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9.15 pm

Lady Mallalieu said that once the application had been made, the farmer should be given a chance to be heard. She summarised her argument thus:

XBut surely, if you are going to destroy someone's healthy stock, which is the proposal here, you must give that person the opportunity to be heard at an early stage of the warrant." —[Official Report, House of Lords, 22 October 2002; Vol. 639, c. 1304.]

We have heard from the Minister that there is the option of judicial review, and that of course exists; but, as a number of their lordships pointed out, the stock would be dead. The satisfaction of knowing that the due legal process had been followed would be of little use to those wanting to salvage their livelihoods or to deal with the immediate problem of someone going on to their land. I feel that immediacy is important in terms of access to a fair hearing and the due process of law.

I mentioned the United States national animal health emergency system, the US equivalent of our emerging national contingency plan. As I said, it is based on the collaborative approach that I believe is essential if we are to achieve the objectives that are shared by the two Houses and the two sides of this Chamber. The action guidelines at the heart of the US plan include strengthening partnerships and networks, reinforcing federal, state and industry co-ordination, expanding training, education and public awareness and a strong emphasis on co-operation between industry and every level of government. That is why the issue of warrants is so salient. They are not just important in themselves; they are important because they symbolise an attitude and a balance.

The real differences exist between a Government who, understandably, want legislation that delivers immediacy, effectiveness and a degree of predictability and control and an Opposition who, I suspect, want more flexibility. Flexibility is important. If we have learned anything from the dreadful business of 2001, we have learned that the disease strikes unexpectedly, progresses in a way that is hard to predict, changes its form and is dynamic; and that a new outbreak of this

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disease—or another disease entirely—would be just as unpredictable. Of course the contingency plan must take account of some factors of which we can be reasonably certain, but it must be flexible enough to allow Ministers, officials and all the proper agencies to react in a way that is appropriate to local conditions and circumstances that are particular to a disease at a certain point.

Another difference between us relates to the balance between the rights and responsibilities of farmers and owners and the power of Government to deal with the disease. There must, of course, be a balance between those two imperatives, but the Opposition believe that rights are of paramount importance in the context of reassuring the industry about the need to adopt many of the necessary measures that are in the Bill and will be included in the national plan. Unless we have the necessary confidence and raise the morale of the industry, we will not have an easy passage in adopting and implementing some of the necessary changes on which I think we mostly agree.

Those are the two salient differences between what was said in the other place and what the Minister is now saying and between what the Opposition believe and what the Government advocate. Warrants are at the very heart of that difference. For those reasons, it will be necessary for Opposition Members to oppose the Government's position and support that adopted by the other place.

Andrew George: I agree with the hon. Member for South Holland and The Deepings (Mr. Hayes) that it is regrettable that the Government have taken this view. I shall concentrate on the Government amendments that seek to delete those essential lines from the warrant amendments. Since the hon. Gentleman referred to co-operation between constructive Opposition parties, it is worth noting that the amendments were tabled by my noble Friends in another place. They provide for farmers to be informed of the reasons for the authorities applying to a magistrate for a warrant to enter premises and to have the opportunity to make representations to that magistrate, including the presentation of sworn information. The provisions are relatively straightforward.

Part of the Minister's attempted justification for deleting those essential lines was, predictably, that the provision would produce unwanted delays in a process that requires speed. I shall return to that in a moment. His other main argument against it was that these measures, if they were allowed to remain in the Bill, would be unprecedented in the warrant-making process. The Minister needs to understand that this is not just about entry to premises; it is also about the destruction of the content of those premises.

The hon. Member for South Norfolk (Mr. Bacon) made some rather telling legal points. I do not have a legal mind, but it is clear to me that not all new law has a precedent. Many new initiatives would never happen if we said that we could not do something because it had never been done before. One example is the Government handing over to the Bank of England the power to set interest rates. They did not refrain from doing that

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because it was unprecedented. The argument that anything that is unprecedented must not be done is fallacious and does not stand up to scrutiny.

The Minister was aware of the amendment and had the opportunity to look at it in one of two ways. If he were genuinely concerned about the delay rather than the macho concern about the Bill being changed too much, he could have taken the view that it should be amended by the addition of further lines to clarify the time limits within which representations should be made, for example, rather than attempting to delete the essential provisions that give farmers a justifiable right to make representations in order to ensure that the magistrate hears both sides of the argument. Fundamentally it is all about ensuring that the magistrate, having been presented with the arguments, understands all the factors that pertain in the case of a particular holding. We believe that the principle is very important, and that the amendment should have been accepted.

