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Lord Mackie of Benshie: My Lords, the noble Earl voted for the Motion in the name of the noble Lord, Lord Moran, to delay the Bill. Under the Bill, there would have been an opportunity for discussion.

Earl Ferrers: My Lords, with great respect to the noble Lord, Lord Mackie, I cannot see what that has got to do with it. The regulations that have been advanced contain a whole lot of information that was in the Bill, but we cannot even theoretically amend or discuss the issues because they are raised through a negative resolution.

9.52 p.m.

The Earl of Caithness: My Lords, the noble Lord, Lord Whitty, said that everything in the regulations relates to the EU directive. However, there are serious questions about susceptible animals that do not appear to be in the directive. He did not list them as one of the bits of gold-plating for which MAFF was once notorious; DEFRA is emulating that bad habit.

The Minister did not answer the point that I raised when I intervened near the end of his speech. I asked about what would happen if the amendment in the name of the noble Lord, Lord Livsey, was not agreed to. How would the Minister implement his expectation of good will?

I hope that the Minister will introduce a supplementary statutory instrument. He has already had to do so with Statutory Instrument No. 1253,

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which amends the TSE regulations. I hope that after today's discussion he will bring forward another amending statutory instrument, taking account of the serious concerns that many noble Lords have raised. When he does so, I hope that he will look carefully at the consolidations and at the sense of the consolidations. Approving a proposal and enacting it through a statutory instrument is not necessarily the right way to continue.

I draw the Minister's attention in particular to the question of compensation, which is dealt with in Schedule 1. There are six main parts to that schedule and they set out four different ways of getting at the value of the animal, the carcass, the semen, the embryos or the ova. Of those four, only one is correct, and that is the established way. It is done by agreement between the Secretary of State and the producer of the livestock in default of an agreement by a valuer appointed jointly between them and, in default of that, a valuer appointed by the president of the Royal Institution of Chartered Surveyors.

The other three relate to the different ways in which the valuer can be appointed. Sometimes it is done by the Secretary of State without consultation or agreement with the producer of the livestock; sometimes costs are allowed; sometimes costs are not allowed; and sometimes it is done by arbitration. However, there is no definition of "arbitration" or how the arbitration is constituted. There is no reference to who will take part, what the rights of the parties are, and who can be represented. Therefore, that is a grey area which requires attention.

Also in relation to the question of compensation, I wonder why the noble Lord sees fit to re-enact the draconian measures with regard to sheep? If the noble Lord looks at Part III relating to compensation, on page 159 of the statutory instrument, he will find that the maximum value paid for any sheep is £400. But a pedigree animal can be worth many thousands of pounds. Why is the producer of sheep or goats being penalised to that extent when the owner of cattle is not? If the noble Lord turns the page, he will come to the section which deals with compensation for bovine animals—that is, at paragraph 6 on page 161. There, reference is made to the market value of the animal. There is no question of a limit. Why is there a difference between sheep and goats on the one hand and cattle on the other?

I know that we cannot amend this statutory instrument, but I hope that the noble Lord will introduce a supplementary one in the near future, taking account of those points.

9.57 p.m.

Lord Willoughby de Broke: My Lords, I have two principal objections to the statutory instrument. Like my noble friend Lord Northesk, I am not terribly soothed by the honeyed words of the noble Lord, Lord Whitty, when he says that there is no need to worry too much because the legislation is straightforward and there is no gold-plating. First, this SI does far more

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than it needs to do. Frankly, it is gold-plating on a royal scale. I do not believe that the noble Lord managed to address that point in his opening remarks.

Secondly, some of the powers in the Animal Health Bill which your Lordships' House rejected are put straight into this piece of legislation. The gold-plating is principally the matter that concerns me and I believe that that is the crucial point in this legislation. EC Regulation 999/2001 refers throughout to animals which are "suspect" or "suspected" of having TSE. But these 220-page regulations refer throughout to animals being "susceptible". We have not yet received an answer as to why we have suddenly changed from referring to animals as "suspect" to referring to them as "susceptible". Those two words are very different. I believe that we must have an answer to that point before we vote tonight.

