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Lord Peyton of Yeovil: I believed that I was very reasonable in that I admitted that I was asking for a full choir. I realise that was being a little optimistic. I sensibly and modestly said that I would not insist on that. I hoped very much that the noble Lord would be moved by my accommodating attitude and do likewise. I am a little disappointed. Other people are likely to be affected by this procedure and they are not going to be represented. They will have no chance to object. I wonder whether it would not be wise for the noble Lord, for the sake of appearances, to look at this matter again. As I said, I am not asking for the full choir, but for somebody to be there to see that things are done as they should be. One justice of the peace is minimal.
Lord Whitty: Presumably, the degree of the noble Lord's "reasonableness", which I am always willing to acknowledge, is to move from requesting three justices of the peace to requiring just two JPs. Admittedly, that would make it slightly more likely that they could convene such proceedings, but it would still slow down the process. In all other warrant proceedings, one justice of the peace is sufficient. Therefore, because speed is of the essence in this particular case—and provided that the JP is required to observe
"reasonableness" in the way that our amendment will provide for—I believe that one JP is sufficient in these circumstances. I regret that I cannot be as reasonable as the noble Lord suggests; indeed, even compromising at one-and-a-half would be beyond me.
Lord Peyton of Yeovil: In these very sad circumstances I beg leave at this stage to withdraw the amendment. I cannot make the usual observation that I shall, of course, read most carefully everything that the Minister said. The noble Lord said so little that it would not be worth reading.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway moved Amendment No. 211:
- Page 3, line 25, at end insert—
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 238, both of which relate to Clause 6. The latter are reflected in identical amendments; namely, Amendments Nos. 244 and 267, which relate to Clause 7. I understand that there is an instruction in the brief of the Deputy Chairman of Committees to point out an error in Amendments Nos. 238 and 267. Both amendments refer to Article 9 of the European Convention on Human Rights, whereas reference should be made to Article 8 of the convention. I have been informed that there was to be an instruction in the brief of the Deputy Chairman of Committees to draw attention to that error. However, perhaps I may do so myself at this point.
Each set of amendments is complementary and relates to the exercise of the power to enter land or premises to slaughter. It engages the right to respect the family life under Article 8(1) of the convention. We are in a curious situation at present. The scheme of this Bill was devised in a national emergency for slaughter, but it amends the 1981 Act which was introduced when there was no national emergency. Slaughter is extended from that Act by amendment to deal with the national emergency to protect the spread of disease.
We have now moved to the stage when there is no national emergency and, apparently, vaccination is to be preferred to slaughter. The importance of that is as follows. What is reasonable and proportionate in a time of national emergency may not be reasonable and proportionate at some other time. It depends upon the circumstances. There must be a procedure which affords that flexibility. Without reverting to the first amendment of my noble friend Lord Peyton, the lack of flexibility in that clause was the root of the trouble.
In that context, the Minister said yesterday that the same powers of entry are required for both vaccination and slaughter. I understand that. I also understand that in a time of national emergency such powers must be of a certain quality, but that, at a time which is not a national emergency, they have to be of another quality; in other words, there has to be a flexibility reflected in the procedure which is acceptable under Article 8(2) of the convention on human rights.
It is no use the Minister pointing out to the Committee that he has already certified the Bill as being "compatible with the Convention rights". I shall shortly refer noble Lords to two passages in the Tenth Report of the Joint Committee on Human Rights, which takes another view. The position here is that one has to show under Article 8(2) that the Bill's provisions, or the implementing machinery under a code of practice, are necessary in the interests of the economic well-being of the country and are proportionate to that end.
So, what happens? A justice of the peace issues a warrant on the sworn information that the three conditions are satisfied. He authorises an inspector to enter using reasonable force, and to require any person on the land or premises (under pain of fine and imprisonment for refusal) to give such assistance as he thinks necessary under the slaughter warrant.
Amendments Nos. 211 and 244 say that when the warrant is served it must be accompanied by the information on which it was sought. If that is not complied with, there will be massive scope for the abuse of power, which it would be totally unacceptable to leave in a statute. Indeed, it simply could not exist. Apart from the wretched convention on human rights, it is contrary to our whole concept of justice that anything like that should be tolerated. It means that when the man receives the information—that is, the sworn information on which the warrant is issued by the justice of the peace—he can say, "But it's not true: I am going straight off to the High Court to ask for an emergency hearing". I can assure the Committee that you always get it; indeed, you can get it at the drop of a hat. An emergency hearing would be convened and it would be held up by order of the High Court, or given a stay under judicial review—a mandatory order against the executive. It is done very often.
