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The Countess of Mar: My Lords, I am sorry again to interrupt the Minister. There is another point of gold-plating. The noble Lord has been asked over and again about the difference between TSE suspected and TSE susceptible. The noble Duke made the point that his cattle are susceptible to BSE but they may not be suspected of having BSE. That makes a huge difference to the number of animals under consideration.

Lord Whitty: My Lords, a huge misunderstanding has been wound up both inside and outside the House to suggest that there is a change in approach. In order to carry out the European surveillance and monitoring requirements, the statutory instrument refers to TSE susceptible animals for a straightforward reason. Under EU legislation which we are here transposing we are required to carry out the testing of animals fit for human consumption which have already been sent to the slaughterhouse, are fallen stock or are otherwise slaughtered. Those animals are not TSE suspect. They are not exhibiting any sign of a disease. But they are required to be tested for the purposes of the EU monitoring.

There are no new slaughter powers in this legislation. The slaughter powers referred to in paragraph 4 and beyond are a repetition in almost the same terms of the existing provisions. They relate to a situation where an animal is suspect, where a vet decides on balance that it is likely to be suffering from a TSE, in particular from BSE. That is the difference. The susceptible reference is in order to carry out the monitoring which we are required to carry out under the EU legislation.

The Duke of Montrose: My Lords, I have already asked this question. Under which current legislation is an inspector allowed to slaughter any TSE susceptible animal? I refer to paragraph 4(2)(k).

Lord Whitty: My Lords, there has been much reference to paragraph 4 and in particular to paragraph 4(2)(k). The powers relating to slaughter relate exactly to the circumstances to which I have already referred. They apply only to the specified EU monitoring programme and would come into play only if an abattoir refused to slaughter an animal which had been selected for testing under the various provisions. All those animals would already have been sent to slaughter by their owners in the normal course of events.

In terms of which existing statutory instruments that relates to, it primarily relates to the BSE Order No. 2 1996 and the Sheep and Goats Spongiform Encephalopathy Regulations 1998. It is a re-enactment of those provisions and no more. Therefore, all this agitation about an extension of slaughter powers is misplaced. The noble Countess

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honestly and frankly said that it may have been there before but I do not agree with what was there before. That may be her position. But the House today is being asked to re-enact in consolidated form, and in a form which is consistent and in conformity with our EU obligations, what is already in the UK regime.

The Duke of Montrose: My Lords, Statutory Instrument No. 3183 deals with animals which have been exposed to infection rather than being susceptible.

Lord Whitty: My Lords, that is precisely my point. Where one talks about a suspect animal that is the only situation where the slaughter powers arise. It is a suspect animal which is susceptible to BSE; otherwise the decision to slaughter on the grounds of BSE could not apply. That is why we need to distinguish between "suspect" and "susceptible". The reason that the term "susceptible" is there is because there will be animals which are subject to the testing, monitoring and surveillance provisions which are not showing any suspect symptoms. Obviously that is how we establish the prevalence or otherwise of the disease.

The other misapprehension is in relation to animals. It was some time before goldfish were mentioned but the noble Baroness eventually got round to it. These provisions are required in order to enact the EU monitoring programme that we are required to enact; the remainder are already in UK law. The EU regulation, I think that it is paragraph 4, specifies the monitoring and surveillance programme for bovine animals, then for ovine and caprine animals—no others. We are not talking, therefore, about a surveillance programme which involves dogs, cats, goldfish, deer or any other animal apart from those which are specified in those provisions; and "any animal" refers to animals covered by those provisions. Part of that regulation relates to feed. The regulations in that respect refer to "farm animals". Dogs could be construed as farm animals and, therefore, are excluded. I assume that the same applies to humans, but that may be slightly stretching the point. That is why dogs are particularly spelt out, while goldfish are not.

I turn to other points raised. The noble Lords, Lord Moran and Lord Willoughby de Broke, referred at length to the Joint Committee on Statutory Instruments. It is regrettable that a number of typographical errors were found in the regulations. There was also the question raised by the noble Earl, Lord Ferrers, as to whether we should spell out the full meaning of TSE. That was all that was queried by the JCSI. The committee did not see any objection to using the negative procedure and statutory instruments drafted in this way to consolidate and transpose the regulations.

I return to my amendment and that tabled in the name of the noble Lord, Lord Livsey. The noble Lord, Lord Williamson, asked whether my amendment meant anything more than what was already contained in the regulations. The references to appeal apply very specifically to particular areas within the regulations. My response to the recommendation of the noble Lord, Lord

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Livsey, was that we need to ensure that there is some ability to make representations in all such cases. It is, therefore, wider than what is already in the regulations. My objection to the position taken by the noble Lord, Lord Livsey, was primarily on the seven days, which could seriously limit the ability to act quickly in an area where there are some BSE suspect beasts. That is why I have couched it in these more general terms, removing the seven-day requirement, which, literally interpreted, would mean that we had to wait for seven days in every case before we could take action in case there was an objection, or what the noble Lord refers to as "an appeal".

As far as concerns using the negative procedure—

Lord Pearson of Rannoch: Can the Minister inform the House of the time-scale envisaged in his amendment?

Lord Whitty: My Lords, there is no time-scale implied because we are looking at how it would apply to different parts of the regulations. The seven-day period would inhibit the most urgent cases, though it would not necessarily inhibit some of the other provisions in terms of tracing and testing. It may vary in different parts of the regulations. If we accept this recommendation, the instruction of the House would be for us to consider options to achieve what the noble Lord wishes to achieve in his amendment. Therefore, I wish to show the way in which we are—I hope, with good will—considering the reservations that some Members of the House, and beyond, have about how we would carry out these regulations. I absolutely accept that if we agree either the amended amendment or the original amendment we would still have the regulations in place. As noble Lords will have gathered by now, that is my objective in this debate in any case.

I shall comment briefly on the question of using the negative procedure in this respect. We use that procedure here, and, indeed, have done so for nearly 30 years in order to transpose measures with varying degrees of success—and, yes, with gold-plating on occasion by all governments. We have transposed under the 1972 Act by the negative procedure. This falls well within the normal way in which such regulations are transposed.

I believe that the noble Baroness, Lady Carnegy, was referring to the length of such regulations. However, they do consolidate a great many provisions; indeed, there are other consolidated regulations that are similarly lengthy and which have been dealt with by the negative procedure. If the House wishes to change that process, we have to change the primary legislation in order to provide for it.

I do not think that at this stage of the evening I need go into all the additional points. Perhaps I may merely reply—

The Earl of Northesk: My Lords—

Lord Whitty: My Lords, I was about to anticipate the noble Earl. He may or may not believe me, but I was about to do precisely that and repeat what I said at the beginning.

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In relation to data protection, as in relation to human rights, as in relation to an obligation on the Government to act proportionately and reasonably in carrying out these provisions, that applies and qualifies anything that is in the statutory instruments.

In relation to the noble Earl's specific point about notification under the technical standards and regulations directive, I did take up the point that he was kind enough to raise with me last night and sought advice on the matter. The advice is that this does not apply to the TSE regulations because the regulations provide administration and enforcement of a particular EU obligation. The technical standards directive applies only to national legislation which gives effect to national policy. In so far as they are national regulations, they do not change those that have already been deemed to have been retrospectively notified.

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