Animal Health Bill
House again in Committee
on Schedule 2.
Baroness Byford moved Amendment No. 22:
Page 15, line 21, at end insert—
"( ) make provision with respect to the
storage of samples for a period of not less than six months;"
The noble Baroness said: In moving Amendment No. 22, I wish to speak
also to Amendment No. 42. Amendment No. 22 speaks for itself. We seek to
register a period during which blood samples are required to be stored. I can
find no indication in the Bill of the Government's thinking on the matter. I
plucked the period of six months out of the air. The Minister may tell me that
samples should be kept for two or three years. I am unsure about that matter.
Obviously, it is in the interests of those who keep sheep that the latter are
not tested over and over again if that can be avoided. I seek clarification on
Amendment No. 42 tries to ensure that it will be possible to store sperm or
eggs in a sperm or egg bank to retain precious breeding banks that could be used
in the future. I refer also to their use for research purposes. In future
particular breeds may or may not fall within a government mandatory slaughter
programme. Earlier we discussed rare breeds and tried to persuade the Government
to consider how rare breeds might be protected and allowed to exist even if
25 Jul 2002 : Column 615
only for research purposes. Those who have bred animals such as sheep, pigs
or chickens are aware of the importance of cross-breeding.
As I say, I have
read the Bill carefully but can find no reference to this matter. I hope that
the Minister will take my points on board. I beg to move.
Lord Livsey of Talgarth: I support the two amendments.
I believe that the storage of samples is particularly important. Were they to be
destroyed, we should lose that inheritance possibly for ever. It is vital that a
storage facility should exist. Obviously it has to be kept in a safe place which
cannot be accessed except through special means and perhaps even permits.
The need for egg and sperm banks is well known in the animal breeding
world, as is the necessity to carry out research at some point under controlled
conditions. Nothing could be worse than the prospect of losing such egg and
sperm banks for all time. The greater the variety of genotypes that one has for
research, the more valid one's research results will be. Such a variety could
also open up new avenues.
Lord Whitty: As regards Amendment No. 42, as we
discussed earlier, as currently drafted the Bill already provides for the
Secretary of State to consider in advance the issuing of a restriction order
where exceptional circumstances arise which would allow a sheep to be kept for
breeding. We shall discuss what those exceptional circumstances might be. I
assure the noble Baroness that we envisage that they could include such issues
as research needs and the need to establish a semen, embryo or egg bank.
As regards the storage of blood samples, we already keep a small proportion
of each blood sample taken under the voluntary NSP in order to retest samples if
there is any problem. It is probable that we shall replicate that procedure
under the new arrangements. We would need to consider including that provision
in the implementing regulations. I believe that that is the appropriate place to
include that measure.
I am not entirely sure about the merits of a six-month storage period as we
may want to retest samples at any time. We shall need to take into account the
level of sampling and the storage capacity we shall need and the access and
resource costs involved in that. However, those issues should be contained in
the implementing regulations.
Baroness Byford: I am grateful for the support of the
noble Lord, Lord Livsey, for the two amendments. The Minister did not answer the
question I asked. I suggested a six-month period out of sheer ignorance.
However, I seek information from the Minister on the period during which samples
are valid. What capacity does the department have to store the many samples that
will need to be stored?
Lord Whitty: Under the present system we keep a small
proportion of each blood sample. Whether we
25 Jul 2002 : Column 616
shall always need to do that would depend on the speed with which we
develop the plan. If I have any further information, I shall write to the noble
Baroness Byford: I am grateful for that response. Later we
shall discuss whether an individual sheep sample is taken or a sample from a
flock. I think that the Minister understands where my remarks are coming from.
There are between 20 million and 40 million sheep in this country. That
constitutes many samples. I refer to the practical implications of the matter. I
seek guidance from the Minister on the Government's thinking on moving forward
I believe that the Government could experience difficulties due to their
commitments in regard to Europe. I refer to the commitment to preserve
biodiversity. I refer also to the primitive state of science in the field we are
discussing. Certainly the matter will give cause for concern to those with rare
breeds of pedigree stock. I refer again to the importance of cross-breeding in
this regard. It is not just a matter of considering rare breeds per se. However,
the matter will give cause for concern to those with rare breeds and
particularly those hardest hit by foot and mouth disease such as the Hill Radnor
and the Whitefaced Woodland. As regards many of those breeds semen will already
be stored from sheep that are now dead and are not available for testing.
If the Government accept Amendment No. 42, they may want to include rules
on the scope and use of gametes. Some may fall under the provisions of new
Section 36C(2) but if the original sheep have been subject to a restriction
notice, there will need to be some derogation under new Section 36F(2) about
what constitutes an offence. The Minister may not be able to respond to my
points. The difficulty with the Bill is that we keep coming up with amendments
to which the noble Lord understandably at present is not able to give full
answers. However, I should be grateful if he would consider the matter before
the next day of Committee proceedings.
Lord Whitty: I cannot answer that point but I shall
look into it. However, I am now in a position to give a clearer answer to a
previous question. Under the present system a small proportion of each blood
sample is kept for two years.
Baroness Byford: I am grateful for those comments. I
beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Montrose moved Amendment No. 23:
Page 15, line 23, after "of" insert "individual"
The noble Duke said: Amendment No. 23 is grouped with Amendments Nos. 29
and 51. Here, we turn to the problem of the word "sheep" being both a collective
and a singular noun. I am anxious to avoid the possibility of a whole flock or
breed being condemned. As it stands, the Bill might not allow for
2002 : Column 617
the certification of individual sheep but it appears to allow for the
restrictions on breeding to apply to an individual sheep. However, that should
be made clear.
Amendment No. 51 seeks to ensure that the appeal relates only
to the individual sheep specified by the appellant. My amendments would ensure
that, if a particular animal in a flock were less susceptible, it could be
retained. That element of flexibility is not clear in the Bill as it stands. I
beg to move.
Lord Livsey of Talgarth: We regard these as tidying-up
amendments which make specific references to individual sheep. At this point, I
am tempted to quote Thomas Love Peacock. He was a favourite poet of Dylan Thomas
and the latter used to relate his poetry in public. One poem was along the lines
"The mountain sheep are sweeter
But the valley sheep are fatter.
We therefore deemed it meeter
To carry off the latter".
I believe that there is something of a danger of that happening here.
The Countess of Mar: I endorse the amendment. Earlier we
had a discussion about boluses in sheep, in which each sheep is identified as an
individual animal. Therefore, we need to have individual certificates for sheep.
Lord Whitty: There is an individual identifier but, in
that sense, the amendment would bring about a duplication. If literally
interpreted, it would mean that we should have to issue an individual
certificate for every sheep that was genotyped. Indeed, the noble Countess
clarified that point. That seems to me to be over the top. It would certainly be
very resource-intensive. We should need to have some flexibility so that we
could issue a certificate to cover a number of sheep genotyped within a flock.
As to the question of individual and collective sheep, the Bill already
provides that the restriction on breeding applies in relation to "a" sheep.
Therefore, the word "individual" inserted in that context would be superfluous,
quite apart from its syntactical infelicity, if I may say so.
Amendment No. 51 would also remove the flexibility of the current drafting,
which would permit an appellant to alter, in the light of new or relevant
information, the scope of the appeal to include other sheep covered by the same
restriction notice. Therefore, it would somewhat limit the room for manoeuvre of
the appellant. I do not believe that that was the intention behind the
amendment, but it would be the effect.
Lord Jopling: If the Minister says that he wants to
be flexible, surely, in practice, he wants to be able to cover a relatively
small number, perhaps a larger number, the entire flock of sheep or a whole
range of breeds of sheep. If he wants to be flexible, surely it would be
better—I shall not try to draft on my feet—to change the Bill so that it
recorded the genotypes of individual
25 Jul 2002 : Column 618
or specific numbers or total flocks of sheep. Surely it would be far more
sensible to write that into the Bill so that it was clear that the Bill could
refer to an individual, a limited number or the entire flock or breed, or
whatever was required. I do not believe that anyone would argue with the
Government's desire to be flexible over this matter. But surely it would be
better to write that on to the face of the Bill.
The Countess of Mar: Surely the sheep in a flock will not
all be of the same genotype. There will be different sheep with different
genotypes. Each sheep will be identified by its bolus and we shall need to know
what its genotype is. Perhaps there could be one certificate with the individual
sheep on it. That may be the way to deal with the matter.
The Duke of Montrose: I want to return to this matter.
My understanding of the way in which the Bill is developing is that the
Government may well find that they have to apply a bolus to every sheep in the
country. Perhaps the Minister can tell us whether he intends that, if a flock
has, say, a highly susceptible resistance level of more than 50 per cent, the
remainder will not be tested. We should like to think that all the sheep will be
tested and, as such, they will all be given a bolus.
I wonder whether the Minister has given thought as to the cost of the
testing. Compared with that, the cost of giving each sheep a certificate will be
minimal. It could be arranged in the way that my noble friend Lord Jopling
suggested, whereby sheep of a similar genotype could perhaps all be itemised on
one certificate but the flock might have several certificates because they might
have several genotypes. However, I believe that we need to consider how the
testing will be carried out. We need to ensure that the Bill provides for the
ability for sheep to be treated individually. I beg leave to withdraw the
Amendment, by leave, withdrawn.
Baroness Byford moved Amendment No. 24:
Page 15, line 23, at end insert—
"(e) require the Minister to defray any costs of the keeper in respect
of the identification and testing of any sheep"
The noble Baroness said: In moving Amendment No. 24, I shall speak also
to Amendment No. 25. Here, we return to the question of covering costs. Whatever
plans the Government have—obviously we support the eradication of scrapie—it
adds a cost either to the Government or to the individual owner of the sheep.
Surely not many people in this country are unaware of how little the
average sheep farmer receives for his lambs. Few are ignorant of the
frighteningly low incomes of those whose main activity is sheep rearing.
Approximately 300 to 500 scrapie cases are reported each year. Some will be
missed, and perhaps some animals die of other things before an outbreak of
scrapie becomes obvious. Perhaps some sheep with the disease will be dispersed
and therefore will not be identified.
25 Jul 2002 : Column 619
Nevertheless, if one was being over-ambitious, let us say that it is unlikely that there would be more than 5,000 cases in a
year. Whether the number is 500, which is still high, or even 5,000, that is not
a huge proportion of the total flock of adult sheep of between 24 million and 40
million. I believe that the cost of the testing and identification programme
beyond that already called for by the order implementing EC directive 92/102
should be met by the Government.
That is even more important when one considers the work
of the Institute of Rural Studies, University of Wales, which I quoted earlier.
That body has warned that it estimates that the electronic tagging of sheep will
cost in the region of #6,000 to #7,000 for a flock of 1,000 ewes. In addition,
it believes that the cost of tagging small flocks will be proportionately more
to the point where it may be cheaper to slaughter than to continue farming the
Because of a theoretical risk of scrapie or BSE—perhaps I should say "OSE",
ovine spongiform encephalopathy—it would be appalling and the height of nonsense
if wholesale slaughter were to result from the specification of yet another
identification system paid for by the farmer. In Amendment No. 25, we are trying
to ensure that the Minister will defray the costs of the keeper in respect of
those expenses. Again, the Welsh Institute of Rural Studies has calculated the
cost of electronic tagging, to which I have already referred.
It has been pointed out that smaller farmers will be
disproportionately affected. Rather than see some of our small sheep farmers go
out of business—they are hugely important, particularly in hostile areas of the
countryside where the wind, the rain and the general welfare of the climate is
not conducive to anything else—we believe that the Government should meet the
costs above a set amount. Amendments Nos. 24 and 25 seek to do two
different things. Amendment No. 24 asks the Government to defray all costs.
Failing that, the Government should pay the costs above a set amount. I beg to
The Countess of Mar: Did I not hear the noble
Baroness, Lady Farrington, confirm that the Government would accept the costs
for identifying the sheep? If that is the case, these amendments are
Lord Livsey of Talgarth: I support the amendment of
the noble Baroness, Lady Byford. I believe that, in particular, electronic
tagging will be expensive, as indeed my former employer, the Welsh Institute,
has concluded. It is important that these costs are defrayed. They impose a
considerable additional cost on sheep farmers. It is in the Government's
interests to ensure that these sheep are tagged.
Lord Whitty: The noble Countess, Lady Mar, correctly
heard my noble friend Lady Farrington. The initial sampling, the identification
of the animal by the inspectors, to the insertion of the bolus device will be paid for by the Government. That is under the
25 Jul 2002 : Column 620
voluntary plan. Those costs will be met. I am not sure
whether there were other costs implied by the amendment; for example, records
and providing assistance to inspectors and so on. Those are fairly minimal
costs. It is reasonable that the keepers should meet them. The big costs
will be met by the Government under the scheme.
Baroness Byford: I am grateful to the Minister. I am
grateful also to the noble Countess, Lady Mar, for raising the fact that the
noble Baroness, Lady Farrington, had earlier indicated that the Government would
pick up the costs.
I return to two matters. First, we have just had a debate on the amendment
about sheep in the singular and sheep in the plural. I shall give the Minister a
chance to say again whether this will happen to every sheep. The cost of every
sheep rather than certain sheep out of flocks would have huge implications.
Secondly, the scheme refers just to the voluntary
scheme. If it becomes mandatory that the Government find out this information,
they will need to take samples from individual sheep within the whole flock. The
cost would be very different from that which is currently being borne by the
voluntary scheme. Perhaps the Minister can clarify that issue for me.
Lord Whitty: The cost of testing and inserting the
bolus relates to every individual sheep which is genotyped. That cost will be
met by the Government. At what point it becomes universal for all sheep is some
way down the line. But the cost is for every sheep that is genotyped. It is not
a certificate or a provision that can be shifted from being a flock to the
individual sheep. So far as concerns meeting the costs, there is no difference
between the voluntary scheme and the mandatory scheme.
Baroness Byford: I must be getting a little confused.
Currently, the noble Countess, Lady Mar, is involved in the system dealing with
scrapie in the national sheep flock. The Minister gave us the figures for the
number of sheep farmers involved in that, which is small. If that is, say, 10
per cent of all the sheep in the UK and the Government are meeting the cost, if it becomes mandatory will the Government be carrying the cost
for the 20 million sheep?
Lord Whitty: The plan depends on the selection of
genotyping. For every sheep that is genotyped, the Government will meet the
Baroness Byford: I am grateful for that answer. I beg
leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 25 not moved.]
