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Clause 44 - Enforcement powers in connection with pesticides

Natural Environment and Rural Communities Bill – in a Public Bill Committee on 28th June 2005.

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Amendment moved [this day]: No. 124, in clause 44, page 16, line 10, leave out subsections (1) to (3).—[Mr. Paice.]

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

I remind the Committee that with this it will be convenient to consider the following amendments:

No. 65, in clause 44, page 16, line 10, after ‘inspector’, insert—

‘who suspects with reasonable cause that an offence is being committed under section 43’.

No. 125, in clause 45, page 16, line 29, leave out ‘and 44’ and insert—

‘44,[Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant]’.

New clause 4—Enforcement powers in connection with pesticides: entry and search without a warrant—

‘(1)If a constable or an inspector reasonably suspects—

(a)that a relevant offence is being or has been committed on any premises, or

(b)that evidence of the commission of a relevant offence is to be found on any premises, he may at any reasonable time enter the premises and search them for evidence of the commission of a relevant offence.

(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.’.

New clause 5—Enforcement powers in connection with pesticides: entry and search by force without a warrant—

‘(1)If a constable or an inspector reasonably believes—

(a)that evidence of the commission of a relevant offence is to be found on any premises, or

(b)that evidence is likely to be removed, destroyed or lost before a warrant can be obtained and executed, he may at any time enter the premises and search them for evidence of the commission of a relevant offence.

(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.

(3)A constable or an inspector exercising powers under subsection (1) may (if necessary) use such force as is reasonable in the exercise of those powers.

(4)An inspector may not exercise the power of entry conferred by subsection (1) between the hours of 11 p.m. and 5 a.m. unless accompanied by a constable.’.

New clause 6—Enforcement powers in connection with pesticides: entry and search with a warrant—

‘(1)If, on an application by a constable or an inspector, a justice of the peace is satisfied—

(a)that there are reasonable grounds for believing that—

(i)a relevant offence is being or has been committed on any premises, or

(ii)evidence of the commission of a relevant offence is to be found on any premises, and

(b)that one or more of the conditions in subsection (2)is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence. (2)The conditions are— (a)in the case of any part of premises which is used as a private dwelling, that the occupier of the premises has been informed of the decision to apply for the warrant;

(2)is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence.

(2)The conditions are—

(b)in the case of any part of premises which is not used as a private dwelling, that the occupier of the premises—

(i)has been informed of the decision to seek entry to the premises and the reasons for that decision,

(ii)has failed to allow entry to the premises on being requested to do so by a person mentioned in section [Enforcement powers in connection with pesticides: entry and search without a warrant] (1) or [Enforcement powers in connection with pesticides: entry and search by force without a warrant] (1), and

(iii)has been informed of the decision to apply for the warrant;

(c)in either case—

(i)that the premises are unoccupied, or the occupier is absent, and notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or

(ii)an application for admission to the premises or the giving of notice of intention to apply for the warrant is inappropriate because—

(a)it would defeat the object of entering the premises, or

(b)entry is required as a matter of urgency.

(3)References in subsection (2) to the occupier of premises, in relation to any vehicle, vessel, aircraft or hovercraft, are to the person who appears to be in charge of the vehicle, vessel, aircraft or hovercraft, and “unoccupied” shall be construed accordingly.

(4)Sections 15 and 16 of the Police and Criminal Evidence Act 1984 (c. 60) shall have effect in relation to a warrant issued under this section to an inspector as they have effect in relation to a warrant so issued to a constable.

(5)A constable or an inspector exercising—

(a)powers under a warrant issued under this section, or

(b)powers under Schedule 1 in connection with the execution of such a warrant, may (if necessary) use such force as is reasonable in the exercise of those powers.’.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 4:00 pm, 28th June 2005

I am sorry that you missed this morning’s debate, Mrs. Anderson, because it was not only interesting but was a precursor to this afternoon’s. Clause 44 is about enforcement powers in connection with pesticides. This morning I referred to my sorrow that this part of the Bill had not been the subject of widespread consultation, because I am certain that, had it been, clause 44 would not have been written as it is. The wording provides extremely wide, and in my view unacceptable, powers of enforcement for inspectors. Subsection (1)(a) allows an inspector to enter

“any premises for the purpose of ascertaining whether an offence is being committed under section 43”,

and subsection (1)(b) says that an inspector may

“require any person whom he reasonably believes has information about the formulation” and so on to give him that information. It almost smacks of interrogation.

