TSE (England) Regulations 2002

8.34 p.m.

The Countess of Mar rose to move, That an humble Address be presented to Her Majesty praying that the Regulations, laid before the House on 27th March, be annulled (S.I. 2002/843).

The noble Countess said: My Lords, it is with a sense of sorrow that I table this prayer to annul the TSE (England) Regulations 2002. They were laid on 27th March 2002 and came into force on 19th April. Before we go any further, I should like to reassure noble Lords who are under the impression that it is unconstitutional for Members of this House to vote on a prayer to annul a statutory instrument that, while it is not done very often, there is no constitutional bar.

My concerns are serious concerns. We, in this House, as well as in another place, must ensure that the laws we make are compatible with the laws already on the statute book; that they are reasonable and proportional. I am not satisfied that these regulations meet those responsibilities. I am also certain that they are seriously over-prescriptive.

I declare my interests. My husband and I have a small herd of pedigree Blonde d'Aquitaine cattle, a flock of pedigree Black Welsh Mountain sheep and a herd of dairy goats. I have had an interest in animal health for many years and the Minister knows that the sheep were blood tested only yesterday under the voluntary scrapie scheme.

I have absolutely no political axe to grind, nor am I seeking vengeance for any act of this Government against the farming community. It is all very well for the Government, the Minister, or officials from DEFRA to say that most of these regulations have already been on the statute book. They may well have been. They may well have slipped past the parliamentary defences as these regulations very nearly did. That does not mean that they make good law. We are now looking at this particular piece of legislation, not what has been. Having almost accidentally discovered what I believe are serious flaws, I believe that we should now get it right.

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I wrote to the Minister last week to outline my concerns. He replied with what I believe is a genuine attempt to reduce those concerns. Instead, unfortunately, he has increased them. He informs me that,


    "The TSE controls have been developed largely to protect the public".

Despite the millions of pounds that have been poured into research to prove that human variant CJD is caused by eating beef, there is still no conclusive evidence that that is so. There is no shred of evidence that sheep have ever had BSE. Indeed, there is no conclusive evidence that BSE is caused by cattle ingesting meat and bone meal or even that BSE is infectious. But that is not the point of my argument tonight.

I accept that meat must be put upon the bones of Regulation (EC) No. 999/2001 and its subsequent amendments. As the Minister said in his reply to me,


    "Whilst Community legislation is directly applicable, it does not say how key objectives in relation to public and animal health should be achieved".

Is it a "key objective" to hold the sword of Damocles over the heads of millions of animal keepers? I am sure it was not the Minister's objective. But he must understand that that is what those regulations do.

I have scoured Regulation (EC) No. 999/2001 for mention of animals other than bovines, ovines or caprines—cattle, sheep and goats for the uninitiated. The only reference that I can find is in an amending regulation, (EC) 270/2002, Annex 1 Chapter B, headed: "Information to be presented by Member States in their report". Paragraph 9 states:


    "Positive TSE cases confirmed in animals other than bovine, ovine or caprine animals".

Article 6 of the EC parent regulation orders an annual programme for monitoring BSE and scrapie, the details of which are laid down in the amending Regulation (EC) 270/2002. Each member state is also required to inform the Commission and other member states of the emergence of a TSE other than BSE. Part II of those regulations details the authority and powers of an inspector, ostensibly to carry out the monitoring functions under Article 6.

Article 6 and the amended Annex 3 make no mention of an inspector,


    "entering any premises (excluding premises only as a dwelling)",

to carry out the functions listed in paragraph 4(2)(a) to (n) of our regulations.

First, most farmhouses contain a farm office. So the inspector could, by law, have access to any farmhouse where there is an office because it is not used only as a dwelling. Secondly, there is no definition of a "TSE susceptible animal", despite the Minister's assurance to the Joint Committee that the definition was in the EC regulation. The EC regulation gives a definition of


    "an animal suspected of being infected by a TSE".

That is not a TSE-susceptible animal and it specifically excludes humans.

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For some inexplicable reason, dogs are excluded from the TSE (England) Regulations 2002, when all other animals, birds and fish are not. Why the distinction, and where is the authority? Are all those creatures, except dogs, TSE-susceptible? I understand that scientists have tried in vain to produce a TSE in pigs. Why are not pigs excluded? How is the alpaca keeper to know whether the inspector is right when he is ordered to lock up his animals? I am sure that all noble Lords will agree that there is a difference between a TSE-susceptible animal and an animal suspected of being infected by a TSE.

To put it plainly, paragraph 4(2)(k) gives the inspector power to kill any number of healthy animals that he thinks are susceptible to a TSE and, if the owner argues the toss with him or he thinks that the owner may do so, under paragraph 4(4), the inspector can take himself off to a justice of the peace to obtain a warrant to force the owner to comply. There is no provision for appeal. I have put that simply, but that is the essence of this part of the regulation. That is what we all objected to so much in the Animal Health Bill.

We then come to paragraphs 4(2)(l) and (m). They give an inspector the right to examine and take copies of,


    "any record, in whatever form the record may be held",

and to,


    "have access to, and check the operation of, any computer and any associated apparatus or material which is or has been used in connection with any record".

The inspector can require,


    "any person who has charge of or who is otherwise concerned with the operation of the computer, apparatus or material to afford him such assistance as he may reasonably require and, where a record is kept by means of a computer, may require the records to be reproduced in a form in which they may be taken away".

That is an extraordinarily draconian measure to enforce Chapter 6 of the EC regulation. I remind noble Lords that that chapter refers to monitoring of slaughtered or already dead animals for BSE or scrapie if they are cattle, sheep or goats or of any other dead animal that has died from a suspected TSE.

Many farmers now keep their personal business records, such as bank account details and addresses on their computers. Whether or not those powers are ever used, I suspect that they infringe the right to a personal and family life under the Human Rights Act 1998 and that the Data Protection Act 1998 will also be infringed. If we are to pass legislation, do we not have a duty to ensure that it will not immediately lead to legal proceedings under superior legislation?

I have covered only three pages of a 221 page document. I have read all the other pages and have repeatedly felt that the legislation should be in the form of a Bill that can be thoroughly debated. Your Lordships may think that this is just another whinge by a farmer. I wonder whether they realise that, while the regulations' principal targets are farmed animals, there is nothing to stop an inspector from entering a garden where one may keep a carp in a pond, ferrets in a shed, pigeons in a loft or grandchildren may have a rabbit in a hutch. Cats are not safe either, if they are outside a dwelling.

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I note the amendment to my Motion tabled by the noble Lord, Lord Livsey of Tolgarth. I assume that he knows that nothing can be achieved by tabling a Motion to amend a statutory instrument, which is what his amendment will do if it is agreed to. A statutory instrument can only be annulled. If noble Lords agree to his amendment, sadly, I must assume that they are happy for our parliamentary system to be brought into disrepute and for our freedom to be drastically eroded.

The Minister, in his manuscript amendment to the amendment tabled by the noble Lord, Lord Livsey, is clearly trying to meet one of my concerns, but his amendment will have the same effect as that of the noble Lord, Lord Livsey. The Minister seems not to have grasped my concern about the constitutional and procedural aspects of the statutory instrument.

Various spurious arguments are being circulated about the effect of a vote in favour of my Motion. Scientists say that it will destroy all that they have built up over the years since BSE erupted in our cattle. The National Farmers Union protests that consumer confidence in British meat would immediately collapse and that our export market would be destroyed. When did we hear that before? Today, the Minister published a statement to the effect that the Government will be left without any powers over BSE and scrapie monitoring, prevention and eradication. He said:


    "People who knock this SI are totally misguided. They run the risk of dismantling long-standing, evidence-based BSE controls of paramount importance for public and animal health".

In my opinion, that statement is, to say the very least, disingenuous.

Section 5 of the Statutory Instruments Act 1946 provides for the annulment of statutory instruments by resolution of either House of Parliament. If this House resolves that,


    "an humble Address be presented to Her Majesty praying that these Regulations be annulled, no further proceedings shall be taken thereunder after the date of the resolution".

I understand that that means that the regulations continue in existence but cannot be enforced and that any earlier, revoked regulations are not revived. I accept that the effect of that would be that no controls would be in force. However, I also understand that the courts could be expected to interpret the 1946 Act in such a way as to lead to a satisfactory state of affairs. They may well hold that the revocation of the earlier instruments was, in effect, suspended. My Lords, from my point of view, the most satisfactory solution would be for the noble Lord the Minister to make new regulations that take into account our reservations as quickly as possible. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the Regulations, laid before the House on 27th March, be annulled (S.I. 2002/843).—(The Countess of Mar.)

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8.47 p.m.

Lord Livsey of Talgarth rose to move, as an amendment to the Countess of Mar's Motion, to leave out from "That" to the end and insert—

"this House calls upon Her Majesty' Government, in relation to the regulations laid on 27th March (S.I. 2002/843):

(a) to give an undertaking that the period of time in which a veterinary inspector issuing a notice of intended slaughter shall permit representations to the Secretary of State shall be no less than seven days;

(b) to consider bringing in further regulations setting up an independent appeals adjudicator nominated by the British Veterinary Association; and

(c) to keep the regulations under review in the light of scientific and technological developments relating to TSE."

The noble Lord said: My Lords, first, I congratulate the noble Countess, Lady Mar, on the well-informed concern that she displays—she has a record of that in animal health over a long period. I agree with her that governance by statutory instrument is unsatisfactory and governments of all persuasions increasingly use that device where primary legislation should be used. This statutory instrument is of great importance and the fact that it is 221 pages long is evidence of the detail that it contains.

The debate is balanced between the right of the public to be protected and the right of producers and their animals to receive just treatment. That is a finely balanced argument that must be weighed up in the legislation. There is no doubt that many people—myself included—feel that the provisions in the statutory instrument for livestock breeders and producers tend to be over the top and gold-plated, with stringent provisions for the immediate slaughter of TSE-susceptible animals, entry to holdings and the forced removal of records from premises. In many respects, they replicate the powers of the Animal Health Bill, which was recently defeated in your Lordships' House.

In particular, there appears to be no provision for farmers and livestock breeders incidentally to appeal against an order by an inspector to slaughter animals. In my view, that infringes the rights of livestock producers and, as this is secondary legislation, there is no statement to proclaim that the instrument complies with the European Convention on Human Rights, which is incorporated in UK legislation.

Therefore, in my amendment I call for three measures to protect the rights of livestock keepers affected by the statutory instrument. The most important is contained in paragraph (b) of my amendment, which would allow for the nomination by the British Veterinary Association of an independent appeals adjudicator who can fairly assess and judge the issues without prejudice or influence from the Secretary of State. I have discussed the matter with the British Veterinary Association, which believes that such a mechanism could be put in place. Farmers and

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stock-owners would at least have more confidence that they were being fairly treated in the situation with which they may be confronted.