The Duke of Montrose moved Amendment No. 26:
Page 15, line 25, leave out "it appears to the Minister" and insert
"genotype testing has established"
25 Jul 2002 : Column 621
The noble Duke said: In moving Amendment No. 26, I shall speak also to
Amendments Nos. 37 and 38. First, I apologise that there is a typographical
error in Amendment No. 26. Where it says,
"has been established",
it should read,
"Has been" does not make sense.
I have been unhappy with the wording in
the clause. The Minister's actions under the clause are based on what we
hope—and what the Minister has told us—is accurate, not to mention complex,
scientific research. To juxtapose that with the phrase,
"it appears to the Minister",
is inappropriate. The amendment ensures that decisions
are made on the basis of scientific evidence rather than how the facts "appear"
to the Minister. I beg to move.
Lord Greaves: On these Benches we support the thrust of
the amendments, which are clearly designed to remove the words,
"it appears to the Minister",
which the noble Duke, Lord Montrose, said is vagueness taken to extreme,
and to set out some principles on which decisions have to be made.
Amendments Nos. 27 and 35, standing in my name and that of my noble friend,
in the next group are based on the same principles that he puts forward. Perhaps
his amendment is more specific than ours. I shall speak briefly to my
amendments, which will save me moving them in the next group.
The principles behind all these amendments are the same. We look forward to the Minister defending his vagueness and
explaining why it is necessary. Perhaps we shall ask him to go away and reflect
whether on an important matter such as this the legislation ought to be rather
more specific in terms of what the Minister should be doing in making these
decisions and how they should take place.
We support the amendment put forward by the noble Duke, Lord Montrose. It
has the same approach as our amendments in the next group. We shall not then
move our next two amendments, which will save a little time at this time of the
The Countess of Mar: I have been
dying to say that a phrase in the Bill is woolly, and I shall say so now.
This phrase is woolly. We need it to be better defined, and I entirely support
the noble Lords who have spoken in favour of the amendment.
Lord Whitty: There is a distinction between the
judgment whether to impose restrictions and the objectivity of the test. The
Bill as drafted already envisages the provision of evidence of a sheep's
genotype; that will be objective. We have an established and validated test;
that is not at all subjective. But the decision, on the basis of that objective
evidence, whether and what sort of
25 Jul 2002 : Column 622
restrictions should be imposed will be a matter for ministerial judgment.
We cannot tighten that; we may find a better form of wording, but we cannot
eliminate discretion from whether—and, if so, in what form—restrictions should
be imposed on the basis of objective evidence.
The Lord Bishop of Hereford: We are back in the same
territory that we covered when debating Amendment No. 12. The Minister was then
generous and said, "Yes, of course I will have proper evidence. I would not just
make up my mind this way or the other". All of the
amendments are trying to pin down the Government to specific and definite
evidence. It is strange that the Government are resisting that.
I do not see why the Minister minds including these and
related amendments which simply spell out that there must be proper evidence.
The impression of subjectivity may not be what was intended but is what is given
by the extremely loose language. I hope that the Minister will get the message
that what we want is highly specific reference to evidence. That will
then give people a sense that the Bill is one that they want to support—there is
much good will towards it in principle. We do not want loopholes that can be
The Duke of Montrose: I am most grateful to those who
have supported our amendment: the noble Lord, Lord Greaves, the noble Countess,
Lady Mar, and the right reverend Prelate the Bishop of Hereford. We want an
assurance from the Minister that he will go away to reconsider the matter. We
all consider that it is relevant to gaining the confidence of the farming and
shepherding community, allowing them to see that everything has been properly
thought out and fits in its place. In the meantime, although we want to return
to it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
Schedule 2 [Scrapie]:
Baroness Farrington of Ribbleton moved Amendment No. 28:
Page 15, line 25, leave out "Minister" and insert "Secretary of State"
On Question, amendment agreed to.
[Amendment No. 29 not moved.]
Lord Greaves moved Amendment No. 30:
Page 15, line 26, at end insert—
"(1A) The Minister in exercising his powers under this section shall
pay due regard to the 1992 Convention on Biodiversity."
The noble Lord said: I rise to move Amendment No. 30 and to speak to
Amendment No. 31, which is in the same group and in the name of my noble friend
and myself. The two amendments are an attempt to pin down in
the Bill some of the commitments to biodiversity and the preservation of rare
and traditional breeds that may otherwise be affected by the schedule's
25 Jul 2002 : Column 623
Subject, as usual, to reading Hansard carefully tomorrow, we were impressed
by some of the Minister's earlier remarks, which appeared to give a clear
commitment that the purpose of the Bill was not—among other things—to eliminate
breeds of sheep from this country. The more that the Minister says that in this
House, the better.
However, the Minister saying something in this House—or anywhere else—and
including words in the Bill are two different things. As it stands, little in
the schedule sets out clearly commitments of the kind that the Minister appeared
to give earlier—which perhaps he will give again in response to the amendments.
There are simply two lines that say that the Minister can
choose not to proceed with the provisions of the schedule for slaughter or
castration in certain exceptional circumstances. That is regarded as
insufficient by the people in this country responsible for the relevant breeds
The amendments would not only help the legislation, by clarifying the
Minister's commitments for the future, but would be a
valuable way of telling the owners of rare and traditional breeds that they have
a future that would not simply be a struggle against the elimination of their
flocks. The amendments have two purposes, and both should be regarded as
The first amendment states that,
"The Minister in exercising his powers under this section shall pay due
regard to the 1992 Convention on Biodiversity".
That would be create a clear commitment in the Bill to maintaining the
diversity of sheep flocks in this country. The second amendment sets out in
detail a proposal that, when the Minister implements the provisions outlined in
the section, he must get scientific evidence before he will go ahead with the
slaughter or castration of particular breeds of sheep. That would make sure that
the decision was based on genuine scientific evidence. It would also ensure
that, if circumstances for a particular breed were such that applying the normal
provisions of the schedule would endanger the future of that breed, those
provisions would not be applied. The Government might think hard over the summer
about whether they might table an amendment of their own that would satisfy
those of us on these Benches and in other parts of the House, as well as those who are responsible for maintaining something
that is an important part of our biodiversity, food, livestock and ecosystem, as
well as part of our heritage.
There are several circumstances in
which breeds may be endangered, particularly if the numbers are small—in the low
hundreds perhaps. The average number of sheep in many of the rare breeds in the
country is only about 300 or 350. Where there are small numbers, there is the
risk that a relatively high proportion of sheep from those breeds will be of
genotypes that are susceptible to scrapie. The Rare Breeds Survival Trust has
provided me with some evidence that the situation for three breeds on which
testing has taken place—the Soay, North Ronaldsay and Castlemilk Moorit
breeds—is not rosy. The most susceptible genotype—the ARR—is rare, and most of
25 Jul 2002 : Column 624
those sheep are of a genotype that would be in danger if they were treated
in the same way as a bigger breed. Scrapie-susceptible genotypes can be bred
relatively quickly and easily out of breeds of sheep that have greater numbers
and in which all sorts of genotypes are frequent. That cannot be done if the
numbers are small and the appropriate genes are rare in a particular breed.
We would welcome a positive commitment from the
Government to the future of rare and traditional breeds in this country.
Best of all, we want the Minister to think hard over the summer about some
appropriate words that could be put into the Bill to give people the confidence
that they need. It is an important matter and should be subject to the
affirmative resolution procedure in this House and another place, as set out in
the last part of the amendment.
Lord Jopling: I applaud the noble Lord, Lord Greaves,
for what he has just said. The wording of new Section 36C(2) is too vague and
needs toughening up.
I spoke earlier about the position of the Herdwick breed from the
Lake District, my former constituency. That breed is not in danger of being
eliminated altogether. In the area where I was brought up, the
Wensleydale breed was used very extensively as a crossing ram. The noble
Countess, Lady Mar, spoke about the stratification of sheep breeding from the
top of the hill down to the lowlands, and the eventual production of sheepmeat
that the housewife wants through a series of crossings as one came down the
hills into the valleys.
In the days before the Second World War, one of the great and most famous
crossing breeds in the north of England was the Masham. My noble friend Lady
Masham calls herself by that small town where I was brought up. The Masham ewe
was one of the most famous crossing ewes of all. It was the product of a
crossing between a Wensleydale ram and a Swaledale ewe. They were then taken
down into the lowlands and crossed in the classic way, principally, in the old
days, with a Suffolk ram. As the noble Countess, Lady Mar, said, that produced a
However, the Wensleydale ram went out of fashion after the Second World
War, very largely through the introduction of the Teeswater ram, and now the
Masham ewe is by no means as popular as it used to be. It has largely been taken
over by the mule breeding ewe. The ancestry of that comes from the northern
regions, because the Border or blue-faced Leicester, the Hexham Leicester, ram
is now much more popular with mountain breeds. A few Wensleydale rams are still
around, and it would be a total tragedy if that great gene line, which was used
for centuries in the north of England, were to disappear.
I therefore support what the noble Lord, Lord Greaves said about the need
to be much more specific on the face of the Bill with regard to preserving the
existing genes. I am very unhappy about the present wording. Because of my
concern that some of the great
25 Jul 2002 : Column 625
genebanks of the now currently unfashionable breeds may disappear
altogether, which would be a great loss to the biodiversity of our country and
of the world, I feel much more inclined to support Amendments Nos. 30 and 31.
The Countess of Mar: I, too, support the noble Lord, Lord
Greaves, for exactly the same reasons as stated by the noble Lord, Lord Jopling.
Although the Blackface Scottish sheep, mentioned by the noble Duke, the
Duke of Montrose, and the Welsh hill sheep are fairly numerous at the moment, I
understand that for a long time MAFF—I do not know whether DEFRA has taken over
the cloak of MAFF in this respect—has not liked the lambs produced by mountain
sheep. Sheep tend to produce male and female lambs in more or less equal
numbers. Female lambs are wonderful—they go on to breed—but what does one do
with all the small, male lambs that do not fit into the European grading system?
For a long time, the only markets for such sheep have been the Spanish and
Italian ones where they like to cook their lambs whole. However, foot and mouth
disease was a disaster because there was then no market for the little lambs.
Tesco started selling small lambs, which worked for a while.
We must maintain the diversity of our flock. The
Minister is learning a great deal about sheep tonight; about all the different
breeds and how the system works. We must ensure that we keep the Blackface sheep
and the mountain sheep because they are the base for our breeding stock for
meat. I wholly support the need for biodiversity.
The Lord Bishop of Hereford: I support the amendments.
They are among the most important on the Marshalled List tonight because people
were concerned that Part 2 of the Bill threatened variety and biodiversity. The
amendments spell out what the Government have stated obliquely in new Section
36C(2). However, it needs to be stated clearly that in allowing exceptions in an
accelerated programme for the elimination of scrapie, which most Members believe
is a good one, there must be safeguards in particular for biodiversity. I should
be pleased if the Government were able to accept a specific amendment along
Lord Livsey of Talgarth: Having drafted Amendment No.
31, I support what was said by my noble friend Lord Jopling. Recently in Craven
Arms market, Knighton market and Builth Wells it is common to have 20,000 Clun
Forest ewes. When I was about 10 years old, I used to drove thousands of Kerry
Hill ewes into the market place. Their numbers are now small—they are almost
rare breeds—and they represent a gene pool which must have a chance to survive.
That is vital because many of the characteristics of those two breeds are
25 Jul 2002 : Column 626
is why they were so popular and may become popular again. We must be
careful about what we are doing in this legislation.
Lord Carter: We can see what the noble Lord is driving at
with these amendments. I was interested in the description of the various breeds
by the noble Lord, Lord Jopling. We all knew that the noble Baroness, Lady
Masham, was a Cross-Bencher but it seems that she is also a cross-breeder.
As at Amendment No. 31(2A), experience tells me that it is dangerous to
specify a list by order because if one is missed out there could be considerable
problems. I should be interested to know whether the Minister will adopt the
devise that is often used for consultation amendments in the Bill; a requirement
The Government must be left with a degree of freedom because the people and
organisations with whom they must consult change. If they are specified by
order, one runs into problems. Furthermore, if we were to have such an order as
that specified in subsection (2B)—and it would not be necessary if there were a
consultation amendment—it should be under the negative rather than the
It would be better if the Minister would consider a consultation amendment.
That is often a way of getting around the problem of having to specify matters
in a changing situation. I understand all that has been said about minority
breeds but all the briefing I have seen shows that DEFRA is anxious to
understand the problems. It is consulting all the stakeholders and there would
be consultation on any orders it lays. Therefore, it would do the Government no
harm to accept a consultation amendment.
Baroness Byford: I support the two amendments,
although I accept that Amendment No. 31 is a little too specific. However, the
desire behind it is to achieve the preservation of certain breeds and I hope
that the Government will give it serious thought.
As regards Amendment No. 30, are any requirements laid on the Government
under the 1992 convention? I am not aware that any are. I should like that
Secondly, perhaps I may pull my noble friend's leg. My noble friend Lord
Jopling referred to the housewife wanting quality of meat. Heaven forbid! In our
family, my husband sometimes buys the meat and has a very good eye for good
quality meat. Although I jest, my noble friend makes an important point. To
obtain the quality of meat we all want, it is important that some of these
breeds are preserved, and with care.
What are other European countries doing about their respective sheep
breeds? Are they being as specific as we are? Where are they on their sheep
breeding programme? Where are they on their scrapie eradication programme? The
noble Lord mentioned two countries, France—and I cannot remember the other
country—which have started along this path. What responsibilities are placed on
countries in the
25 Jul 2002 : Column 627
EU? I accept that they may not all keep sheep but most do. I should be
grateful for clarification from the Minister.
The right reverend Prelate
rightly spoke of variety and biodiversity. Those of us who sat through many
minutes, hours and days of debate on the Countryside and Rights of Way Act will
remember that one of my amendments proposed a proper biodiversity plan. I
support the right reverend Prelate's comments.
