http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldhansrd/pdvn/lds02/text/21022-04.htm#21022-04_head1

Animal Health Bill

3.7 p.m.

Report received.

Clause 1 [Foot-and-mouth disease]:

The Countess of Mar moved Amendment No. 1:



"( ) In the Animal Health Act 1981 (c. 22) (in this Act referred to as the 1981 Act) before Paragraph 3 of Schedule 3 insert—
"(A1) The Secretary of State shall give priority to a "vaccinate to live" policy prior to causing to be slaughtered animals on premises where no infection has been detected."

The noble Countess said: My Lords, I declare my interest as the wife of a family farmer. We have Black Welsh Mountain sheep, Blonde d'Aquitaine cattle and a flock of goats.

In the aftermath of the foot and mouth disease epidemic and the bloodbath that accompanied it, almost everyone who has spoken in the many debates on the Bill has remarked on its somewhat callous opening clause. I tabled Amendments Nos. 1 and 9 in an attempt to persuade—

Baroness Farrington of Ribbleton: My Lords, perhaps the noble Countess will forgive me. I hope that noble Lords will allow us to hear what the noble Countess is saying.

The Countess of Mar: My Lords, I am grateful to the noble Baroness. I have tabled Amendments Nos. 1 and 9 in an attempt to persuade the Minister that it would be politic to begin with a statement that does not give the impression that the Bill gives a permit to kill every animal in sight.

At the time of the epidemic, there was a hot debate on the pros and cons of vaccination. Was it effective? Would the meat be affected? Indeed, would the meat be saleable? Would not vaccinated animals still be infected? Would they not be carriers? Some of those questions are red herrings; most have now been answered. Both the science and the technology in this field are moving forward at a rapid pace. In the awful event that we should have another serious outbreak of foot and mouth disease, we should be better equipped scientifically, technically and practically to cope with controlling its spread. It could well be that vaccination will not provide the complete answer, but it should be given priority.

Experts giving evidence to the European Parliament's temporary committee on foot and mouth disease as well as to the UK-based inquiries have demonstrated their indecisiveness as to what part a vaccination policy should play in the event of a future outbreak of the disease. I quote from the European Parliament's temporary committee working document dated 16th September 2002. At paragraph 52 the rapporteur states:


    "Mass culling of livestock and the subsequent destruction of meat can be ethically justified only by special socio-economic grounds. Decisions must be taken in a transparent manner: otherwise, it would be difficult to persuade those sections of the

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    population who suffer most from a non-vaccination policy to provide the necessary co-operation during a future FMD outbreak".

In Committee, I said that we were governed by consent. If a Government are to govern effectively in this country, the laws that they make must be reasonable and enforceable. In recent years, there have been several occasions on which a lack of consent has made enforcement difficult, if not impossible. I think instantly of the poll tax legislation enacted by the Conservative Government. There is plenty of anecdotal evidence that the 20-day standstill rule is being flouted, simply because it is unreasonable, unworkable and unenforceable.

Difficult as it may be for the so-called "man on the Clapham omnibus" to understand, most livestock keepers have a bond with their animals that is almost as strong as the bond that they have with their family. They are also hard-headed realists. They know that, when an animal has been exposed to a disease, it must be dealt with appropriately. They find it tough to accept that a healthy animal that has had no contact with any infection must die, when there might be a means of protecting it from disease.

Equally, I recognise that farming has rotten apples, generally known as rogues. They are the wheeler-dealers of this world who own or rent numerous small parcels of land over a large area. They pay scant regard to biosecurity or animal welfare, and they trade animals as stockbrokers trade shares. Family farmers are still the major keepers of livestock in the UK. Most have a long association with the land and with their animals. It is painful and insulting for them to find themselves bracketed with the rogues by others who have little knowledge of farming or farming practices and who get their information from the exaggerated literature produced by some animal welfare organisations. I acknowledge and accept the need for strict controls, but there is room for a little humanity. Even the law can have a sympathetic face.

In Amendment No. 9, I ask the Secretary to State to ensure that an animal must be shown to be infected by foot and mouth disease before she can have it slaughtered. I understand that it is possible to differentiate between animals that are carrying antibodies as a result of vaccination and those with antibodies resulting from infection. If the animals have not been infected and have been vaccinated, they present no infective risk. It is the same as our measles vaccination: once we are vaccinated, we are not infective.

The Minister assured us on a number of occasions that the Secretary of State would take into account a vaccinate-to-live policy. For reasons of openness and humanity, I ask noble Lords to ensure that that policy appears in the Bill. I beg to move.

3.15 p.m.

Lord Greaves: My Lords, despite our best efforts this morning, the groupings have gone slightly awry. With the noble Countess, Lady Mar, we intended that Amendments Nos. 1, 2 and 9 would be grouped. I am not sure how Amendment No. 2 dropped out at the

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last minute, but, with the leave of the House, I shall re-group the amendments. It might save a little time, which is something of which the Minister will approve. I shall speak in support of the amendment that the noble Countess so ably moved, and I shall also speak to Amendments Nos. 2 and 9.

It is interesting that it has taken until this stage in the Bill's passage for the issue of vaccination to come before your Lordships' House. One of the reasons is that we were waiting hopefully for the Government to make their own proposals to write vaccination as an option—a preferred option—into the Bill. There are several reasons why that is necessary. One is simply to change the balance of the Bill. The issue has been discussed in detail, and I remember the right reverend Prelate the Bishop of Hereford speaking eloquently about it in Committee.

At the moment, the Bill is widely seen as a slaughter Bill. The Minister denies that, but the way in which the Bill is written means that the emphasis is on slaughter, rather than vaccination. We have now seen the Anderson and Follett reports and the public's reaction to the appalling scenes that took place during the epidemic, as people desperately tried to fight it. I shall read to the House what the Minister said on the Bill's second day in Committee. Our amendments are merely a statement of what the Minister now says is government policy. The Minister said:


    "The Government's preference, as my right honourable friend the Secretary of State made clear in July, is that a vaccinate-to-live policy should be used wherever possible, in line with the Royal Society report. However, there will be scenarios where vaccinate-to-slaughter may be appropriate".—[Official Report, 7/10/02; col. 23.]

The implication is that there will be scenarios where slaughter on its own will be appropriate.