Paragraph (a) of my amendment refers to seven working days, to allow sufficient time for proper informed representations to be made. The Minister's manuscript amendment would take away that timescale. Why? Do the Government require more flexibility with regard to time? How will they ensure that representations can be made against a notice of slaughter? The fact that TSE is not infectious, animal to animal, must be relevant. The situation with foot and mouth disease is entirely different, as it is highly infectious animal to animal and requires immediate action. There are clear differences between the two situations.

If more flexibility is required, have I unearthed a loophole by which the provisions for TSE can be applied to foot and mouth disease? That would bring us back to square one and the slaughter provisions of the Animal Health Bill that were opposed by most Members of the House. The time allowed for representations is a crucial acid test of the Government's integrity and their intentions for the statutory instrument. I require a definitive time limit, unless the Minister can persuade me otherwise. The reasons had better be good.

Paragraph (c) of my amendment refers to the never-ending march of technology. The scientific study of the diagnosis of BSE in cattle and scrapie in sheep is moving fast. This part of the amendment would allow the Minister to review the regulations in the light of developments.

A distinction must be drawn between the objectives of Statutory Instrument 2002/843 in controlling the effects of TSE on animal and human health and the means deployed to control the disease through the slaughter of TSE-susceptible animals. Such animals may or may not be carriers of TSE. In the case of scrapie, "susceptible" may mean only that the sheep carries a certain gene. There is an argument about destroying animals with a suspect gene. The concern of many sheep breeders is such that they believe that other desirable characteristics of the gene that may be worth preserving may be lost for ever.

The only real proof of TSE comes from tests carried out on the brains and specified risk materials of dead animals, hence the slaughter policy in the statutory instrument. The TSE monitoring provision in Part II, paragraph (7) of the statutory instrument which refers to animals on farms gives cause for concern about the powers that the Government require. Those fears were best expressed in a briefing note prepared by the British Veterinary Association. The association said:


    "While the British Veterinary Association is supportive of any measures designed to protect animal and human health, we do seek Government reassurance as to the way in which these Regulations are to be implemented, not least since the SI contains wording seemingly identical to that contained in the Animal Health Bill introduced (and lost) earlier this Session.

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    The BVA has noted that in the definition of livestock, equines now appear. These are not subject currently known TSE and this could be seen as setting a precedent insofar as future legislation is concerned.


    The BVA is also concerned to note that the new Statutory Instrument includes powers to slaughter 'any TSE-susceptible animal', while, to our knowledge, the EU regulations mention only suspected and infected cases.


    The BVA can but ask whether the SI as drafted is in the spirit of the EU legislation or has it been added to—the wording concerning powers, penalties, etc. is all too reminiscent of the wording contained in the Animal Health Bill—and whether other member states will be introducing similar legislation".

That is a reasonable question to put to the Minister.

The most important points include the fact that there is no independent appeal allowed by the statutory instrument. My amendment would redress that inequality. Secondly, the seizure of livestock or the property of livestock breeders and keepers would have an impact on the farmers' human rights. That is an unsatisfactory state of affairs and there should be adequate redress in the form of an independent appeal. Thirdly, possibly forcing the owner and his staff to participate in the slaughter of their own animals is a highly undesirable state of affairs. Anyone who has kept animals will know that most stockmen could not indulge in such a thing.

There is no clear statement in the statutory instrument that it cannot be extended to cover foot and mouth disease. The Minister must give us a clear statement to that effect. After all, the Animal Health Bill, which allowed for some rather over-zealous methods of disposing of livestock, was defeated. There is no clear specification of the genotype of TSE that might help identify susceptible animals, although that might be found in future legislation relating to scrapie. We cannot see what is meant by "a susceptible animal". That must be spelt out.

The noble Countess, Lady Mar, mentioned her fears about Part II, paragraph (7), sub-paragraphs (1), (2) and (3) of the statutory instrument. Those provisions are of concern to me, too. Provided that the Government accept the kind of redress suggested in my amendment, we can overcome some, if not all, of the fears that have been expressed tonight. At least, it would create a better balance between the rights of the public to receive clean, safe food and the rights of the producers to protect their living, their animals and their way of life. I beg to move.

9 p.m.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty) rose to move, as a manuscript amendment to Lord Livsey of Talgarth's amendment, to leave out paragraph (a) and insert––


"(a) to give an undertaking that they will consider ways of ensuring that representations can be made against a notice of intended slaughter issued by a veterinary inspector;".

The noble Lord said: My Lords, I need to explain the use of the slightly unusual procedure in tabling a manuscript amendment in what is already an unusual procedure for this House. The substantive reason for

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tabling the amendment is that I recognise that in the original amendment moved by the noble Lord, Lord Livsey, there are some real concerns about the regulations. Some of them were echoed in the contribution of the noble Countess, although in what she said and in what has been stated outside the Chamber there have been bizarre and wild allegations as to what the regulations are trying to do.

I recognise that the noble Lord, Lord Livsey, seeks to address the concerns in a constructive way which the Government can understand. However, paragraph (a) of his amendment could be both damaging to the disease control and to the industry, and it does not recognise the process as it exists. I therefore believe that our formulation is better. I shall deal with that in detail in a moment.

Before doing so, it is probably appropriate in moving the amendment to indicate the Government's general approach to the prayer to annul. I therefore need to address some of the allegations and assertions made by the noble Countess and the noble Lord and explain what the regulations would do and what would be the effect of not passing them.

First, the regulations are about TSEs and not about anything else. In response to the noble Lord, Lord Livsey, it is not about foot and mouth. Nor is it about any other disease. It is about TSEs and everything in it relates to the EU directive relating to TSEs. The regulations are about consolidation of previous UK controls and consistency with the new EU measures. Those measure substantially mirror our own and were adopted because, for obvious and tragic reasons, the UK was well ahead of the rest of Europe in establishing a regime of BSE and TSE controls. We are therefore proposing consolidation and consistency, not in any sense radical change.

In virtually every area, the regulations simply continue the robust package of enforcement powers which already exist. The powers are needed to back up key controls already in place to protect human and animal health from vCJD and BSE.

While the regulations reflect the increased testing programme for TSEs that is required by the EU regulation, there are no new slaughtering requirements in the regulations. Therefore, the references by the noble Lord, Lord Livsey, to the TSE requirements to implement the national scrapie plan are not relevant here. There are no further slaughter powers in the regulations.

Our surveillance, to which most of the regulations relate, is to use and test animals which are already dead or on the point of being slaughtered, or if they are casualties or fallen stock. That very much follows the line of surveillance and monitoring we were already pursuing and the line required by the EU. In terms of consistency, Part IV, of which the noble Countess read out significant sections, in no way materially differs from what is in the existing regulations. Let us therefore be clear that the regulations are about consolidating an existing position.

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However, for reasons put by the noble Countess, it is important that the choice before the House today is either to support the regulations or to have no regulations in place. That would destroy a framework which we have established here and which has been very effective in reducing the incidence of BSE and which has been adopted by the EU for its approach to BSE controls across the Union as a whole. If these regulations fall, we will be in a very serious situation indeed. Previous legislation will no longer be in place; there will be no controls; people will be exposed to health risks from meat potentially contaminated with SRM; animals will not be protected from infected feed; and BSE could escalate.

I am sure that that is not the intention of the noble Countess or of those who support her, but it would at least for a period be the situation. That is why those bodies which are concerned about the regulations have expressed their alarm at the possible implications if your Lordships were to agree to the prayer and annul the regulations. The Food Standards Agency, for example, this morning stressed that the controls against BSE are vital and if the prayer were successful not only would the new controls cease to be applicable but it would be impossible to reinstate many of the measures previously in place.

Such a scenario would leave a serious gap in our control framework. It would, for example, immediately throw into jeopardy the right of the Meat Hygiene Service to prosecute for failure to remove specified risk material from animals at slaughter houses. That would represent a significant risk to public health. SRM controls are estimated as removing 95 per cent of infectivity.

Likewise, the National Farmers Union has made its position clear. Its advice and that of the Government is that voting down the regulations would have the effect of suspending existing BSE controls. If that occurred, even for a short period, says the NFU, it would be very damaging to British agriculture and to the public interest. Therefore, both those who are regulating and the industry are concerned about the effectiveness of the controls.

The regulations have two clear objectives. First, they bring together the key controls which exist and, secondly, they reflect the need to transpose EU directives. The other implication of voting down the regulations today would be that we would be in danger of infraction proceedings from the EU at a time when we are trying desperately to re-establish confidence in British livestock and British meat. That would be a bizarre outcome as the EU has adopted effectively the British approach to the controls. The Community provision, Regulation 999/2001, which was adopted last summer, provides a secure legal basis for such controls.

It is also the case that there was consultation on the regulations. Admittedly, it was shorter than is normally the case but it was a wide consultation with feedback both formal and informal from a wide range of organisations and individuals. No objections in principle were made to these regulations. The only

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significant objection came from some representatives of the abattoirs who were concerned about the costs to them of implementing certain provisions, the direct cost of which is covered by the Government. Therefore there was no opposition.

I should also point out for those who are still following the assertion made in the Daily Telegraph that this is a way of pushing through the Animal Health Bill by the back door, that of course that consultation took place and those regulations existed well before we reached our decision or, indeed, the Animal Health Bill came before this House. So I think that that particular conspiracy theory can be put on one side.

We need a comprehensive framework: the Community framework, the consolidation of our own framework and a full range of surveillance, of specified risk material removal from cattle, sheep and goats, so that consumers are not put at risk.

To some extent the noble Countess let the cat out of the bag in her opening remarks, although she did not then pursue them. From what she said, I do not think that she is convinced that this is in fact a public health risk. There is always an element of doubt in any scientific judgment, but the vast majority of scientists, medical experts and vets have reached the conclusion that BSE is transferable to humans and is the cause of variant CJD. In those circumstances, it would be utterly irresponsible of the Government and utterly irresponsible of this House to force the Government to drop the measures they have put in place to protect public health. Essentially, this is a public health regulation. It is not primarily an animal health or agricultural regulation; it stems from anxieties surrounding public health. The House needs to recognise that.

I turn now to the allegations of gold-plating and of going further than we need to in this area, or at least going further than the pre-existing position. None of that stands up. Let me put it into perspective. In the regulations there are very limited provisions which go beyond the controls previously in place in the UK, but only three such changes have been made. Two of the issues reflect new EU requirements in Regulation 999/2001 and one flows from a recommendation from SEAC, the advisory committee.