Thirdly, I turn to the question of the Animal Health Bill powers, which, I repeat, were found unacceptable by your Lordships' House just over a month ago. We find, again, that magistrates have a power to grant a warrant of entry without the farmer having a power or even being aware that such an application has been made. I do not know whether the amendment of the noble Lord, Lord Whitty, addresses that point satisfactorily or whether the matter could be dealt with in this legislation.

In some respects, the statutory instrument goes even further than the proposals in the Animal Health Bill. For example, it requires individual farmers to pay for the costs of slaughter and disinfection of their premises. That appears to be entirely unreasonable. After all, their animals are to be slaughtered at the behest of DEFRA. Yet farmers are expected to pay for the cost of slaughter and cleaning and disinfection. The only parallel I can find that is remotely close to that occurs in China. There, when someone is executed, the family is sent the bill for the bullet with which the person is killed. It is not only this statutory instrument that is grossly excessive, but also the timing, as noble Lords have mentioned. It appears to have been introduced hastily and incorrectly. It became law on 19th April, but it was not available for inspection on DEFRA's website until very recently, and it was not on the parliamentary website until a few days ago. According to DEFRA that was because some items had not been finalised and it needed to make some adjustments.

If this instrument was recently still in draft, was it still in draft when it was incorporated into law on 19th April? I do not understand how a measure can be made law when it is still in draft form. My understanding is that it was still being corrected at the end of April and at the beginning of May. It is rather odd, to put it mildly, for a half-baked draft to be considered as law.

The noble Lord, Lord Moran, asked about the accuracy of the regulations and whether they had been scrutinised by the Joint Committee on Statutory Instruments. I am pleased to be able to tell the House that that committee has had an opportunity to consider these regulations. The committee said that

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it had found a number of inaccuracies, inconsistencies and typographical errors. The committee's paper says:

    "The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in a number of respects".

It lists errors of interpretation, errors of omission and typographical errors. That part of the report concludes by saying:

    "The Committee accordingly reports the Regulations for defective drafting, acknowledged by the Department".

I believe that the committee considered the regulations on 29th April, so they were defective quite recently. I am not sure that they have been corrected properly. I shall be interested to hear about that when the Minister replies.

The committee had a further concern about the regulations, as my noble friend Lord Ferrers mentioned. It stated:

    "They refer in many places, including the title of the instrument itself, to 'TSE' without any express explanation of the meaning of those initials. The Committee considered that it was unhelpful that the instrument nowhere contains an express indication of what TSE means".

In its response to those comments and criticisms, the department produced a series of apologies, as it was right and proper it should. On the definition of TSE, the department said that it,

    "decided not to set out in full the expression 'TSE' in the title to the Regulations nor define it as the expression is already defined in the Community legislation for which the Regulations make administration and enforcement provision. (This is Article 3.1(a) of the Community TSE Regulations, Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies, OJ No. L 147, 31.5.2001, p.1, as amended by the other Community legislation defined in regulation 3(1) and explained in the explanatory note to the Regulations)".

That is perfectly clear! The department's response continued:

    "The Department notes that persons likely to be affected by the Regulations were provided with the necessary references to the definition of TSE as part of the Department's consultation about the proposals for the Regulations. The Department also notes that regulation 3(2) provides that expressions not defined in the Regulations and which appear in the Community legislation for which the Regulations provide administration and enforcement have the same meaning in the Regulations as they have for the purposes of that Community legislation".

That seems to be perfectly clear and straightforward to everybody. So 10 out of 10 for artistic interpretation but nought out of 10 for technical content.

That brings me to my final point. As other noble Lords have said, this sort of law making, this gold plating, this casualness in introducing such enormous powers for the Ministry is unjust and unjustifiable. It one of the reasons—the noble Lord, Lord Whitty, may not recognise this—that the rural community lost its trust in DEFRA.

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