The Minister has said on several occasions that the Government's preferred first option in a future outbreak would be vaccination and that vaccinate-to-live should be used wherever possible. It could not be clearer than that, but the Bill still launches straight into slaughter. We support the noble Countess's amendment and we tabled Amendment No. 2 because we want to see vaccination-to-live written into the Bill as a strategy for dealing with a future outbreak.

Amendment No. 2 stands in my name and that of my noble friend Lord Livsey of Talgarth. There are two parts to the amendment. The first part sets out a sequential test that the Secretary of State should apply in the case of a future outbreak and in planning for such an outbreak. The test would require the Secretary of State to consider, first, biosecurity measures, secondly, vaccination-to-live, thirdly, vaccination for possible later slaughter and—only finally—slaughter. It sounds like a long and complicated procedure, but it is not necessarily so. Decisions could, if necessary, be made quickly. It is important that decisions are made in that order in the case of future outbreaks and that that sequence should underlie planning for future outbreaks.

The Minister may say that planning for future outbreaks is not for the Bill but for the protocol that he will produce, which will be welcome, or for his

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contingency plan, which will also be welcome. However, we tabled the amendment because we wanted the Minister to tell us where such a system for making decisions would be set out. So far, the information provided by the Minister, including a letter to the noble Baroness, Lady Byford, suggests that the protocol will, yet again, be all about slaughter, rather than giving fair, objective and balanced consideration to the alternatives.

The second part of the amendment probes the Government to see how they believe that they have the legal power to carry out an extensive compulsory vaccination programme to create a firebreak or as a ring vaccination or vaccination of an area—Yorkshire, for example. Where do they believe that they have those powers under existing legislation? I am no expert on existing legislation, but I read the 1981 Act and cannot find those powers. I can find the powers for compulsory vaccination, which appear in Section 16(1), but they do not appear to cover preventive vaccination of such a kind on a large scale. So mine is a probing amendment to discover where the Government believe that they have those powers and, if they do not have them or if, as they say in relation to the slaughter powers, they are ambiguous, why they do not propose to use the Bill to write them into legislation.

 Lord Willoughby de Broke: My Lords, I rise to support both the amendment tabled by the noble Countess, Lady Mar, and that tabled by the noble Lord, Lord Greaves. I share the noble Lord's view that it is astonishing that it is only now that we are to consider vaccination. I was not present for the Committee stage but I read the Official Report. The noble Lord, Lord Whitty, said consistently that he still needs the powers for contiguous cull. His argument for that relies on the Lessons to be Learned report, but seems to glide over some of the strongest recommendations of the Royal Society of London, the Royal Society of Edinburgh and earlier reports from Devon, all of which roundly condemn the cull policy and strongly recommend vaccination as a prior tool of future policy. That does not appear anywhere in the Bill, other than in amendments such as that moved by the noble Countess.

I hope that the House will support the amendments. Otherwise, we shall be left with a Bill that has been roundly condemned by everyone who was a victim of the contiguous cull—which, as we all know, was hugely costly in both human and financial terms. This is largely the same Bill as before, with some changes proposed on the fringes by the Government. It does not address the central point—whether we are doing the right thing—but gives the Government more powers to cull contiguously. In other words, it continues the same bankrupt policy that was perpetrated on the country last year. We should respond to the reports. The Government have not formally responded to any of the reports that they commissioned; yet here is a Bill that purports to deal with some of their recommendations.

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We should take the amendments seriously. I do not know whether there will be a Division on them, but if there is I shall certainly support them.

Lord Peyton of Yeovil: My Lords, I hope that the Government will take seriously the amendments tabled by the noble Countess, Lady Mar. During the passage of the Bill, the Government have not taken sufficiently into account the view held by many farmers and others closely concerned with the farming industry. The Government have never really looked at themselves from that other point of view and realised how much they are mistrusted and hated. It is no exaggeration to say that many people believe that there is a culture in what used to be the Ministry of Agriculture, Fisheries and Food that has not seriously changed as a result of its change of name: a culture of addiction to slaughter, belief in slaughter and preferment of slaughter, rather than the consideration of any other means.

I was telephoned today by a land agent in Devonshire who told me what happened on two farms there in June during the last outbreak. He was present on one of the farms and had been talking to a policeman. When his back was turned, the policeman jumped on his back, brought him to the ground, handcuffed him and he was subsequently charged. The Crown Prosecution Service admitted that there was absolutely no case and said that the arrest had been unlawful. There is case after case such as that, and the Government have not yet done anything to eradicate the deep suspicion and dislike of the department.

Clause 2 is entitled, "Extension of power to slaughter"; and Clause 3 is entitled, "Slaughter of vaccinated animals". There, in two headings, we have the counsel of despair or, to put it another way, the record of the department's addiction to the policy of slaughter. I hope that the Government will not be in too much of a hurry to reject the amendments.

Lord Williamson of Horton: My Lords, I am not sure that the amendment is a classic piece of drafting, but I support it because of the importance that I attach to the completion of preparations for a vaccinate-to-live policy to be applied, if appropriate, in any future outbreak of foot and mouth disease. I have made that point several times but, for me, it is the most important point in our decisions on future policy on foot and mouth disease. It is essential that we do not neglect it but write it into the Bill.

I once again recall that the Royal Society report identified several important issues to be resolved and considered that,


    "With significant effort by DEFRA, that should be possible by the end of 2003".

That is what we are aiming at and we need to achieve it. The issues identified in the report were: the clear acceptance that meat and meat products from vaccinated animals could enter the food chain; the validation of marker vaccines; the trade implications; the precise vaccination strategy; and all of the practical issues concerning storage, and so on.

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The noble Lord, Lord Whitty, kindly sent me a copy of his letter to the noble Earl, Lord Peel, which states that DEFRA is considering two types of test for the presence of the foot and mouth disease virus: the simple, so-called 15-minute test; and the longer, at present laboratory test called the RT-PCR test. I shall not weary your Lordships with the translation of those initials into scientific wording, although I know it. Those are clear priorities. We must ensure that that is carried forward. That is why it would be useful to write that into the Bill to show that we are, in a sense, strengthening the possibilities for slaughter but that our objective is to arrive at a vaccinate-to-live policy, which 99.9 per cent of the British population will support.