However, if you do not have the knowledge and if you do not have in your hand the sworn information, what on earth can you do? That is the force of the argument behind Amendments Nos. 211 and 244. The latter are related to Amendment No. 238, which is double-barrelled. It refers to the penal section: if you refuse to comply with the request of the inspector, you may receive six months' imprisonment and/or a fine. Those are the provisions in Clause 6(12). As corrected, Amendment No. 238 states:
That is what these amendments are all about. I do not want to take up much more time but there are two passages from the 10th report of the Joint Committee on Human Rights which are straight in point on both amendments. I have to declare an interest—or lack of interest—as a member of that committee.
The first reference is from paragraph 27. It states:
The other passage, which, fortunately, is shorter, is from paragraph 21. It states:
Something has got to be done about this. It is no use the Government saying, "We have certified that this is fully compatible with the ECHR". The matter goes well beyond that; it goes to the root of justice. I beg to move.
Earl Peel: I was going to say a few words in support of Amendment No. 212, which appears in the name of my noble friend Lady Byford, but, having listened to my noble friend Lord Campbell—I have every sympathy with the very persuasive argument that he put forward—I have to point out that if we supported Amendment No. 212, by which an occupier would be entitled to present sworn information in person or in writing to a justice of the peace, he or she would not be able to do so unless he or she had had access to that information beforehand. That is covered by the amendment of my noble friend. The two amendments, as I see them, are symbiotic.
I return to the letter of 25th September, which the Minister kindly sent to those of us who are interested in the Bill. He gave, or implied, certain assurances, some of which have clearly not materialised in the government amendments. For example—I have already referred to these two instances—there is no obligation, under the government amendments, on inspectors to serve copies of written evidence that is
Without wishing to put too fine a point on it, there is no doubting the fact that a great deal of friction has built up during the course of the foot and mouth crisis between the inspectors and the Government and the rural community and farmers. Suspicion prevails; some of it is justified and some of it is clearly not justified. However, that is the case.
I realise—the noble Lord, Lord Carter, was absolutely right to make this point—that the Bill's primary aim is to give the Government the necessary powers to carry out their responsibilities when dealing with a crisis such as the foot and mouth outbreak. Of course its contents should be based on lessons learnt and the recommendations that flow from the expert inquiries. However—I stress this point—it should also be seen as a chance to build bridges and to restore confidence between the farming community and the new department. MAFF has gone and we now have DEFRA. I see the Bill as a real opportunity to give rural communities confidence in DEFRA.
It is totally unreasonable to deny an occupier the opportunity of having access to the evidence that has been submitted to the magistrate. Such evidence will, in many cases, completely change the lifestyle of an individual; we have seen so many cases in which farmers have become totally distraught as a result of foot and mouth. A consequence that flows from that is that natural justice demands that the same occupier should have the chance to respond—that is suggested in the amendment of my noble friend Lady Byford—and therefore the opportunity to put his or her case to that magistrate.
I really do not believe that that is an unreasonable request. This is a perfect opportunity for the Government to demonstrate that they wish to work closely with rural communities. Both amendments are essential and would send the right message. I sincerely hope that the Minister will consider them very seriously.
"( ) The warrant shall be issued together with a certified copy of the sworn information."
"The provisions of subsection (12) shall not create an offence if in the circumstances failure to give such required assistance was a reasonable and proportionate response having regard to the provisions of Article 8 of the European Convention on Human Rights".
The following new paragraph states:
"The Secretary of State may issue a code of practice as to the nature and extent of the requirement for assistance under subsections (8) and (9) which shall be subject to affirmative resolution in both Houses of Parliament".
That resolution could accommodate various circumstances, such as a national emergency and the change to when there is not a national emergency. It could operate through the equivalent of an Order in Council. It would import the very flexibility that is missing in the Bill but which has to be included if it is to work in a just and reasonable fashion.
"However, we consider that it would be desirable for a copy of the information sworn by an inspector in support of the application for a warrant to be served on the occupier, together with a copy of the warrant, when the warrant is executed, in order to reduce the risk of arbitrariness and to make judicial review of the warrant an effective remedy for any violation of Convention rights. With the same ends in view, we consider that the term of the Protocol, proposed in the Government's consultation paper on the implementation of powers under the Bill . . . should be capable of being received as evidence in relation to any issue to which they may be relevant in any proceedings, like the Codes of Practice which deal with many other areas of public administration, including entry to premises in the course of criminal investigations. Such proceedings would include applications for warrants and judicial review of warrants . . . If these safeguards are provided, we conclude that the provisions of the Bill would be unlikely to give rise to an unavoidable incompatibility with rights under . . . Article 8".
"we do not consider that there is a serious risk of these provisions of the Bill being incompatible with Convention rights in theory or in practice. However, we believe that legislation which confers apparently wide powers or imposes apparently wide liabilities should make clear the limitations which are imposed by Convention rights. This is desirable in the interests of legal certainty and the notion of the rule of law, ideas which are central to effective guarantees of human rights. Express clarification on this point could be provided by an amendment to the Bill without ... affecting the policy which the Bill seeks to advance or the balance of interests which it embodies. Accordingly, we draw the matter to the attention of each House".
5 p.m.
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