I have looked at legislation that might be considered analogous. The Food and Environment Protection Act 1985, which is referred to in subsection (4), refers largely to the issue of entering vessels, aircraft, containers and, particularly, dwellings. It does not, to any extent, refer to entering farm buildings, the garden sheds that we discussed so much this morning or many other places. I also looked at what is perhaps an equally analogous piece of legislation in the draft Animal Welfare Bill, and the Minister may recognise it as the source of many of the amendments. It has been published for consultation, and I hope that it will soon be a real Bill.

The powers in those Bills are much more detailed than those in this. It is pointless to go into each at this stage, but they clearly lay out the powers of inspectors and constables. They segregate the issues of premises and dwellings and mention when people require warrants if somebody is refusing to provide entry. Most important—this is common to much enforcement legislation but is missing from clause 44—is the statement that the inspector or constable must have just cause to believe that an offence is being committed.

My biggest concern about clause 44 is that it provides a complete and utter opportunity for open access. Under police legislation, even a police officer, if he enters premises, has to have justifiable reason to believe that an offence is being or is about to be committed. That is not evident in the Bill.

Amendment No. 65 seeks to remedy that; it is my de minimis proposal. It would insert the issue of the inspector having reasonable cause to enter premises and to carry out the actions listed in subsection (1). That is, I believe, the minimum alteration that should be made, but I prefer, and commend to the Government—albeit that they entail a larger and, the Minister might argue, more unwieldy change—amendments Nos. 124 and 125 and new clauses 4 to 6. They are lifted from the draft Animal Welfare Bill, and they delineate much more clearly the responsibilities and powers of inspectors who think that there is a problem, as well as the role of the constable and the issue of warrants, with a differentiation between premises.

The Minister could—I have not tabled an amendment to this effect—use the powers of the Environmental Protection Act 1990 as it applies to inspectors. My reading is that clause 44(4), which refers to schedule 2 to the Food and Environment Protection Act 1985, is too narrow to deal with my concerns. Those are that the provision will enable inspectors—we shall deal in later amendments with the question of who the inspectors might be—to enter any premises, be they land or buildings, dwellings or otherwise, on their own decision, without having to demonstrate just cause, and to search for the pesticides that we debated this morning, or any formulation or other information about them, simply to ascertain whether an offence is being committed under section 43. That is far too wide a provision.

One could say a great deal about the matter, but I am not a lawyer and I shall not go into the depths of legal language about the powers of inspectors. The point is made. I am convinced that the clause will not stand. On the advice that I have received, it will be changed at some stage during the passage of the Bill, because it would give an inspector powers out of all proportion to the offence created under clause 43. I hope that the Minister will take that on board and realise that it is necessary to set sensible limits to powers, that there should be a distinction between entry to land or ordinary premises and people’s dwellings, and that the inspector should have a justifiable reason for gaining such entry, which is not what the Bill provides.

I hope that the Minister will accept that the clause involves a fundamental problem and that the far-reaching powers that it gives to the inspector are out of all proportion to the offences and, indeed, the sentences, that we discussed earlier.

Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs

I do not want to reiterate what the hon. Member for South-East Cambridgeshire (Mr. Paice) said, but I sense a certain déjà vu. I was on the Committee that considered the Animal Health Act 2002, and powers of enforcement were much debated and disputed. They were hugely draconian. Perhaps some proportionate enforcement was justified then, because we were looking back to the foot and mouth crisis, when it was sometimes difficult to gain entry to property to inspect animals and ensure that slaughter was arranged quickly, for everyone’s benefit and to avoid the spread of the disease. However, I think that every member of the Committee considered the original drafting of the provisions unreasonable, even in light of that terrible, tragic episode, which hit agricultural and rural communities so hard.