Lord Carter: My Lords, I am surprised by the amendments because we discussed the matter in Committee at some length. Those who support the "vaccinate to live" approach, with which we all agree, refuse to read the Bill as drafted. We know what lies behind the Bill. Although the tests are extremely encouraging, there is still no satisfactory scientific proof that we can distinguish between an animal that has been vaccinated and an animal that is carrying the disease.

The Countess of Mar: My Lords, I am sorry to interrupt the noble Lord, but we must be correct. There is a test that will distinguish between them.

Lord Carter: Yes, my Lords, but it has not been subject to peer review or accepted by the Government and the veterinary authorities.

The Government will grasp with both hands any opportunity to prevent the mass culling of animals. In moving her amendment, the noble Countess, Lady Mar, said that it may well be that vaccination is not the complete answer. That summarises the case. Vaccination may well not be the complete answer—at present, it is not. As soon as it is, any Government in their right mind would grasp it. After the experience of last year, no Government will go in for mass culling if there is any opportunity of an alternative such as vaccinate-to-live. However, it is in the Bill already, as I pointed out a number of times in Committee. Noble Lords come to the debate with preconceived ideas—I did myself when I was in Opposition—and they will not read the Bill.

New Section 16A proposed in Clause 3 states:


    "This section applies to any animal which has been treated with vaccine for the purpose of preventing the spread of foot and mouth disease".

That is all animals that have been vaccinated. Subsection (2) states:


    "The Secretary of State may cause to be slaughtered any animal to which this section applies".

If that clause read, "shall cause to be slaughtered", I would support the amendment. It does not say that. It gives the Government the option of slaughter or vaccinate-to-live. I am arguing that the option of vaccinate-to-live is in the Bill.

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In Amendment No. 2 subsection (1)(b) says:


    "vaccination of animals without the requirement of subsequent slaughter".

It is in the Bill already. I have just read it. I urge noble Lords to understand that the Government will accept any alternative to mass slaughter if possible. However, that would be extremely irresponsible before scientific proof is available. There are some encouraging tests. We all hope that they will be successful and that the Government will grasp at them. I am sure that they will.

However, until there is satisfactory scientific proof to distinguish between an animal that has been vaccinated or one that is within the 21 days of incubation of the disease, the Government must have the option of slaughter. The Government will not slaughter if it can be avoided. That is my understanding.

However, I ask noble Lords to read the Bill as drafted. It allows the option of vaccination-to-live, which I am sure the Government will grasp, when possible.

3.30 p.m.

Baroness Mallalieu: My Lords, before the noble Lord sits down, will he say where in the present Bill is the priority that is included in the present amendment?

Lord Carter: My Lords, how can the Government allow a priority for an untested test? Giving that priority in advance of being assured scientifically, and without veterinary advice that that test is acceptable, would be extremely irresponsible. I ask noble Lords to be realistic about that. We know the agony that everybody went through last year. Does anybody believe that any government in their right mind will slaughter animals when there is an alternative? Until there is acceptable, scientific proof that can distinguish between an animal that has been vaccinated and an animal that is incubating the disease, it is extremely irresponsible to give priority to vaccination-to-live.

Lord Renton: My Lords, surely the answer to the noble Lord, Lord Carter, and to the Government generally, is the application of the simple age-long principle that prevention is better than cure. By prescribing that there shall be vaccination, the amendment of the noble Countess, Lady Mar, applies that principle.

Lord Carter: My Lords, the Bill states:


    "The Secretary of State may cause to be slaughtered".

Therefore, the animals can be vaccinated. I am sure we shall hear from the Minister that that will be the Government's first priority, but at this stage they cannot accept that vaccination-to-live should be the priority.

Lord Renton: My Lords, I am not suggesting that there should never be slaughter. Vaccination may sometimes fail. However, that is the application of the principle. I believe that we should support it.

Lord Palmer: My Lords, I, too, would like to support my noble friend and the amendments. Despite

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what the noble Lord, Lord Carter, says, I feel that they are a vital safeguard. Having been sandwiched in at home with outbreaks of foot and mouth literally at the top and the bottom of the garden, every single animal at home was slaughtered. Needless to say, all the tests proved negative. To my dying day I shall be haunted by the sight of the executioners waiting at the bottom of the road to move into my neighbours' farms. Again, all their animal tests proved negative.

My noble friend's amendment makes such good common sense and we must not forget the vast experience that she has in animal health husbandry. It must be virtually second to none. I urge the Minister most strongly to consider the amendments.

Lord Moran: My Lords, it is generally agreed that there are now two options for dealing with the problem of uninfected animals which are near an outbreak: either slaughtering them, as last time, or vaccinating them to live. It is generally accepted that one or other option may be appropriate in different circumstances. However, I believe that the balance is wrong because the emphasis is entirely on slaughter. I make no apology for reminding your Lordships of my comments on 7th October (col. 29) when I quoted a speech by Commissioner Byrne. I repeat what the Commissioner said because I do not believe that the Government have taken any notice of it:


    "It is no longer acceptable to the public that large numbers of animals can be slaughtered and destroyed now that new diagnostic tests have been developed and are available which differentiate between infected and vaccinated animals".

The noble Lord, Lord Carter, will note that the commissioner takes that seriously. He continued:


    "the Commission is of the view that emergency vaccination should be moved to the forefront of the response mechanism in the event of future outbreaks . . . vaccination had been viewed as a weapon of last resort. It is now time to break with this approach".

I believe that is the motive behind my noble friend's amendment, which I support. I support much of what has been said by subsequent speakers. Amendment No. 7 proposes a new clause headed "Disease control (slaughter) protocol". There is nothing about vaccination. It seems that the whole wording reflects a policy of killing uninfected animals, instead of giving emergency vaccination. Both possibilities should exist. There should be more in the Bill reflecting the possibility of emergency vaccination because that is clearly a valid possibility.

I hope that the Minister can give us reassurance and will seek to correct the balance—the wording, more than the actual provisions—to ensure that the matter is reflected in a fair way. That would be reassuring to many farmers and to many of your Lordships.

