out many of the factors I emphasised earlier about buildings and the various people living in them. On a lighter note, it so happens that in the village where I live two former farm properties are occupied by psychiatrists. It is therefore possible that the inspector will receive a shock if he knocks on the door!

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I, too, support the amendment. The only objection I can see the Minister raising is in relation to the lady who kept her sheep in the sitting room and barricaded them in. On the whole, householders ought to be allowed to have their privacy and the Human Rights Act allows them to have that. I support the noble Lord, Lord Plumb.

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

My Lords, the provisions under the clause are all subject to reasonableness and proportionate use. It would probably be regarded as disproportionate—although not in this House—to cull psychiatrists. The issue is not what the house is mainly used for; it is whether there are animals in it or whether there is a reasonable supposition that animals are in it. There is not just the odd example of sheep and goats being kept in the house; it occurs frequently because they are kept as pets or because people are trying to avoid the effects of the cull or access to vaccination or testing.

We therefore must provide the authorities with the ability to have access to any building where animals can reasonably be expected to have been kept. A blanket exclusion of dwelling houses and other non-agricultural buildings would inhibit that. Therefore I cannot accept the amendment as drafted.

Photo of Lord Plumb Lord Plumb Conservative

My Lords, I thank the Minister for his reply. He has dealt with only one aspect of the matter. It could well be that 50 people are in the one dwelling and all are involved in different businesses. It could well be that they are in different buildings or even sharing buildings. Therefore, it is not a question of animals being in the houses. It is a question of people being in the houses, an inspector going in with a warrant and not knowing what his responsibilities are or who is allowed to move if disease breaks out on the farm.

We aired the matter fairly fully in Committee and I have raised it again today. I shall withdraw the amendment but we shall return to it at the next stage. In the event of another outbreak, it is a matter of great concern that we recognise the change in farming practice, the use of buildings and the number of people who are in them.

Amendment, by leave, withdrawn.

[Amendments Nos. 25 to 29 not moved.]

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

My Lords, the House will notice that Amendment No. 30 stands in the names of myself and the noble Baronesses, Lady Byford and Lady Wilcox. That is because had the amendment been moved on the previous occasion I would have accepted it. This time I have made it clear beforehand that I intend to accept the amendment.

Amendment No. 30 seeks to remove the power to test for antibodies existing in animals which were kept on the premises during the period of 56 days prior to the day on which the veterinary inspector enters the premises. Having listened to earlier discussions, I accept that the amendment will clarify the power needed. It will have two effects: it will remove the reference to the 56-day period and it will clarify that the power to carry out tests on samples for antibodies applies only to animals present on the premises at the time of the inspection. It is a useful clarification. I beg to move.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, when noble Lords saw the name of the noble Lord, Lord Whitty, attached to my amendment they probably wondered what was going on. The Minister, quite properly, wrote to me and confirmed that he would have accepted my amendment on the previous occasion. I cannot think why we did not move it at the time, but that is a day gone by. I am grateful that he realised that, as it stood, the clause was not correct. He has added his name to the amendment, and that defect will now be rectified.

Is the Minister accepting my Amendment No. 31? It follows exactly the same argument and I assume that he will accept it.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I, too, am concerned about paragraph (b). How is an inspector to know whether an animal at any time was infected by disease? It is very difficult for him to detect. I support the noble Baroness's amendment.

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

My Lords, I am advised that Amendment No. 31 would have a rather different effect. It would remove the power to test for disease in animals which were kept on premises or were at that time infected with a disease. That is rather different from Amendment No. 30, which deals with the time limit and the distinction between animals which were there and animals which were not. I am happy to clarify that with the noble Baroness. If necessary, we can return to the issue on Third Reading.

Photo of Baroness Byford Baroness Byford Conservative

My Lords, I had not appreciated that there were grounds for the Minister's concerns. To me it seems that the same logic behind Amendment No. 30 would apply to Amendment No. 31. I am grateful to the Minister for his indication that he will take the matter away and think about it, and perhaps come back on Third Reading to clarify the position.

On Question, amendment agreed to.

[Amendments Nos. 31 to 35 not moved.]

Photo of Lord Plumb Lord Plumb Conservative

moved Amendment No. 36:

Page 8, line 11, at end insert "specified"

Photo of Lord Plumb Lord Plumb Conservative

My Lords, the Minister seems to be in a good mood at the moment and I hope that he will accept at least one of my amendments.

If an inspector is going on to a farm to make tests or take samples, he is obviously going there for a purpose. When he arrives he will state that purpose—"I need to take blood samples from your cows" or, say, as we are looking at all diseases and not only one disease, "I need to take blood samples from any animals liable to catch African horse sickness". The point we seek to make in Amendment No. 36 is that he should not be able to exploit a loophole in the law to use his visit to take samples for a totally unrelated purpose. It is obvious that the Government sincerely believe that the position of farmers is somewhat obstructive. That is how farmers see it. They are terribly nervous at the moment, and terribly concerned, and they read it in the newspapers.

Therefore, I am making the point to the Minister that one is concerned about the behaviour of officials following the last outbreak. It has led to a climate of suspicion and considerable fear in the countryside. I hear that regularly, as I am sure do many other noble Lords, from farmers and others. The important issue is that we should try to work together to ensure that everything that happens from now on is open, transparent and above board—and, above all, is seen to be so. I beg to move.

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

My Lords, as moved by the noble Lord, the amendment is difficult to resist. However, I am not in quite such a good mood. The word "specified" is open to some degree of ambiguity. Clearly, the inspector will have to go in and specify what range of animals is covered. The word could imply that he has to specify each animal. That would be difficult. Because of that ambiguity, I cannot accept the amendment.

Photo of Lord Plumb Lord Plumb Conservative

My Lords, I am sad to hear that. I rather felt that the Minister was coming all the way with me, and I was doing my best to persuade him that this was an amendment that he could accept. However, he has made his position absolutely clear. Therefore, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.