The first issue relates to additional EU surveillance requirements, to which I have already referred, for the presence of TSE in sheep and goats and casualty cattle aged from 24 to 30 months. As I have already said, I am sensitive to the concerns of abattoir owners about the costs of this. That is why DEFRA is meeting all the costs. However, we are obliged to put in this additional requirement.

The second provision relates to the vertebral column of Beef Assurance Scheme cattle aged over 30 months, which can be sold for consumption up to 42 months. That material must now be removed and treated as SRM. Bearing in mind the very low BSE risk, the British Government were not particularly happy with this provision in the EU recommendations, but the

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Commission insisted that the provision was necessary. It is in the regulations and we need to transpose it. All other member states are required to remove vertebral column material of cattle aged over 12 months. We have a little longer because of the over-30-months scheme and other provisions pertaining in this country.

The third provision relates to incinerators used to burn SRM. In future the ash must be disposed of by burial at a licensed landfill site. That is the only possible area where allegations of gold-plating could be made in that it is not an EU requirement, but it does meet a specific recommendation made by SEAC. By and large, it reflects existing industry practice.

Those are the only ways in which these regulations make any kind of meaningful difference to the pre-existing regulations already in force. Therefore the exaggerated reaction to these regulations is in no way understandable. Some of the concerns which have been expressed relating to data protection and human rights are covered in the general provisions. We have to be proportionate. The implementation of the order has to be consistent with the Data Protection Act and it has to comply with the Human Rights Act, as does all legislation passed by this Government. It is not necessary to specify that explicitly in orders of this kind. Indeed, it would be a strange precedent were we so to do.

I turn now to the point of my amendment to the amendment tabled by the noble Lord, Lord Livsey of Talgarth, and specifically to why I do not consider the specification of seven days to be appropriate. This relates to the one area where there are slaughter provisions on animals which are suspected of being infected with TSE. In the case of BSE, for example, a seven-day delay—which the noble Lord's original amendment would imply—would be unacceptable in most circumstances. It would mean that we would have to wait for seven days to see whether anyone was going to appeal against the order from the veterinary inspector. That would be particularly difficult were the farmer or livestock owner to be intent on moving the animal. Although some of that could be accounted for by the restriction elements contained in the order, if an appeal were still outstanding then it is possible that the animal might be removed to premises which would not be appropriate. Indeed, so far as concerns the farming industry as a whole, it would rather see such an animal slaughtered as rapidly and as humanely as possible. Therefore the notion of a built-in seven day delay while we wait to discover whether anyone will appeal is inappropriate.

Of course there may be mistakes. After testing, the animal may turn out not to be suffering from BSE or from another TSE disease, in which case the normal 100 per cent compensation is raised to 125 per cent. So there is some protection for the farmer in those circumstances. But the seven-day delay does not seem necessary in order to allow for the kind of representations which the noble Lord and the noble Countess argue should be available under the provisions.

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The current procedure is that if there is an objection to the order to slaughter, the vet will go to the magistrate, the JP, to seek an order. An appeal to the Secretary of State in those circumstances is probably not the appropriate process. We accept that there is an argument for assuring people that there should be some means of making representations. That is why my amendment indicates that we should consider the options of how that process of making representations should be established.

It probably should not be a national appeal system as implied in paragraph (a) of the noble Lord's amendment. Indeed, paragraph (b), upon which he laid considerable stress, suggests that there should be an independent BVA- appointed adjudicator, which would be much more appropriate at the regional or county level. In the interests of speed and efficiency, we may consider that kind of representation to be appropriate in these circumstances.

We have no problem with paragraphs (b) and (c) of the noble Lord's amendment, but I would be grateful if the House were to accept my view that the specification in paragraph (a) is not appropriate. If the House were prepared to agree to that, it would be a useful indication to the Government of how we should implement these measures in practice.

But I repeat, the reaction to these measures is misguided in the sense that it is based on a misapprehension of the amount of change the regulations will achieve. It is also based on a misapprehension in that the human rights dimension, the data protection dimension and the proportionality requirement are already there in every statutory instrument that the House now passes. The prayer to annul should be resisted.

 

The Earl of Caithness: My Lords, can the Minister tell the House exactly how this will work in practice? If the House rejects the amendment of the noble Lord, Lord Livsey, to the Motion of the noble Countess, Lady Mar, how will the Minister's manuscript amendment come into effect? How will he implement the good will that he has shown in giving this undertaking that is not in the statutory instrument? How will the prayer be enacted in legal terms should the amendment of the noble Lord, Lord Livsey, be carried, which would then prevent us from voting on the Motion of the noble Countess?

Lord Whitty: My Lords, the procedure is as normal. We vote on the amendments first. If the amendments are carried, we then have to vote on the consolidated Motion, which would be the original Motion of the noble Countess, as amended by either the noble Lord's amendment or by my amendment. The sequence is as per normal. We would then be in a situation where, rather than annulling the regulations, we would have a call on the Government to implement the regulations in line with what lies behind the amendment of the noble Lord, Lord Livsey. I beg to move.

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9.19 p.m.

The Duke of Montrose: My Lords, I am grateful to the Minister for laying out his case in so much detail. I declare an interest, which is slightly complicated by the fact that, as the noble Countess, Lady Mar, said, we do not yet know exactly what is meant by "susceptible". I have a herd of cattle which I believe is susceptible to BSE. I have a herd of sheep, the breed of which I believe is not susceptible to BSE. I declare them to make the House aware of my position.

The way the matter is being approached seems to be a rather complicated and bad business. We are left in an awkward position. Certainly I and a number of others have been bombarded with different opinions of what accepting or rejecting the prayer may achieve.

This statutory instrument appears to contain enormous Henry VIII powers. I suppose one can have the odd Henry VIII power—I am not well up on the procedures of the House—but the many elements contained in this instrument should have been in a Bill.

I put that to one side. One is left with numerous questions and anomalies. The Government may not be able to answer precisely my first question. How did so many people lose track of the consultation? The Minister said that they received few responses to the consultation.

Lord Whitty: My Lords, I indicated that the consultation was a somewhat shorter period than the norm. Nevertheless, we had a substantial number of formal and informal responses from the key organisations.

The Duke of Montrose: My Lords, I thank the noble Lord for that response. I inquired of the Sheep Veterinary Society, which had its council meeting earlier this week. Apparently only one member had read the measure. That may be the fault of members, but it seems that many of those concerned were not aware of what was going on.

Perhaps the Minister can clarify this point. Thirteen statutory instruments are being annulled by the order. At least four pre-date the Scottish devolution Act. If those are annulled, is there anything left for Scottish agriculture, which does not have the benefit, or otherwise, of the statutory instrument which is being introduced?

The noble Lord, Lord Livsey, spoke about susceptibility. As many noble Lords will be aware, there are five recognised variants in the genetic composition of sheep which produce five ascending levels of susceptibility. On 10th April the Spongiform Encephalopathy Advisory Committee considered the issue that if—I repeat, if—BSE were found in sheep only the most resistant animals would be preserved. Everything else would be excluded from the human feeding chain. That recognises that there is a very resistant genetic variant.

I draw to noble Lords' attention that this resistant genetic variant has never been found in goats. But to my knowledge BSE has never been found in goats. If the extreme position were taken, all goats would be

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regarded as susceptible, as are all cattle. We shall be interested to hear whether the Minister can give us a yardstick of susceptibility.

The Minister spoke about paragraph 4 and the fact that the powers he introduces do not extend the law in any way. Item (k) of paragraph 4(2) states that an inspector has the right to slaughter any TSE susceptible animal. Which of our current regulations contains that power? I understand that the amendment tabled by the noble Lord, Lord Livsey, and possibly that tabled by the Minister, were founded on the fact that at present the statutory instrument contains powers in paragraph 82 on the slaughter of TSE susceptible animals and goes into the question of representations of the owners to the Secretary of State. I emphasise that the clause relates to TSE susceptible animals rather than suspect animals, about which the Minister spoke in his recent reply to the noble Lord, Lord Livsey.

I raise those questions with the Minister on how the instrument stands in relation to our current legislation.

9.24 p.m.

Lord Williamson of Horton: My Lords, we are faced with a 221-page statutory instrument and a Prayer to annul it altogether, an amendment to the Motion which would set a minimum time limit for representations against intended slaughter, and an amendment to the amendment which would delete the minimum time limit and substitute a less specific undertaking about representations against intended slaughter.

My noble friend Lady Mar did well in drawing attention to the difference between an animal which is actually infected and a TSE susceptible animal. However, in the circumstances, I should like to make one comment and then put a specific question to the noble Lord, Lord Whitty, about his manuscript amendment. I know that he spoke to the latter at some length, but I still have a point to make in that respect. I do not enter into any argument about whether these regulations are intended to substitute for animal health legislation which did not go forward in this House or whether the Government have acted rightly in proceeding in this way. I did not vote for the Motion of the noble Lord, Lord Moran, on the previous occasion. I have, therefore, examined the regulations as they stand.

My general comment is that we still need to be extremely vigilant about BSE, which, of course, is also a fatal disease for human beings, with all the suffering that it caused for about 100 men and women who died, and, indeed, for their families. It also caused very serious losses to the livestock industry. We must continue to ensure that no mammalian meat and bone meal is used in feedings stuffs, as well as continuing to control the specified offals, and to control—and in due course to eradicate—other TSEs, which are dealt with under Part V of these regulations.

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I keep in mind the quotation from the excellent report from the Phillips committee—words that we should always keep in mind—which states that,


    "some members of the feed trade, being given an inch, felt free to take a yard and continued to clear stocks after the . . . ban came into force".

For all those reasons we need to recognise that these are important issues of human and animal health which are covered by the regulations. I consider this a very serious business.

I turn now to my specific question to the Minister. The manuscript amendment tabled in the name of the Minister deals with a real point of importance; namely, the extent to which a person can have time, and the opportunity, to make representations against an intended animal slaughter notice. My question is directed towards discovering the rather narrow point of how useful the Minister's amendment may be on this issue.

I raise that point because where the inspector has a right under the current regulations to slaughter any TSE susceptible animal (Regulations 4 and 79), there is already provision under Regulations 7 and 82 for a notice—at least outside a slaughter house—to specify a period within which an owner or person in charge of an animal can make representations to the Secretary of State. Leaving aside the big issues that arise, the question is: what is the value of the additional undertaking now tabled by the noble Lord, Lord Whitty? How far does it go, if at all, beyond what is in the regulations as they stand?

9.28 p.m.

The Earl of Northesk: My Lords, I hesitate to intervene in this debate. None the less, I hope that the Minister—and, indeed, the House—will forgive me for taking this opportunity to put on the record two matters that I had occasion to discuss with the noble Lord yesterday, albeit all too briefly.