The Lord Bishop of Hereford: My Lords, I support what was said by the noble Lord, Lord Moran. I also support both those amendments. At the risk of repeating what I said in Committee, it is a matter of presentation, style and perception. If a dispassionate observer were to write a critique of what has happened with this legislation during the past year, it would be

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clear that there has been a process of evolution and development. In the wake of foot and mouth, when slaughter was the only known policy—or the policy that was agreed and imposed, which even the NFU wanted to maintain in the face of those who were advocating vaccination—it was natural that the Government were conscious that some culls had been frustrated. Therefore, a Bill was needed to make it possible to act quickly in cases where frustration might occur again in a future outbreak.

That was understandable. That was the genesis of the Bill. The whole issue has changed enormously from a year ago. The Government have made many concessions. I am grateful to the Minister for withdrawing the word "immaterial". There is a possibility that I might give your Lordships a rendition of the Te Deum in thanksgiving for that change. However, the noble Lord, Lord Carter, for whom I have a lot of sympathy, seems to be creating an unnecessary problem. He says that vaccination is on the face of the Bill. That is true, but it is secretly tucked away in Clause 3. It is there by implication. It is actually on the face of the Bill, but one has to read rather a lot before one comes to it.

Lord Carter: My Lords, if the right reverend Prelate will give way—

The Countess of Mar: Order! Order! My Lords, perhaps I may remind the noble Lord that we are at the Report stage.

Lord Carter: My Lords, I am allowed to respond. I can tell the noble Countess that I know the rules. I can respond to an intervention which mentions me and asks me a question. I am saying that the provision is on the face of the Bill:


    "This section applies to any animal which has been treated with vaccine".

It is not hidden away—it is there!

The Lord Bishop of Hereford: My Lords, I acknowledge that the provision is printed in Clause 3, but it is not at the front of the Bill. It is not what the Bill appears to be about. The two amendments that we are discussing try to put it at the front and make it prominent and clear that this is what we want to see happening. In Committee, the Minister said—the noble Lord, Lord Greaves, quoted his words—that we want to put the provision on the face of the Bill before we get into the slaughter procedures, which are the fall-back position. I believe that all of your Lordships are agreed that now slaughter should be the fall-back position and the last resort.

That is why the sequential test, set out in Amendment No. 2, is helpful. Perhaps the Minister and the noble Lord, Lord Carter, will consider the wording of that amendment. It says:


    "the Secretary of State must have regard to a sequential test".

That is not to say that he must do certain things if in a particular circumstance the test is found to be unreliable. There is genuine disagreement about the

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matter. Commissioner Byrne has claimed that there is a reliable test, but the noble Lord, Lord Carter, says that it is not yet reliable enough. If there is a sequential series of tests and if there is any doubt about the reliability of the tests, the possibility of slaughter remains as a last resort.

These amendments are important to the farming community because they put at the front of the Bill our present position and the ideal to which we aspire. It is conceivable that if we were to pass Amendment No. 1 in the name of the noble Countess, Lady Mar, which inserts the words "shall give priority", the Government will say, "Well, actually we are still not quite sure enough to be willing to accept that". I would support that amendment and I believe that the European Parliament report is strong and authoritative enough to enable us to do that with conviction. I would also support Amendment No. 2 because it sets out the sequential test.

However, I am puzzled that the Minister and the noble Lord, Lord Carter, still cannot understand why the presentation of the Bill matters so much to the perception of the farming community. I fervently hope that the Government will accept the amendments. I believe they are desperately needed by farmers who are still deeply resentful about the tone of the Bill and the hangover from the time when it originated. We have moved on from there and we need to recognise that in the wording of the Bill.

Lord Campbell of Alloway: My Lords, I shall be brief. I support both amendments tabled by the noble Countess, Lady Mar. I shall return to the matter when I deal with my Amendment No. 19, particularly subsection (4), dealing with the exercise of powers. That is relevant to the speeches which were made by the right reverend Prelate and the noble Lord, Lord Moran. I shall not deal with the matter now, but it is crucial to balance vaccination as against slaughter.

3.45 p.m.

Lord Monro of Langholm: My Lords, the right reverend Prelate and the noble Lord, Lord Moran, hit the nail on the head by raising the issue of the presentation and tone of the Bill. During the last session of the Committee stage we began to think that the Minister was coming to realise that its wording could not be more unsympathetic to the farming industry. It is time that the clauses were softened in the interest of presentation.

I began to feel that the Minister had learnt that when he kindly sent everyone involved in the Committee stage detailed letters of changes that were to be made, generally showing concern about our debates. However, when one read no fewer than four separate articles in today's edition of The Times showing the draconian measures that the Government were likely to bring in primary legislation to deal with foot and mouth, one began to wonder whether we were going to go through all this again.

In addition, after the Secretary of State's incredible mistake in Paris yesterday, farming came through a bad day according to what one read in the newspapers.

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As a Minister, I have been once or twice to the food fair in Paris and I realise how important publicity is, whatever one's view of the food that is put before one. To feel that the best British roast beef was being spurned at that critical moment was a serious lapse.

The amendment put forward by the noble Countess is most valuable because it puts a requirement on the Government to think for a moment or two before beginning a slaughter procedure. Clause 1 is all about slaughter, slaughter, slaughter, slaughter! There is not a word about vaccination. After all, the first clause is supposed to be the most important clause in a Bill. Acceptance of the amendment will show to the agricultural industry, the veterinary profession and the general public that before slaughter the Government will spend a few minutes considering whether vaccination is the right policy.

I cannot see what is wrong with that. Why on earth cannot we do it? Whatever the noble Lord, Lord Carter, says about there being umpteen opportunities later in the Bill, Clause 1 is the first which comes to everyone's mind. It is right that the Government should have to pause before they take action to consider whether they should vaccinate or slaughter.

The agricultural industry wants the Government to think for just a moment before taking action. Once they have taken action, nothing can redeem the poor animals which have been slaughtered. Later we will deal with the problems raised in today's newspaper about the valuation, which sounds draconian. So let us have a more sympathetic approach to a most fearful moment in a farmer's life; seeing his stock being slaughtered. I have seen it and believe that we must assure the agricultural industry that the Government will not take that step without thinking about vaccination.

Baroness Masham of Ilton: My Lords, I support my noble friend's amendment. During Question Time today we discussed stress. Stress among farmers is a huge problem and the stress of having lost their stock will remain with many of them for the rest of their lives.