We must bear in mind what the powers are for. We do not need them to allow us to enter premises with the speed that was required for the testing of animals for foot and mouth. Most people recognise that there is sometimes a need to enter properties, particularly if they are empty or the relevant person cannot be reached, but the powers must be proportionate. We ought not to lift powers from one piece of legislation to another and pass them through willy-nilly.

As we discussed in our debates on clause 43, we are talking about possession, rather than use and about intent. There is time for proper, proportionate and reasonable powers to be drafted. The issue revolves around three points, the first of which is justification. There must be clear justification. I compare the Bill to the Animal Health Act again. In the Act, a suspicion that an animal might well be affected may be enough, but in relation to this legislation, inspectors should have proper justification for entering premises.

The second point is about giving notice. In such circumstances, people should be given some notice. Some might argue that people might then run away and hide evidence, but I think that some notice might be appropriate.

A third point to consider is the time of day or night, about which the measure says nothing. Are we really going to allow inspectors to bang on people’s doors at 6 am to see whether there is a pot of pesticide in the barn? The enforcement powers should have some reasonableness to them, so that we do not move down the line of having some sort of police state. Even those who justifiably want to enter premises probably feel that they ought not to charge in without notice at any time of day or night in interrogation mode.

There is scope for the Government to recognise that we are discussing issues of possession and intention and that a relatively small number of incidents will be caught by the measure. We are not talking about the huge problems that were involved with foot and mouth. I hope that the Minister is prepared to reconsider the powers, even at this stage, and make them more reasonable and proportionate.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

It may help if I share with the Committee the regulatory and inspection powers that I held as an inspector. Under the heading “Authority to enter and inspect”, my card stated:

“The person named overleaf is authorised to enter and inspect premises to inspect and interview persons, to inspect arrangements, documents and other records and material and take other action in accordance with” care standards legislation.

The hon. Member for South-East Cornwall (Mr. Breed) talked about justifiability. It will be helpful for Committee members to know that inspectors are extremely busy, and that they do not spend their time thinking, “I am a bit bored today—let me see which door I can knock on and what pesticides they’ve got.” Inspectors are often out late at night, and are sometimes out early in the morning, but only with justification. The work is busy and onerous, and actions have to be justified to line managers. I assure the hon. Gentleman that the people who he describes as worrying about receiving a knock on the door at 2 am to have their paint or garden shed examined need not worry too much.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 4:15 pm, 28th June 2005

I suggest to the hon. Lady that there is a significant difference between a care standards inspector and somebody—we do not yet know who, as we have not debated that point—who will act as an inspector under the clause. There is nothing in the clause to say who inspectors will be or who they will be employed by—if, indeed, they will be employed by anybody. All that they will need is written authorisation from the Secretary of State. They will not necessarily be the busy, full-time employees whom the hon. Lady describes. The clause is so wide that any comparison that she makes will not necessarily be accurate, because we do not know what we are talking about. Even so, I suggest that there is a great gulf between what might happen in the care homes to   which she refers and the offence that we are discussing, which, as the hon. Member for South-East Cornwall said, is only an offence of possession.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

My point is that people who are given the onerous task of carrying out the role of inspecting any facility or service have backgrounds of understanding and knowledge. Their roles are to follow through on legislation, their powers are not arbitrary but contained in legislation, and their responsibilities are clearly set out in their job descriptions and role specifications. I am sure that we will hear from the Minister that such provision will be in place for these inspectors. If it were not so, I would support the hon. Gentleman.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

We should wait to hear what the Minister has to say. I am sure that he is sensible and cautious enough to ensure that any provision for inspection on behalf of Government legislation will be set up appropriately, and that appropriate constraints will be in place, as they are for all other inspectors in the various fields in which they operate.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

I listened carefully to the hon. Member for Bridgend. She mentions other inspectors, but part of the problem is that businesses in this country are so over-inspected that they do not know who will knock on the door next; it could be Her Majesty’s Revenue and Customs, health and safety, representatives of the Assembly or the Department for Environment, Food and Rural Affairs, or someone about animal welfare.