First, like the noble Countess, Lady Mar, and notwithstanding the soothing rhetoric of the Minister, I am particularly concerned about the powers granted to inspectors to gain access to computers. Of course, there is legitimacy in granting access in order that relevant records can be inspected; indeed, I do not argue with that. But that is as far as it should go. As I read sub-paragraph (m) of Regulation 4, it implies that inspectors will be empowered to access all records from the computer concerned, possibly to include financial data, perhaps even private correspondence.

In addition, what useful purpose can be served by inspectors inquiring into TSE susceptibility being empowered to,


    "check the operation of, any computer"?

I just fail to understand what benefit will accrue from permitting the inspection regime to have access to the way in which the computer under investigation works. How will that facilitate access to relevant records? Bluntly, the powers granted under Regulation 4(2)(m) are disproportionate. I agree with the noble Countess,

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Lady Mar, that, as such, they are almost certainly against the spirit, if not the letter, of the Data Protection Act.

I should be grateful if the Minister could further allay my fears on the following points. He may—indeed, up to a point he has already done so—seek to suggest that the power is constrained by reference to Regulation 4(1). But I am bound to say that I am far from certain that such an argument carries sufficient weight. The drafting states that,


    "an inspector may make such enquiries and carry out such investigations"—

these are the key words—


    "as he considers necessary for any purpose connected with",

etc. It seems to me that this could give an inspector an entirely free hand, notwithstanding the intended qualification in the text.

My second point—which I suspect the Minister might be tempted to categorise as one of "the wild allegations"—relates to Technical Standards and Regulations Directive 98/34, as amended by 98/48. Indeed, the noble Lord, Lord Livsey, touched on the European dimension in proposing his amendment. The Minister will be aware that this procedure has already caused the Government some difficulties in this Session in the context of the Tobacco Advertising and Promotion Bill. Be that as it may, my interpretation is that the regulations before the House should be subject to the notification procedure. The reason is quite simple. The interpretation regulation, Regulation 3, defines "livestock" as,


    "any creature, including a fish, kept, fattened or bred for the production of food, wool, skin or fur".

In other words, the regulations are concerned with, for want of a better phrase, "agricultural product". This, together with "industrial product", is the litmus test of whether a particular piece of legislation requires notification under the directive. Indeed, I can confirm that my consultation with the Commission this morning endorses this analysis.

The importance of this should not be underestimated. If the regulations are enacted in breach of the directive, it then becomes possible for them to be struck down in their entirety on simple application to the European Court of Justice. In terms, therefore, the Government have to ask themselves whether they want to enact regulations which are potentially procedurally defective and which, on that basis, could be rendered null and void.

I therefore ask the Minister whether his department has had consultations with the Department of Trade and Industry, the lead department for the Technical Standards and Regulations Directive, as to the status of the regulations in respect of notification. If not, will he undertake to conduct such consultations as a matter of urgency? I look forward to receiving the noble Lord's responses in due course.

9.30 p.m.

Lord Moran: My Lords, first, I think that the House will want to express its gratitude to my noble friend Lady Mar for drawing attention to this very important

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statutory instrument. Initially, I had some fears that the Government might be introducing by the back door the measures which the House decided on 26th March it did not want to see under the Animal Health Bill. But the Minister has made it clear that the statutory instrument does not affect foot and mouth. I am glad that he has confirmed that.

I am reluctant to be critical of the Government. This morning my wife, who, as I have said on previous occasions, has a small herd of Welsh Black cattle, received a letter from the National Assembly for Wales about the extensification payment scheme and what is called the definitive agri-monetary compensation second tranche (DAC2) which contained the good news that she would shortly be receiving a payment from the ministry of #4.96.

As I understand it—the Minister will correct me if I am wrong—these regulations are made under Section 2(2) of the European Communities Act 1972. Therefore, the powers given to the Secretary of State are limited to those necessary to transpose EU legislation, for which he is properly designated, and not to do other things for national policy reasons.

I was therefore interested in what the noble Lord, Lord Livsey, and others have said about gold-plating of the regulations, particularly with regard to the use of the word "susceptible", which is not in the EU regulations. I wonder whether that is in order. I do not know whether the Joint Committee on Statutory Instruments has considered the regulations, but if so, I wonder whether the committee is satisfied that they are fully within the implementing powers conferred on the Secretary of State by Section 2(2) of the European Communities Act 1972.

As others have said, regulations of such size and scope should be more fully debated and explained, perhaps by the use of the affirmative procedure. The Delegated Powers and Regulatory Reform Committee might have a view on that.

I very much agree with the noble Lord, Lord Livsey, that the powers to be given to inspectors are over the top. They appear to be given the power to enter premises to enforce these measures and, where necessary, to impose movement notices or to ensure the slaughter of animals. Some of the powers, such as Regulation 97, are expressed so as to exclude premises used only as a dwelling. Others, such as Regulations 4, 28 and 71, do not appear to be so limited, which implies that inspectors could demand entry even to private homes, accompanied by whomever else they deem necessary, and in some cases by a representative of the EU. We ought to have a better opportunity to debate such questions fully in this House.

There is a case for more stringent regulations for TSEs than for foot and mouth because BSE, for example, is transmissible to humans and foot and mouth is not.

The Countess of Mar: My Lords, I am sorry to interrupt the noble Lord, but there is still no scientific evidence to prove that BSE is transmissible to humans.

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Lord Moran: My Lords, I accept what my noble friend says, but the possibility clearly exists.

The Countess of Mar: My Lords, pigs might fly.

Lord Moran: My Lords, that said, I should be grateful if the Minister would let me know whether I am right in thinking that the powers conferred on him enable him only to transpose EU legislation strictly into our domestic legislation and that they cannot be extended to cover things that we may think it desirable to cover in our national policy.

9.39 p.m.

Baroness Howarth of Breckland: My Lords, I do not have a prepared speech because I came down from Leeds after a series of visits to abattoirs with the Meat Hygiene Advisory Committee to find this Prayer before the House. I declare my interest as a member of the Food Standards Agency.

I have no other interest except the protection of consumers, but I have been exposed for two years to the science of BSE. In another capacity I am the vice-chair of a large disability charity, so I know about variant CJD at first hand.

The facts show that this country is at last driving down BSE. That is because of the measures that we have in place. Despite that, we should remind ourselves that we still have more BSE than anywhere else in Europe. If we flinch for a moment in our measures, we shall undo all our good work to protect consumers and our superb farming industry, which needs the disease out of its herds.

There is a great danger that, as time goes by, we shall forget some of the lessons of what happened in the last BSE crisis and the lesson of the Phillips inquiry—that we have to be constantly vigilant. I have also been involved in the discussions on whether TSEs in sheep can develop into dangerous BSE prions. I have no doubt at all that the evidence shows that the BSE prion in cattle is easily transposed into humans, which is new variant BSE. I think that research from the various CJD people will shortly take forward that point. It is very complicated research.

Noble Lords will be pleased to hear that I shall not quote any paragraphs as I have not had time to do detailed research. However, when deciding this Motion, we should remember that there is really just one point. If we agree to the prayer, we shall lose all the other schedules. I have no view on the amendment, but some of it addresses other technical issues. I am simply pleading with the House that, in the interests of the community, our farmers and the health of our future herds, we should not agree to this prayer.

9.43 p.m.

Baroness Carnegy of Lour: My Lords, it seems to me that democracy demands that Parliament ensures that it understands what it is doing when it legislates. It is not the Government who legislate; it is Parliament. The fact that Parliament is implementing a piece of European legislation does not let us off the hook at all.

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What Parliament has to do is ensure that the Government are proposing satisfactory legislation in response to European legislation.

I listened very carefully to the comments of the noble Lord, Lord Whitty, and I think he was saying that this very long statutory instrument makes just three changes. I do not know why the changes have had to be made in this way, but I expect that there is a reason. However, it is very difficult for Parliament to know what it is doing when such lengthy regulations are necessary to make just three changes. I take it that the regulations were passed in another place under the negative procedure. If so, they were not discussed and were passed as long as no one objected. It seems to me that the Government simply must not do this.

If a change required by European legislation necessitates such a long, complicated document—it took me a long time to read it today and I suspect that I still do not understand it all—the change simply must be made by means of a Bill. It probably would not take Parliament long to pass such a Bill because it would be properly explained by the Government. The issues which have been raised would be addressed. Parliament would understand that it had to make the change because of European legislation and everyone would be satisfied. It is also incumbent on Parliament to ensure that it does not legislate without the understanding of those who will be affected by the legislation. It seems that there are people in the farming industry who have still not seen these regulations.

It is truly important that Parliament should not allow the Government to do this. It is not democratic, and that point should be taken very seriously. I shall not enter into the issues because I have not been involved in them before and would probably get them wrong. However, I hope that noble Lords on the other side of the House will not simply troop through the Lobby agreeing that the Government whom they support should pass legislation of this length, without any discussion, by means of the negative procedure. I do not think that that is good enough. If they agree to let the regulations stand, they would be saying that it is good enough. I hope that they are listening very carefully.

9.45 p.m.

Earl Ferrers: My Lords, I declare an interest in so far as I have been involved in agriculture all my life. I am bound to say that I have a certain amount of sympathy with the noble Lord, Lord Whitty, and, indeed with the Government in so far as the Animal Health Bill foundered on the rocks. However, that is one of the hazards of parliamentary life. Indeed, that is what Parliament is for.

As I understand it, the statutory instrument we are discussing contains much that was included in the Animal Health Bill. The noble Lord, Lord Whitty, referred to this as an unusual procedure. I should think that it is. If I may say so, the Government are in a mess with regard to this matter. I refer again to the Animal Health Bill. They now have a statutory instrument of

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huge length, 221 pages, as has been said. There is now a Prayer to annul the statutory instrument, an amendment to the Prayer and an amendment to the amendment. I agree with the noble Lord, Lord Whitty, that that is a most unusual procedure.

The noble Lord, Lord Whitty, referred twice to the measure as a Bill. I know that that was a slip of the tongue but it was probably in the back of his mind and, indeed, in the minds of most of us that legislation of this length ought to be included in a Bill and not in a statutory instrument. The noble Lord, Lord Whitty, produced some persuasive arguments to demonstrate that the Government need this measure to protect public health. I understand that. However, what is the hurry? This matter has not suddenly come upon the Government. They have had plenty of time to produce the necessary provisions with which to draw up a Bill. The measure ought to have been presented in the form of a Bill. As my noble friend Lady Carnegy said, one cannot present a measure comprising 221 pages to Parliament and say, "You must take it or leave it". The matter ought to be considered properly.

If the measure is to be presented in the form of a statutory instrument, why is it in the form of a negative instrument and not the affirmative resolution procedure? The affirmative resolution procedure would have given us time to consider the matter and discuss it. Yet, in order to do that, we have to have this curious procedure. Proposals of this nature ought to be presented in a proper manner and properly scrutinised. As I say, the measure should have been presented in the form of a Bill.