Our breeding stock and milking cows are special. I hope that the Minister can put priority on some of the animals as regards vaccination. Much more research needs to be done into various vaccinations and I hope that the amendment will be carried so that priority will be given to vaccination.

There are more dangerous diseases in our community than foot and mouth. Foot and mouth is not a real killer to humans and not enough work is being done on various infectious diseases. Therefore, I believe that the amendments should be supported by your Lordships.

Lord May of Oxford: My Lords, first, I want to thank the noble Lord, Lord Whitty, for his consistent courtesy in keeping us abreast of the various amendments, many of which are tabled in response to earlier debates. I want to speak in support of Amendment No. 1 because, unfortunately, I continue

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to be unhappy with the asymmetry which remains in the Bill, reflecting its drafting at a time long before there had been considered appraisal in the light of experience. In particular, the amendment addresses what we ought to be considering. I agree that we should be giving clearer powers for preventive slaughter, but they should be symmetric and perhaps deferential to reactive vaccination.

Furthermore, the amendment gives the Government a priority to come through. Overlying all the provisions should be clear, inescapable legislation that requires preparations to have been thought through in advance and annually rehearsed. That, too, remains hinted at but not spelled out in anything like the draconian detail that the slaughtering powers are spelled out in the Bill. Until those asymmetries are remedied, I will support amendments such as this and all kindred amendments.

Baroness Byford: My Lords, the Minister can surely be in no doubt about the strength of feeling around the Chamber today on the three opening amendments.

As my name is linked with that of the noble Countess, Lady Mar, on Amendment No. 1, it is natural that I refer to it first. The amendment calls for the Government to give priority to a vaccination-to-live policy. The number 13 is considered unlucky. Our thirteenth speaker, the very well respected noble Lord, Lord May, certainly is not unlucky in any way. He has served with great distinction. The words that he has added to those of the 12 previous speakers are an enormous contribution to the weight of argument in the Chamber today.

Noble Lords in the Chamber are not asking that vaccination should be the only policy. Let us make that clear before we go further. If an animal is infected the animal should be slaughtered, whether or not it has had to be vaccinated first. If it has become infected, slaughter is the only option.

The noble Lord, Lord May, touched on the fact that we started considering the Bill back in November last year, nearly a whole year ago. Since then things have moved on enormously. We have had the various reports. The noble Lord, Lord May, served on one of the bodies. I hope that we have learned something from them. Some noble Lords may place greater importance on different aspects. Amendment No. 1, standing in my name and that of the noble Countess, does not state that this should be the only way that we should deal with the matter, but asks that the Secretary of State should give priority to a "vaccinate-to-live" policy.

In Committee we had a long debate, as we have had again today, on strategy. I find it disappointing that the Government have not accepted the weight of argument behind my amendment. The noble Lord, Lord Carter, says that there is reference to vaccination in the 1981 Bill. I do not think that "may" give consideration to it is the same as Amendment No. 1, which raises the profile further and states, "shall give priority" to it. The two are not the same.

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Other noble Lords have raised extremely important points. I do not want to go over those again. Perhaps I may pick up on what the right reverend Prelate the Bishop of Hereford said and remind the House that when we considered the question of vaccination last year, when the outbreak was at its height, the National Farmers Union was asked for its opinion on a vaccination policy. Those noble Lords who were involved at the time will remember that they circulated a 20-question questionnaire. They did that because at that stage there were no answers to some of the questions with regard to a vaccination-to-live policy—as to whether the science was there and whether it was possible to implement it. That was back in March or April last year. The reports have been issued since then. We have had time to consider the matter. More importantly, there has been the European report. They have all moved us along. It would be great folly to resist an amendment of this kind, which gives a steer to the Government in saying that we believe that the Government should give priority to a 'vaccinate-to-live' policy.

I should like to comment on all the other contributions. That would not be right at this stage. The case has been well made by each noble Lord who has spoken. Obviously my name is attached to Amendment No. 1, but I very much support the amendments tabled by noble Lords on the Liberal Democrat Benches. I hope that the Government listen to the weight of argument that has been put forward again today on this matter.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the right reverent Prelate and others have rightly explained the genesis of the Bill. It was brought forward in the first place because the Government found in the course of the disease that there were certain powers which they lacked or which needed clarifying. This House, in its wisdom, declined to pursue the Bill and to look at the powers that were lacking until it had the advice of the various committees of inquiry that were looking into the conduct of the disease and the way forward.

We now have the results of those committees of inquiry. Their recommendations are reflected in the clause as it stands and in the Government's general approach. The reason why vaccination in this form is not in this clause is because we already have that power under Section 16 of the Animal Health Act 1981. That option already exists. We do not need an additional clause to provide for that option in the Bill. The Bill addresses gaps in the powers of the Government. It might be tidier and presentationally more desirable, and softer and more acceptable, to put in something which is already in law. However, your Lordships will know that that is not the normal procedure of the legislative process. We are dealing here with powers that we do not currently have.

One such power is the power of preventative slaughter. There is an explicit recommendation in the Anderson report that the power needs to be clarified. It should be clear that we have a power of preventative

22 Oct 2002 : Column 1235

slaughter. That is what the clause is about. It is not intended to explain the total strategy in relation to any future outbreak. It is intended to give us that power which we lacked and which we would need in a future outbreak.

That is not in any sense incompatible with the recommendations of the Royal Society and the comments by Commissioner Byrne that in future we must give greater weight to the option of vaccination. And if we go down the vaccination road we should give preference to vaccination-to-live rather than the vaccination-to-kill, which was the option that we considered but did not pursue during the course of the epidemic, and which the Netherlands did pursue during the course of the epidemic.

We have accepted the recommendations of the Royal Society that greater weight in first resort priority should be given to a vaccinate-to-live policy. That however is not what these clauses seek. The noble Baroness, Lady Byford, was the first person in the debate to refer to what is obvious; that whatever policy one takes to prevent the spread of the disease, stamping out the disease in the first place does require, and will continue to require, the destruction of diseased stock. The Royal Society and the Anderson report also indicate that that requires the destruction of other animals on the premises where the disease is present. That would be prevented by both Amendments Nos. 2 and 9, which restrict the exemption from the vaccination requirement to animals which have been infected.

