Standing Committee E
Thursday 22 November 2001
[Mr. Derek Conway in the Chair]
Amendment proposed [this day], No. 86, in page 1, leave out lines 12 to 20 and insert
``(1A) In applying subparagraph (1)(c) above the Minister will exclude animals not affected, nor having been in contact with affected animals, nor exposed to the infection of FMD, which have been kept indoors constantly since the day before the first announcement by any Government Department of an outbreak.''.[Mrs. Ann Winterton.]
Question again proposed, That the amendment be made:
The Chairman: I remind the Committee that with this we are taking the following amendments: No. 117, in page 1, line 12, leave out ``is immaterial'' and insert
``must be taken account of and subject to judicial review''.
No. 1, in page 1, line 12, leave out ``immaterial'' and insert ``material''.
No. 2, in page 1, line 14, leave out from ``disease'' to end of line 15.
No. 9, in page 1, line 14, leave out ``suspected of being'' and insert ``reasonably believed to be''.
No. 3, in page 1, line 16, at end insert
``(ba) are or have been in contact with a person who has been in contact with, or is suspected of having been in contact with, animals affected with foot-and-mouth disease''.
No. 10, in page 1, line 17, leave out sub-sub-paragraph (c).
No. 21, in page 1, line 20, at end insert
``(a) could be vaccinated against foot-and-mouth.''.
No. 37, in page 1, line 20, at end insert
``(1B) Where none of sub-paragraphs (1A)(a) to (d) above apply to the animals in question, the Minister shall serve on the owner of the animals (or in default of the owner being traceable the keeper of the animals) a notice containing a reasoned justification for his decision to require the slaughter of the animals, and no slaughter shall take place until at least 48 hours have elapsed from the serving of the notice.''.
Because of the heat in the Room, which I gather was cold this morning, if hon. Members wish to remove their jackets, that is in order, but not ties or any other apparel.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Mr. Elliot Morley): Thank you, Mr. Conway. I am pleased to see you in the Chair for this sitting, and look forward to your guidance of the Committee.
To recap briefly on my remarks on amendment No. 86, the principles in it involve taking into account the risks with animals not carrying foot and mouth disease, animals that have not been exposed to the disease and animals that have been kept indoors since the day before the outbreak was first announced. Those are legitimate issues that vets on the ground would take into account in their risk assessments in any culling programme or contiguous cull.
It would not make sense to include that in the Bill because it would put an undue burden on the Government to demonstrate that animals did not fall into any of those categories before the cull took place. That would give great opportunity to anyone who wished to, to delay proceedings. The whole idea is to ensure that culls are carried out as quickly as possible. Those aspects, as part of a risk assessment, are perfectly reasonable and there is no reason why our veterinary service cannot take them into account, as it currently does.
Mr. Colin Breed (South-East Cornwall): I welcome you to the Chair, Mr. Breed, and look forward to your guidance.
I have much sympathy with the amendments that have been discussed so far, but I wish to speak to my own amendment, No. 117. Many words, such as those often found in legal documents, are pregnant with meaning. ``Material'', ``immaterial'', ``reasonable'' and ``unreasonable'' are such words. The word ``immaterial'' appears to be in the manner of the Government's wish to have a catch-all provision. There are many things that are absolutely material to any decision that will be made, as has been amply demonstrated in our discussions so far.
We are, again, seeking to achieve a balance between preventing delay and possible spread on one hand and the rights of individual farmers on the other. We should seek to ensure that people will not cause unreasonable delay by any of the means to which the Minister referred. Some people might want to use parts of the legislation in order to delay, but they would have to prove that that was reasonable, and that they were not unreasonably delaying any proposal to cull or vaccinate their animals. Such matters would be subject to judicial review at some stage, which is why that aspect has been included in my amendment.
I recognise that the Government want to have as free a hand as possible, but should we use the word ``immaterial'' for any circumstance? We want to give the Bill some longevity. Should that term apply in circumstances that have not yet arisen but might arise in the future, from reports or anywhere else? Some sparkling pieces of wisdom might ultimately come from the reports now being undertaken, but they will all be encompassed here under the term ``immaterial''.
It is clearly wrong to have such words in a Bill because, many years down the line, however substantive a reason might be, it can be called immaterial and not taken into account. We need some definition here. We must ensure that people do not unreasonably delay anything in the legislation for their own reasons, and that such things are properly considered in judicial review. We should seek to balance the different interests. The use of the word ``immaterial'' is too heavy-handed and catch-all.
I would like to refer to traceability, which comes up later in the Bill. If we are to have effective controls for movement, ownership and scrapie, traceability is key to what we seek to achieve. I hope that, at some stage in the Bill's passage, the Minister will be able to provide evidence about the Government's direction on traceability. It is becoming clearer as we go into detail that identifying individual animals and tracing where they have been and what they have been subject to, or in contact with, will be very important, especially if a judicial review is to take place afterwards.
On a technical point, amendment No. 21 says ``(a) could be vaccinated''. Should it be ``(e) could be vaccinated''? Is it an additional reason?
The Chairman: Just to help the hon. Gentleman, I think that it is a misprint.
