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Standing Committee A
The Committee consisted of the following Members:
Mr. Eric Forth, †Janet Anderson
†Atkinson, Mr. Peter (Hexham) (Con)
†Baldry, Tony (Banbury) (Con)
†Breed, Mr. Colin (South-East Cornwall) (LD)
†Chaytor, Mr. David (Bury, North) (Lab)
†Cunningham, Tony (Workington) (Lab)
†Goodwill, Mr. Robert (Scarborough and Whitby) (Con)
†Herbert, Mr. Nick (Arundel and South Downs) (Con)
†Kidney, Mr. David (Stafford) (Lab)
†Knight, Jim (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
†Mann, John (Bassetlaw) (Lab)
†Moon, Mrs. Madeleine (Bridgend) (Lab)
†Paice, Mr. James (South-East Cambridgeshire) (Con)
Palmer, Dr. Nick (Broxtowe) (Lab)
†Smith, Ms Angela C. (Sheffield, Hillsborough) (Lab)
†Tipping, Paddy (Sherwood) (Lab)
†Williams, Mr. Roger (Brecon and Radnorshire) (LD)
Alan Sandall, Libby Davidson, Committee Clerks
† attended the Committee
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Tuesday 28 June 2005
[Janet Anderson in the Chair]
Enforcement powers in connection with pesticides
Amendment moved [this day]: No. 124, in clause 44, page 16, line 10, leave out subsections (1) to (3).[Mr. Paice.]
The Chairman: I remind the Committee that with this it will be convenient to consider the following amendments:
No. 65, in clause 44, page 16, line 10, after inspector, insert
who suspects with reasonable cause that an offence is being committed under section 43.
No. 125, in clause 45, page 16, line 29, leave out and 44 and insert
44, [Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant].
New clause 4Enforcement powers in connection with pesticides: entry and search without a warrant
(1) If a constable or an inspector reasonably suspects
(a) that a relevant offence is being or has been committed on any premises, or
(b) that evidence of the commission of a relevant offence is to be found on any premises,
he may at any reasonable time enter the premises and search them for evidence of the commission of a relevant offence.
(2) Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling..
New clause 5Enforcement powers in connection with pesticides: entry and search by force without a warrant
(1) If a constable or an inspector reasonably believes
(a) that evidence of the commission of a relevant offence is to be found on any premises, or
(b) that evidence is likely to be removed, destroyed or lost before a warrant can be obtained and executed,
he may at any time enter the premises and search them for evidence of the commission of a relevant offence.
(2) Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.
(3) A constable or an inspector exercising powers under subsection (1) may (if necessary) use such force as is reasonable in the exercise of those powers.
(4) An inspector may not exercise the power of entry conferred by subsection (1) between the hours of 11 p.m. and 5 a.m. unless accompanied by a constable..
New clause 6Enforcement powers in connection with pesticides: entry and search with a warrant
(1) If, on an application by a constable or an inspector, a justice of the peace is satisfied
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(a) that there are reasonable grounds for believing that
(i) a relevant offence is being or has been committed on any premises, or
(ii) evidence of the commission of a relevant offence is to be found on any premises, and
(b) that one or more of the conditions in subsection
(2) is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence.
(a) in the case of any part of premises which is used as a private dwelling, that the occupier of the premises has been informed of the decision to apply for the warrant;
(b) in the case of any part of premises which is not used as a private dwelling, that the occupier of the premises
(i) has been informed of the decision to seek entry to the premises and the reasons for that decision,
(ii) has failed to allow entry to the premises on being requested to do so by a person mentioned in section [Enforcement powers in connection with pesticides: entry and search without a warrant] (1) or [Enforcement powers in connection with pesticides: entry and search by force without a warrant] (1), and
(iii) has been informed of the decision to apply for the warrant;
(i) that the premises are unoccupied, or the occupier is absent, and notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or
(ii) an application for admission to the premises or the giving of notice of intention to apply for the warrant is inappropriate because
(a) it would defeat the object of entering the premises, or
(b) entry is required as a matter of urgency.
(3) References in subsection (2) to the occupier of premises, in relation to any vehicle, vessel, aircraft or hovercraft, are to the person who appears to be in charge of the vehicle, vessel, aircraft or hovercraft, and unoccupied shall be construed accordingly.
(4) Sections 15 and 16 of the Police and Criminal Evidence Act 1984 (c. 60) shall have effect in relation to a warrant issued under this section to an inspector as they have effect in relation to a warrant so issued to a constable.
(5) A constable or an inspector exercising
(a) powers under a warrant issued under this section, or
(b) powers under Schedule 1 in connection with the execution of such a warrant,
may (if necessary) use such force as is reasonable in the exercise of those powers..