On Amendment No. 30, do we have to have regard to any rules and
regulations? Amendment No. 31 as drafted may be too specific. However, it would
be helpful if the Government were to propose an amendment which meets the views
If I wished to tempt, I might ask noble Lords on the Liberal Democrat
Benches to put the matter to a vote. The matter is serious. It is one to which
we must return later. I urge the Minister to clarify some of the points raised
and hope that the Government will meet some of the concerns at the next stage of
Lord Whitty: I recognise the concern about
preservation of rare breeds and other blood lines. It is the Government's
intention to do exactly what noble Lords urge. The exceptional circumstance
provision would allow such issues as rarity and genetic value of the breed to be
exempted from aspects of the scrapie plan. We are already in discussion with
individual breed societies on the issue. We are conducting a voluntary genotype
survey in rare breed flocks and working closely with the Rare Breeds Survival
If there turned out to be breeds where conversion to resistance would be
wholly impractical, or would endanger the breed, clearly that would fall under
exceptional circumstances. We need to continue in that direction. The
Government's commitment is in no doubt.
We support all the provisions of the convention, as do other countries. We
do not think that there is a contradiction between the convention and improving
the management of the flock. That was discussed at the recent meeting of the
parties in May 2000. It was recognised that there is potential to improve the
management of agricultural stock through selection and breeding without
contravening the biodiversity aspect. The Government's practice to date has been
to do precisely what noble Lords seek.
I believe that Members of the Committee recognise that the amendment as it
stands is not satisfactory, in part because the second amendment is a list
provision and thus would mean that we could not exempt things for other
purposes. In some cases it could be interpreted literally. On this occasion, I
recognise the concerns expressed and I undertake to see whether anything can be
done to ameliorate them. Whether that takes a form along the lines suggested by
my noble friend Lord Carter or otherwise, I have not yet decided. I shall return
to the matter on Report.
Lord Greaves: I am grateful for the general support
expressed on all sides of the Committee for the
25 Jul 2002 : Column 628
amendments. I believe that I can now include the Minister in that
support—or at least the potential is there. I thank him for his comments. We
look forward with eager anticipation to seeing what he brings back on Report.
I say to the noble Baroness, Lady Byford, that we would not put this matter
to a vote tonight. It is too important simply to make a political gesture. Given
the commitment made by the Minister that he will spend some time considering the
matter over the summer, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31 not moved.]
Baroness Farrington of Ribbleton moved Amendment No. 32:
Page 15, line 27, leave out "Minister" and insert "Secretary of State"
The noble Baroness said: I spoke to this amendment with Amendment No. 11. I
beg to move.
On Question, amendment agreed to.
Lord Plumb moved Amendment No. 33:
Page 15, line 28, leave out "allowing the sheep to be used for
breeding" and insert "banning breeding from the sheep"
The noble Lord said: This amendment recognises the different emphasis
between subsections (2) and (3). The latter implies that breeding that is
unjustified would be the verdict in a minority of cases. On the other hand,
subsection (2) refers to "exceptional circumstances" in which sheep would be
allowed to breed.
I hope the Minister recognises from our earlier debates
that we are moving towards scrapie-free breeding sheep. If we look back over the
past year, the genotyping of over 100,000 sheep to establish their resistance to
scrapie has been completed under the national scrapie plan, which is impressive.
A well-defined pattern is now being put in place. The real concern lies in the
linkage between subsection (3) and subsections (7) and (9). Subsection (9)
provides that animals with a high susceptibility,
"[have] to be slaughtered before the end of the period of seven
I am pleased that the Minister has pledged his support for the continuation
of this all-important scheme. It will lead to a more positive outcome in the
The study carried out by the Institute of Rural Studies at the
University of Wales has been referred to several times. Two of the most eminent
scientists I know in the sheep industry have made it absolutely clear that they
believe that the most effective means of enhancing the rate at which the
national flock moves towards scrapie resistance is to increase the uptake of the
national scrapie plan. Given that, I hope the Minister will accept that the
amendment is moved with much feeling and concern for the future development of
the breeding flocks in this country. I beg to move.
The Countess of Mar: I have a little
difficulty with the amendment because it is does not make sense.
25 Jul 2002 : Column 629
What is being said here is that the banning of breeding in sheep would not
be justified and that the Minister must give notice to the keeper. If one thinks
that a ban on breeding in sheep is not justified, then one is allowing the sheep
to breed. Why must a notice be given to the keeper? I think I have said enough.
The Lord Bishop of Hereford: I believe this amendment to
be misconceived. I should like to come to the defence of the Minister in this
respect. In new Section 36C of the 1981 Act we are talking about sheep where we
are presuming that there is a problem from the point of view of a genotype. We
are presuming that we shall not be using them for breeding. However, new Section
36C(2) refers to "exceptional circumstances", which may be some of those covered
by the amendment moved by the noble Lord, Lord Greaves. Nevertheless, it may be
right to allow breeding. If I may say so, with due respect, the noble Lord, Lord
Plumb, has misunderstood the general thrust of this part of the Bill. I support
the Government on this point.
Lord Jopling: I have a problem that I believe it may
be convenient for me to raise at this stage, especially as this amendment deals
with the possibility of "banning breeding from the sheep". I have been concerned
for quite some time about the details of banning. No doubt when he responds and
talks about banning breeding from sheep, the Minister will be kind enough to
refer to what appears a little further on in subsection (7)(a), which says that
the keeper must not,
"use a sheep to which the notice applies, or its semen, eggs or
embryos, for purposes of or connected with breeding".
That is the nuts and bolts of banning breeding.
Science has moved on.
We now know that it is possible to breed from a sheep without using semen, eggs,
or embryos. There is the famous case of Dolly the sheep, which was cloned and
not bred from semen, eggs or embryos. I have not managed to find a tabled
amendment that deals with this point, so I believe that this is the time to
raise it. As regards the banning of breeding of sheep, can the Minister say how
the definitions under the Bill cover the use of modern cloning techniques where
an animal can be produced technically by using material from the animal that is
not semen, eggs or embryos?
At some stage in the proceedings on the Bill, we may need to add an
amendment to the list of semen, eggs or embryos to embrace the possibility of
cloning from material taken from an animal that would not fall under those
descriptions. I hope that I have made myself clear. It is the classic case of
Dolly the sheep that brings me to the thought that perhaps the definition of
what is banned is not properly covered in the Bill. It would be helpful if the
Minister could comment on that aspect in his reply.
Lord Carter: I wondered when Dolly the sheep would
enter our debates. The noble Lord has made an interesting point. However, I
should point out to the noble Lord, Lord Plumb, that I believe he was a little
25 Jul 2002 : Column 630
inconsistent in proposing this amendment. As we all know, there is every
intention to get on with the national scrapie plan; indeed, everyone involved
wants to get on with it. Yet the amendment, as proposed, would in fact delay the
process. It would be time-consuming and introduce delay. I realise what the
noble Lord is driving at but if we were to proceed in the way suggested it would
delay the NSP. I am sure that that is not the noble Lord's intention.
Lord Whitty: I cannot respond to the amendment any more
eloquently or logically than the right reverend Prelate. I believe that the
intention here is misconstrued, because it would be putting the exception the
wrong way round. The presumption is that we can ban unless there are
"exceptional circumstances"—in which case we allow breeding. That is what
subsection (2) provides. It could include the circumstances that we were
debating as regards the previous amendment.
I turn to cloning. Cloning is not covered in any part
of the Bill and there is certainly no intention either to facilitate or not to
facilitate cloning in general. The noble Lord, Lord Jopling, made an interesting
point. If the intention is to stop breeding and to get past the provisions by
using otherwise legal cloning, that would present a different set of
circumstances which we might need to take into account. I shall take advice on
that before we reach the Bill's next stage.
The Countess of Mar: Does one not need an egg to clone
a sheep? I understand that one uses an egg and modifies it in order to do the
The Lord Bishop of Hereford: I come to the Minister's
defence again. The Bill refers to,
"a sheep . . . or its semen, eggs or embryos".
I should have thought that the word "sheep" at the beginning of those two
phrases would cover cloning or any other scientific procedure that may be
developed in years to come.
Lord Jopling: No, that is not so because "semen, eggs or
embryos" refers to particles of living tissue taken from a sheep. Technically,
cloning can be carried out by taking living material from a live animal which is
not semen, egg or embryo. I believe that the noble Lord, Lord Carter, is nodding
in agreement. All four items would involve material taken from the animal. That
is different from the broad description, "sheep". If "sheep" does not embrace
those other three items, it should embrace the four items.
Lord Plumb: I have no quarrel with the Minister's
response. It brought out some extremely useful points and it led to a discussion
of the cloning issue and of Dolly. That is an added dimension but it helps the
debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
25 Jul 2002 : Column 631
The Deputy Chairman of Committees (Lord Haskel): I have to tell the
Committee that if Amendment No. 34 is agreed, I cannot call Amendments Nos. 35
Lord Livsey of Talgarth moved Amendment No. 34:
Page 15, leave out lines 29 to 32 and insert—
"( ) Upon completion of the provisions outlined in section subsection
(2), the Minister shall establish—
(a) a restriction notice in which the
restrictions and the requirements imposed by subsections (7) to (9) apply in
relation to sheep after the completion of four years following the commencement
of the eradication scheme with pedigree flocks; and
(b) a further target
date for the national commercial sheep flock of the eradication of genes
susceptible to scrapie."
The noble Lord said: I regard this as an extremely important amendment.
In saying that, I pray in aid the letter that some of us received from John
Thorley, the secretary of the National Sheep Association. In doing so, I
acknowledge the presence here of my friend the noble Lord, Lord Plumb. Happily,
I met him unexpectedly at the Royal Welsh Show, which led to a discussion of
some of these important issues.
Sir John Thorley said in the last paragraph of his letter:
"To take the industry forward in a sensible way, we
would contend that a period of four breeding seasons needs to elapse before
consideration is given to introduce rules which entail restricting the use of
breeding stock according to their resistance rating. Our recommendation
therefore is that any legislation currently being put in place should reflect
this aspect as the best option to move the industry forward in a constructive
The amendment is an attempt to meet the wishes of the industry, as
expressed by the National Sheep Association, and to address them in a practical
manner. Therefore, paragraph (a) addresses "pedigree flocks" and paragraph (b)
the situation in the "commercial sheep flock", which we have already discussed
at some length.
We would like there to be concentration on the pedigree
flocks to ensure that there are sufficient numbers of rams in the country within
four years that are resistant to the imposition of scrapie—in other words, of
high specification—so that they can be put on ewes in order to upgrade the
entire British sheep flock.
Clearly in the case of commercial sheep flocks, where there are
insufficient numbers of rams of a high enough specification, a greater length of
time will be required to bring those flocks up to date in comparison with
pedigree flocks. The amendment will fulfil the timescales required to upgrade
the flocks, particularly the pedigree flocks, so that we get well on our way
towards establishing an eventual scrapie-free flock in the United Kingdom.
This is related to the national scrapie plan—it could be a
specification—and the amendment would fulfil some good objectives. Reference was
made earlier to establishing targets which could be met. But, crucially, we need time to procure an improved flock and time to
ensure that there are enough sheep in the country with scrapie-resistant
genes. It has been estimated that it could take 20 years to achieve that
25 Jul 2002 : Column 632
commercial flock—that may or may not be correct—but we could start with
pedigree flocks, meet some targets and use those on the commercial flocks in the
Lord Carter: I am not sure whether the noble Lord has
missed out something in the drafting of the amendment. The first line states:
"Upon completion of the provisions outlined in section subsection (2)".
Should "section 36C" be inserted? Is that what the noble Lord intended?
Lord Livsey of Talgarth: I believe so.
Lord Carter: Yes. It would only make sense if that
were inserted. That has been missed out.
Lord Livsey of Talgarth: I apologise.
Lord Carter: I do not understand the English, as it
were, in paragraph (a). Once the Minister has completed the provisions outlined
in subsection (2)—which covers the exceptional circumstances—he applies,
"a restriction notice in which the restrictions and the requirements
imposed by subsections (7) to (9) apply in relation to sheep".
Which sheep? The sheep that have been caught by the exceptional
circumstances? Is that the intention?
The paragraph continues:
"after the completion of four years following the commencement of the
eradication scheme with pedigree flocks".
I am not at all clear about the underlying meaning.
Lord Livsey of Talgarth: I have to be
quite honest, I am not used to being cross-examined on the drafting of
amendments by a former Chief Whip. Clearly I mean the upgrading of the pedigree
flocks. That means that after four years there will be a sufficient critical
mass of sheep which reach the required standards and terms of the necessary gene
Baroness Byford: I support the thrust of the
amendment. We are, perhaps, beginning to cover the same ground over and over
again, but it is right that that should happen.
The amendment ties in with my Amendment No. 95A. I hope that the Minister
will give it due consideration. The noble Lord, Lord Carter, is right to seek
clarification, but again and again we come back to the whole
question of ensuring that we have enough gene stock for the future. I may be
repeating myself, but again I ask the Minister why we are in such a
hurry? I know that we want to move the agenda forward but, as I asked
when debating earlier amendments, what kind of target plan
do the Government have in mind? The current provision on the voluntary side is
likely to take up to 25 years, which the Government think is too long. But how
long do they think is sufficiently long enough but not too long? If, in
trying to protect a nucleus of our breeding stock, the Minister does not like
the four-year period, I hope
25 Jul 2002 : Column 633
he will recognise—as he may when we debate my Amendment No. 95A at the end
of the Session—that it is beholden on him to give us some indication as to what
period of time the Government feel is reasonable, practical and possible. We are
not asking to tie the Minister down to a period of three years and nine months,
or six years and 28 days. But the present debate is open-ended—it ranges from
suggestions of a period of four years, to the 20 years suggested at present.
At some stage the Government must become much sharper in their responses. If
not, they will find a certain insistence on these Benches, if not from
colleagues on the Liberal Democrat Benches, to seek greater clarification. We
seek to ensure that our sheep are the best sheep produced in the UK, and in the
world, and that people want to buy our produce. The one thing that we do not
want to do is to reduce our ability to produce prime quality meat.
The Countess of Mar: I agree with the noble Baroness
and with the noble Lord, Lord Livsey, on the need for a time-scale for the plan,
whether it is voluntary or compulsory. However, dare I say that I find paragraph
(a) of the amendment woolly? It is not clear. It needs to be tidied up if we are
to accept it. Subject to the Minister's response, perhaps the noble Lord will
agree to bring it back at the next stage.
Lord Livsey of Talgarth: We think that there may be a
misprint in the amendment, but we have not got to the bottom of it. So I hope
that the noble Countess will accept that for the moment.