Photo of John Mann John Mann Labour, Bassetlaw

That is a rather extravagant statement. Can the hon. Gentleman back it up? I had my own business for eight years, and I do not recall streams of inspectors calling.

Photo of Roger Williams Roger Williams Opposition Whip (Commons)

Well, I can put my hand on my heart and say that I have had an inspection from every one of the inspectors I have mentioned. The last time that I was inspected by Customs and Excise, the officer said that my records were so good and my compliance so great that he would not need to see me again this century. Actually, he was talking about last century, but I have not seen him since.

There is an accumulation of inspectors, and that is a huge pressure on businesses, particularly small businesses, which may be owned and run by one person. A number of us are concerned about the fact that another form of inspection can take place under the Bill. Almost six months’ notice is given for school inspections, but I doubt whether the inspectors or constables who will carry out these inspections will give six months’ notice.

My business was inspected last week to determine whether its farm assured status could be renewed and the inspectors found an out-of-date animal medicine bottle—not that we were going to use it. I must tell the Committee that a case recently came to my notice of a doctor who used out-of-date medicine on a patient in   my constituency, yet we were criticised for having an out-of-date animal medicine that we did not intend to use on our farm.

There is a build-up of stress because people are vulnerable to this type of inspection. We must view the issue with great concern, and I am not surprised that the hon. Member for South-East Cambridgeshire and my hon. Friend the Member for South-East Cornwall are making a point about it. I do not think that the measure will stand.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I welcome you back to the Chair, Mrs. Anderson. This is an interesting and important subject. As the hon. Member for South-East Cambridgeshire said, we have had our debate on clause 43. Clause 44 seeks to introduce the powers that will be available to inspectors appointed by the Secretary of State or the National Assembly for Wales for enforcing the clause. We agreed on both sides of the Committee that we were all motivated by the importance of taking action to deal with the poisoning of birds with pesticides. In speaking to the amendments, we must bear that in mind. I shall clarify what those powers are, and why we need to take such powers, which are wide-ranging but restricted to enforcing clause 43. They are not powers for inspectors to do anything that they like, but they are powers in respect of possession of pesticides that are harmful to wildlife. They are powers of entry to premises to check whether a person is storing a pesticide containing a prescribed ingredient without lawful authority; powers to search a house where an inspector reasonably suspects such a pesticide is being stored, but only where a warrant from a justice of the peace has been obtained; powers to seize any substance that an inspector has reasonable grounds to believe is a pesticide containing a prescribed ingredient; and powers to bring with them other persons or equipment to assist in performing their duties. They are wide-ranging powers in respect of enforcement of clause 43, but are so because of the nature of the problem.

I shall characterise the nature of the problem with an example. An inspector discovers a dead bird of prey, and it is clear that the bird has been poisoned. It is not clear by whom, but birds fly so it must be someone within the range of the flight of that bird. It then falls on the inspector to enforce the law, because it is illegal to poison birds, and find whoever is guilty of the offence.

As we discussed this morning, it is difficult to enforce the original Wildlife and Countryside Act 1981 offence of poisoning birds, because circumstantial evidence cannot be used, and it must be properly proved that a particular individual committed the offence. Clause 43 introduces an offence of possession of prescribed pesticides. That is why the powers are wide. The inspector can politely knock on someone’s door and ask to inspect the premises. If it is a door to a dwelling, they must have a warrant from a justice of the peace, but if it is a gate to premises, such as to land or to a shed, they can go in and inspect. That allows for enforcement to deal with a problem that we all agree is a serious one.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