Mr. James Paice (South-East Cambridgeshire) (Con): I am sorry that you missed this mornings debate, Mrs. Anderson, because it was not only interesting but was a precursor to this afternoons. Clause 44 is about enforcement powers in connection with pesticides. This morning I referred to my sorrow that this part of the Bill had not been the subject of widespread consultation, because I am certain that, had it been, clause 44 would not have been written as it is. The wording provides extremely wide, and in my view unacceptable, powers of enforcement for inspectors. Subsection (1)(a) allows an inspector to enter
any premises for the purpose of ascertaining whether an offence is being committed under section 43,
and subsection (1)(b) says that an inspector may
require any person whom he reasonably believes has information about the formulation
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and so on to give him that information. It almost smacks of interrogation.
I have looked at legislation that might be considered analogous. The Food and Environment Protection Act 1985, which is referred to in subsection (4), refers largely to the issue of entering vessels, aircraft, containers and, particularly, dwellings. It does not, to any extent, refer to entering farm buildings, the garden sheds that we discussed so much this morning or many other places. I also looked at what is perhaps an equally analogous piece of legislation in the draft Animal Welfare Bill, and the Minister may recognise it as the source of many of the amendments. It has been published for consultation, and I hope that it will soon be a real Bill.
The powers in those Bills are much more detailed than those in this. It is pointless to go into each at this stage, but they clearly lay out the powers of inspectors and constables. They segregate the issues of premises and dwellings and mention when people require warrants if somebody is refusing to provide entry. Most importantthis is common to much enforcement legislation but is missing from clause 44is the statement that the inspector or constable must have just cause to believe that an offence is being committed.
My biggest concern about clause 44 is that it provides a complete and utter opportunity for open access. Under police legislation, even a police officer, if he enters premises, has to have justifiable reason to believe that an offence is being or is about to be committed. That is not evident in the Bill.
Amendment No. 65 seeks to remedy that; it is my de minimis proposal. It would insert the issue of the inspector having reasonable cause to enter premises and to carry out the actions listed in subsection (1). That is, I believe, the minimum alteration that should be made, but I prefer, and commend to the Governmentalbeit that they entail a larger and, the Minister might argue, more unwieldy changeamendments Nos. 124 and 125 and new clauses 4 to 6. They are lifted from the draft Animal Welfare Bill, and they delineate much more clearly the responsibilities and powers of inspectors who think that there is a problem, as well as the role of the constable and the issue of warrants, with a differentiation between premises.
The Minister couldI have not tabled an amendment to this effectuse the powers of the Environmental Protection Act 1990 as it applies to inspectors. My reading is that clause 44(4), which refers to schedule 2 to the Food and Environment Protection Act 1985, is too narrow to deal with my concerns. Those are that the provision will enable inspectorswe shall deal in later amendments with the question of who the inspectors might beto enter any premises, be they land or buildings, dwellings or otherwise, on their own decision, without having to demonstrate just cause, and to search for the pesticides that we debated this morning, or any formulation or other information about them, simply to ascertain whether an offence is being committed under section 43. That is far too wide a provision.
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One could say a great deal about the matter, but I am not a lawyer and I shall not go into the depths of legal language about the powers of inspectors. The point is made. I am convinced that the clause will not stand. On the advice that I have received, it will be changed at some stage during the passage of the Bill, because it would give an inspector powers out of all proportion to the offence created under clause 43. I hope that the Minister will take that on board and realise that it is necessary to set sensible limits to powers, that there should be a distinction between entry to land or ordinary premises and peoples dwellings, and that the inspector should have a justifiable reason for gaining such entry, which is not what the Bill provides.
I hope that the Minister will accept that the clause involves a fundamental problem and that the far-reaching powers that it gives to the inspector are out of all proportion to the offences and, indeed, the sentences, that we discussed earlier.
Mr. Colin Breed (South-East Cornwall) (LD): I do not want to reiterate what the hon. Member for South-East Cambridgeshire (Mr. Paice) said, but I sense a certain déjà vu. I was on the Committee that considered the Animal Health Act 2002, and powers of enforcement were much debated and disputed. They were hugely draconian. Perhaps some proportionate enforcement was justified then, because we were looking back to the foot and mouth crisis, when it was sometimes difficult to gain entry to property to inspect animals and ensure that slaughter was arranged quickly, for everyones benefit and to avoid the spread of the disease. However, I think that every member of the Committee considered the original drafting of the provisions unreasonable, even in light of that terrible, tragic episode, which hit agricultural and rural communities so hard.
We must bear in mind what the powers are for. We do not need them to allow us to enter premises with the speed that was required for the testing of animals for foot and mouth. Most people recognise that there is sometimes a need to enter properties, particularly if they are empty or the relevant person cannot be reached, but the powers must be proportionate. We ought not to lift powers from one piece of legislation to another and pass them through willy-nilly.