In dealing with the disease, we would also deal with the situation of direct contact, whether between animals or between human beings, which may or may not be on the same premises. That again would be dealt with by the stamping out process in the Follett recommendations, in the Anderson recommendations and indeed what is being contemplated in Europe. So if the House wants to go along with what we have been recommended to follow by the inquiries, then we do not go along with any of the proposals before us in this group of amendments.

Although Amendment No. 1 is slightly less restrictive, it would still prevent the slaughter of—

Lord Campbell of Alloway: My Lords, can the noble Lord explain to the House why he asserts that these amendments are restrictive. Is it because there is an absolute discretion by the Secretary of State that is being restricted? Or, if it is not that, and we come to that later, what is it?

4 p.m.

Lord Whitty: My Lords, the point I am making is that the Royal Society report recommends not that we should adopt vaccination in all circumstances, but that the option of vaccination should be given primary weight at the point extending beyond the diseased premises and direct contact. These amendments suggest that we do so before that. Where a contiguous cull, a three-kilometre cull, a preventive firebreak, or whatever, is being contemplated, the Royal Society

22 Oct 2002 : Column 1236

suggests that at that point the option of first resort should be to vaccinate-to-live. Whether or not we would put it precisely in those terms, the Government recognise that that is a shift of approach and one that we broadly accept.

These amendments require that vaccination shall be the option of first resort at a "closer to the disease" stage. That is not in line with what Follett recommends; it is not in line with what Anderson recommends—which is, in effect, the clause as it stands—nor is it in line with what Commissioner Byrne said is the direction in which Europe is likely to move.

Another consideration is that the Royal Society also recognised—the noble Lord, Lord Williamson, referred to this point—that we are not yet in a position, should the disease break-out, God help us, tomorrow, immediately to resort to vaccinate-to-live in the way in which ideally we would move in line with the Royal Society report. That report suggests that we need to look at issues of diagnostics and their validation; issues of logistics; and issues relating to the acceptability of vaccinated meat and milk from vaccinated animals. Those issues have to be resolved, as do certain European issues, before we can fully implement the Royal Society report in regard to the first resort of vaccinate-to-live.

It is to be hoped that that can be done fairly rapidly, certainly within the next two years, but, as of now, it is not an available option. Therefore requiring us to give priority to vaccinate-to-live, as these amendments do, not only relates to a situation beyond that recommended in the Royal Society report but would not be deliverable for at least the next 18 months to two years, even if everything went well.

It is important that we have on the statute book all the powers that the committees of inquiry have suggested we should have. This clause is about giving us one of those powers; others of those powers are spread throughout the remainder of the Bill; others already exist.

I indicated in one of my communications to noble Lords that government Amendment No. 8 requires the Secretary of State to give reasons for adopting one strategy as against another in the course of any epidemic. That is spelt out in some detail. The noble Lord, Lord Greaves, has tabled an amendment to that amendment which requires that, if vaccinate-to-live is not adopted, part of the Secretary of State's explanation should indicate why. Although I do not entirely agree with the wording of the amendment, I agree in principle that that should be part of the Bill.

That, surely, is where we should require the Secretary of State to explain why we have gone for a policy other than vaccination. But it is not in this area because this is not the area where priority for vaccination-to-live is recommended by the Royal Society.

Those who advocate this policy should recognise two things. First, that what they are advocating in these clauses is not recommended by the committees of inquiry. Secondly, I should point out to those who

22 Oct 2002 : Column 1237

purport to speak for the farming industry that, by and large, the provisions now in the Bill are supported by representatives of the farming community. It is wrong to say that they are resented or opposed by British farming in general; they are not. For obvious reasons, British farmers are as anxious as anyone that the Government should have a full armoury of weapons with which to contain any future outbreak of this terrible disease, or any equivalent disease.

I recognise the passion and concern of those who advocate these amendments that we should clearly shift to giving a greater priority to vaccination—which the Government accept—but the way suggested in the three amendments is not appropriate. It is not in line with what has been recommended

 

The Countess of Mar: My Lords, I am grateful to the Minister for his offering. That is about all I can say for it. I am extremely grateful to all noble Lords who have supported me, particularly the noble Lord, Lord Moran, for repeating what he said in Committee and for reminding us what the Commissioner thinks about the Bill and our activities. I am also grateful to the right reverend Prelate, who reminded us of the human aspects of the Bill, and to the noble Lord, Lord May, for promoting a balance in the Bill.

The noble Lord, Lord Carter, was somewhat disingenuous. I said that vaccination was not the whole answer. I accept that viruses—belonging, as they do, to Mother Nature—can change very quickly and that a vaccine might not be available for a particular strain of virus when it hits this country. So I accept that vaccination may not be the whole answer. My amendment does not propose that vaccination should be the whole answer. It merely seeks that the Secretary of State should give priority to vaccination.

The Minister appears to be under an illusion. I go on to state in my amendment:


    "prior to causing to be slaughtered animals on premises where no infection has been detected".

That is very important. Obviously I accept that infected animals need to be killed and that animals on the same premises, which are very likely to have been in contact with infected animals but are not yet showing signs of disease, should be killed. I have no problem with that whatever. However, I do have a problem in accepting that animals which have had no contact with any other diseased animal and which are showing no signs of infection—and which, if they are vaccinated, will be of no danger whatever to any other animal—must be killed. That is all I am saying.

Lord Whitty: My Lords, does the noble Countess accept that Amendments Nos. 2 and 9 relate only to infected animals and that Amendment No. 1 would restrict anything beyond infected animals to the same premise? Does she accept that direct contact can take

22 Oct 2002 : Column 1238

place between animals which are kept at a premise different from the one in which the original disease was detected?

The Countess of Mar: My Lords, I accept that also. But it is quite likely that such animals would be vaccinated. I understand that the vaccination takes only two or three days to work.

The noble Lord, Lord Carter, referred to the fact that tests to distinguish between an animal that has been infected and an animal that has been vaccinated have not yet been validated. These tests were validated quite a long time ago and deal with the RNA. I believe the noble Lord was referring to field diagnostic kits not being validated. There is a difference between the two. The field diagnostic kits are intended to cut down the time it takes to diagnose a sick animal.

I cannot accept the Minister's explanations. I must test the feeling of the House.

