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The Earl of Caithness: My Lords, can the Minister tell the House exactly how this will work in practice? If the House rejects the amendment of the noble Lord, Lord Livsey, to the Motion of the noble Countess, Lady Mar, how will the Minister's manuscript amendment come into effect? How will he implement the good will that he has shown in giving this undertaking that is not in the statutory instrument? How will the prayer be enacted in legal terms should the amendment of the noble Lord, Lord Livsey, be carried, which would then prevent us from voting on the Motion of the noble Countess?
Lord Whitty: My Lords, the procedure is as normal. We vote on the amendments first. If the amendments are carried, we then have to vote on the consolidated Motion, which would be the original Motion of the noble Countess, as amended by either the noble Lord's amendment or by my amendment. The sequence is as per normal. We would then be in a situation where, rather than annulling the regulations, we would have a call on the Government to implement the regulations in line with what lies behind the amendment of the noble Lord, Lord Livsey. I beg to move.
9.19 p.m.
The Duke of Montrose: My Lords, I am grateful to the Minister for laying out his case in so much detail. I declare an interest, which is slightly complicated by the fact that, as the noble Countess, Lady Mar, said, we do not yet know exactly what is meant by "susceptible". I have a herd of cattle which I believe is susceptible to BSE. I have a herd of sheep, the breed of which I believe is not susceptible to BSE. I declare them to make the House aware of my position.
The way the matter is being approached seems to be a rather complicated and bad business. We are left in an awkward position. Certainly I and a number of others have been bombarded with different opinions of what accepting or rejecting the prayer may achieve.
This statutory instrument appears to contain enormous Henry VIII powers. I suppose one can have the odd Henry VIII power—I am not well up on the procedures of the House—but the many elements contained in this instrument should have been in a Bill.
I put that to one side. One is left with numerous questions and anomalies. The Government may not be able to answer precisely my first question. How did so many people lose track of the consultation? The Minister said that they received few responses to the consultation.
Lord Whitty: My Lords, I indicated that the consultation was a somewhat shorter period than the norm. Nevertheless, we had a substantial number of formal and informal responses from the key organisations.
The Duke of Montrose: My Lords, I thank the noble Lord for that response. I inquired of the Sheep Veterinary Society, which had its council meeting earlier this week. Apparently only one member had read the measure. That may be the fault of members, but it seems that many of those concerned were not aware of what was going on.
Perhaps the Minister can clarify this point. Thirteen statutory instruments are being annulled by the order. At least four pre-date the Scottish devolution Act. If those are annulled, is there anything left for Scottish agriculture, which does not have the benefit, or otherwise, of the statutory instrument which is being introduced?
The noble Lord, Lord Livsey, spoke about susceptibility. As many noble Lords will be aware, there are five recognised variants in the genetic composition of sheep which produce five ascending levels of susceptibility. On 10th April the Spongiform Encephalopathy Advisory Committee considered the issue that if—I repeat, if—BSE were found in sheep only the most resistant animals would be preserved. Everything else would be excluded from the human feeding chain. That recognises that there is a very resistant genetic variant.
I draw to noble Lords' attention that this resistant genetic variant has never been found in goats. But to my knowledge BSE has never been found in goats. If the extreme position were taken, all goats would be
regarded as susceptible, as are all cattle. We shall be interested to hear whether the Minister can give us a yardstick of susceptibility.The Minister spoke about paragraph 4 and the fact that the powers he introduces do not extend the law in any way. Item (k) of paragraph 4(2) states that an inspector has the right to slaughter any TSE susceptible animal. Which of our current regulations contains that power? I understand that the amendment tabled by the noble Lord, Lord Livsey, and possibly that tabled by the Minister, were founded on the fact that at present the statutory instrument contains powers in paragraph 82 on the slaughter of TSE susceptible animals and goes into the question of representations of the owners to the Secretary of State. I emphasise that the clause relates to TSE susceptible animals rather than suspect animals, about which the Minister spoke in his recent reply to the noble Lord, Lord Livsey.
I raise those questions with the Minister on how the instrument stands in relation to our current legislation.
9.24 p.m.
Lord Williamson of Horton: My Lords, we are faced with a 221-page statutory instrument and a prayer to annul it altogether, an amendment to the Motion which would set a minimum time limit for representations against intended slaughter, and an amendment to the amendment which would delete the minimum time limit and substitute a less specific undertaking about representations against intended slaughter.
My noble friend Lady Mar did well in drawing attention to the difference between an animal which is actually infected and a TSE susceptible animal. However, in the circumstances, I should like to make one comment and then put a specific question to the noble Lord, Lord Whitty, about his manuscript amendment. I know that he spoke to the latter at some length, but I still have a point to make in that respect. I do not enter into any argument about whether these regulations are intended to substitute for animal health legislation which did not go forward in this House or whether the Government have acted rightly in proceeding in this way. I did not vote for the Motion of the noble Lord, Lord Moran, on the previous occasion. I have, therefore, examined the regulations as they stand.
My general comment is that we still need to be extremely vigilant about BSE, which, of course, is also a fatal disease for human beings, with all the suffering that it caused for about 100 men and women who died, and, indeed, for their families. It also caused very serious losses to the livestock industry. We must continue to ensure that no mammalian meat and bone meal is used in feedings stuffs, as well as continuing to control the specified offals, and to control—and in due course to eradicate—other TSEs, which are dealt with under Part V of these regulations.
I keep in mind the quotation from the excellent report from the Phillips committee—words that we should always keep in mind—which states that,
- "some members of the feed trade, being given an inch, felt free to take a yard and continued to clear stocks after the . . . ban came into force".