Two quick points. First, if it is not a dwelling, the inspector can go in. So whatever the circumstances and whatever reason the owner may produce for not allowing an inspector in at that particular time of day, such as something else happening or some form of disease risk, they can still go in. Secondly, how can the Minister possibly justify giving an inspector in this case more powers to deal with the offence? The bird is dead, so timing cannot be quite as much of the essence as they are in circumstances relating to the draft Animal Welfare Bill. In that Bill, where a live animal may be suffering, it is not proposed to give the inspectors such urgent powers of entry as in this Bill.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

The hon. Gentleman talks about any time, anywhere—we are almost back to Martini again—but DEFRA’s guidance to Rural Development Service staff is that “reasonable hours” means 7 am to 7 pm, so we are not saying, “any time,” but, “what is reasonable.” As my hon. Friend the Member for Bridgend has said, inspectors act reasonably, and they will act when they suspect that an offence has been committed.

We will discuss the identity, training and quality of inspectors in our debates on later amendments, but I can assure the hon. Member for South-East Cambridgeshire that, in my limited period in office as a Minister, I have been very impressed with the quality of inspectors and the advice that they have given me on a range of subjects.

The hon. Member for South-East Cambridgeshire said that the inspectors had more powers than animal welfare officers. I am content that the very specific powers that we are giving inspectors to deal with a specific problem, which we all agree is a difficult one to tackle, are sufficient. I have not read the draft Animal Welfare Bill, although perhaps I should, and until I do I am not in a position to judge whether the powers that it grants to deal with various offences are appropriate. I am sure that the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Exeter (Mr. Bradshaw), who will pilot the Bill through Committee, will have made that judgment and that it will be an excellent one.

The hon. Member for South-East Cambridgeshire says that the Food and Environment Protection Act 1985 does not contain powers of entry to buildings, sheds and so on, but it does. Section 19(2) allows an inspector entry to any land, including buildings and sheds, where pesticides are stored or have been applied to land.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

Where does the clause refer to section 19(2) of the Food and Environment Protection Act 1985? Clause 44(4) refers only to implementing schedule 2 to the Act; it does not refer to buildings.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I am referring to what I understood the hon. Gentleman to mean when he talked about our extending powers that are not in FEPA, and I am trying to make it clear that section 19(2) of FEPA does contain those powers. Whether or not the clause refers   to them is irrelevant to the point that I am trying to make. I apologise to the hon. Gentleman if that is not clear.

I want to make a substantial point about the amendments. The role of an inspector authorised by the Secretary of State to gather information on the possession of pesticides containing a prescribed ingredient should not be confused with the role of, say, a police officer who can gather evidence that may be used in a criminal prosecution. Some of the amendments do create that confusion.

Wildlife inspectors authorised under the Bill will not have powers under the Police and Criminal Evidence Act 1984. Their function is purely to gather information that can inform a criminal investigation. They will not, however, gather evidence to inform a prosecution. That is the job of the police, who may be assisted by an inspector. If they are assisted by an inspector, they will be governed by a code of the Police and Criminal Evidence Act 1984, in which they are trained.

Photo of Colin Breed Colin Breed Shadow Minister, Environment, Food & Rural Affairs

I suspect that the hon. Member for South-East Cambridgeshire and I are both thinking the same thing. Will the Minister confirm that the inspector merely has a chat with people when he goes in; that he does not go rummaging around for actual evidence, but simply talks to the landowner, the estate manager or whoever, and then, presumably, disappears again?

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

The inspector can enter and inspect, and he or she can look at whatever the powers say that he or she can look at. The hon. Gentleman must bear in mind, however, that an inspector does more than a police constable. A constable deals with collecting criminal evidence for a criminal investigation. An inspector deals with licensing, and may be looking at whether a licence is being breached or is appropriate. An inspector will be doing all sorts of things in the course of his or her duties.