Lord Whitty: The noble Baroness is pressing for end
dates to a process that we are yet in the process of defining. We are not clear
about exactly what tracts can be benchmarks beyond the immediate ones. So I
cannot oblige the noble Baroness with even a target end date to this process. I
know that the NSA has suggested that there should be a four-year brake on the
process, as it were, presumably in order to get a phased approach to dealing
with the breeding restrictions, first, on pedigree flocks and then on commercial
flocks. I can understand why the NSA wants that, but to lay down such a
time-scale in statute would not be wise or helpful. We need to do it either on a
voluntary basis or on a mandatory basis.
We need to discuss further with the industry the phasing of this approach.
A certain amount of flexibility is needed. Therefore, whether or not the clarity
of the wording of the amendment moved by the noble Lord, Lord Livsey, can be
addressed, I do not accept the principle of writing a period
of four years on to the face of the Bill.
Baroness Byford: Before the noble Lord replies, in my
request to him earlier I was not referring to such a provision being placed on
the face of the Bill. I was seeking clarification in general terms. I cannot
speak for the noble Lord, Lord Livsey, but from our point of
25 Jul 2002 : Column 634
view it would be enormously helpful if we could have some indication from
the Government as to whether the period might be five, 10 or 15 years—or two
Lord Livsey of Talgarth: There are a number of points to
make in summing up the debate. It is clearly the wish of the NSA to have a
period of four breeding seasons from here on. The reason for that is that the
association lost some time before the foot and mouth outbreak, and lost time in
implementing the scheme during the foot and mouth outbreak.
But in addition, during the foot and mouth outbreak a number of high-quality,
scrapie-free flocks were destroyed. So in one sense matters have gone backwards:
sheep have been slaughtered that would have been used to accelerate the scheme.
The four breeding seasons stipulated in the amendment take account of that
It may be that the national scrapie plan ought to aim for four breeding
seasons to ensure that there are enough pedigree rams in the country to take the
scheme on. We have debated whether that should be in statute. I should like that
to be clarified. If the Minister does not want it on the face of the Bill,
perhaps he might have discussions with the various parties about the national
scrapie plan to see if an action plan can be produced to take the sheep industry
forward a long way in eliminating scrapie over a reasonable period. I beg leave
to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 35 not moved.]
Lord Whitty moved Amendment No. 36:
Page 15, line 29, leave out "Minister" and insert "Secretary of State"
On Question, amendment agreed to.
[Amendments Nos. 37 and 38 not
Lord Whitty moved Amendments Nos. 39 and 40:
Page 15, line 36, leave out "Minister" and insert "Secretary of State"
Page 15, line 38, leave out "Minister" and insert "Secretary of State"
On Question, amendments agreed to.
Baroness Byford moved Amendment No. 41:
Page 15, line 38, leave out "may" and insert "shall"
The noble Baroness said: We hope that whoever briefs the Minister about the
need for the restriction notice will know whether the owner and/or the keeper
are one and the same person. If they are not, the process leading up to the
raising of the instruction should identify the owner. After that, the copy of
the instructions for the owner is a detail for the department, but of a great
simplification for the person receiving it. Will the Minister explain in
slightly greater detail the process by which he or the department envisage the
instructions being raised? I beg to move.
25 Jul 2002 : Column 635
Lord Jopling: I strongly support the amendment,
particularly because sheep are sent away from the protection of the owner to the
protection of others much more often than any other type of farm animal. It is
very common practice. I know the north of England, but others here will have
experience of other places, such as Wales, where sheep are sent away for the
winter from the upland areas—what in the North we call the upper dales—to be
finished or fattened on sugar beet tops or, in the old days, turnips down in the
lowlands. That is still a fairly common practice.
I knew an old farmer years ago who used to talk about his sheep going away
for their summer holidays. It is very common practice for sheep to be agisted,
as it is called, into areas under the care and protection of someone who is not
the owner. In most cases, if an order has to be given to the keeper of the
sheep, he will immediately tell the owner what has happened, but, as this is
such common practice, that will not always happen. It is
essential that the interests of the owner should be properly looked after,
bearing in mind that so many sheep are put away on to land other than the
owner's to be looked after at various times of the year by other people.
The Countess of Mar: I agree entirely with the noble
Lord, Lord Jopling, and the noble Baroness, Lady Byford. Before we had our own
sheep flock, we used to take what in the Midlands we would call a flying
flock—lambs and hoggets—just for fattening; they used to use our grass. They
would be with us for perhaps a few weeks and then go on either to market or to
new pastures. It is essential that both the keeper and the owner are advised of
the status of their sheep.
Lord Livsey of Talgarth: This is a very common practice
across Wales, which has very large sheep flocks—indeed, we have more sheep than
Scotland. It is common practice to take them up to the hills and then to send
them down to Pembrokeshire dairy farms in the winter. Many sheep were trapped
there at the beginning of the foot and mouth outbreak. Some people did not get
their sheep back until well after the middle of the following summer, which gave
rise to animal welfare problems. The amendment deals with a very common practice
which needs to be provided for in the legislation.
Lord Whitty: I am not sure that I follow the logic of
the arguments. The Bill already allows sufficient flexibility for the order to
be issued to the person in charge of the sheep at the appropriate time
regardless of whether that is the owner or the keeper. This amendment would
restrict that flexibility.
The Countess of Mar: How would it
restrict it if both are told?
Lord Whitty: The person who has to carry out the
instructions is the person in charge of the sheep at that time. The Bill already
provides for that. There could be substantial delay and an additional burden if
there is a double requirement to check up on both the owner and
25 Jul 2002 : Column 636
the keeper of the sheep. I am not sure what the point of that would be. I
accept everything that I have been told about how we manage sheep, but I draw
the opposite conclusion. I therefore do not accept this amendment.
Baroness Byford: I am very surprised
by the Minister's response. If it was not late and more noble Lords were
available I would certainly divide on the amendment. I shall not do so, but I
hope that the Minister will re-examine the issue and give it a little more
thought. Perhaps the message from the officials was not very helpful. I do not
see a problem with an expectation that the owner should be told. If their sheep
are going to be affected, for goodness' sake, they should be told. If someone
such as my noble friend Lord Plumb has my sheep, I should hope that he would
notify me. Ultimately, they are my sheep. He might be helping me out and looking
after them, but they are mine. The Minister shakes his head. Either one owns
something or one does not—although I appreciate the expression that my
noble friend Lord Jopling used about sheep going for their summer holiday.
The Minister may think that the tone of this debate is flippant, but it is
not. I hope that his colleagues realise that. I shall not press the amendment
now although I think the issue hugely important. I ask the Minister, please, to
go away and think about this before we return to it on Report.
Lord Greaves: There are a couple of points. First, it seems that the Minister is confusing the nature of the
operation. He is assuming that the urgency to which he became accustomed when
dealing with foot and mouth is necessary in this type of situation. As I said
some hours ago, surely there is a huge difference between eradicating an endemic
disease such as scrapie and dealing with an outbreak of a highly infectious
disease such as foot and mouth. There is a difference. I therefore do not
think that suggestions that this provision might cause huge delay count for very
much. I do not think that it would cause huge delay. It might cause a short
delay, but I do not think that that matters.
Secondly, if we are to include rights of appeal in the
Bill, we should realise that it is more likely that the owner of the sheep will
need and wish to exercise those rights than the person minding the sheep. It
seems a fundamental point.
The Lord Bishop of Hereford: I hope that I may suggest
the following wording to the Minister,
"shall give a copy of the restriction notice to the owner"
"shall also give a copy of the restriction notice to the owner",
which could be done simultaneously so that there would be no delay. At
least the owner would know about the matter and could then decide whether or not
he wished to appeal.
Baroness Byford: The right reverend Prelate has hit the
nail on the head. I was about to suggest the same
25 Jul 2002 : Column 637
thing. The person who will appeal will presumably be the owner; it will not
be the keeper. I urge the Minister to follow the good advice
he has been given and give the matter some further thought. I beg leave
to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 42 not moved.]
The Deputy Chairman of Committees (Lord Brougham and Vaux): In calling
Amendment No. 43, I advise the Committee that if it is agreed to I cannot call
Amendments Nos. 44 and 45.
The Countess of Mar moved Amendment No. 43:
Page 16, leave out lines 8 to 13.
The noble Countess said: Most people who are under instructions not to
breed from their sheep and to destroy all eggs and sperm will not want to keep
their sheep and will probably send them off to be killed. However, some people who keep sheep, particularly rare breed
sheep, will want to keep them as pets. They will know from the notice that if
they use the sheep for breeding purposes they will be subject to a punishment
which I should imagine is worse than death. I see no reason that such people
should not be allowed to keep those sheep for the period of the latters' lives
without having them mutilated or destroyed. I beg to move.
Baroness Byford: I am grateful for the noble Countess's
explanation of the amendment. The whole question of pets is not a matter that I
had picked up from the Bill. Many people keep sheep as pets. I should not have
thought that the plan which the Government seek to implement should include
sheep kept as pets. I shall be interested to hear the Minister's comments. I am
grateful to the noble Countess for raising the matter.
Lord Greaves: We are generally sympathetic to the aims
of the noble Countess's amendment. We shall listen with interest to the
Lord Carter: I am not entirely
sure whether I have understood the matter we are discussing. Does the noble
Countess envisage holding up the entire national scrapie plan in the interests
of safeguarding pet sheep? Is that the intention?
The Countess of Mar: I assure the noble Lord that that
is not the case. The measure would not hold up the entire national scrapie plan.
The sheep I am discussing will not be used for breeding purposes. Punishments
will be put in place for breeding from certain sheep. Notices will be sent to
the owners of certain sheep which fall within certain genotypes. What is the point of destroying them if they are kept as pets?
That is like telling people that they must have their pet dogs destroyed.
However, the TSE regulations do not apply to dogs, so I cannot compare pet sheep
with dogs. People will be forbidden from using certain sheep for breeding
purposes. Commercial sheep breeders will not want to keep sheep they cannot use
25 Jul 2002 : Column 638
purposes. I would not want to keep any of my Black
Welsh Mountain sheep that fell into the wrong genotype. I would arrange to have
such sheep slaughtered. However, some people would want to keep their sheep for
various reasons. They would understand that they could not use them for breeding
purposes, so why not let them keep those sheep? There is enough distress in the
farming community with all the killing that is going on. Let us say that it does
not need to be done in this one instance.
The Lord Bishop of Hereford: I support those comments.
Subsection (7) of new Section 36C achieves the objective of the national scrapie
plan; that is, the relevant breeding is stopped. That is what needs to be done.
There is no necessity to slaughter the animals we are
discussing. It would be sensible and charitable to accept the noble Countess's
amendment. It would not make any difference to the incidence of breeding or to
the national scrapie plan. It would just allow individual owners, if they wish,
to keep the animals we are discussing.
Lord Whitty: I now understand the point that the noble
Countess is making. On the face of it, her amendment seemed to undermine the
scrapie provisions. It would have made enforcement of the prohibition on
breeding from such animals impossible. Indeed, it would be difficult to see why
farmers should want to resist that if we were talking about commercial sheep
farming. But the noble Countess is dealing with a rather
different situation in which the animals are kept for a non-commercial purpose.
I had better consider that matter. I certainly do not
believe that I could accept the rather comprehensive way in which the noble
Countess has drafted the amendment. But now that I understand the intention
behind it, I shall try to see whether there is another way of dealing with the
The Countess of Mar: I am very grateful to the
Minister. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Duke of Montrose moved Amendment No. 44:
Page 16, line 11, leave out "given" and insert "received"
The noble Duke said: In moving Amendment No. 44, I shall speak also to
Amendment No. 45. Here, we are treading much of the same ground as we covered in
earlier amendments. We are all aware of the vagaries of modern communications. I
stand in great admiration of the communication skills that exist within this
building and the rate at which messages can be passed around. But this morning
the noble Lord, Lord Moran, did not receive a message—I am not sure where it
emanated from—until a long time after he was supposed to have done.
communications problems do arise, and that is where Amendment No. 44 comes in.
Rather than imposing a deadline of when notice has been given, we
25 Jul 2002 : Column 639
should prefer the deadline to be when notice has been received. I should be more comfortable if it were certain that a
restriction notice had been received by the person in question. The word "given"
could be subject to misunderstanding and the outcome of that would be an appeal.
One of the main messages from all three reports on the foot and mouth
outbreak has been the need for better communication. In fact, the Lessons to be
Learned Inquiry report drew attention to the fact that a message sent to
Pirbright by e-mail was not opened for 24 hours. If an error of that kind can
occur in government departments at that level, it is not hard to imagine how the
problem could multiply once one started to pass messages to rural areas.
In Amendment No. 45, we seek to substitute "12 months" for "seven months".
It is hard to see what science is driving the Government,
unless the Minister has information on the incubation period for scrapie or
something similar. If that is so, I hope that he will share it with us.
If the provisions in the Bill were carried through up to this point, by that
time the animal would have been sterilised. Susceptible
animals are not of themselves a threat. Therefore, such animals will be left
alive either because they are nursing a lamb or because of sentimental reasons,
such as mentioned by the noble Countess, Lady Mar.
I suggest that it would be better for the owner if the flock were afforded
the option of a full 12 months before slaughter merely in an effort to see what
the Government consider to be the purpose of setting the date at seven months.
On another matter, it is not clear whether the Government have given any
thought as to what they will do if they come across a flock of ewes in
mid-pregnancy or ewes which have more than one month of their five-month
pregnancy left. How will the Government expect to treat either the pregnant ewes
or the offspring which will have been born shortly after the period? Our
amendment would extend the period from seven to 12 months in relation to the
restriction notice imposed by the Government.
I have additional concerns. For example, would it be possible to identify a
sheep after it had been sold on? The person who sells it is committing an
offence. But unless a standardised description is used, will the animal be
traceable? I beg to move.
Lord Livsey of Talgarth: I support Amendment No. 44, which
states that the period is from the time when the restriction notice is served to
when it is "received". That is very important, given communications in the
As to Amendment No. 45, it is not clear why seven months were initially
suggested. Is that related to the breeding cycle of five months less two months?
Is it something of that kind or some arbitrary reason? It is not clear. Perhaps
it has something to do with not wanting to breed from animals, perhaps ewes,
that have undesirable genes. I should like clarification. If
25 Jul 2002 : Column 640
that is the reason, perhaps one should not keep them for 12 months. I am
not clear. I should like further information.
The Countess of Mar: I too support these amendments.
Through legislation we frequently get questions of notices being sent on a
particular date. Especially given the expected changes in the Post Office with
deliveries of mail, and the failure of mail in the country, as the noble Lord,
Lord Livsey, said, the provision should state "received" rather than "given".