The Minister made the predictable point that the provision would result in delay, but much of the evidence shows that, had it been available at the time of the outbreak, the process might have been speeded up. Opposition to entry for initial testing is far less likely, and even less so if vaccination to live were the Government's preferred policy. Farmers would certainly be reassured. Delays in dealing with the crisis last year had far less to do with farm owners appealing against decisions, and more to do with operational incompetence.

Evidence presented by the National Audit Office in its June 2002 report makes no reference to farmers holding up the system. The report states:

XThe three main factors contributing to delays in slaughter were: shortages of resources: vets, valuemen, slaughtermen and equipment . . . Inspection and diagnosis protocols: Occasional delays may have occurred when laboratory results for the initial antigen test were inconclusive. There was also initially a requirement that during a report visit the Department's vet should check all livestock before carrying out a detailed clinical examination of the affected animal(s). In addition, at the beginning of the outbreak, vets were not permitted to undertake another visit within five days of visiting an infected premises. This constraint was addressed on 10 March 2001."

There were also logistical factors:

Xthe time needed to round up large flocks of sheep and inefficient early arrangements to ensure the co-ordinated arrival of valuers, slaughtermen and disposal teams."

Those were the factors—not farmers making clear objections to entry on to their farms.

Farmers were prepared to work with the Government, rather than refuse permission to enter their farms. The report continues:

XSome farmers challenged the contiguous cull: This took the form, on occasions, of refusing access to premises, which sometimes forced the Department to take out a High Court injunction. More commonly, farmers formally requested the Department to reconsider its decision to cull while there were also some challenges in court."

The Minister does not properly understand the point that was well made by the hon. Member for South Holland and the Deepings: one lesson that we must

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learn from the last outbreak is the need properly to re-establish trust between the Government and the industry. Page 37 of the Anderson report states:

"Contingency planning is not just producing a written document. Rather, it is about putting in place the systems, processes and culture to respond effectively to crises. Above all, it about a shared sense of ownership and purpose across the relevant stakeholder community."

It is important that that principle be carried through by ensuring that, in cases where a warrant is secured, farmers have a right to respond.

Fundamentally, given that the Minister agreed in Committee that entry to premises to slaughter animals was different from other situations where the power to enter was sought and that, ideally, farmers should have the kind of rights contained in the amendments tabled by the Liberal Democrats in the House of Lords, I urge him to reconsider his position and accept that the change that we propose, even if unprecedented, is an acceptable and progressive measure, which the House should support.

9.30 pm

Mr. Bacon: I particularly agreed with the hon. Member for St. Ives (Andrew George) about one of the first points he made—the suggestion that nothing should be done because doing something would create a precedent. Of course it is true that everything is unprecedented until it is done for the first time. That seemed a curious argument to come from a new Labour Minister. The hon. Gentleman speculated that I did not want to effect such a fundamental change, but I have news for him: I came into the House precisely to effect fundamental change, and one day Conservative Members will have the opportunity to do precisely that. I shall remind him that I said that; I am very assiduous in keeping quotes, as he knows.

To understand this business about warrants and entry, it is important to go back to the fundamental basis of the Bill. I was rudely interrupted by the rules of the House on this point when I was the last hon. Member to speak on Third Reading and had to confine my remarks to the remaining one minute and 45 seconds. We have to reflect on the fact that the Government introduced the Bill because, during the foot and mouth crisis, they killed millions of healthy animals that they had no legal right to kill and no scientific basis for killing.

Paragraph 3(1) of schedule 3 to the Animal Health Act 1981—the relevant provision that refers to the Minister's powers to kill animals—states:

XThe Minister may, if he thinks fits, in any case cause to be slaughtered . . . any animals affected with foot-and-mouth disease, or suspected of being so affected; and . . . any animals which are or have been in the same field, shed, or other place, or in the same herd or flock, or other in contact with animals affected with foot-and-mouth disease, or which appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease."

In other words, the Minister had to have some grounds for thinking that the animals were infected before he could kill them. He had no basis in statute law for exercising the slaughter. We have to ask, therefore, whether any basis had developed in case law to undertake the cull. The answer is that, no, there was not.

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I commend to the House an excellent speech made by Lord—

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