Greater powers for officials is not a matter for rejoicing

Helen Szamuely

Much heat has been expanded on the latest government TSE regulations, SI843, which was put before Parliament on March 27 and came into law on April 19. Perhaps a little light is needed. The statutory instrument, a piece of delegated or secondary legislation, that is not usually subject to debate in Parliament, consisted of two main parts, though it was broken up into several sections. The uncontentious part was a consolidation of a number of previous regulations to do with BSE and its supposed causes. The relevant sections dealt with MRM, removal of spinal cord, ban on bonemeal in feed and so on. Although the assumption that BSE causes vCJD has never been proved scientifically and despite the existence of other theories of the cause of BSE itself, there would have been no argument if the statutory instrument had stopped there.

What worried a number of people who read the 220 pages of the regulation was the section dealing with TSE monitoring. Supposedly these sections merely detailed how the relevant EU Regulation 999/2001, which the UK cannot reject in any case, would be put into effect. However, it became clear that the statutory instrument went much further than the EU regulation in some crucial matters. The EU regulation, for instance, speaks of the need to monitor animals suspected of having TSE or suspected of having been in contact with TSE. The monitoring and testing would be done after slaughter. Nothing wrong with that. The statutory instrument, on the other hand, refers repeatedly to "TSE susceptible" animals and explains that all animals, up to and including fish, are classed as such. The one exception, for no apparent reason, is the canine. As there is no known test for TSE on living animals, all those deemed to be susceptible, would have to be slaughtered. The inspectors thus acquire very extensive powers and there is virtually no appeal for the farmer or animal owner. Since all animals are deemed to be TSE susceptible, pets are at risk as much as livestock. Powers of entry given to inspectors were exactly the ones that disturbed people who read the Animal Health Bill, which, pace Lord Whitty's pronouncement on Farming Today, dealt with scrapie as well as foot and mouth. One cannot quite escape the suspicion that, having failed to pass the Bill, DEFRA is putting the same provisions into a regulation.

The problem is that these two sections, one contentious, one not, are lumped into one statutory instrument, which cannot be amended, only rejected. So the Government, by harping on the uncontentious part and on the importance of having BSE regulations in place, could overcome the worries raised by the more contentious aspects. In fact, it would not have mattered if the statutory instrument had been annulled by a vote in the House of Lords. There is nothing to prevent the Government from bringing another statutory instrument back the following day, this time dealing only with the necessary rules that are there to prevent the spread of BSE, and putting it into effect immediately. The spectre of a country without any regulations that control a devastating disease, raised intentionally by the Minister, Lord Whitty, was just that: a spectre. It seems to have fooled a number of people inside and outside the House of Lords.

We are now saddled with a statutory instrument that gives draconian powers to DEFRA officials and various inspectors; that prattles blithely about TSE susceptible animals, though scientists still do not know enough about the different types of scrapie and how they interrelate; that has introduced complicated and contentious legislation with the minimum of debate and information. The amendments to the motion of Prayer (the way a negative statutory instrument can be annulled in the House of Lords), which call on the Government to introduce further regulations to lighten the burden imposed on farmers and animal owners by this one may have been accepted by the Minister but neither he nor anyone else is under any statutory obligation to carry out the half-promises proffered during the debate. Given that in his speech the Minister skated over the difference between suspect and susceptibl, insisted that only bovines, ovines and caprines are included in the statutory instrument, which is at odds with the actual text and suffered a further lapse of memory on Farming Today, when he insisted that the Animal Health Bill had deal with FMD only, not too much can be expected from the reluctant promises to make things better.

So why should any of it matter? In the first place, the actual regulations will make life very difficult for many farmers and other animal owners. The vagueness of definition coupled with the stringent powers given to inspectors do not bode well for anyone who happens to have animals around for whatever reason. But there is another aspect to the whole issue. Farmers, owners of livestock, owners of pets, none of these people can ignore the constitutional problem. Legislation without debate, without discussion, through regulation and relying on misleading information affects us all and diminishes us all.