4.7 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 171; Not-Contents, 123.

Division No. 1

CONTENTS


Aberdare, L.
Addington, L.
Alderdice, L.
Ampthill, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Blatch, B.
Bledisloe, V.
Boardman, L.
Boothroyd, B.
Bradshaw, L.
Bridgeman, V.
Brightman, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce of Donington, L.
Byford, B.
Campbell of Alloway, L.
Campbell of Croy, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Carrington, L.
Cavendish of Furness, L.
Chalfont, L.
Clement-Jones, L.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Dahrendorf, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Eden of Winton, L.
Elles, B.
Elton, L.
Erroll, E.
Ezra, L.
Falkland, V.
Fearn, L.
Flather, B.
Freyberg, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Greaves, L.
Greenway, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Hereford, Bp.
Higgins, L.
Holme of Cheltenham, L.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Jacobs, L.
Jenkin of Roding, L.
Jenkins of Hillhead, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Lewis of Newnham, L.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Mallalieu, B.
Mar, C. [Teller]
Mar and Kellie, E.
Masham of Ilton, B.
May of Oxford, L.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Moran, L. [Teller]
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Naseby, L.
Noakes, B.
Northbourne, L.
Northesk, E.
O'Cathain, B.
Oakeshott of Seagrove Bay, L.
Oppenheim-Barnes, B.
Oxford, Bp.
Palmer, L.
Peel, E.
Perry of Southwark, B.
Perry of Walton, L.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Prior, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rotherwick, L.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Stewartby, L.
Stoddart of Swindon, L.
Strange, B.
Taverne, L.
Taylor of Warwick, L.
Tebbit, L.
Tenby, V.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Trumpington, B.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walpole, L.
Warnock, B.
Weatherill, L.
Wigoder, L.
Wilberforce, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Willoughby de Broke, L.

NOT-CONTENTS


Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B.
Ashley of Stoke, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Boston of Faversham, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L.
Chan, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haskins, L.
Hattersley, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jordan, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McCarthy, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Mitchell, L.
Morgan, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Ouseley, L.
Patel of Blackburn, L.
Peston, L.
Prys-Davies, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Roll of Ipsden, L.
Rooker, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Simon of Glaisdale, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Tomlinson, L.
Turner of Camden, B.
Varley, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

22 Oct 2002 : Column 1240

 

.10 p.m.

Consideration of amendments on Report resumed on Clause 1.

[Amendment No. 2 not moved.]

Baroness Byford moved Amendment No. 3:


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

The noble Baroness said: My Lords, Amendment No. 3 asks the Government to think again and substitute the word "decides" for the word "thinks" on

22 Oct 2002 : Column 1255

page 1, line 9, of the Bill. I apologise for labouring the point but I am concerned that the Bill should stand the test of time. By now the noble Lord, Lord Whitty, must know every dash, comma, dot and interpretation of it. I am sure that he recalls clearly the many arguments that we put forward at different stages. I am also certain that he knows exactly what he has or has not committed the Government to. However, three or four Ministers down the road and after a couple more departmental reorganisations, I fear that all that detail will be lost. Therefore, I am anxious that we make it clear on the face of the Bill that where the Minister is required to take an active part in the decision-making, he does so. The Bill currently states,


    "the Secretary of State thinks".

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

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

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

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

It is our view that new Section 1A is badly phrased. The Government are saying in effect that certain things do not matter in any decision whether to slaughter. In other words, anyone who says that an animal cannot be slaughtered because it is not infected, has not been in contact with or exposed to infection or has been vaccinated will be told to go away because those things do not matter. It appears that any animal can be slaughtered which the Secretary of State in his or her wisdom thinks should be slaughtered. We have tabled an amendment to make clear that animals can be slaughtered only under certain circumstances. We believe that animals can be satisfactorily treated with vaccine against foot and mouth disease. We have

22 Oct 2002 : Column 1256

tabled the amendment to establish the difference in thinking between ourselves and the Government. I do not think that there is a cat in whatever's chance of the Minister accepting the amendment but it is an important statement of principle and illustrates why the fundamental philosophy behind the Bill is wrong.

5.15 p.m.

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

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

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

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

22 Oct 2002 : Column 1257

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

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

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


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


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

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


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

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

Amendment, by leave, withdrawn.

22 Oct 2002 : Column 1258

The Deputy Speaker (Baroness Gould of Potternewton): My Lords, I have to inform noble Lords that if Amendment No. 4 is agreed to, I cannot call Amendment No. 5 for reasons of pre-emption.

Lord Whitty moved Amendment No. 4:


    Page 1, line 13, leave out from beginning to "whether" and insert "The Secretary of State may exercise the power under sub-paragraph (1)(c)"

The noble Lord said: My Lords, I beg to move.

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

On Question, amendment agreed to.

[Amendment No. 5 not moved.]

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

Clause 2 [Extension of power to slaughter]:

[Amendment No. 6A not moved.]

Lord Whitty moved Amendment No. 7:


    After Clause 2, insert the following new clause—


"DISEASE CONTROL (SLAUGHTER) PROTOCOL
In the 1981 Act the following sections are inserted after section 32A (as inserted by section 2 above)—
"32B DISEASE CONTROL (SLAUGHTER) PROTOCOL
(1) This section applies to a power exercisable by the Secretary of State under—
(a) paragraph 3(1)(c) of Schedule 3;
(b) such other provision of that Schedule (as amended by an order under section 32A(1)(a)) as the Secretary of State by order specifies;
(c) such other provisions of this Act relating to the control of disease as the Secretary of State by order specifies.
(2) The Secretary of State must prepare a document (the disease control (slaughter) protocol) indicating—
(a) the purposes for which any power to which this section applies will be exercised;
(b) the principal factors to be taken into account in deciding whether to exercise the power;
(c) the procedure to be followed in deciding whether in any circumstances or description of circumstances the power is to be exercised;
(d) the procedure to be followed by persons who have functions in relation to the exercise of the power;
(e) the means by which a particular decision to exercise the power may be reviewed.
(3) After preparing a draft of the disease control (slaughter) protocol the Secretary of State—
(a) must send a copy of the draft to such persons and organisations as he thinks are representative of those having an interest in the exercise of the power;
(b) must consider any representations made to him about the draft by such persons and organisations;
(c) may amend the draft accordingly.
(4) After the Secretary of State has proceeded under subsection (3) he must publish the protocol in such manner as he thinks appropriate.
(5) The Secretary of State must from time to time review the protocol and if he thinks it appropriate revise the protocol.