The noble Lord, Lord Whitty, said that there is a connection between BSE and CJD. I am bound to say that I agree with the noble Countess, Lady Mar, in this regard. The scientists to whom I have spoken assure me that although the organisms which cause CJD may be similar to that which causes BSE, there is no known proven method of transfer between animals and humans. It is important to remember that as otherwise people become alarmed, possibly unnecessarily.

One comes back to the statutory instrument. One wonders why it was introduced in such a hurry. It was laid before the House on 27th March, the day before Maundy Thursday. It came into effect one week after Parliament returned after the Easter Recess. One wonders why this has been done so hastily. I do not think that that is the right way to do it. The measure should have been presented in the form of a Bill.

I say to the noble Lord, Lord Whitty, that it is a terrible thing to be presented with regulations entitled TSE (England) Regulations. I do not know whether your Lordships know what the letters "TSE" stand for but the majority of people do not. I did not know what TSE was; I knew what BSE was. I asked a knowledgeable Member of your Lordships' House whether he knew what TSE was. He replied that he did not. Someone in the Printed Paper Office put us out of our misery in that regard. I remember, when I was in the Ministry of Agriculture, reading a brief that referred to the BSC. I thought that it referred to the British Sugar Corporation but in fact it referred to the

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British Steel Corporation. Having read the brief, I had to re-read it because the change in meaning gave it a completely different sense and referred to a different part of life.

I ask the noble Lord, Lord Whitty—if I can have his attention for a moment—to do what I used to do; that is, to circle acronyms such as "TSE". Doing so meant that the people would write it out in full and everyone would understand what one was talking about. One does not understand what one is talking about when one talks about "TSE" because it is easy to muddle that up with TSB, which is, of course, a bank.

I do not like the regulations, for various reasons. I shall not go into great detail, other than to say that they give huge powers to inspectors. Inspectors can enter premises when they like and they have the right to destroy any animal, including, as the noble Countess said, horses, fish and cats. There is a difference between whether an animal is suspected of having a TSE and whether it is susceptible to it. As the noble Countess also said, inspectors can take records and everything else from a computer, including one's bank balance and even a list of one's lady friends, if one keeps such things on one's computer. Those are huge powers but there is no right of appeal, which is wrong.

I shall not detain the House further by listing my other objections. However, the proposal should have been in a Bill. The Government should not try to railroad ideas through Parliament without giving it the opportunity for discussion.

 

Lord Mackie of Benshie: My Lords, the noble Earl voted for the Motion in the name of the noble Lord, Lord Moran, to delay the Bill. Under the Bill, there would have been an opportunity for discussion.

Earl Ferrers: My Lords, with great respect to the noble Lord, Lord Mackie, I cannot see what that has got to do with it. The regulations that have been advanced contain a whole lot of information that was in the Bill, but we cannot even theoretically amend or discuss the issues because they are raised through a negative resolution.

9.52 p.m.

The Earl of Caithness: My Lords, the noble Lord, Lord Whitty, said that everything in the regulations relates to the EU directive. However, there are serious questions about susceptible animals that do not appear to be in the directive. He did not list them as one of the bits of gold-plating for which MAFF was once notorious; DEFRA is emulating that bad habit.

The Minister did not answer the point that I raised when I intervened near the end of his speech. I asked about what would happen if the amendment in the name of the noble Lord, Lord Livsey, was not agreed to. How would the Minister implement his expectation of good will?

I hope that the Minister will introduce a supplementary statutory instrument. He has already had to do so with Statutory Instrument No. 1253,

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which amends the TSE regulations. I hope that after today's discussion he will bring forward another amending statutory instrument, taking account of the serious concerns that many noble Lords have raised. When he does so, I hope that he will look carefully at the consolidations and at the sense of the consolidations. Approving a proposal and enacting it through a statutory instrument is not necessarily the right way to continue.

I draw the Minister's attention in particular to the question of compensation, which is dealt with in Schedule 1. There are six main parts to that schedule and they set out four different ways of getting at the value of the animal, the carcass, the semen, the embryos or the ova. Of those four, only one is correct, and that is the established way. It is done by agreement between the Secretary of State and the producer of the livestock in default of an agreement by a valuer appointed jointly between them and, in default of that, a valuer appointed by the president of the Royal Institution of Chartered Surveyors.

The other three relate to the different ways in which the valuer can be appointed. Sometimes it is done by the Secretary of State without consultation or agreement with the producer of the livestock; sometimes costs are allowed; sometimes costs are not allowed; and sometimes it is done by arbitration. However, there is no definition of "arbitration" or how the arbitration is constituted. There is no reference to who will take part, what the rights of the parties are, and who can be represented. Therefore, that is a grey area which requires attention.

Also in relation to the question of compensation, I wonder why the noble Lord sees fit to re-enact the draconian measures with regard to sheep? If the noble Lord looks at Part III relating to compensation, on page 159 of the statutory instrument, he will find that the maximum value paid for any sheep is #400. But a pedigree animal can be worth many thousands of pounds. Why is the producer of sheep or goats being penalised to that extent when the owner of cattle is not? If the noble Lord turns the page, he will come to the section which deals with compensation for bovine animals—that is, at paragraph 6 on page 161. There, reference is made to the market value of the animal. There is no question of a limit. Why is there a difference between sheep and goats on the one hand and cattle on the other?

I know that we cannot amend this statutory instrument, but I hope that the noble Lord will introduce a supplementary one in the near future, taking account of those points.

9.57 p.m.

Lord Willoughby de Broke: My Lords, I have two principal objections to the statutory instrument. Like my noble friend Lord Northesk, I am not terribly soothed by the honeyed words of the noble Lord, Lord Whitty, when he says that there is no need to worry too much because the legislation is straightforward and there is no gold-plating. First, this SI does far more

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than it needs to do. Frankly, it is gold-plating on a royal scale. I do not believe that the noble Lord managed to address that point in his opening remarks.

Secondly, some of the powers in the Animal Health Bill which your Lordships' House rejected are put straight into this piece of legislation. The gold-plating is principally the matter that concerns me and I believe that that is the crucial point in this legislation. EC Regulation 999/2001 refers throughout to animals which are "suspect" or "suspected" of having TSE. But these 220-page regulations refer throughout to animals being "susceptible". We have not yet received an answer as to why we have suddenly changed from referring to animals as "suspect" to referring to them as "susceptible". Those two words are very different. I believe that we must have an answer to that point before we vote tonight.

Thirdly, I turn to the question of the Animal Health Bill powers, which, I repeat, were found unacceptable by your Lordships' House just over a month ago. We find, again, that magistrates have a power to grant a warrant of entry without the farmer having a power or even being aware that such an application has been made. I do not know whether the amendment of the noble Lord, Lord Whitty, addresses that point satisfactorily or whether the matter could be dealt with in this legislation.

In some respects, the statutory instrument goes even further than the proposals in the Animal Health Bill. For example, it requires individual farmers to pay for the costs of slaughter and disinfection of their premises. That appears to be entirely unreasonable. After all, their animals are to be slaughtered at the behest of DEFRA. Yet farmers are expected to pay for the cost of slaughter and cleaning and disinfection. The only parallel I can find that is remotely close to that occurs in China. There, when someone is executed, the family is sent the bill for the bullet with which the person is killed. It is not only this statutory instrument that is grossly excessive, but also the timing, as noble Lords have mentioned. It appears to have been introduced hastily and incorrectly. It became law on 19th April, but it was not available for inspection on DEFRA's website until very recently, and it was not on the parliamentary website until a few days ago. According to DEFRA that was because some items had not been finalised and it needed to make some adjustments.

If this instrument was recently still in draft, was it still in draft when it was incorporated into law on 19th April? I do not understand how a measure can be made law when it is still in draft form. My understanding is that it was still being corrected at the end of April and at the beginning of May. It is rather odd, to put it mildly, for a half-baked draft to be considered as law.

The noble Lord, Lord Moran, asked about the accuracy of the regulations and whether they had been scrutinised by the Joint Committee on Statutory Instruments. I am pleased to be able to tell the House that that committee has had an opportunity to consider these regulations. The committee said that

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it had found a number of inaccuracies, inconsistencies and typographical errors. The committee's paper says:


    "The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in a number of respects".

It lists errors of interpretation, errors of omission and typographical errors. That part of the report concludes by saying:


    "The Committee accordingly reports the Regulations for defective drafting, acknowledged by the Department".

I believe that the committee considered the regulations on 29th April, so they were defective quite recently. I am not sure that they have been corrected properly. I shall be interested to hear about that when the Minister replies.

The committee had a further concern about the regulations, as my noble friend Lord Ferrers mentioned. It stated:


    "They refer in many places, including the title of the instrument itself, to 'TSE' without any express explanation of the meaning of those initials. The Committee considered that it was unhelpful that the instrument nowhere contains an express indication of what TSE means".

In its response to those comments and criticisms, the department produced a series of apologies, as it was right and proper it should. On the definition of TSE, the department said that it,


    "decided not to set out in full the expression 'TSE' in the title to the Regulations nor define it as the expression is already defined in the Community legislation for which the Regulations make administration and enforcement provision. (This is Article 3.1(a) of the Community TSE Regulations, Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies, OJ No. L 147, 31.5.2001, p.1, as amended by the other Community legislation defined in regulation 3(1) and explained in the explanatory note to the Regulations)".

That is perfectly clear! The department's response continued:


    "The Department notes that persons likely to be affected by the Regulations were provided with the necessary references to the definition of TSE as part of the Department's consultation about the proposals for the Regulations. The Department also notes that regulation 3(2) provides that expressions not defined in the Regulations and which appear in the Community legislation for which the Regulations provide administration and enforcement have the same meaning in the Regulations as they have for the purposes of that Community legislation".

That seems to be perfectly clear and straightforward to everybody. So 10 out of 10 for artistic interpretation but nought out of 10 for technical content.

That brings me to my final point. As other noble Lords have said, this sort of law making, this gold plating, this casualness in introducing such enormous powers for the Ministry is unjust and unjustifiable. It one of the reasons—the noble Lord, Lord Whitty, may not recognise this—that the rural community lost its trust in DEFRA.

Lord Lea of Crondall: My Lords, is the noble Lord aware that I am a member of the Joint Committee on Statutory Instruments. Everything that has been referred to is quite normal procedure for the Joint

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Committee. On a typical meeting half a dozen matters are referred to for defective drafting of a minor character and they are typically dealt with at the next meeting by the fact that corrections are made.