I turn now to my specific question to the Minister. The manuscript amendment tabled in the name of the Minister deals with a real point of importance; namely, the extent to which a person can have time, and the opportunity, to make representations against an intended animal slaughter notice. My question is directed towards discovering the rather narrow point of how useful the Minister's amendment may be on this issue.
I raise that point because where the inspector has a right under the current regulations to slaughter any TSE susceptible animal (Regulations 4 and 79), there is already provision under Regulations 7 and 82 for a notice—at least outside a slaughter house—to specify a period within which an owner or person in charge of an animal can make representations to the Secretary of State. Leaving aside the big issues that arise, the question is: what is the value of the additional undertaking now tabled by the noble Lord, Lord Whitty? How far does it go, if at all, beyond what is in the regulations as they stand?
9.28 p.m.
The Earl of Northesk: My Lords, I hesitate to intervene in this debate. None the less, I hope that the Minister—and, indeed, the House—will forgive me for taking this opportunity to put on the record two matters that I had occasion to discuss with the noble Lord yesterday, albeit all too briefly.
First, like the noble Countess, Lady Mar, and notwithstanding the soothing rhetoric of the Minister, I am particularly concerned about the powers granted to inspectors to gain access to computers. Of course, there is legitimacy in granting access in order that relevant records can be inspected; indeed, I do not argue with that. But that is as far as it should go. As I read sub-paragraph (m) of Regulation 4, it implies that inspectors will be empowered to access all records from the computer concerned, possibly to include financial data, perhaps even private correspondence.
In addition, what useful purpose can be served by inspectors inquiring into TSE susceptibility being empowered to,
- "check the operation of, any computer"?
I should be grateful if the Minister could further allay my fears on the following points. He may—indeed, up to a point he has already done so—seek to suggest that the power is constrained by reference to Regulation 4(1). But I am bound to say that I am far from certain that such an argument carries sufficient weight. The drafting states that,
- "an inspector may make such enquiries and carry out such investigations"—
- "as he considers necessary for any purpose connected with",
My second point—which I suspect the Minister might be tempted to categorise as one of "the wild allegations"—relates to Technical Standards and Regulations Directive 98/34, as amended by 98/48. Indeed, the noble Lord, Lord Livsey, touched on the European dimension in proposing his amendment. The Minister will be aware that this procedure has already caused the Government some difficulties in this Session in the context of the Tobacco Advertising and Promotion Bill. Be that as it may, my interpretation is that the regulations before the House should be subject to the notification procedure. The reason is quite simple. The interpretation regulation, Regulation 3, defines "livestock" as,
- "any creature, including a fish, kept, fattened or bred for the production of food, wool, skin or fur".
The importance of this should not be underestimated. If the regulations are enacted in breach of the directive, it then becomes possible for them to be struck down in their entirety on simple application to the European Court of Justice. In terms, therefore, the Government have to ask themselves whether they want to enact regulations which are potentially procedurally defective and which, on that basis, could be rendered null and void.
I therefore ask the Minister whether his department has had consultations with the Department of Trade and Industry, the lead department for the Technical Standards and Regulations Directive, as to the status of the regulations in respect of notification. If not, will he undertake to conduct such consultations as a matter of urgency? I look forward to receiving the noble Lord's responses in due course.
9.30 p.m.
Lord Moran: My Lords, first, I think that the House will want to express its gratitude to my noble friend Lady Mar for drawing attention to this very important
statutory instrument. Initially, I had some fears that the Government might be introducing by the back door the measures which the House decided on 26th March it did not want to see under the Animal Health Bill. But the Minister has made it clear that the statutory instrument does not affect foot and mouth. I am glad that he has confirmed that.I am reluctant to be critical of the Government. This morning my wife, who, as I have said on previous occasions, has a small herd of Welsh Black cattle, received a letter from the National Assembly for Wales about the extensification payment scheme and what is called the definitive agri-monetary compensation second tranche (DAC2) which contained the good news that she would shortly be receiving a payment from the ministry of £4.96.
As I understand it—the Minister will correct me if I am wrong—these regulations are made under Section 2(2) of the European Communities Act 1972. Therefore, the powers given to the Secretary of State are limited to those necessary to transpose EU legislation, for which he is properly designated, and not to do other things for national policy reasons.
I was therefore interested in what the noble Lord, Lord Livsey, and others have said about gold-plating of the regulations, particularly with regard to the use of the word "susceptible", which is not in the EU regulations. I wonder whether that is in order. I do not know whether the Joint Committee on Statutory Instruments has considered the regulations, but if so, I wonder whether the committee is satisfied that they are fully within the implementing powers conferred on the Secretary of State by Section 2(2) of the European Communities Act 1972.
As others have said, regulations of such size and scope should be more fully debated and explained, perhaps by the use of the affirmative procedure. The Delegated Powers and Regulatory Reform Committee might have a view on that.
I very much agree with the noble Lord, Lord Livsey, that the powers to be given to inspectors are over the top. They appear to be given the power to enter premises to enforce these measures and, where necessary, to impose movement notices or to ensure the slaughter of animals. Some of the powers, such as Regulation 97, are expressed so as to exclude premises used only as a dwelling. Others, such as Regulations 4, 28 and 71, do not appear to be so limited, which implies that inspectors could demand entry even to private homes, accompanied by whomever else they deem necessary, and in some cases by a representative of the EU. We ought to have a better opportunity to debate such questions fully in this House.
There is a case for more stringent regulations for TSEs than for foot and mouth because BSE, for example, is transmissible to humans and foot and mouth is not.
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