If the inspector is part of a criminal investigation, accompanying a constable or otherwise, the inspector is governed by the Police and Criminal Evidence Act 1984 and is subject to code B of that Act. I hope that that is helpful. I took a while on the matter myself when I was talking to officials earlier.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 4:30 pm, 28th June 2005

The Minister said a few minutes ago—he may wish to revisit this—that the inspector is not required to comply with PACE as he is not gathering evidence. I think that I heard him right. Yet in subsections (1)(b) and (c), it is clear to a layman that the inspector is gathering evidence. Initially, he is seeking information, but in paragraph (c) he is seizing

“any substance found on the premises, if he has reasonable grounds for believing that it is evidence of an offence”.

It is not too far fetched to suggest that the seizure of that substance may be the only evidence. The inspector goes into a chap’s house, garden, building, shed or wherever and finds a tin of X, which he believes to be an illegal substance. If he takes it away and the chap subsequently denies it was ever there, and it has not been gathered as evidence under PACE, the whole prosecution will fall apart. I find it difficult to follow the Minister’s statement that the inspector is not governed by PACE.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

This is far from straightforward. If I mislead anyone, I shall certainly correct myself as soon as I can. My understanding is that if inspectors are going in and seizing property because they suspect that an offence has been committed, they are gathering information that may inform a criminal investigation. They may then go to a constable and say, “An offence has taken place. I have confiscated this item.” The constable may then return to pursue a criminal investigation, and that will all be governed by PACE.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

Perhaps I can provide some assistance, although I can comment only on the powers that I had as an inspector. I would inspect up until the point when I suspected that there was an offence. If I reached that point, I would stop and give a caution under PACE. What I proceeded to do then would be governed by PACE. I would act as an inspector, but at the point at which I had a concern, I would then read a caution and move forward to use the PACE provisions. I carried both powers, but I implemented the PACE powers only after notifying the person that I was moving into that area.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

That is a helpful clarification of the experience of an inspector. I was about to say that it is important to clarify the difference between an inspector who is inspecting and a constable who is pursuing a criminal investigation. Obviously, the constable is governed by PACE. There are circumstances in which an inspector may be governed by it, but otherwise he will be governed by the powers in the Bill. It may be helpful if, after I have managed to extract a clearer note from my friends, I write to the Committee, spelling out the matter in a way that I have clearly failed to do this afternoon.

It may be some comfort to the hon. Member for South-East Cambridgeshire to know that we have sympathy with amendment No. 65, which attempts to deal with the problem of fishing trips. If he likes, he can chalk it up as a victory, but that is as good as he is going to get for now. There is a view among some that inspectors should not engage in what has been described as fishing trips. However, because birds often fly away before they die after eating poisoned bait, inspectors may not know on which land such bait has been used and might need to visit a few nearby premises. In addition, they might not have found any evidence of dead or dying birds and might just be reacting to information supplied to them about suspicious activity.

The powers available to inspectors must be able to address those situations. A failure to have powers that are fit for purpose is likely to result in a failure to achieve our policy and to make clause 43 work. We cannot accept amendment No. 65 because it constrains our ability to deliver the clause properly. We understand the concerns that the hon. Gentleman and others have expressed. We would like to go away and consider carefully whether we can find a form of words that meets his concerns about reasonableness. I hope that on that basis, he is happy to withdraw the amendment.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

It is nice to end on a slightly higher note.

I appreciate and welcome the Minister’s offer to write to Committee members. That would be helpful. We are slightly pre-empting a later debate, but the issue of whether or not inspectors operate under PACE is important. It is clear that paragraphs (b) and (c) are about gathering evidence. As I understand it, if the information in subsection (1)(b) that the inspector requires from a person is to be used in criminal prosecution, it would have to have been gathered under PACE. I am not a lawyer, but a layman. It seems to me that to carry out subsection (1)(b), the inspector would have to be operating under PACE for the information to be admissible. I look forward to the Minister’s clarification—perhaps he does too.