The post should be sent recorded delivery so that there is a signature for the
I share the noble Duke's concern about timing, particularly with ewes. It
does not matter so much with rams. One must think about the
lambs when slaughtering ewes. Will one slaughter the lambs if the ewe has lambs
at foot? What will one do if she is pregnant within that period? For example,
how will one sterilise a ewe within one month of the notice if she is pregnant?
I think there are problems— welfare problems. The noble Lord should take the
matter away and think about it seriously.
Lord Whitty: As to Amendment No. 45, I do not
understand the logic of extending the period by yet another five months. What
additional purpose is there in that? I do not think that commercial sheep
farmers would wish to retain for that period a sheep which they are required to
slaughter and from which they cannot breed.
With regard to allowing time to appeal, that would have been dealt with
well before the seven months. I do not see the point of the additional five
The Duke of Montrose: I am grateful to the noble Lord
for giving way. We are not particularly settled on 12 months. We are considerably puzzled by the Government's fixing on seven
months in the first instance.
Lord Whitty: My immediate reaction is that I do not
know why we settled on seven months. If anything it is
probably too long. I would resist any extension. We would be slowing down the
whole process for something which farmers, by and large, would not want to do
anyway. I think that seven months is not a bad guideline.
The appeal is one month and then six months to allow
the animal to be fattened to maximise market return. That is roughly the rule of
thumb. Another five months would take most cases over the top for that purpose.
It is a little arbitrary, but that is roughly how we got there.
On Amendment No. 44, I seem to remember arguments in previous legislation
as to whether something should be dispatched or received. Frankly, there is
enough time in this area. We are not talking about missing the post by a day or
two. If someone wishes to dispute the point of receipt, that can lead to endless
problems. If the point of dispatch is clear, that is the normal way we deal with
such matters. There
25 Jul 2002 : Column 641
would be problems if we were going to take action within 48 hours. That is
not the case with these provisions.
The Countess of Mar: Perhaps I may ask the Minister to
reconsider the period during which animals are expected to be slaughtered. That
provision needs to be tidied up a little. There is no problem with regard to
lambs but we must also consider ewes. Ewes are in the picture, so to speak. They
are pregnant for five months out of 12 and have their lambs at foot for at least
three months, in most cases. In my case, our lambs are killed straight after the
ewe, so they can go on for five or six months after they have been born. For welfare reasons, the Minister should specify the length of
time and the state of pregnancy or suckling of the ewe.
The Duke of Montrose: We are obviously having trouble
making our understanding clear. I am grateful to the Minister for his
explanation of the seven-month period. In fact, that is a long period. It is
most unlikely that, if anyone who decided to fatten an adult animal of any kind,
it would take that long. Perhaps we should consider the suggestion of the noble
Countess, Lady Mar. If the animal has been castrated or sterilised, there is no
need to specify when it should be slaughtered. As has been said, 12 months is
neither here nor there. The question is whether, if there is resistance to the
killing of an animal, we want to impose a limit of some kind. Having taking the
debate that far, I beg leave to withdraw the amendment and return to it once we
know whether the Government have any thoughts on the matter.
Amendment, by leave, withdrawn.
[Amendment No. 45 not moved.]
Baroness Farrington of Ribbleton moved
Amendment No. 46:
Page 16, line 16, leave out "Minister" and insert "Secretary of State"
On Question, amendment agreed to.
Lord Plumb moved Amendment No. 47:
Page 16, line 18, leave out "brought" and insert "notified to the
The noble Lord said: The purpose of the amendment is to try to ensure that
applicants fully understand the procedure and that the procedures adopted are
not ruled out of time because of postal delays—which we have been discussing.
Anyone who has been told that it has taken three to four weeks to open the mail
in a government office will know to what I refer. Getting a letter to the hills
is, equally, often a major problem.
It would be helpful
if the Minister could take us through the appeal process—if not now, later. Will
there be courts? Will there be regional administration centres? Will assessors
be appointed on a full-time basis, or will they in fact work only part-time.
Will they hold hearings in sessions? What performance targets
25 Jul 2002 : Column 642
are envisaged for them? What training and so on has
been prepared for them? Who will deliver that and when?
matters of concern to those who will be affected. Will a new appointee be
required to attend training before acting in his appointment capacity? Will the hearing be open or closed? What sort of minutes or court
records will be taken? Will they be open to public scrutiny? Those are
all matters of great concern to the individuals concerned. We need to get that
laid down properly so that people can understand it when they may face a bill. I
beg to move.
The Countess of Mar: Although I support the idea
behind the amendment, I cannot see why, if the Minister has appointed an
assessor, at the next stage we should be applying to an appeal court. That does
not fit in with the system. However, I should like to know—I have not come
across it in the Bill—the description of an assessor. Who will that assessor be?
What will be his qualifications? Who will appoint him? I note that the Bill says
that he will be appointed by the Minister. We need to know more about
the person to whom the appeal will be made.
Lord Greaves: I support the amendments, particularly
Amendment No. 52, which would make it mandatory for a restriction notice to
contain instructions for making an appeal and applying for an extension prior to
It is vital that people who receive a notice be given information on how to
make an appeal, to whom they should make it, the circumstances in which they can
make it and the grounds on which they may make it. That is normal practice, and
it is normal to lay it down in legislation. In many areas of life, people get
notices and writs and all sorts of things. There is nothing to be lost by
putting it in the legislation and a great deal to be gained by letting people
know what their rights are and what they should do.
Lord Plumb: I hope that the Minister will take
Amendments Nos. 50 and 52 along with Amendment No. 47. They marry together well.
Lord Whitty: The Bill does not set out the appeals
process in detail, including details of the appointment of assessors and so on.
One would not expect it to do so. It may be helpful if I undertake to write to
the noble Lord, Lord Plumb, spelling out how the appeals process will work under
the Bill and copy the letter to others who have taken part in the debate.
The amendments would delay the process substantially, which is not what we
would hope for. For example, the amendments give no time within which an
appellant must formally lodge the details of an appeal. While there is an
appeal, the restriction is suspended. Unless some time limit is built in, such
additional loops in the appeals process would not be acceptable. Subsections (7)
and (8) of new Section 36D contain provision for the procedures that are to be
25 Jul 2002 : Column 643
followed and allow for the extension of the period. However, the open-ended
nature of what is in the amendments would mean that there would be no point at
which the process would come to an end or by which the appellant must have
provided details of the basis of his appeal.
I had better clarify how we see
the appeals process operating, but the amendments are not acceptable to the
Lord Greaves: If I apply for planning permission,
and my application is refused, I get a notice of refusal.
Together with that notice—probably printed on the back—there are instructions
for appealing against the refusal. I do not see how that slows the planning
appeals process in any way. How can sending someone details of how they can
appeal along with the refusal notice slow the process down? It is common sense.
The Countess of Mar: The noble Lord's amendment does not
cut out the 21-day period; it remains in place. The amendment says only where
the appeal should be brought. Nor do the two other amendments alter the time
within which an appeal can be brought. I cannot understand—perhaps the noble
Lord does not understand—what the amendment is about.
Lord Jopling: I agree with what the noble Countess,
Lady Mar, has just said and with what the noble Lord, Lord Greaves, said,
although that is not really what I rose to say. I think it was the noble Lord,
Lord Greaves, who asked the Minister to say who the assessor is likely to be. I
am a little uncertain as to who would best be qualified to act as an assessor.
These are very technical matters that are not suitable to be dealt with by an
agricultural valuer. My father was an agricultural valuer and knew a good deal
about agricultural law and other matters. However, with
great respect to him, his training was not greatly suited to deal with matters
of this kind. Would it be a vet—I suppose one might say that a vet would be the
most appropriate person—or would some kind of academic be the professional
assessor? I cannot believe that that point is not dealt with in the Minister's
As we are now moving to new Section 36D of the Bill, dealing with appeals,
we should first identify in our own minds for our subsequent
debates exactly who the assessor will be. A good deal will depend on the
training and expertise of the people who Ministers would appoint as assessors. I
do not believe that members of the panel of agricultural arbitrators, who
generally are valuers or land agents, are the most suitable people to act as
assessors. I hope that the Minister can help us about that. It will be
very difficult to continue to debate how appeals will be organised if we do not
know what kind of person is to be the assessor.
Lord Whitty: The assessor could be
anyone with experience of tribunals. This is not a question of veterinary
knowledge. It is a question of fact, one way or another, on the basis of
objective tests and on the basis of whether the requirements of notices have
been complied with.
25 Jul 2002 : Column 644
I have already made an offer to the noble Lord, Lord Plumb, to set out in
writing how we intend that the appeals process should operate. In that context,
it may also be helpful to include some sentences about how the assessors will be
appointed and the range of people who may be considered as assessors.
So far as the timetable is concerned, depending on which amendments are
taken, it leaves a requirement to serve a notice of appeal, but not the grounds
of the appeal, and the details that we would expect the assessor to consider.
That can be an open-ended process.
I am not prepared to accept any of the amendments as they stand. We shall
consider what has been said and in the mean time I shall set out in writing how
we see the system operating.
The Countess of Mar: Will the Minister consider
changing the word "assessor"? He mentioned tribunals. In other contexts, we are
used to hearing the word "adjudicator" rather than "assessor". Assessors are
slightly different. I believe that "adjudicator" would be a better word to use,
and it is well understood in the appeals system.
Lord Jopling: The Minister's reply was helpful in that
it begins to take us forward. The noble Lord said that he will prepare notes.
Perhaps I may put on record the thought that very few of the people who are used
to working as assessors or arbitrators in tribunals would not necessarily have
the expertise to deal with cases such as these, which in many instances will
need an assessor with some rudimentary experience and knowledge of genetics.
The system of making orders under the Bill demands a knowledge of genetics
and genetic testing. Most people I have come across in arbitrations and
tribunals do not have the foggiest idea about genetics. It would be totally
absurd to appoint an assessor who had no training whatever in genetics and did
not understand what a genotype was.
The Countess of Mar: Perhaps I can put the noble
Lord's mind at rest. Wearing another hat, I am a member of the Immigration
Appeals Tribunal. I have been trained in my work as a member of that body and I
am sure that the Minister would not appoint someone who did not know what he was
talking about. I am sure that the Minister will reassure us.
Baroness Byford: The word "assessor" needs careful
consideration. I am surprised that having reached this stage of the Bill after
many months not a great deal of thought has been given to this section of it.
Lord Plumb: In the light of the Minister's response
and his assurance that he will look at the matter and respond in writing, I beg
leave to withdraw the amendment.
Amendment, by leave, withdrawn.
25 Jul 2002 : Column 645
Baroness Farrington of Ribbleton moved Amendment No. 48:
Page 16, line 21, leave out "Minister" and insert "Secretary of State"
On Question, amendment agreed to.
[Amendments Nos. 49 to 52 not moved.]
The Duke of Montrose moved Amendment No. 53:
Page 16, line 32, leave out "require" and insert "specify that"
The noble Duke said: In moving Amendment No. 53, I shall speak also to
Amendments Nos. 54 and 55. The Bill states:
"A direction . . . may require",
which seems to be a tortology. A direction always "requires" and here we
are trying to define what the direction should contain. We want to be sure that
it contains enough detail, but there is no indication of how the Government
consider it should be given. It could be by any means of communication and even
Amendments Nos. 54 and 55 are consequential to changing
"require" to "specify that". They propose leaving out the word "to" in the
following two lines. Communication can take place in many ways and the fact that
it has been received can be ascertained. Either someone delivers the item in
person or the post will record that the item has been delivered and received.
Simply being "given" is not satisfactory. I beg to move.
Baroness Farrington of Ribbleton: I am afraid that we
cannot accept these amendments. They appear to add transparency to the appeals
procedure but in fact they have the opposite effect. They would weaken the
appeals mechanism by removing the assessor's ability to require that further
sampling is undertaken, or that a different testing laboratory should undertake
further genotype testing.
We believe it is important that the appeals procedure remains legally
robust and is transparent. I hope therefore that the noble Duke will not press
The Duke of Montrose: I thank the noble Baroness for
her explanation. I had thought that a legal meaning might be involved. We do not
wish to weaken the approach. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 54 and 55 not moved.]
Baroness Farrington of Ribbleton moved Amendment No. 56:
Page 16, line 36, leave out "Minister" and insert "Secretary of State"
On Question, amendment agreed to.
Baroness Byford moved Amendment No. 57:
Page 16, line 36, leave out "may" and insert "shall"
25 Jul 2002 : Column 646
The noble Baroness said: In moving the amendment, I speak also to
Amendments Nos. 58 to 60.
I seek to make the provision more robust. The amendment changes "may" to
"shall". We believe that the Minister must make regulations governing the
procedure to be used for appeal. It follows, therefore, that he shall supplement
the provisions of this section and shall make provisions as to the procedure.
From earlier debates, I begin to wonder whether the Government have taken that
on board. As it will not always be necessary to extend the period, the word
"may" is still appropriate for paragraph (b) and, unless I can persuade noble
Lords opposite to leave them out, subsection (8)(c) and (d).
On Amendment No. 60, in general I am opposed to charging farmers for taking
samples and running tests where the need to do so is in response to a
theoretical risk. We are back to where we started some hours ago. As Members of
the Committee have said many times, farmers want to eradicate scrapie if that
can be done to a reasonable time-scale and at reasonable cost. In other words, I
believe that they will co-operate. It is not unreasonable, therefore, for them
to pay for a further test if necessary. The proof is that the test proves
positive. Other noble Lords may not agree. I observe that the taking of samples
and the running of tests is not always error free. It is not fair that the
farming community should bear the total cost.
The amendments change "may" to "shall" because we believe that the matter
should not be left to a judgment. It should be the responsibility of the
Government. On Amendment No. 60, the appellant would not have to accept further
costs where the tests were negative. I beg to move.
Lord Livsey of Talgarth: We agree with leaving out
"may" and inserting "shall", and that the appellant should not be liable for
costs for the reasons stated.
Baroness Farrington of Ribbleton: Perhaps I may take each amendment
On Amendment No. 57, as currently drafted the Bill already provides for the
application of regulations to supplement the appeals procedure. An obligation to
enshrine the whole appeals process in regulation at this point in time would
remove our flexibility to set out appropriate procedures in regulations when and
if the scrapie provisions are implemented. Therefore, we believe that the
amendment is unnecessary.