As we discussed in our debates on clause 43, we are talking about possession, rather than use and about intent. There is time for proper, proportionate and reasonable powers to be drafted. The issue revolves around three points, the first of which is justification. There must be clear justification. I compare the Bill to the Animal Health Act again. In the Act, a suspicion that an animal might well be affected may be enough, but in relation to this legislation, inspectors should have proper justification for entering premises.
The second point is about giving notice. In such circumstances, people should be given some notice. Some might argue that people might then run away and hide evidence, but I think that some notice might be appropriate.
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A third point to consider is the time of day or night, about which the measure says nothing. Are we really going to allow inspectors to bang on peoples doors at 6 am to see whether there is a pot of pesticide in the barn? The enforcement powers should have some reasonableness to them, so that we do not move down the line of having some sort of police state. Even those who justifiably want to enter premises probably feel that they ought not to charge in without notice at any time of day or night in interrogation mode.
There is scope for the Government to recognise that we are discussing issues of possession and intention and that a relatively small number of incidents will be caught by the measure. We are not talking about the huge problems that were involved with foot and mouth. I hope that the Minister is prepared to reconsider the powers, even at this stage, and make them more reasonable and proportionate.
Mrs. Madeleine Moon (Bridgend) (Lab): It may help if I share with the Committee the regulatory and inspection powers that I held as an inspector. Under the heading Authority to enter and inspect, my card stated:
The person named overleaf is authorised to enter and inspect premises to inspect and interview persons, to inspect arrangements, documents and other records and material and take other action in accordance with
care standards legislation.
The hon. Member for South-East Cornwall (Mr. Breed) talked about justifiability. It will be helpful for Committee members to know that inspectors are extremely busy, and that they do not spend their time thinking, I am a bit bored todaylet me see which door I can knock on and what pesticides theyve got. Inspectors are often out late at night, and are sometimes out early in the morning, but only with justification. The work is busy and onerous, and actions have to be justified to line managers. I assure the hon. Gentleman that the people who he describes as worrying about receiving a knock on the door at 2 am to have their paint or garden shed examined need not worry too much.
Mr. Paice: I suggest to the hon. Lady that there is a significant difference between a care standards inspector and somebodywe do not yet know who, as we have not debated that pointwho will act as an inspector under the clause. There is nothing in the clause to say who inspectors will be or who they will be employed byif, indeed, they will be employed by anybody. All that they will need is written authorisation from the Secretary of State. They will not necessarily be the busy, full-time employees whom the hon. Lady describes. The clause is so wide that any comparison that she makes will not necessarily be accurate, because we do not know what we are talking about. Even so, I suggest that there is a great gulf between what might happen in the care homes to
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which she refers and the offence that we are discussing, which, as the hon. Member for South-East Cornwall said, is only an offence of possession.
Mrs. Moon: My point is that people who are given the onerous task of carrying out the role of inspecting any facility or service have backgrounds of understanding and knowledge. Their roles are to follow through on legislation, their powers are not arbitrary but contained in legislation, and their responsibilities are clearly set out in their job descriptions and role specifications. I am sure that we will hear from the Minister that such provision will be in place for these inspectors. If it were not so, I would support the hon. Gentleman.
Mr. Paice: But it is not so. Read the Bill.
Mrs. Moon: We should wait to hear what the Minister has to say. I am sure that he is sensible and cautious enough to ensure that any provision for inspection on behalf of Government legislation will be set up appropriately, and that appropriate constraints will be in place, as they are for all other inspectors in the various fields in which they operate.
Mr. Roger Williams (Brecon and Radnorshire) (LD): I listened carefully to the hon. Member for Bridgend. She mentions other inspectors, but part of the problem is that businesses in this country are so over-inspected that they do not know who will knock on the door next; it could be Her Majestys Revenue and Customs, health and safety, representatives of the Assembly or the Department for Environment, Food and Rural Affairs, or someone about animal welfare.
John Mann (Bassetlaw) (Lab): That is a rather extravagant statement. Can the hon. Gentleman back it up? I had my own business for eight years, and I do not recall streams of inspectors calling.
Mr. Williams: Well, I can put my hand on my heart and say that I have had an inspection from every one of the inspectors I have mentioned. The last time that I was inspected by Customs and Excise, the officer said that my records were so good and my compliance so great that he would not need to see me again this century. Actually, he was talking about last century, but I have not seen him since.
There is an accumulation of inspectors, and that is a huge pressure on businesses, particularly small businesses, which may be owned and run by one person. A number of us are concerned about the fact that another form of inspection can take place under the Bill. Almost six months notice is given for school inspections, but I doubt whether the inspectors or constables who will carry out these inspections will give six months notice.