On the question of the use of abbreviations, it is a wider matter and it is generally understood now that, in the first instance, abbreviations will be used only in conjunction with some explanation of the full wording. Unless the noble Lord is filibustering, this lengthy procedure is not necessary.

Lord Willoughby de Broke: My Lords, I totally reject the insinuation by the noble Lord, Lord Lea, that I am filibustering; I am simply quoting from the report of his committee. I shall filibuster a second longer by repeating that it is said it was defectively drafted. I cannot see that drawing attention to that can remotely be called filibustering. But if he thinks it is filibustering he is entitled to his opinion. I cannot think that his intervention added anything at all to the debate.

For the reasons I stated before I took the intervention, I believe that regulations of this kind are losing the trust of the rural community in DEFRA. I received a number of letters and e-mails—I shall not quote them because I shall be accused again of filibustering—to the effect that people no longer trust DEFRA or the regulations it is producing. These regulations are clearly an example of why. So if later this evening the noble Countess, Lady Mar, decides to divide the House, I shall join her in the Lobby.

Baroness Masham of Ilton: My Lords, in declaring an interest I ask the Minister two very short questions. How efficient are the tests for TSE? What is the prospect of a vaccine for spongiform encephalopathy? It is a serious matter when there is no right of appeal and mistakes may be made.

10.8 p.m.

Baroness Byford: My Lords, I rise to support many of the comments made by the noble Countess, Lady Mar. If this matter were not so serious, I would not pass this remark: that it is pleasing to see so many Members on the Labour Benches tonight, who never normally attend the agricultural discussions we have in this House. I am afraid they will have to bear with us a little longer. We are not filibustering. In fact I think that comment was most unfortunate. In the real world, outside Parliament, the farming community has been through some desperate times. If people on the opposite Benches think that in some way we are filibustering, they are wrong.

Baroness Thornton: My Lords, I thank the noble Baroness for giving way. If we are to play this game, I can say that I have sat in this House with the Benches opposite completely empty while we discuss child poverty and urban deprivation. So I ask the noble Baroness not to patronise us in that way.

Baroness Byford: My Lords, the noble Baroness may say that if she wishes. But one of her colleagues in a recent housing debate, the noble Lord, Lord

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Graham—I do not know if he is in his place—apologised to the House that he was the only spokesman from the Labour Benches. He said, "I never thought I would see a Labour debate on social housing and we have only one speaker". So I am not casting aspersions. But it is true that tonight the Benches opposite are fuller than they normally are for agriculture debates, and we should record that fact.

As I say, I rise to support the noble Countess, Lady Mar. As the noble Countess stated, regulations do not need separate legislation. G Dymond, who as many noble Lords will know is the House Research and Legal Information Librarian, stated in a letter to me on 15th April:


    "Regulations do not require national implementing legislation".

Perhaps the Minister will clarify the situation because there seems to be some confusion.

So why are we sitting here? I am sure that noble Lords on the Labour Benches would say, "Why indeed?". We are surely considering any gold-plating. I cannot believe that in the statutory instrument we are gold-plating after the Prime Minister promised the electorate only last year that there would be no more of it. Even the noble Lord, Lord Whitty, has acknowledged that there are three extra bits—

Lord Whitty: One, my Lords.

Baroness Byford: All right, my Lords, one bit extra, but there is a little gold-plating. I must ask why.

Other noble Lords have referred to the science and I shall also take up that issue. There is no real scientific proof of the link between BSE and CJD or BSE and scrapie.

Baroness Howarth of Breckland: My Lords, I am a social scientist, not a general scientist, but empirical evidence that shows that BSE is declining with the measures that we have in hand is surely a good piece of evidence.

Baroness Byford: My Lords, I am delighted that the numbers are declining, but that does not necessarily—

The Countess of Mar: My Lords, I apologise for interrupting the noble Baroness. BSE is also declining because we no longer pour organophosphates on cattle.

Baroness Byford: My Lords, that just shows how difficult is the science. I do not wish to pit one against another, but there is still a question. The noble Countess herself said that she hoped that science would soon move on and be able to prove that.

I ask the Government what proof there is. Could it be that all sheep are susceptible? If so, would they all have to be slaughtered? Do we face the possibility of becoming a sheep-free zone, having two years ago been the developed world's largest sheep producer? That scenario is decidedly scary, but I am sure that the Minister will have the correct version. Apparently, Mr

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Meacher, in evidence to the House of Commons Select Committee on the Environment, Food and Rural Affairs, stated that the Government have always known and appreciated the full extent of all implications of European Union legislation. But we do not have to legislate to incorporate the EU regulations. Presumably the Minister can enlighten us on all the implications of what we are about tonight.

I should be particularly interested to know about cost. Many noble Lords will be aware that the Government intend to force farmers to insure against future outbreaks of infectious diseases. I wonder how many insurance companies will be willing to insure against the possibility that animals may be slaughtered not because they have the disease but because they are susceptible, not because they are next-door to a farm that has the disease but because they have been declared susceptible to the disease. The Minister must surely clarify the distinction between "susceptible" and "suspect" before we come to a vote—or not—later, because there are important differences between them.

I have heard that, if the Government cannot agree insurance with farmers, they are considering imposing a levy on all sheep producers. Presumably they would use the proceeds of that to pay the costs of five things, to name but a few. Those are, first, the cost of science; secondly, the cost of a monitoring system; thirdly, the cost of a slaughtering system; fourthly, the cost of a disposal system; and, fifthly, the cost of a compensation system. Perhaps the Minister will reflect on that. I also ask him whether, should levy money come into being but prove to be inadequate to cover those various costs, the Government envisage paying for them themselves. If so, how much have they already reserved for that purpose?

I am intrigued to know how the monitoring system will operate. As the law stands, farmers have a duty to report any notifiable disease that strikes their livestock. How will they know that an animal in their herd is susceptible? Will they be safe so long as no inspector comes to call?

Much work has been done and is being done on genotyping in humans and the likelihood that some members of a family may inherit some ailments. I understand that it is rare to find that every member of a family has inherited the same suspect trait. In the past couple of weeks the EU voted a large amount of money for 15 research projects to find out more about inherited characteristics in animals. We welcome that and the Minister may wish to comment on it. It suggests to me that more powerful brains than mine will consider the possibility that not all animals in a flock will have the same susceptibility. Given the Government's lack of success in studying sheep's brains—they were examining cows' brains—I recommend that we persuade them to postpone this piece of legislation.

That is not all. Noble Lords have heard me use the word "susceptible" several times. I know what I mean, but I wonder if it is exactly the same as what the Government mean. The regulations contain several

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words whose meaning can vary according to circumstance. Do the Government really mean "livestock" to include any creature, apart from a dog, that has a function in farming, including all types of horse? In Europe horses are considered as livestock animals; in this country they are not. That is on page 7. The continentals include horses in livestock because they eat them; in this country, on the whole, we do not. Horses have never been part of the British definition, and I want to know whether the Government will use the EU or the UK version.

My noble friend Lord Caithness spoke eloquently about the contradictions in the definitions of compensation in the regulations, which apparently will apply to all animals except dogs. He particularly mentioned valuable breeding stock. Will the Minister say what science has excepted dogs from such draconian measures? Why include cats and not dogs? There must be some reason; there must be some science. I do not have the Minister's attention; perhaps I have someone else's.

What methods will be employed to slaughter the cat, the goldfish in the pond or the children's pony? Where will it take place? Under which rules will the carcasses be treated? How will compensation be calculated? The mind boggles at how we will calculate the value of a goldfish. Will it be legal to employ a sheep levy to compensate someone for the compulsory death of a pet, albeit one living on the farm? What will the exceptions be? Will there be a Prime Ministerial override? Will there be another Phoenix rising from the ashes? Will there be the right of appeal that we have discussed tonight?

Paragraph (7) of the regulations specifies that representations may be made to the Secretary of State where slaughter of a TSE-susceptible animal at premises other than a slaughterhouse is intended. Does that imply that there is a right of appeal only against the site of slaughter? Do the Government accept the theoretical possibility that a susceptibility to a family of diseases justifies the inclusion of our rare breeds under the regulations? Such an inclusion would cover the possibility of a disease that has not so far been shown to have any relationship to BSE, which is itself not a proven cause of new variant CJD. Many rare breeds would fall under the edict in the statutory instrument, and we have had many representations about that.

There is a saying about throwing the baby out with the bath water. As noble Lords have said, rare breeds have other genes. Some are known to be important, and many of their characteristics—good or bad—have not yet been identified. I should hate these TSE regulations to be applied so stringently that we lost material whose value outweighed the risks which we removed.

The Leader of another place said when challenged last week that the regulations apply only to carcasses. I would refer your Lordships to page 4 of the statutory instrument, where paragraph 4(2)(e) states,


    "any TSE susceptible animal, or the carcases of such an animal".

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I presume from that that the regulations cover living creatures, not just dead creatures.

Finally, I cannot resume my seat without referring to the powers of the inspectors. They can corral, examine, test, mark and restrict movement. They can seize meat, processed animal protein or TSE-susceptible animals. They can slaughter, examine records, check computers and decide whether the regulations are contravened. Will the TSE rules which we are debating today apply in Scotland, Wales and Northern Ireland? I understand that they will not. If they do not, what rules are governing Wales, Scotland and Northern Ireland? If for any reason today the prayer to annul tabled by the noble Countess, Lady Mar, were carried, would that make a difference? Presumably, Wales, Scotland and Northern Ireland must have regulations in place. I do not understand where we are. Furthermore, what would happen to the people who keep stock on the borders between England and Wales and Scotland?

I find tonight a very unsatisfactory affair—that we should be placed by the Government in a situation in which we either annul a large number of existing controls or we agree to extend them considerably. The noble Baroness, Lady Howarth, who spoke most compellingly—and I welcome her contribution—spelt out the difficulty of annulling existing controls. Although it would be for only a brief period, we would all assist the Government to remedy the deficiency, but the difficulty we are faced with tonight is not of our doing; it is of the Government's doing.

Baroness Thornton: My Lords, how many cases of CJD does the noble Baroness consider to be the price worth paying not to follow the advice of the noble Baroness, Lady Howarth?

Baroness Byford: My Lords, I am totally inadequate to answer the question and I say that most humbly. At present some scientists follow the thought of the noble Baroness, Lady Howarth, while other scientists clearly say that there is no proven link. There is still a big question mark out there. The noble Baroness, Lady Thornton, can shake her head but she asked me for my view. I can only give my view.

Lord Carter: My Lords, perhaps I may briefly interrupt the winding-up speeches. It may be for the convenience of the House to know that the noble Baroness, Lady Anelay of St Johns, has decided not to proceed with the Second Reading of the Marine Wildlife Conservation Bill this evening but we will find another date for it.

10.23 p.m.