Mr. Breed: So that should be ``(e)'' and not ``(a)''. That just demonstrates that I read my documents.
Mr. Richard Bacon (South Norfolk): It is a great pleasure to speak for the first time in Committee with you in the Chair, Mr. Conway.
There has been much talk about balance, to which the hon. Member for South-East Cornwall (Mr. Breed) has just referred. The Minister referred several times to proportionality. I would like to examine that more closely, because it bears directly on some of the amendments.
The concept of proportionality clearly entails a notion of balance and of a proper relationship between means and ends. Case law gives us greater detail about the tests that should be applied in determining whether an act is proportionate. There are three basic principles: first, whether the disputed measure is the least restrictive that could be adopted in the circumstances; secondly, whether the means adopted are necessary to achieve the end and whether they correspond to its importance; and, thirdly, whether the challenged act is suitable and necessary for the achievement of its objective and does not impose excessive burdens on the individual.
Let me take those points in turn. First, according to the Bill, the disputed measure is not the least restrictive possible in the circumstances. Amendment No. 86, which would exclude animals kept constantly indoors, might help to make the actions more proportionate, or less restrictive, but the Minister rejects it. A pig farmer in my constituency keeps his pigs in the tightest conditions of biosecurity, and as a result he was not exposed to classical swine fever, even though it came to Norfolk, or to foot and mouthNorfolk was blessedly free of foot and mouth. None of that would matter under the terms of the Bill, if there is no proportionality in it.
The truly draconian nature of the Bill becomes more evident when we look at the second principle--that the means adopted should correspond to the importance of the end and be necessary to achieve it. As the hon. Member for South-East Cornwall said, the word ``immaterial'' crops up in the Bill. My hon. Friends and I want to amend that. One of our amendments seeks to specify that whether animals were affected or suspected of being affected
``must be taken account of and subject to judicial review''.
The Minister rejects that, too. He has already said that he thinks that it would not be practicable to have a judicial review and slaughter afterwards if the Government's case were found, and that a judicial review would take place after slaughter. However, article 6(1) of the European convention states:
``In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly''.
If one is to go against that, one ought to have a pretty good reason for doing so. We have seen as much with the anti-terrorist legislation that is before the House. There has been debate on the Home Secretary's seeking to introduce derogation from the European convention on the ground that there is an extreme emergency.
Interestingly, even where a derogation is sought, the circumstances in which it is appropriate are circumscribed by law. As an article in a recent book, ``Human RightsAn Agenda for the 21st Century'', points out, the
``main requirement posed by the derogation regime, for there to be a legitimate derogation from otherwise protected rights, is that the circumstances in which the derogation has been effected constitute an exceptional threat. A derogation justifying emergency cannot be just any crisis. It has to be a truly extraordinary exigency, a `public emergency threatening the life of the nation'.''
The article continues by addressing directly the question of proportionality:
``The overarching requirement . . . is . . . further strengthened by the principle of proportionality that forms another fundamental pillar of the derogation regime. Even when an act of derogation may be justified under the human rights conventions, the State does not enjoy an unfettered discretion with respect to the derogation measures that it wishes to pursue. Such measures can only be taken `to the extent strictly required by the exigencies of the situation.' This means that derogation measures employed by a government must be proportional''
I emphasise the word ``proportional''
``to the particular threat, both with respect to degree and duration.''
The extraordinary point about the Bill is that the Government are not even seeking a derogation. On the front page, the Secretary of State says:
``In my view the provisions of the Animal Health Bill are compatible with the Convention rights.''
Even if the Government had sought a derogation, they might well be on dodgy ground legally, because they would not have unfettered discretion. They have not sought a derogation, however, although they have claimed the most extraordinary and sweeping powers for themselves.
The third issue is whether the challenged action is suitable and necessary for the achievement of its objective, and does not impose excessive burdens on the individual. Some hon. Members may be familiar with the Rosemary Upton case, which, according to the Ministry, was even more serious than a contiguous premises case. It was said that Rosemary Upton was a dangerous contact, and the Ministry was adamant that her remaining animals had the disease and would therefore have to be destroyed as quickly as possible. Throughout that case, Rosemary Upton offered to let the Ministry blood test her animals in order to check its strenuously asserted belief. The Ministry rejected that opportunity, however.
After listening to the argument for three days, the High Court was satisfied that the right way forward was the testing that Rosemary Upton had offered all along. The Ministry's application for an injunction was dismissed and it was ordered to pay all Rosemary Upton's costs, which it would hardly have been expected to do had she been behaving in a dangerous or irresponsible way. In other words, the requirement that the challenged act does not impose excessive burdens on the individual was not met either.
I do not know why the Government were given legal advice to the effect that the Bill does not contravene the European convention on human rightsperhaps the lawyer who offered it was drunk at the time. It seems extraordinary to suppose that the Bill is not in very serious breach of the convention. It was not the Conservative party that introduced the convention into English law. Many warnings were issued at the time that there would be all manner of unsavoury repercussions. The Government have made their own bed and I am afraid that, if the amendments are not accepted, they will have to lie in it. Should the Bill become law in its present form, it will not stand and the Government will have to go back to the drawing board.