22 Oct 2002 : Column 1259


(6) Subsections (2) to (4) apply to a revision of the protocol as they apply to its preparation.
(7) The power to make an order must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(8) It is immaterial that anything done for the purposes of subsections (2) to (4) is done before the passing of the Animal Health Act 2002.
32C PROTOCOL: EXERCISE OF POWERS
(1) A power to which section 32B applies must not be exercised unless the protocol mentioned in that section has been published and has not been withdrawn.
(2) Any act which is done in contravention of subsection (1) is done without lawful authority.
(3) If a person who has any function in relation to the exercise of a power to which section 32B applies fails to act in accordance with the protocol he is not by reason only of that failure liable in any civil or criminal proceedings.
(4) But the protocol is admissible in evidence in such proceedings and a court may take account of any failure to act in accordance with it in deciding any question in the proceedings.""

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

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

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


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

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

I turn to the purpose of Amendment No. 7A and those grouped with it. As the Bill is drafted, the disease control (slaughter) protocol is a document on which the Secretary of State will consult and he will take account of what people say but he will be able to issue it in whatever way he wishes—he will be able to publish

22 Oct 2002 : Column 1260

it in whatever form he thinks necessary. We seek to change that and make the document an order or statutory instrument that is published in the normal way for statutory instruments; that is, it would be subject, if the amendment is agreed to, to the negative resolution procedure, which would not be terribly onerous. However, the statutory instrument would be presented to Parliament and could if necessary be debated by Parliament. We believe that that is a necessary safeguard in relation to a high-profile and controversial matter. It would ensure that the Government know that there is a backstop if what they propose in the protocol is not acceptable. The statutory instrument could be debated by Parliament and in extremis rejected by Parliament.

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

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

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

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

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

22 Oct 2002 : Column 1261

5.30 p.m.

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

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

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

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

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

Clearly, many different tools are used in controlling disease. If one is to have a disease-control slaughter protocol, then perhaps one should consider disease-control in other respects, too. I believe that that is important and it was underlined in the Royal Society

22 Oct 2002 : Column 1262

report by Sir Brian Follett, who said something similar to what I said in relation to the EU proposal. In view of what the Minister said earlier about testing and matters of that kind—I believe that we shall return to those issues in this debate—perhaps in a year or 18 months we shall be given definitive explanations of these matters. None the less, we believe that the protocol could be cast far more widely, that it should be ordered and, at the same time, have rather more force.

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

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

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

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

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

Explanation is not the same as secondary legislation. It is more flexible than secondary legislation. Circumstances will change. The nature of the disease and outbreak may change and experience abroad may change. Indeed, to turn to the point made

22 Oct 2002 : Column 1263

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

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

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

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

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

22 Oct 2002 : Column 1264

5.45 p.m.

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

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

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


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

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

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

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

22 Oct 2002 : Column 1265

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

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

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

The Countess of Mar: My Lords, before the noble Lord sits down—

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

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

22 Oct 2002 : Column 1266

5.51 p.m.

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

Division called.

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

[Amendment No. 7B not moved.]

Earl Peel moved Amendment No. 7C:


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

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

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

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

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

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

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

Consequently, I am certain that everyone wants a sufficiently rapid diagnostic testing system to be developed that can be used on the farm, thus determining whether foot and mouth disease is present

22 Oct 2002 : Column 1267

before a wholesale slaughter is undertaken. Such a mechanism would bring enormous confidence to the relationship between the State Veterinary Service and the farming industry and reduce the conflicts and tensions that inevitably build up during such traumatic times.

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


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

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

In his letter, the Minister said:


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

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

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

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

22 Oct 2002 : Column 1268

6 p.m.

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

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

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

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

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

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


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

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

22 Oct 2002 : Column 1269

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

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

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

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

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


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

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

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

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

I, too, noted the remarks made in an earlier debate by the noble Lord, Lord Carter. My reaction was different to that of my noble friend Lord Peel. I am

22 Oct 2002 : Column 1270

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

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

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

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

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

22 Oct 2002 : Column 1271

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

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

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

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

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

6.18 p.m.

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

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

Division No. 2

CONTENTS


Aberdare, L.
Addington, L.
Alderdice, L.
Allenby of Megiddo, V.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Biffen, L.
Blaker, L.
Blatch, B.
Bledisloe, V.
Boardman, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce of Donington, L.
Burnham, L.
Byford, B.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chalker of Wallasey, B.
Clement-Jones, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Cox, B.
Craig of Radley, L.
Crickhowell, L.
Dahrendorf, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ezra, L.
Falkland, V.
Fearn, L.
Feldman, L.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Freeman, L.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Gray of Contin, L.
Greaves, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hambro, L.
Hamwee, B.
Hanham, B.
Hanson, L.
Harris of Richmond, B.
Henley, L.
Hereford, Bp.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Jacobs, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Masham of Ilton, B.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Monro of Langholm, L.
Monson, L.
Moran, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Peel, E. [Teller]
Perry of Southwark, B.
Perry of Walton, L.
Peyton of Yeovil, L.
Plumb, L.
Plummer of St. Marylebone, L.
Pym, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rotherwick, L.
Russell-Johnston, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Stewartby, L.
Stodart of Leaston, L.
Stoddart of Swindon, L.
Strange, B.
Swinfen, L.
Taverne, L.
Tebbit, L.
Tenby, V.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Tope, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Weatherill, L.
Wigoder, L.
Wilcox, B.
Williamson of Horton, L.
Willoughby de Broke, L. [Teller]

NOT-CONTENTS


Acton, L.
Ahmed, L.
Alli, L.
Andrews, B.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Boston of Faversham, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L.
Chan, L.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Filkin, L.
Finlay of Llandaff, B.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskins, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mason of Barnsley, L.
Merlyn-Rees, L.
Mishcon, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Skidelsky, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Tomlinson, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Walker of Doncaster, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

22 Oct 2002 : Column 1274

6.30 p.m.

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

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