Lord Livsey of Talgarth: My Lords, I wish to exercise my right to comment on the amendment which I tabled today, referring in particular to subparagraph (a). Before doing so, I would like to enlighten the noble Baroness, Lady Byford. It is my understanding that in devolution the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly proposed to bring forward secondary

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legislation. I believe that the legislation they bring forward will resemble what we are discussing today. That is my understanding as a Welsh Member of this House.

In subparagraph (a) of my amendment, I seek merely to protect the rights of producers and animals and balance that between the vital human consequences of BSE and the impact of TSE. There is a balance to be struck and my amendment seeks to achieve that. The whole point of having a seven-day period is that if there is an appeal by a livestock keeper against the decision to slaughter, all the facts can be taken into consideration and assembled in order to make a good case to persuade the powers that be that perhaps they are wrong in deciding to slaughter. That is particularly the case in relation to the phrase, "TSE susceptible animals", a point which has been debated at great length this evening in the House. However, it would be helpful if we could have a more succinct definition than that presently contained in the statutory instrument.

I am grateful to the Minister for accepting paragraphs (b) and (c) of my amendment, which will introduce a degree of independence into the appeal mechanism. If his amendment falls in a vote, I appeal to Members of the House to accept the whole of mine, including paragraph (a). It is worthy of support in order to achieve a balance of protection for those who actually produce the animals and whose welfare is extremely important.

The Countess of Mar: My Lords, I am grateful to all noble Lords who have supported me. I am very concerned that noble Lords should understand exactly what is happening tonight. Either a regulation is annulled by a prayer to Her Majesty or the regulation stays as it is. The noble Lord, Lord Livsey, spoke most eloquently and almost entirely supported my case. But his amendment will do no good at all. Similarly, the Minister's amendment will do no good because there is no obligation on the Government to take any notice of an amendment to a statutory instrument agreed by the negative procedure.

We have one option only. Either we pray against the statutory instrument or we leave it as it is. A great deal has been said tonight and I do not wish to detain noble Lords any longer. I have made my points. I am extremely concerned about the constitutional position of this instrument and others that are being laid. We are told that they all follow the same pattern and that it has all been done before. That is not right. It is not democratic and it is not a parliamentary practice that should be allowed to continue. I leave it at that.

10.27 p.m.

Lord Whitty: My Lords, this has been a wide-ranging debate in which, frankly, several of the points which have been made are not directly relevant to the issue before the House. I shall try to touch on a number of those which I think are germane.

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I, too, wish to clarify what is before the House. The key issue is whether, quite extraordinarily, this House is about to take a decision which will have severe implications both for public health and confidence in our livestock industry. If we reject these regulations, it may well be that, after many generations of having adopted this procedure, noble Lords do not like it. However, it is a fact that if we reject the regulations, there will be no BSE controls in place in England. That will be a significant blow to consumer confidence and it will have huge implications for people working in the farming industry and in the meat industry. Furthermore, it could well have widespread implications for public health.

I wish to say a little about the issue of public health. Somewhat to my surprise, there is an agenda which has been quite explicitly expressed tonight by the noble Countess and—again to my amazement—largely supported by the noble Baroness, Lady Byford, querying whether it is necessary for us to have in place a BSE-control regime because there is some doubt about the science.

The Countess of Mar: My Lords, I must interrupt the noble Lord at this point. I accept completely that, given our present state of knowledge, we must have a BSE regime in place. I have no argument with that whatever. What I object to is the way it is being done; that is, the draconian measures that are being put in place. They may never be used, but those measures will be put in place. That is what is wrong.

Baroness Byford: My Lords, before the noble Lord rises to respond I, too, wish to register my strong objection. I shall check Hansard tomorrow because I am sure that at no stage did I say that we should not have a regime. I know full well that we should. It is a question of the way it is being brought in under the procedure before us tonight. We have had no chance to discuss it.

I know that several noble Lords are muttering on the Benches behind the noble Lord, Lord Whitty, but I think that he will himself acknowledge that the issue of scrapie is relevant. The wrong brains were tested for at least six years. The science on scrapie is unknown. I do not know whether the noble Lord the Chief Whip wishes to disagree with me, but everyone acknowledges that there has been a mix up. For that and several other reasons we are questioning the way in which the regulations are being introduced.

We support some restrictions in relation to BSE, but the density of the regulations and the way in which they are being introduced causes us great difficulty. We are being asked to do something without knowing the implications.

Baroness Hayman: My Lords, before the noble Baroness sits down—I apologise to the House for doing this, but it is a matter of grave concern—I hope that she will make clearer her position on this and on the link between variant CJD and BSE and the scientific debate now, before she checks Hansard. Anyone listening to her earlier comments would have

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felt that there was an equivalence in her view of the scientific debate between whether there was or was not a link between variant CJD and BSE.

I understand the noble Countess's view on this point—it is very clear and understood—but even she would agree that she is a minority against a swathe of scientific opinion in this country, in Europe and in the world. The noble Baroness would be misunderstood if, from what she said earlier, she allows her former remarks to continue on the record.

The Countess of Mar: My Lords, I am reminded of Dr Lind, who discovered that vitamin C saved sailors from having scurvy. He was in a minority for 40 years, but he was right. Some scientists who have been looking at this issue may well be right that there has never yet been an infectious pathway proven for BSE or CJD.

10.33 p.m.

Lord Whitty: My Lords, I was grateful for the noble Countess's earlier intervention when she made it clear that she was in favour of having a BSE regime, irrespective of the fact that she doubts some of the overwhelming scientific opinion. The noble Baroness also agreed with that. Nevertheless, the effect of a vote tonight to support the noble Countess's prayer would leave us without a BSE regime.

I am grateful to my noble friend for pointing out the difficulty of the noble Baroness's position. I think the whole House understood that she was querying whether we should be acting on the "overwhelming" evidence, as it is referred to in the Phillips inquiry report, that variant CJD is caused by the transmission of BSE to humans. If that is the overwhelming opinion, I am particularly surprised, without making a cheap point, that the party that formed the previous government is not prepared to take the precautionary measures which we and the vast majority of scientific, veterinary and public health opinion suggest we should in maintaining a BSE regime and would jeopardise it in this kind of vote today.

The noble Baroness said that that these are draconian measures. But time and again I have pointed out that what we are doing with these regulations is consolidating existing statutory instruments which have already been operated and form part of the regime. The noble Lord, Lord Willoughby de Broke, referred to the number of statutory instruments which are covered. We are engaging in an act of consolidation of the existing regime and in the transposition of the European regime which has direct applicability.

The noble Baroness asked why, if it has direct applicability, we need to spell out some of the provisions in the regulations. It is because the substance has direct applicability. The implementation of it is a matter for the nation state—as is always the case in this kind of legislation at European level—which means that we have to spell out how we are to fulfil our European commitments. The only part of these 220 or so pages that can

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conceivably relate to gold plating is the one example I quoted in relation to incineration. We are doing so because we have had heavy advice from the advisory committee in that area and we thought it sensible to take the opportunity to include that.

The Countess of Mar: My Lords, I am sorry again to interrupt the Minister. There is another point of gold-plating. The noble Lord has been asked over and again about the difference between TSE suspected and TSE susceptible. The noble Duke made the point that his cattle are susceptible to BSE but they may not be suspected of having BSE. That makes a huge difference to the number of animals under consideration.

Lord Whitty: My Lords, a huge misunderstanding has been wound up both inside and outside the House to suggest that there is a change in approach. In order to carry out the European surveillance and monitoring requirements, the statutory instrument refers to TSE susceptible animals for a straightforward reason. Under EU legislation which we are here transposing we are required to carry out the testing of animals fit for human consumption which have already been sent to the slaughterhouse, are fallen stock or are otherwise slaughtered. Those animals are not TSE suspect. They are not exhibiting any sign of a disease. But they are required to be tested for the purposes of the EU monitoring.

There are no new slaughter powers in this legislation. The slaughter powers referred to in paragraph 4 and beyond are a repetition in almost the same terms of the existing provisions. They relate to a situation where an animal is suspect, where a vet decides on balance that it is likely to be suffering from a TSE, in particular from BSE. That is the difference. The susceptible reference is in order to carry out the monitoring which we are required to carry out under the EU legislation.

The Duke of Montrose: My Lords, I have already asked this question. Under which current legislation is an inspector allowed to slaughter any TSE susceptible animal? I refer to paragraph 4(2)(k).

Lord Whitty: My Lords, there has been much reference to paragraph 4 and in particular to paragraph 4(2)(k). The powers relating to slaughter relate exactly to the circumstances to which I have already referred. They apply only to the specified EU monitoring programme and would come into play only if an abattoir refused to slaughter an animal which had been selected for testing under the various provisions. All those animals would already have been sent to slaughter by their owners in the normal course of events.

In terms of which existing statutory instruments that relates to, it primarily relates to the BSE Order No. 2 1996 and the Sheep and Goats Spongiform Encephalopathy Regulations 1998. It is a re-enactment of those provisions and no more. Therefore, all this agitation about an extension of slaughter powers is misplaced. The noble Countess

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honestly and frankly said that it may have been there before but I do not agree with what was there before. That may be her position. But the House today is being asked to re-enact in consolidated form, and in a form which is consistent and in conformity with our EU obligations, what is already in the UK regime.

The Duke of Montrose: My Lords, Statutory Instrument No. 3183 deals with animals which have been exposed to infection rather than being susceptible.

Lord Whitty: My Lords, that is precisely my point. Where one talks about a suspect animal that is the only situation where the slaughter powers arise. It is a suspect animal which is susceptible to BSE; otherwise the decision to slaughter on the grounds of BSE could not apply. That is why we need to distinguish between "suspect" and "susceptible". The reason that the term "susceptible" is there is because there will be animals which are subject to the testing, monitoring and surveillance provisions which are not showing any suspect symptoms. Obviously that is how we establish the prevalence or otherwise of the disease.

The other misapprehension is in relation to animals. It was some time before goldfish were mentioned but the noble Baroness eventually got round to it. These provisions are required in order to enact the EU monitoring programme that we are required to enact; the remainder are already in UK law. The EU regulation, I think that it is paragraph 4, specifies the monitoring and surveillance programme for bovine animals, then for ovine and caprine animals—no others. We are not talking, therefore, about a surveillance programme which involves dogs, cats, goldfish, deer or any other animal apart from those which are specified in those provisions; and "any animal" refers to animals covered by those provisions. Part of that regulation relates to feed. The regulations in that respect refer to "farm animals". Dogs could be construed as farm animals and, therefore, are excluded. I assume that the same applies to humans, but that may be slightly stretching the point. That is why dogs are particularly spelt out, while goldfish are not.