I remain concerned about premises. In answer to my earlier intervention, the Minister referred to subsection 19(b) of the Food and Environment Protection Act 1985, but that does not appear in this provision. My concern is that the only bit of FEPA that is referred to in clause 44 is schedule 2, and that is in the context of the introductory section; the assistance for officers, which the Minister mentioned; powers in relation to vessels’ aircraft, which I suggest are probably not that relevant to this debate; opening and searching containers, although it is unclear whether that refers to a tablet bottle or to a cross-channel container; evidence of officers’ authority; time of performance; entry into dwellings; power of officers to use reasonable force; protection of officers; and defences. There is no reference to any other form of premise.

That is why there is a disjunction between subsection 1(a), which refers to an inspector being able to “enter any premises”, and this provision, which appears to relate only to a limited type of premises.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I want to clarify the relationship with FEPA. I referred to section 19. There are powers in that Act to enter land, including buildings and sheds. Officers currently operate under powers contained in section 19 and schedule 2 of FEPA. However, because of the far-reaching nature of the offence that we outlined in clause 43, we considered it necessary to constrain those wide-ranging powers as we have done in clause 45, in relation to what they would have been had we retained them in section 19.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

That is helpful and I am grateful to the Minister. It brings me to the amendments. I still find things somewhat puzzling. I do not argue the point that poisoned birds might fly a considerable distance   before falling to the ground, so it will not always be easy to trace the source of the poison. Of course I understand that that is the case. Nevertheless, at that stage no bird or animal is deemed to be suffering—although that might happen in the future—whereas the draft Animal Welfare Bill addresses the prevention of suffering.

I accept that that is not the Minister’s responsibility. He admits that he has not read that draft Bill, and there are many draft Bills that I have not read, although I have read that one. However, I am surprised that when his officials were reflecting on my amendments, bells did not start to ring, because in every respect—except, of course, for the insertion of the words “section 43” wherever relevant—the amendments are a direct lift from that draft Bill. I am surprised that the Minister was not pre-warned about that from within his Department.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

When we talk about the single bird being poisoned, we must also have in mind that that might be part of a pattern of activity. Over the weekend, I heard about a serious incident involving peregrine falcons and the poisoning of the two parent birds. In that circumstance, one parent bird might be discovered poisoned and then, on suspicion that an offence is about to take place, action could be taken to protect the second parent bird. Therefore, we should not only think about a single bird in isolation.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I accept that. We all agree about what we are trying to achieve and there is no distinct difference between us on that. However, I simply make the point that when an animal is suffering at a moment in time, that is an urgent situation. The draft Animal Welfare Bill proposes to address that, but that is not replicated in this Bill.

The Minister, in a generous gesture—at least, generous in comparison with what has happened before—moved on to amendment No. 65 and accepted the principle of what I am trying to achieve. I want fishing trips—I did not use that phrase, but the Minister was correct in saying that it is the jargon that is often used—to be prohibited. Given that he accepted that, I cannot for the life of me see what is wrong with the phrase that I employed, because it is also used in much other legislation.

Amendment No. 65 simply states:

“who suspects with reasonable cause that an offence is being committed under section 43”.

That seems to me to be straightforward. However, I have been a Member of Parliament for long enough to know that Ministers are usually unable to accept Opposition amendments, even if on Report identical amendments appear in the name of the Government. That has certainly happened to me before, and if it were to happen again, I would be happy.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

My understanding of the difficulty with “reasonable cause” as things currently stand is that there would have to be reasonable cause for each individual dwelling that was to be inspected, rather than for the generality of the dwellings in the vicinity of the incident.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Minister for that clarification. He has conceded the principle of what I am trying to achieve, albeit he has not gone as far as I would have liked with regard to the other amendments. However, if we can insert something into the Bill to ensure that fishing trips do not happen, that would be a step forward. In light of the Minister’s spirit in that regard, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I beg to move amendment No. 66, in clause 44, page 16, line 19, leave out “a” and insert “an appropriately qualified”.

Photo of Janet Anderson Janet Anderson Labour, Rossendale and Darwen

With this it will be convenient to discuss the following amendments: No. 67, in clause 44, page 16, line 21, leave out “a” and insert “an appropriately qualified”.