On Amendment No. 58, as currently drafted the Bill provides for the
discretionary application of regulations to supplement the appeals procedure. To
include the provisions at subsection (8)(a) to (d) in regulations would be too
restrictive. It would also mean having to include provisions requiring the
applicants to meet reasonable costs of further sampling following an appeal
which under the present wording is discretionary. Therefore, we would not wish
to accept the amendment.
We cannot accept Amendment No. 59 because it would duplicate existing
provision at new Section 36D(8) on the face of the Bill.
25 Jul 2002 : Column 647
With regard to Amendment No. 60, the Bill allows us to recover costs
related to re-sampling and testing but we would decide on this, depending on the
circumstances. I should explain that we envisage invoking this only where
further sampling and testing confirm the validity of the original sample and
test. I think that that answers the point raised by the noble Countess, Lady
Mar. The department will be responsible for bearing the costs of re-sampling as
part of the appeals process in the first instance. This amendment is therefore
unnecessary as the appellant would not incur costs if the re-sample was
negative; that is to say, was different from the original test.
I hope that that explanation has helped to clarify the position for the
noble Countess. If, on reflection, she feels that she needs further information
on the specific point raised, I shall be delighted to write to her.
The Countess of Mar: It must be getting late. I did
not even rise to speak to the amendment.
Baroness Farrington of Ribbleton: If my memory serves
me correctly, the noble Countess referred to this issue when speaking to an
Baroness Byford: I thought that my night had been made
by my becoming a countess.
I understand the response made by the Minister but I am sure not sure that
I agree with her in all respects, in particular as regards whether meeting the
costs will be discretionary. If it is discretionary, the award of costs might
fall in favour of one person and not of another—I see the noble Countess shakes
her head at that remark.
The hour is late. I shall read carefully the Minister's response. I had
thought that my Amendment No. 60 would achieve exactly what has been set out by
the Minister in her remarks; that is, costs on re-sampling
in the first instance would be borne by the department. If the result proved the
same as that found in the first test, then the owner would agree to accept the
costs. I had thought that that was the thrust of my amendment. Have I
misunderstood the Minister because she has said that that is already the
position and I have missed it? If that is the case, I shall look at it
Baroness Farrington of Ribbleton: For clarification,
the amendment is unnecessary as the appellant would not incur costs if the
re-sample was negative; that is, different from the original test.
Baroness Byford: I think that we both agree the point.
Perhaps I am getting a little tired.
Lord Jopling: Before my noble friend withdraws her
amendment, the Minister said specifically that the costs
would be met if the result was "different" from the previous test.
Having some experience of science, test results
invariably are different. Rarely will the results of two tests be exactly the
same. Given that and bearing in
25 Jul 2002 : Column 648
mind what the Minister has just said, even if one test
result was positive—unhelpful to the farmer—if the next test result was slightly
different but still negative so far as the farmer was concerned, surely there
would be no costs.
If two negative test results differ by however
little—perhaps I am making the Government's case for them—compared with one
negative test followed by a positive test, that is totally different from having
two negative but different results. I hope that the noble Baroness understands
the thrust of my argument. I believe that she did say that if the test results
are different, then no costs would be incurred. Is she referring to "different"
as in a positive or negative result, or whether the second test is different in
its result from that of the first test? This is rather an important distinction.
Baroness Farrington of Ribbleton: I am sorry, I am
afraid that I became slightly lost in the number of negatives with which we are
dealing. Perhaps I may explain it to the Committee in a different way. The
effect of the amendment is that the supplementary regulations may provide for an
appellant not to be liable for costs associated with re-testing, in accordance
with new Section 36D(5)(c), where those test results contradict the original
Although the costs of the test relating to re-sampling and testing as part
of the appeals process are allowed for, we only envisage invoking this—if at
all—where the re-sampling and testing confirm the result of the original
sampling test. Therefore, the department will be responsible for the cost of
re-sampling as part of the appeals process in the first instance. I do not know
whether the noble Lord, Lord Jopling, is concerned that farmers would be
required to pay up front for re-testing. However, I can offer him an assurance
that that is not the case.
Baroness Byford: I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 58 to 60 not moved.]
Baroness Farrington of Ribbleton moved Amendments Nos. 61 and 62:
Page 17, line 9, leave out "Minister" and insert "Secretary of State"
Page 17, line 18, leave out "Minister" and insert "Secretary of State"
On Question, amendments agreed to.
The Duke of Montrose moved Amendment No. 63:
Page 17, line 18, leave out "he considers appropriate" and insert "are
The noble Duke said: In moving this amendment, I shall speak also to
Amendments Nos. 68 to 71. Amendment No. 63 is another proposal designed to
tighten up the operating system backing up this Bill. As we heard earlier today,
in real life the Minister concerned does not "consider". In the first instance
he is advised by someone else who considers and makes
25 Jul 2002 : Column
recommendations to him. In a situation like this, where no one knows the
size of the problem, the Minister may be advised by a large number of people,
each of whom should be working to a common standard. Our hope is that this
amendment will spur on the development of that standard.
Amendment No. 69,
together with Amendment No. 70, would cover the eventualities that are contained
in the Bill and cut out the long wording; for example, in subsection (2) one
could say that an offence is committed if the shepherd or farmer,
"knowingly uses any semen, egg or embryo which has been taken from the
rather than using the longer version as set out in the Bill. This, of
course, presupposes some human intervention. It does not cover a case where a
ewe or ram has not been properly sterilised, and, subsequently, turns out to be
the cause of a pregnancy, though the owner will have to be able to produce an
argument that this was not known at the time of fertilisation.
There is also
the possibility of frozen semen, or eggs, becoming mislabelled or mixed up in a
laboratory. I am sure that the Minister will be aware of cases where that has
taken place. The most recent case, about which we all read in newspaper reports,
occurred in a human IVF clinic.
I turn to Amendment No. 71. This provision is surely far too loosely
drafted. One can understand it being an offence for someone to obstruct an
inspector, but we really need some definition of who else is carrying out the
Minister's function. If someone walking up the road decided that it would be fun
to give the inspector a hand, that would not be very satisfactory. Would there
not need to be some identifiable method of appointment for those whom the
inspector believes to be appropriate to help? In fact, to return to what we
discussed earlier, should they be required to show the evidence of their
authority? I beg to move.
Lord Livsey of Talgarth: We strongly support the noble
Duke in his Amendment No. 63, which proposes to insert the words "are necessary"
into subsection (3). We believe that that would make the provision much more
precise and understandable. As regards the other amendments in this group, it is
quite clear that they would make the wording of the Bill much more concise and
to the point; and, indeed, improve the legislation no end. I was wondering when
the issue of stray rams would come into our debates. Those of us involved in
sheep farming know what can happen in certain circumstances, which are very
often beyond our control—at least beyond our ability to hedge properly, or
whatever. We strongly support these amendments.
The Countess of Mar: I have one small quibble. It is
about Amendment No. 69, which would insert "knowingly" after "he". A little
tautology is involved if the person "knowingly" uses,
"semen, egg or embryo which he knows, or has reasonable cause to
and so on. The proposal is unnecessary. I hope that the noble Duke will
withdraw that amendment.
25 Jul 2002 : Column 650
Lord Whitty: Amendment No. 63 seeks to employ a
totally objective standard but it does not specify who decides what is
necessary. In effect, it attempts to remove all discretion from the Minister,
although issues of judgment are often involved, without saying who would take
responsibility. That is not therefore appropriate.
Amendment No. 68 largely deals with the question of delivery, on which I
have already commented. I could not agree to that.
Amendments Nos. 69 and 70 appear to weaken the ability to enforce the
scrapie provisions in relation to semen, eggs and embryos. It would place the
onus on prosecuting authorities to show that the other person knew that the
semen, egg or embryo came from a sheep that was the subject of a restriction
notice. That is quite a tall order. An offence is involved but it might be
difficult to establish what the person knew. We would therefore wish to ensure
that people who would reasonably have known that the sheep was subject to a
notice could be deemed to have committed an offence. Clearly, in a situation in
which someone else has made a mistake, that is a reasonable defence. In the case
in which someone should reasonably have known, the offence should apply.
The Countess of Mar: Subsection (2) states:
"Any other person commits an offence if he uses any semen, egg or
embryo which he knows"—
I stress that word—
"or has reasonable cause to believe, has been taken from a sheep".
I am not sure whether what was said is accurate. Adding "knowingly" is not
necessary because the person already "knows", according to the subsection, that
he is using the semen, egg or embryo.
Lord Whitty: On Amendment No. 69, it is the noble Duke who
seeks to insert the word "knowingly". That limits the number of circumstances in
which the offence could be deemed to have been committed.
The Countess of Mar: But the situation is already
limited in the clause because it contains the word "knows". The noble Duke is
adding the word "knowingly" when the person already knows. How can he knowingly
do it when he already knows that he is doing it, if the noble Lord sees what I
mean? Would he like to read the clause, please?
Lord Whitty: I think that that point is for the noble
The Duke of Montrose: So far as I can understand what
the noble Countess was saying, I point out that Amendment No. 70 misses out the
second "knows". It would leave out from "which" to the second "has".
The Countess of Mar: Oh! I am sorry. I apologise.
Lord Whitty: I shall keep out of this.
25 Jul 2002 : Column 651
I make it clear in relation to Amendment No. 71 that in most cases it will
be an inspector who will be impeded but that there will be situations—for
example, when a slaughterman or technical advisers are needed—in which people
act under the instructions of the inspector. Impeding their
activities should be deemed to be an offence. We may have to sharpen up the
relevant provisions in the regulations. It is clear that we need to cover that
eventuality, as well as the situation involving inspectors per se.
The Duke of Montrose: It still seems that we should do
well to try to tighten up the description in the Bill and not leave in the
phrase "any other person". Perhaps we can go away and think about this; in which
case I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton moved Amendment No. 64:
Page 17, line 20, leave out "Minister" and insert "Secretary of State"
On Question, amendment agreed to.
Lord Greaves had given notice of his intention to move Amendment No. 65:
Page 17, line 21, at end insert "subject to section 36C (1A)"
The noble Lord said: I apologise for asking for the indulgence of the
Committee at this time of night. Amendment No. 65 is a victim of the six-month
time lag between the amendment being tabled and the Committee sitting. I do not
agree with Amendment No. 65 and I do not wish to move it. I give notice that I
shall move Amendment No. 67, but I do not intend to move Amendment No. 65.
[Amendment No. 65 not moved.]
Baroness Farrington of Ribbleton moved Amendment No. 66:
Page 17, line 26, leave out "Minister" and insert "Secretary of State"
The noble Baroness said: I spoke to this amendment with Amendment No. 11. I
beg to move.
On Question, amendment agreed to.
Lord Greaves moved Amendment No. 67:
Page 17, line 29, leave out from beginning to end of line 3 on page 18
"(1) It shall be an offence knowingly to misrepresent the status of a
sheep, or its eggs or semen, as scrapie free.
(2) An inspector may at any
time require for inspection any relevant records to establish the movements and
breeding history of that sheep."
The noble Lord said: In moving Amendment No. 67, the Committee may feel
that it will be a plus point if I speak also to Amendments Nos. 72, 75, 78, 79,
which stand in my name and that of my noble friend Lord Livsey and are in the
next group of amendments. It might speed up matters a little.
25 Jul 2002 : Column 652
These are important amendments and, late though it may
be, this is an important discussion. In a sense, this is where civil liberties
meet the countryside. I fear that in some quarters the attitude towards and
promotion of civil liberties that noble Lords and many other people would wish
to see changes when it comes to the countryside and farms. Some people have a
fog in front of their eyes, their brains stop working and they think, "Oh, it is
the countryside. It is different".
But civil liberties are indivisible. One person's
liberties are another person's liberties, and if they are removed from one group
of people they diminish the liberties of everyone else. When the state takes
powers to deprive people of what they would normally expect to be their personal
liberties and personal freedoms—such as the freedom to decide who should come
into their homes and to control and look after their property—it is important
that these liberties are taken away only for good reasons.
The powers that the state takes to itself should be
both proportionate and necessary in the circumstances. We believe that many of
the powers set out in proposed new Sections 36F to 36J are neither proportionate
nor necessary. The Government should look at them again in the light of the
problem that Schedule 2 seeks to address.
Proposed new Section 36H appears to be identical to the provisions set out
earlier in the Bill in relation to foot and mouth disease. But the powers that the state may require to control a
highly-infectious, rapidly-spreading outbreak such as foot and mouth disease are
not necessarily the same in terms of proportion and necessity as those required
to control an entirely different kind of disease. Important though it is
to control and attempt to eradicate it, the situation is different, and the
powers and the circumstances in which they are exercised should also be
We believe that many of the powers are
heavy-handed; that they should not be exercised without far greater controls and
balances; and that the timescale laid down for many of them is unnecessarily
fast—in many cases it is extremely fast—in relation to the need set out.
Overall, there is an in-built assumption of guilt—the idea that the animal
owners and controllers concerned are guilty, and must therefore be treated as
such—in the extent and the nature of these powers which ought not to be there.
One has only to think what would happen if these kinds of powers, for these
kinds of purposes, were applied to other businesses. There would be a huge
outcry. It is only because farmers and other people who live in the countryside
have still not fully recovered from the swingeing blows that they received
during the foot and mouth outbreak that the outcry against them is not much
greater. A more normal, more leisurely process with built-in checks and
balances, such as normally applies when people exercise powers of this nature,
ought to apply.
It is late, but this is an important issue. Perhaps I may quickly run
through some of the issues that arise. It is our view that the offences set out
in new Section 36F are excessive and disproportionate. What
the Government want to do could be achieved without
25 Jul 2002 : Column 653
quite such a heavy-handed and swingeing set of
powers. The situation may be very different in the case of foot and
mouth, where urgent action is required and where extraordinary powers may be
necessary. Indeed, the Government's arguments for the new powers have been that
foot and mouth presents an extraordinary situation which has to be tackled with
immediacy. That is not so in the case of scrapie.
The power to force entry is set out without even the
requirement for a warrant, as set out in new Section 36H. The power of entry in
new Section 36G does not require a warrant. It is only when people refuse entry,
or "a refusal is expected"—whatever that may mean—that the provisions of new
Section 36H appear to come into effect and a warrant is required. That is
unusual and abnormal.