I turn to other points raised. The noble Lords, Lord Moran and Lord Willoughby de Broke, referred at length to the Joint Committee on Statutory Instruments. It is regrettable that a number of typographical errors were found in the regulations. There was also the question raised by the noble Earl, Lord Ferrers, as to whether we should spell out the full meaning of TSE. That was all that was queried by the JCSI. The committee did not see any objection to using the negative procedure and statutory instruments drafted in this way to consolidate and transpose the regulations.

I return to my amendment and that tabled in the name of the noble Lord, Lord Livsey. The noble Lord, Lord Williamson, asked whether my amendment meant anything more than what was already contained in the regulations. The references to appeal apply very specifically to particular areas within the regulations. My response to the recommendation of the noble Lord, Lord

15 May 2002 : Column 412

Livsey, was that we need to ensure that there is some ability to make representations in all such cases. It is, therefore, wider than what is already in the regulations. My objection to the position taken by the noble Lord, Lord Livsey, was primarily on the seven days, which could seriously limit the ability to act quickly in an area where there are some BSE suspect beasts. That is why I have couched it in these more general terms, removing the seven-day requirement, which, literally interpreted, would mean that we had to wait for seven days in every case before we could take action in case there was an objection, or what the noble Lord refers to as "an appeal".

As far as concerns using the negative procedure—

Lord Pearson of Rannoch: Can the Minister inform the House of the time-scale envisaged in his amendment?

Lord Whitty: My Lords, there is no time-scale implied because we are looking at how it would apply to different parts of the regulations. The seven-day period would inhibit the most urgent cases, though it would not necessarily inhibit some of the other provisions in terms of tracing and testing. It may vary in different parts of the regulations. If we accept this recommendation, the instruction of the House would be for us to consider options to achieve what the noble Lord wishes to achieve in his amendment. Therefore, I wish to show the way in which we are—I hope, with good will—considering the reservations that some Members of the House, and beyond, have about how we would carry out these regulations. I absolutely accept that if we agree either the amended amendment or the original amendment we would still have the regulations in place. As noble Lords will have gathered by now, that is my objective in this debate in any case.

I shall comment briefly on the question of using the negative procedure in this respect. We use that procedure here, and, indeed, have done so for nearly 30 years in order to transpose measures with varying degrees of success—and, yes, with gold-plating on occasion by all governments. We have transposed under the 1972 Act by the negative procedure. This falls well within the normal way in which such regulations are transposed.

I believe that the noble Baroness, Lady Carnegy, was referring to the length of such regulations. However, they do consolidate a great many provisions; indeed, there are other consolidated regulations that are similarly lengthy and which have been dealt with by the negative procedure. If the House wishes to change that process, we have to change the primary legislation in order to provide for it.

I do not think that at this stage of the evening I need go into all the additional points. Perhaps I may merely reply—

The Earl of Northesk: My Lords—

Lord Whitty: My Lords, I was about to anticipate the noble Earl. He may or may not believe me, but I was about to do precisely that and repeat what I said at the beginning.

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In relation to data protection, as in relation to human rights, as in relation to an obligation on the Government to act proportionately and reasonably in carrying out these provisions, that applies and qualifies anything that is in the statutory instruments.

In relation to the noble Earl's specific point about notification under the technical standards and regulations directive, I did take up the point that he was kind enough to raise with me last night and sought advice on the matter. The advice is that this does not apply to the TSE regulations because the regulations provide administration and enforcement of a particular EU obligation. The technical standards directive applies only to national legislation which gives effect to national policy. In so far as they are national regulations, they do not change those that have already been deemed to have been retrospectively notified.

The Earl of Northesk: My Lords, the Minister will recall that I inquired about a specific point; namely, whether or not the DTI had been consulted about the notification status of the regulations. That is the fundamental point I am trying to get at.

Lord Whitty: My Lords, I indicated that I sought advice. I have no doubt that the guidance from the DTI has taken account of that advice. As to whether anyone has talked to the DTI in the past 24 hours, I cannot say. I do not believe that it would be normal for us to reveal to the House the exact intensity of interdepartmental discussions on these matters. The advice clearly indicates that it would be not necessary in the transposition part of this to register it.

Baroness Carnegy of Lour: My Lords, is the Minister going to answer the question put by my noble friend the Duke of Montrose about the position in Scotland? I believe that there are also plans relating to Wales. On page 205 and 206 of the regulations, 14 orders are revoked. Only the last two specifically refer to England. Are these all being revoked now for Scotland and Wales, in which case the people in Scotland and Wales will be totally unprotected because the measure applies only to England? Or are they being revoked only in relation to England? I do not see a reference to that. Please will the Minister reply to that point?

Lord Whitty: My Lords, the orders have been revoked in relation to England. I thought that the noble Lord, Lord Livsey, had already answered that point on my behalf. To repeat the point, they are revoked in relation to England. The measure before the House therefore relates to England. I understand that in Scotland, Wales and Northern Ireland, equivalent legislation will be introduced later this month, as the noble Lord indicated. I hope that that answers the noble Baroness's question.

This has been a wide-ranging, and at times difficult debate. I do not think it appropriate to speak for much longer, except to underline the point made by the noble Baroness, Lady Howarth; namely, that the regulations are primarily about public health. Noble Lords may have doubts about the science, and they may have concerns

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about the way in which the regulations may be implemented. But I hope that the whole House will recognise the necessity of having in place a proper regime to deal with TSEs, and to deal with the potential damage to public health as well as to animal health from BSE, and that it would be deeply irresponsible of this House to reject the existence of such a regime.

Lord Monson: My Lords, before the noble Lord sits down, he has not answered the important point raised by the noble Earl, Lord Caithness, and others as to why the maximum compensation for slaughtered sheep is limited to #400, whereas there is no such limit in the case of cattle.

Lord Whitty: My Lords, I thought that I answered the point in general terms.

Baroness Byford: My Lords—

Lord Whitty: My Lords, I can answer the point in general terms, begging the noble Baroness's pardon. This is the enactment of existing legislation. There is a real problem for the House. On the one hand, noble Lords are saying: do not gold-plate and do not alter the EU regulations. On the other hand, they are asking us to do precisely that. The present regulations have that limit and have done for some time. We may need to look at that at some point, but they do not introduce any new cap on the value of sheep. I wish to put my amendment to the House.

Baroness Byford: My Lords, before the Minister sits down—

Noble Lords: No!

Baroness Byford: My Lords, I think that I am in order. I checked with the Clerks before. I do not think that I am out of order—I hope not.

The Minister has not addressed my question about what is happening in Scotland and Wales.

Lord Whitty: Yes, I have.

Baroness Byford: My Lords, I apologise to the noble Lord if he has done so. I should like to take the point a step further. If we support the annulment proposed by the noble Countess, Lady Mar, will the existing legislation re-enact itself? What will happen? I should like the Minister to clarify that, because it makes a difference. It has been suggested that I do not care about what happens to human health or what happens on the BSE side. As a responsible person who has in the past bred stock, I am acutely aware of our responsibilities. We need to be very clear about the consequences if we go down a certain line. That is why I am asking the Minister to be kind enough to clarify the situation for all of us.

Lord Whitty: My Lords, I thought that I had made this clear at the beginning and in correspondence. The position is that, because the instruments have been laid with effect from 19th April, the previous regime is

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revoked. If we annul the provision tonight, there will be no regime in place from that point. The noble Baroness is correct to say that we could get together and find some other regime, but that takes time. For a period there would be no regime in place. That is why I say that we would risk not only public health but also confidence in our livestock industry if we went down the road suggested by the noble Countess this evening.

Baroness Darcy de Knayth: My Lords—

The Chairman of Committees (Lord Tordoff): The Question is—

The Countess of Mar: Order!

Baroness Darcy de Knayth: My Lords, will the Minister and the House forgive me? I have never intervened in debates on agriculture, so I feel very hesitant, but this is not a question to do with agriculture. Having listened as an outsider, I feel that the amendments have moved us forward. However, I do not think that the Minister's comments about the constitutional issues have answered one point that still bothers me. My noble friend Lady Mar said that we can amend the instrument, but the Government do not have to pay any attention to such amendments. I do not think that the Minister has answered that. Will he make the position clear for an idiot non-agricultural lay person?

Lord Whitty: My Lords, as the noble Countess pointed out, the passage of the amendments would leave the regulations in place, allowing them to proceed. The amendments would not alter the regulations, but they call on the Government to take action to fulfil the objectives enunciated at the beginning of the debate by the noble Lord, Lord Livsey. We have said that we have sympathy with that view and will act on it. The issue is whether we have the regulations—and therefore a regime—in place or not.

The Countess of Mar: My Lords, I am sorry, but I must get this point over. The Minister is under no statutory obligation to accept any of the amendments. If he were to leave office tomorrow, the next Minister would come along and say, "It wasn't me".

10.54 p.m.

On Question, Whether Lord Whitty's manuscript amendment to Lord Livsey's amendment shall be agreed to?

Their Lordships divided: Contents, 95; Not-Contents, 16.

Division No. 1

CONTENTS


Alli, L.
Alton of Liverpool, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Bragg, L.
Brennan, L.
Brookman, L.
Campbell-Savours, L.
Carter, L. [Teller]
Chandos, V.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Crawley, B.
Currie of Marylebone, L.
Darcy de Knayth, B.
Davies of Oldham, L.
Desai, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Filkin, L.
Gale, B.
Goldsmith, L.
Gordon of Strathblane, L.
Grabiner, L.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L.
Hardy of Wath, L.
Harris of Haringey, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jones, L.
Judd, L.
Kirkhill, L.
Lea of Crondall, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackie of Benshie, L.
Masham of Ilton, B.
Massey of Darwen, B.
Milner of Leeds, L.
Mitchell, L.
Morris of Aberavon, L.
Nicol, B.
Northfield, L.
Orme, L.
Pendry, L.
Pitkeathley, B.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rogers of Riverside, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Strabolgi, L.
Thornton, B.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L. (Lord Privy Seal)
Williamson of Horton, L.
Woolmer of Leeds, L.

NOT-CONTENTS


Boardman, L.
Craigavon, V.
Ferrers, E.
Geddes, L.
Greenway, L.
Maginnis of Drumglass, L.
Mar, C. [Teller]
Monson, L.
Montrose, D.
Moran, L.
O'Cathain, B.
Park of Monmouth, B.
Pearson of Rannoch, L.
Saltoun of Abernethy, Ly. [Teller]
Stoddart of Swindon, L.
Willoughby de Broke, L.

Resolved in the affirmative, and amendment agreed to accordingly.

15 May 2002 : Column 416

On Question, Lord Livsey of Talgarth's amendment, as amended, agreed to.

On Question, original Motion, as amended, agreed to.

        House adjourned at five minutes past eleven o'clock.