No. 126, in clause 45, page 16, line 38, at end add—

‘(5)“Inspector” means—

(a)an appropriately qualified person authorised in writing by the Secretary of State to exercise the powers under sections [Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant] in relation to England;

(b)an appropriately qualified person authorised in person by the National Assembly for Wales to exercise the powers under sections [Enforcement powers in connection with pesticides: entry and search without a warrant] [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant] in relation to Wales.

(6)“Relevant offence” means an offence under section 43.’.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 4:45 pm, 28th June 2005

This will be a shorter and simpler debate, because it addresses only the issue that the hon. Member for Bridgend (Mrs. Moon), as well as the Minister, has referred to. It is about who the inspectors are, and their qualifications. Amendments Nos. 66 and 67 would insert the phrase “appropriately qualified” to describe the person to be authorised by the Secretary of State or the National Assembly for Wales. We do not want at this stage to define appropriate qualifications, but the amendment would constitute a recognition that not just anyone could do the job.

Earlier the Minister praised inspectors from the rural development service and said that he was impressed by them. I should not argue that point. As far as I know they are fine people. However, we are discussing not particular individuals but legislation. As I said this morning, my purpose is to get the law, within which other things operate, right. We must always move ahead, focusing not just on what happens today, or on individual issues, but considering how the wording of the Bill may be implemented in the future. That is why I believe that a phrase along the lines of “appropriately qualified” is needed. We need some guarantee that it will not be just anyone who will be issued with a certificate of authorisation, or whatever form the authorisation will take. Clause 44(3) states:

“An authorisation ... is subject to any conditions or limitations specified in it.”

I do not know whether it is intended that that could encompass the issue of qualifications, but the question certainly needs to be covered.

I looked at the coverage of training in other legislation, and I return once more to the Food and Environment Protection Act 1985. I was, I must admit, surprised that it did not contain more on the subject. However, section 3, on the authorisation of investigating and enforcement officers, clearly stipulates that the individual concerned needs to be slightly better qualified than just anybody. Trading standards legislation also contains an obligation for sufficient training before someone can be a trading standards inspector. Therefore, I think that some reference to qualifications or training should be included, simply for clarity and the reassurance of people who will inevitably look on the Bill as an attack on their way of life and activities. I do not suggest that that view is accurate, but that is how some people perceive it. I hope that the Minister will continue in the spirit of generosity on which he is now embarked, and accept my very small amendment.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

As we have heard, amendments Nos. 66 and 67 would insert the phrase “an appropriately qualified” into the definition of an inspector, before the words

“person authorised in writing by the Secretary of State to exercise the powers under this section in relation to England” and would similarly affect the definition in relation to Wales. I read amendment No. 126 as consequential on those amendments.

Officials carrying out inspections to ascertain whether an offence is being committed under section 43 will be authorised by the Secretary of State in England, and in Wales by the National Assembly for Wales. Such persons are unlikely to hold a particular paper qualification but will be appropriately qualified, as my hon. Friend the Member for Bridgend said earlier—she used almost the exact phrase—by virtue of their background training and experience.

The amendment would not add anything useful, as the Secretary of State can give full assurance that officials have the appropriate expertise before they are authorised to carry out inspections. A requirement in the Bill for inspectors to be appropriately qualified might provide a degree of legal uncertainty that would be a distraction in court proceedings and would obstruct justice. It might be a matter for legal challenge whether a particular inspector was appropriately qualified, leading to problems with legal proceedings under clause 43.

There is a precedent in other legislation. The Wildlife and Countryside Act 1981 sets out powers relating to wildlife inspectors, as does the Food and Environment Protection Act 1985. Neither includes a requirement that inspectors should be appropriately qualified. I hope that on that basis, the hon. Gentleman will withdraw his amendment. I cannot promise to be as consistently generous as I was few moments ago.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

If I am not mixing my metaphors, there are bigger fish to fry at this sitting. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 ordered to stand part of the Bill.

Clause 45 ordered to stand part of the Bill.