If the police believe that a serious offence is being committed in a
building, they might well break into the building in order to stop it. But we are not talking about that level of criminality. We are not
talking about any serious level of criminality. We are talking about trying to
find a reasonable, sensible and proportionate way to deal with an animal disease
which, if there is a slight delay, will not cause any huge problems. The disease
has been with us for 250 years. Whether it is eradicated in six, seven, eight or
10 years' time is not of the order of importance that justifies this kind of
Normally, people wishing to exercise many of the powers set out in the Bill
must first apply to a court. But that is not the case here.
The kind of powers that usually require a warrant from a magistrate are
exercisable without one. The kind of powers normally exercisable only after
application to the court are exercisable with a warrant from a justice of the
Our Amendment No. 78 refers to new Section 36H(3) relating to warrants. The
subsection sets out the condition that,
"admission to the premises has been refused or a refusal is expected".
What does that mean? Again, the Government may argue that such a provision
is necessary in relation to foot and mouth or to other highly infectious
diseases—although we may well wish to challenge that when we debate that part of
the Bill. However, to put in the suggestion that a
refusal is expected before anyone has found out whether there will be one is
excessive. It is another assumption of guilt that ought not to be made in such a
The third condition is that,
"the case is one of urgency".
What urgency is there with scrapie? The only
example that the Minister produced earlier was that someone might be using a ram
for breeding and the authorities might want to stop that. At the worst, all that
does is put off the process for 12 months. We have had the problem for 250
years. The Minister wants to get rid of it, as do we, but the measures must be
sensible and proportionate. The provisions set out in the Bill are neither.
25 Jul 2002 : Column 654
I look for support from the Committee and I await what the Minister has to
say in justification of what we consider to be his heavy-handed, rather
draconian approach. I beg to move.
The Deputy Chairman of Committees (Viscount Simon): I advise the
Committee that if Amendment No. 67 is agreed to, I cannot call Amendments Nos.
68 to 71 due to pre-emption.
Lord Jopling: I have agreed with a great deal of what the noble Lord, Lord
Greaves, has said during our debates, but I am not terribly happy about the
amendment. I am not sure whether the proposal in the Bill is too strong. I am
anxious to hear how the Minister justifies it. However, the amendment is too
I say that for one good reason. I remember the intense irritation in the
north of England a few years ago over the spread of another sheep disease—sheep
scab. It had been rampant throughout the country for many years, but following a
tremendous campaign, which was largely voluntary and backed by a minimum of
government regulation, we thought for years that sheep scab had been eliminated.
It then reappeared in the south-west of England, entirely due to dilatory farm
management and sloppy sheep husbandry. This most distressing disease then spread
again right through the country. I remember wondering whether it would be
necessary to introduce much stronger regulations to control it. I came to the
conclusion years ago that the existing regulations controlling sheep scab were
not strict enough and were not being sufficiently strictly enforced.
I have the feeling that the amendment is too loose. I would be very unhappy
to support it because the noble Lord, Lord Greaves, has gone too far the other
way. The Government's proposal may be somewhat too strong, but I reserve my
judgment on that until I hear the Minister's response. How strongly enforcement
of the law is carried out is a matter of fine balance. My experience with sheep
scab leads me to believe that one needs to be pretty tough about it.
The Countess of Mar: I am awfully sorry to have to give the noble Lord,
Lord Jopling, another history lesson. Sheep scab was eradicated in this country
in 1952 after compulsory dipping at which police constables had to be present.
It was very strictly enforced at that time. Sheep scab came back into this
country in 1972 from a flock imported from Ireland on to the
Yorkshire-Lancashire borders. Sheep scab was discovered, and the sheep were
dipped with MAFF inspectors present. Very unfortunately, the MAFF inspectors did
not check that the dip was a scab dip. That is how it spread. There have been
dilatory farmers; I make no pretence about that. However, that is the history of
sheep scab and dipping.
I agree with the noble Lord, Lord Jopling, that there is some need for the
law to enforce the intentions behind this plan. However, we have a lot of "mays"
instead of "shalls" here. I hope to hear from the
25 Jul 2002 : Column 655
Minister that the "mays" will be enforced with a very light rein and that a
heavy hand will be used only when it is absolutely necessary and someone has
been truly defiant.
Lord Whitty: I agree with the noble Lord, Lord Jopling, that Amendment No.
67 would leave us with a very weak offence. It deletes all the offences relating
to this part of the Bill, and replaces them with the rather difficult to
establish and not always relevant issue of misrepresentation. So I really could
not accept Amendment No. 67.
Amendment No. 72 and the other amendments that the noble Lord, Lord
Greaves, mentioned relate in one way or another to the entry powers in relation
to scrapie. We should understand the context in which the powers would be used.
The noble Lord is clearly right that there is much less necessity for such power
when we are carrying out an improvement and breeding policy than when we are
dealing with an epidemic of a virulent disease. That is certainly true. I say to
the noble Countess, Lady Mar, that, to that degree, the "may" would be exerted
with a relatively light hand. Even then, however, there may be situations in
which there is unhelpful resistance frustrating accomplishment of the plan and
entry is required.
I think that I heard the noble Lord, Lord Greaves, aright when he said that
exercise of the power in proposed new Section 36G does not require a warrant. It
does. The provision is operable only with consent. If there is opposition there
would not be consent and one would have to apply for a warrant under proposed
new Section 36H. Therefore, one always has to go for a warrant when enforcing
entry against the will of the owner or occupier. The justice of the peace would
clearly have to consider whether it was reasonable in all circumstances to seek
to enforce entry. The balance of reasonableness will necessarily be different in
cases involving implementation of the national sheep scrapie plan as against
cases involving eradication of foot and mouth.
I think that the noble Lord, Lord Greaves, is exaggerating the extent to
which this represents a serious erosion of civil liberties. However, as I know
that there are anxieties, I intend to examine these powers
and see whether we can make provision or give an assurance to ensure that that
context is better understood, to make it clear that we do not envisage behaving
in a draconian manner. The decision to take such action would be based on
reasonableness and would be proportionate to the circumstances.
Baroness Byford: I wanted to hear the Minister's reply
to these important amendments before contributing. I can partly understand the
Government's dilemma. They have to balance a bit of stick with a bit of carrot,
and sometimes it is difficult to know how much of each is necessary to achieve
the goal. I think that the most important point made in this debate is that the
action should be proportionate. We are not talking about the emergency
provisions to which we shall return after the Summer Recess. The
25 Jul 2002 : Column 656
provisions we are discussing deal with the important matter of the
eradication of scrapie. The Government expect access and are demanding this,
that and the other in a manner that is not proportionate or appropriate to their
Although I understand where the noble Lord is coming from, I have
difficulty in supporting the wording of Amendment No. 67. I was greatly
encouraged—I hope that the noble Lord was also encouraged—when the Minister said
that he would at least consider the measure we are discussing and some of the
other measures which we shall discuss tonight. I hope that that signifies an
acceptance on the part of the Government that the measure in the Bill is too
Lord Greaves: I agree with the comments which have
been made about Amendment No. 67. However, it is a legacy of what I was left
with six months ago. I decided to move it as a probing amendment to determine
the Minister's thinking on the matter. The amendments that comprise wholesale
deletions cannot be anything other than probing. Like the noble Baroness, Lady
Byford, I am encouraged by the Minister's response. It is always encouraging to
hear a Minister say that he will spend part of his precious summer holidays
considering whether legislation might be improved. I look forward to hearing the
results of that consideration when we return in the autumn, hopefully more
sunburnt than we are now. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 68 to 72 not moved.]
Baroness Byford moved Amendment No. 73:
Page 18, line 6, leave out "at all reasonable times" and insert
"between 9 am and 5 p.m. (Monday to Friday)"
The noble Baroness said: In moving Amendment No. 73, I wish to speak also
to Amendments Nos. 74, 76, 77, 79 and 80. As regards Amendment No. 73, this is
not an exercise that requires to be precipitated in any helter-skelter fashion.
The hours proposed in the amendment do not attempt to define the hours during
which a livestock farmer works but tie in with the fact that most livestock
farmers will have to carryout their duties, daily chores and inspections by nine
o'clock in the morning and often much earlier. They will be in a more receptive
mood to talk to officials who appear from nine o'clock onwards. The amendment
seeks to persuade the Government to accept that it is better for officials to
visit farmers between certain times rather than at a time which may not be
convenient for farmers.
Amendment No. 73 proposes that officials should
visit farmers between nine in the morning and five at night Monday to Friday. No
doubt the Minister will say that such a provision is unreasonable and that
officials should not be restricted to gaining access at certain times. However,
the situation we are discussing does not constitute an emergency. There was a
long discussion on the matter in the other place. We consider that it is
reasonable for officials to visit farmers between nine in the morning and five
25 Jul 2002 : Column 657
I should have thought that those hours were also reasonable from the point
of view of officials. However, that is another matter.
As regards Amendment
No. 74, we believe that it is an unnecessary burden on livestock owners to have
to demand that an official shows evidence of his authority to take certain
action. The very appearance of an inspector will engender a high degree of
stress. The livestock owner will have to cope with a vast array of decisions. We
believe that the phrase "if required" is unnecessary and we should like it to be
Amendment No. 76 seeks to leave out the words,
"sworn information in writing",
"application to his court".
We were not sure why the Government wanted to have sworn information in
writing. Was it because they were precluding the person in question from going
to a court or a magistrate? Again, I should be grateful for an explanation on
that matter from the Minister.
With regard to Amendment No. 77, the Bill as
it stands will allow representatives of DEFRA to seek a warrant on the basis of
a sworn statement alleging non-co-operation for someone who, at this stage, has
no right to argue his case. That is why I was particularly anxious about the
issue of the court. The amendment simply allows for the possibility that a
farmer may have valid reasons, unknown to the department, for opposing entry at
the time or in the circumstance requested. In view of the accusations levelled
at certain employees of the ministry during the recent foot and mouth outbreak,
and particularly as this matter relates to scrapie rather than emergency
measures, that would seem eminently reasonable.
I turn to Amendment No. 79. I have been cudgelling my brains—they are
becoming more difficult to cudgel at this time of night—to think of
circumstances in which, in the pursuit of scrapie identification, giving notice
of the intention to apply for a warrant would defeat the object of entering. I
cannot see that happening. Would anyone hide a sheep to avoid a sample being
taken for genotyping—perhaps certain noble Lords believe that that would
happen—or would someone deliberately wipe his computer data rather than have his
records examined? That seems to me to be on a par with six o'clock dawn raids
and prohibiting a farmer and his family from leaving the farm or even talking to
neighbours. I believe that the provision is unnecessary and, as such, should not
be part of the Bill.
With regard to Amendment No. 80, it is unfortunately true that not all
magistrates remember to date warrants as they sign them. It is also
unfortunately true that warrants arrive for signature with the date already
appended. In view of new Section 36H(5), the Bill should ensure that so far as
possible the validation of a warrant cannot be illegally extended to accommodate
the shortcomings, work overload or any other concerns of those who carry out the
court mandate. I believe that any form of paperwork should, in any case, be
dated—even more so in this case.
25 Jul 2002 : Column 658
I am sorry that this is a rather odd group of amendments, but I hope that
my explanation of them has been sufficient. I beg to move.
Lord Livsey of Talgarth: I consider Amendment No. 73
to be extremely practical so far as concerns practice in normal farm situations.
There is nothing more annoying than if, in the middle of the morning milking
session, for example, someone comes in and asks questions when one is trying to
get the cups onto the next cow, or whatever. It seems to me essential that—
Lord Carter: But let us suppose that the official arrives
in the middle of the afternoon milking session. That takes place between 9 a.m.
and 5 p.m.
Lord Livsey of Talgarth: Let us suppose that the
farmer milks three times a day. That does happen. I consider the proposed hours
to be sensible and acceptable. Evening milking is another matter. It is
sometimes more flexible than morning milking because, then, one is waiting for
the tanker to arrive. However, that is another matter. I consider Amendment No.
73 to be essential.
I turn to the other amendments. Amendment No. 77, for example, refers to
sworn information, as does Amendment No. 76. I believe that that allows for
justices of the peace to accept various situations when a person is operating on
In certain circumstances there are valid reasons for a farmer prohibiting
entry to the farm. As to clarifying the situation, there are a number of
principles involved. I agree with what has been said on Amendment No. 79 about
leaving out lines 31 and 32. When one first reads them, they appear rather
As to Amendment No. 80, it is common sense that the warrant must be dated,
otherwise many problems could arise. That is essential.
The Countess of Mar: I have a little difficulty with
Amendment No 73 regarding the hours of 9 a.m. to 5 p.m. If an inspector called
at our farm between nine and five on a Monday to Thursday, he would find no one
there. I am here and my husband is teaching. If he called on a Friday that would
be all right because I would be there. We should allow for more flexibility.
There are many farmers, particularly small farmers such as my husband and
myself, who need to earn their bread in other places. I hope that the noble
Baroness will accept that in relation to her amendment.
I wait to hear what the Minister has to say on the other amendments.
Lord Jopling: If the noble Countess, Lady Mar, is
going to be at her farm by nine o'clock tomorrow morning—Friday—she either will
have a late-night drive or will have to get up very early in the morning in
order to get there. That is a matter for her.
25 Jul 2002 : Column 659
I am a little bothered about this business of entry. Subsection (2) of
proposed new Section 36G talks about subsection (1), the power that states:
"An inspector or a constable may at all reasonable times enter any
premises for the purpose of".
I am bothered by what follows, namely, that that will not apply,
"to premises used only as a private dwelling-house unless 24 hours' notice
of the intended entry is given to the occupier".
Can the Minister say what exactly is meant by "only as
a private dwelling-House"? There are awful problems here. One can understand the
basis of subsection (1) which talks about entering any premises. That is
presumably what would be regarded as a farmhouse, a farm office or going into
the buildings or fields where livestock are kept. But I do not understand why a
farmhouse, which presumably is covered, should be treated differently from a
domestic dwelling-house which may be attached to the farm.
Many farms have a
bungalow attached to them where perhaps a farmer's son or a farmer's widowed
mother lives. It is not classified as a farmhouse. Both—the son or the widowed
mother—might do the books and keep all the accounts.
I do not see how one differentiates between premises in
subsection (1) and private dwelling-houses in subsection (2). We really should
know what is the definition of a private dwelling-house which is only used as a
private dwelling-house. Does that mean someone living in a house which is
private who has no connection with the farm except through being employed to
look after the books and the farm office in premises separate to the farm? It is
confusing. I do not understand why one has to make the difference. Therefore, I
do not see why 24 hours' notice cannot be given in all circumstances covering
both subsections (1) and (2).