My business was inspected last week to determine whether its farm assured status could be renewed and the inspectors found an out-of-date animal medicine bottlenot that we were going to use it. I must tell the Committee that a case recently came to my notice of a doctor who used out-of-date medicine on a patient in
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my constituency, yet we were criticised for having an out-of-date animal medicine that we did not intend to use on our farm.
There is a build-up of stress because people are vulnerable to this type of inspection. We must view the issue with great concern, and I am not surprised that the hon. Member for South-East Cambridgeshire and my hon. Friend the Member for South-East Cornwall are making a point about it. I do not think that the measure will stand.
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Jim Knight): I welcome you back to the Chair, Mrs. Anderson. This is an interesting and important subject. As the hon. Member for South-East Cambridgeshire said, we have had our debate on clause 43. Clause 44 seeks to introduce the powers that will be available to inspectors appointed by the Secretary of State or the National Assembly for Wales for enforcing the clause. We agreed on both sides of the Committee that we were all motivated by the importance of taking action to deal with the poisoning of birds with pesticides. In speaking to the amendments, we must bear that in mind. I shall clarify what those powers are, and why we need to take such powers, which are wide-ranging but restricted to enforcing clause 43. They are not powers for inspectors to do anything that they like, but they are powers in respect of possession of pesticides that are harmful to wildlife. They are powers of entry to premises to check whether a person is storing a pesticide containing a prescribed ingredient without lawful authority; powers to search a house where an inspector reasonably suspects such a pesticide is being stored, but only where a warrant from a justice of the peace has been obtained; powers to seize any substance that an inspector has reasonable grounds to believe is a pesticide containing a prescribed ingredient; and powers to bring with them other persons or equipment to assist in performing their duties. They are wide-ranging powers in respect of enforcement of clause 43, but are so because of the nature of the problem.
I shall characterise the nature of the problem with an example. An inspector discovers a dead bird of prey, and it is clear that the bird has been poisoned. It is not clear by whom, but birds fly so it must be someone within the range of the flight of that bird. It then falls on the inspector to enforce the law, because it is illegal to poison birds, and find whoever is guilty of the offence.
As we discussed this morning, it is difficult to enforce the original Wildlife and Countryside Act 1981 offence of poisoning birds, because circumstantial evidence cannot be used, and it must be properly proved that a particular individual committed the offence. Clause 43 introduces an offence of possession of prescribed pesticides. That is why the powers are wide. The inspector can politely knock on someones door and ask to inspect the premises. If it is a door to a dwelling, they must have a warrant from a justice of the peace, but if it is a gate to premises, such as to land or to a shed, they can go in and inspect. That allows for enforcement to deal with a problem that we all agree is a serious one.
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Mr. Paice: Two quick points. First, if it is not a dwelling, the inspector can go in. So whatever the circumstances and whatever reason the owner may produce for not allowing an inspector in at that particular time of day, such as something else happening or some form of disease risk, they can still go in. Secondly, how can the Minister possibly justify giving an inspector in this case more powers to deal with the offence? The bird is dead, so timing cannot be quite as much of the essence as they are in circumstances relating to the draft Animal Welfare Bill. In that Bill, where a live animal may be suffering, it is not proposed to give the inspectors such urgent powers of entry as in this Bill.
Jim Knight: The hon. Gentleman talks about any time, anywherewe are almost back to Martini againbut DEFRAs guidance to Rural Development Service staff is that reasonable hours means 7 am to 7 pm, so we are not saying, any time, but, what is reasonable. As my hon. Friend the Member for Bridgend has said, inspectors act reasonably, and they will act when they suspect that an offence has been committed.
We will discuss the identity, training and quality of inspectors in our debates on later amendments, but I can assure the hon. Member for South-East Cambridgeshire that, in my limited period in office as a Minister, I have been very impressed with the quality of inspectors and the advice that they have given me on a range of subjects.
The hon. Member for South-East Cambridgeshire said that the inspectors had more powers than animal welfare officers. I am content that the very specific powers that we are giving inspectors to deal with a specific problem, which we all agree is a difficult one to tackle, are sufficient. I have not read the draft Animal Welfare Bill, although perhaps I should, and until I do I am not in a position to judge whether the powers that it grants to deal with various offences are appropriate. I am sure that the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Exeter (Mr. Bradshaw), who will pilot the Bill through Committee, will have made that judgment and that it will be an excellent one.
The hon. Member for South-East Cambridgeshire says that the Food and Environment Protection Act 1985 does not contain powers of entry to buildings, sheds and so on, but it does. Section 19(2) allows an inspector entry to any land, including buildings and sheds, where pesticides are stored or have been applied to land.