It would be much more satisfactory to state that entry could be obtained
between 9 a.m. and 5 p.m. on Monday to Friday, provided that 24 hours' notice
had been given. I do not think that in any such cases, people would hide or
destroy evidence if they were given 24 hours' notice or need the mystery call in
which someone knocked on the door unexpected and demanded entry. Unless the
Minister can explain it, I do not understand why it is necessary to mount
unexpected raids on farm premises for those purposes.
Lord Whitty: On Amendment No. 73, I find it slightly
ironic that we are discussing reasonable times at this hour of the night. The
noble Countess says that what are reasonable times for one person are not
necessarily so for others. A certain amount of judgment must be exercised by
inspectors according to the premises and the normal pattern of work and living.
The terms "reasonable times" and "reasonable hours" are used in much
legislation—most notably, as an equivalent to this provision, in the Food Safety
Act 1990. Such provision is appropriate here, and pinning down the hours to nine
to five is too prescriptive and could in some circumstances be
25 Jul 2002 : Column 660
I do not fully follow the concern of the noble Lord, Lord Jopling, about
why we should treat dwelling houses differently from other premises. It is
reasonable that they should be treated with some greater respect. I think that
what he is really objecting to is no-notice appearance anywhere. But almost all
forms of inspector have some rights to turn up without notice. The main
exception that we propose to that relates to premises that are used as dwelling
Amendment No. 74 is about evidence of authority. Indeed, all of the rest of
the amendments concern how we enforce the power of entry. I have already said,
but I repeat in response to this group of amendments, that I will consider how
those provisions are expressed to see whether they can give less of an
appearance of being draconian and demanding that everything be treated as an
However, some of the amendments are spurious. Amendment No. 74, for
example, demands that constables or inspectors must show evidence. The
regulations under which that procedure will be carried out already requires them
to show evidence of their authority. Amendment No. 76 is, again, too
restrictive. It would substantially change how warrants generally are dealt
with, as well as limiting how we enforce this part of the Bill.
Amendment No. 77, which deals with representation, would also alter the
general procedure for warrant provision. We must be careful, if we are using a
procedure that is well known and understood, that we do not impose
qualifications on it. For example, if people are worried about civil liberties
issues in this respect, for the record, the report of the Joint Committee on
Human Rights concluded that the procedure is fair. It is always possible for the
person affected to take the matter direct to the High Court to seek an
injunction to block a warrant. If we remove or place too great a restriction on
the warrant procedure, we are effectively saying that the only way that it can
be enforced is to go to the High Court in the first place. That would place too
onerous a burden on the enforcers.
Amendment No. 80 relates to the signing of warrants. The regulations
relating to warrants mean that a time-limited warrant must be signed if it is to
have effect. It must also confirm an expiry date. That is already covered in the
general provisions on warrants. Some versions have greater precision.
Some of the anxieties that lie behind the amendments are misplaced.
However, I take the point that we ought, perhaps, to consider the powers of
entry in toto, as I said.
Baroness Byford: I am grateful to the Minister for
that response and for his willingness to consider the amendments again.
With regard to Amendment No. 74, I do not understand why we need the phrase
"if required" in the Bill. Anybody calling on one's property—be it the gas man,
the water man or a policeman—will always be asked for some proof of identity. I
cannot see why the
25 Jul 2002 : Column 661
words "if required" should be in; surely, it will happen automatically. I
am intrigued by that issue, but it is a thought for another time; I am not
particularly worried about it now.
I take the points made by the noble
Countess, Lady Mar, about the timing of visits to farms. On some farms, it will
be a job to find somebody in at any time. However, it is unreasonable to call in
the middle of the night, as, unfortunately, happened during the outbreak of foot
and mouth disease. I know that this part of the Bill does not relate to foot and
mouth disease, but I hope that we will have a more robust discussion about such
things in the autumn, when we cover that issue. The Bill gives powers of entry
and grants warrants about which the ordinary member of the public, on whose land
the inspectors are to impose themselves, has no form of recourse. There is
nobody to stand up for the public. People will arrive on someone's doorstep, and
there will be nobody there to defend that person. That is not right, and I am
glad that the Minister is to consider Amendment No. 77.
With regard to Amendment No. 79, I know that the warrants must be dated. I
will need to read Hansard, but I think that the Minister said that they would
give the expiry date. I want to ensure that the warrant includes the date on
which it was issued, not just the date on which it will run out. Perhaps I did
not make that clear.
I am grateful to the Minister for accepting that the provisions in this
Part may be too draconian—that is the right word. The Government have recognised
that and will give the matter further thought. We are all anxious to encourage
people to help eradicate scrapie. On the other hand, we must protect people's
lifestyle. There is nothing more frightening than having someone call after
dark, as happened to me the other night. They were not there for anything to do
with scrapie. These days, people in the country hesitate to open their door
When the Minister is considering additions to the Bill, he should think
again, in particular, about the section that suggests that 24 hours' notice be
given. It seems sensible to give such notice, regardless of whether it is a
visit to a dwelling-house or a general visit. As my noble friend the Duke of
Montrose said, quite a few dwelling-houses are also used for businesses, and
some of the outhouses are used for businesses and might be the office to which a
person might wish to go. There are aspects of this part of the Bill that the
Minister will need to consider. I am grateful to him for offering to do so. I
beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 74 to 80 not moved.]
Lord Whitty moved Amendment No. 81:
Page 19, line 2 , at end insert—
"(b) such equipment as he thinks necessary."
The noble Lord said: This amendment is needed to make it expressly
clear that inspectors will be allowed to take on to the premises any equipment
25 Jul 2002 : Column 662
need to carry out their tasks. One could say that it may be presumed that
an inspector would carry the relevant equipment. However, in theory, there is
potential for dispute about that. This amendment is therefore necessary to
clarify the position. I beg to move.
The Countess of Mar: Will the Minister
tell us what kind of equipment he anticipates will be necessary? Is it
handcuffs, shovels and spades, halters for animals or whips?
Lord Whitty: The noble Countess is letting her
imagination run riot. What we have in mind is equipment
necessary to carry out the tasks: blood; tubes; needles; syringes; possibly
vaccines; identification kits; and, in the case of slaughter, guns and apparatus
with which to dispose of the animal. It would be equipment relevant to the task
Lord Greaves: If it is relevant to the task, why does not the amendment say so?
On Question, amendment agreed to.
The Duke of Montrose moved Amendment No. 82:
Page 19, leave out lines 3 to 5.
The noble Lord said: In speaking to this amendment, I shall speak also to
Amendment No. 84.
Amendment No. 82 deals with the requirement to give
assistance. It is somewhat unfortunate that I have to move Amendment No. 82
before the next amendment, tabled by the Minister, which refers to any person
who falls within subsection (3A). My lack of expertise in the drafting of
amendments means that I spent a little time hunting around for Section (3A). I
looked through the 1981 Act, which is what we are amending, and I could not find
it in there. It is probably to be found in new Section 36H of the current
amendments, which concerns people who are refused entry. It would be slightly
odd to force someone to assist who had been refused entry.
The amendment offers two ways of getting around the fact that one cannot
always legislate for the health and ability of human beings. It is possible that
some of those on the farm premises may be sick or infirm, may have a broken leg
or may be visitors who have an allergy to sheep and therefore would not want to
become involved. In view of the fact that they could be charged with refusing to
give assistance, something needs to be said about evaluating their abilities
before they are asked to give assistance.
Another question that has exercised my mind is: who will be liable for
injuries or losses on the premises when the inspector requires various works to
be done? Injuries are certainly liable to happen with cattle. We are not dealing
with cattle here, but I can think of some black-faced rams that could cause a
very nasty injury. The other question relates to whether there are sufficiently
good handling facilities, so that people are not left to chase animals around
I feel that it should be possible for the inspector to assess the abilities
of personnel on the premises and their willingness to participate. He also has
25 Jul 2002 : Column 663
to add as many other persons as he thinks fit. Therefore, the present
wording of the Bill does not quite fit with what would be practical.
also interesting to ask whether the authorities should be paying those who give
assistance. The inspector will have to pay those who he brings with him. Here we
are talking not about testing and evaluating but about the enforcement of
warrants. I beg to move.
The Deputy Chairman of Committees (Lord Brougham and Vaux): I have to
advise the Committee that if Amendment No. 82 is agreed to, I cannot call
Amendments Nos. 83 to 85 inclusive.
Lord Whitty: It might be for the convenience of the
Committee if, in responding to the noble Duke's amendment, I speak to my
Amendments Nos. 83 and 86. They relate to some of the problems referred to by
the noble Duke and they address concerns expressed in another place in line with
what he has said.
My honourable friend Elliot Morley said that we would look at the matter.
We are sympathetic to the suggestion of whether, for the sake of clarity, the
powers of requiring assistance should be limited to the owner or the keeper of
the animals, or persons under their control. Therefore, other members of the
family, bystanders and visitors would not be covered by any requirement to
assist the inspector. Likewise, the requirement in the original draft that the
inspector would deem what was necessary for his needs should be replaced. Our
Amendment No. 85 deals with what is reasonably required instead of what the
inspector decides he reasonably needs. That goes a long way towards meeting the
The Countess of Mar: I am a little concerned about subsection (3A)(c)
of Amendment No. 86. The words "under the direction or control" are used. Why
not say "in the employ of" or "assisting the person mentioned with his stock"?
Who controls people these days? It is strange terminology and I would ask the
Minister to look at it again.
Lord Whitty: I will look further at it.
Lord Greaves: We on these Benches welcome the change of wording from
the Government. The idea that the vicar turning up for Sunday tea or a rambler
walking across a footpath could be roped into assist in the activities is of
concern. The provision is welcome as it is much more sensible.
However, I want to press the Minister on the words,
"under the direction or control of a person mentioned ... ".
He said that it would not include the person's family, but children are
clearly under the control of their parents. Can he give a clear assurance that
the wording would not include, for instance, 13, 14 and 15 year-old children who
ought not to be involved in the slaughter of livestock.
Lord Whitty: If the noble Lord thinks that 13, 14 and 15 year-old children
are under control, his is a different
25 Jul 2002 : Column 664
experience from mine. Nevertheless, in response to the noble Countess, I
have undertaken to consider whether the wording is right.
The Duke of Montrose: I thank the Minister for his response to the
amendment. I believe that 13, 14 and 15 year-old children are the very ones you
would want to chase the animals to get hold of them. The younger ones might be
A person's ability should be included in the provisions. A person should
not be liable merely because he is present. I can think of many occasions in my
part of the world when some old boy of about 85 takes great delight in checking
the sheep every day and reporting back. If he thought that the sheep were being
taken in and inspected for some purpose, he might want to watch. He would then
be asked to assist and if he did not he would be infringing this part of the
Bill. The tractorman might have broken a leg the day before, so there needs to
be a little flexibility in the measure.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty moved Amendment No. 83:
Page 19, line 3, after "premises" insert "who falls within subsection
On Question, amendment agreed to.
[Amendment No. 84 not moved.]
Lord Whitty moved Amendment No. 85:
Page 19, line 4, leave out "reasonably needs" and insert "may
On Question, amendment agreed to.
Lord Whitty moved Amendment No. 86:
Page 19, line 5, at end insert—
"(3A) The following persons fall within this subsection—
occupier of the premises;
(b) a person appearing to the inspector to have
charge of animals on the premises;
(c) a person appearing to the inspector
to be under the direction or control of a person mentioned in paragraph (a) or
The noble Lord said: I beg to move.
Baroness Byford: I do not propose to speak to Amendments Nos. 87, 88
and 90. The hour is late. I think that it was the noble and learned Lord the
Leader of the House who said yesterday that debates beyond 10 o'clock are really
not worth while. I shall want to debate the matter more fully.
On Question, amendment agreed to.
[Amendments Nos. 87 to 90 not moved.]
Lord Whitty moved Amendment No. 91:
Page 19, line 26, leave out "Minister" and insert "Secretary of State"
On Question, amendment agreed to.
25 Jul 2002 : Column 665
[Amendments Nos. 92 and 93 not moved.]
Lord Whitty moved Amendment No. 94:
Page 19, line 30, after "make" insert "an order or"
The noble Lord said: New Section 36L of the Bill provides for any
regulations to be exercisable by statutory instrument and subject to
parliamentary scrutiny under the negative procedure. The amendment extends that
power so that it applies also to orders made for the same purpose. I think that
that objective will be welcomed by the Committee. I beg to move.
Question, amendment agreed to.
Baroness Byford moved Amendment No. 95:
Page 19, line 35, at end insert—
""assessor" means a person holding a veterinary qualification and farm
animal experience but who is neither a civil servant nor a government employee;"
The noble Baroness said: The Minister indicated that he will return to
the issue of assessors. I do not need to add more. I am happy to accept his word
that he will consider the matter.
Perhaps I may speak to Amendment No. 95A. It is important. I hope that the
Minister will consider the matter. As the noble Lord will have gathered from the
debates today there is great concern about achieving a balance between the
eradication of scrapie and allowing a natural period of time. I shall refer to
the matter more fully on Report. Perhaps the Minister will indicate that he is
also willing to consider this issue. I beg to move Amendment No. 95.
Lord Whitty: Amendment No. 95 is covered in my
undertaking to look at the whole issue of appeals and
25 Jul 2002 : Column 666
assessments. With regard to Amendment No. 95A, I appreciate the brief
explanation given by the noble Baroness in moving it. Indeed, I am grateful to
all Members of the Committee for ensuring that we have finished this allocation
of the Bill during the course of the day. We should all feel gratified that we
have done so.
Returning to Amendment No. 95A, I cannot quite give the noble
Baroness the degree of comfort that she seeks. I must indicate that to constrain
ourselves to such a time-scale at this stage is something that I would resist.
Baroness Byford: I do not seek to tie the Minister
down to the amendment. I seek only his assurance that he is willing to take this
away and at least consider how a balance between the voluntary programme and
pushing forward with the scheme might be discussed further on Report.
Lord Whitty: I am certainly prepared to look again at
the balance between the practicalities and speeding up the programmes. In
principle we shall be able to return to the matter.
Amendment, by leave, withdrawn.
[Amendment No 95A not moved.]
Schedule 2, as amended, agreed to.
Lord Grocott: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at five minutes past midnight.