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Lord Peyton of Yeovil: Perhaps I may return the compliment to the right reverend Prelate. I was just wondering what was happening to me when he suddenly came out with that wonderful phrase, "a black hole of ministerial subjectivity." Then I understood: I had a sense of falling, falling and never coming to a stop. I am most grateful to the right reverend Prelate.
The Countess of Mar: Like the noble Lord, Lord Greaves, I appreciate the Minister's attempt to soften the provision; I have been critical of the Minister on other provisions. But I, too, am concerned about new paragraphs (a) and (b). For example, what happens if the person is out shopping or working? We discussed in relation to the part of the Bill covering scrapie the question of premises being unoccupied.
Perhaps the Minister can help us by telling us what sort of situations he envisages falling under new paragraph (b). The police already have powers to prosecute anyone who moves animals during an outbreak of foot and mouth disease. If it is already known that animals are on the premises—which presumably it will be if a warrant is applied for—and inspectors turn up at the premises and no animals are present, the owner or keeper can be prosecuted for moving them. So what other situations does the Minister envisage? I should be grateful if he would tell the Committee.
Lord Carter: Could my noble friend the Minister deal with the interesting point made by the right reverend Prelate in his response? I heard the phrase "black hole of ministerial subjectivity". I am sure that the noble Lord, Lord Peyton of Yeovil—and others, too, perhaps—thinks that every Minister spends all his time in a black hole of ministerial subjectivity. I can assure him that that is not the case—in this Government, at least.
It would be helpful if my noble friend could confirm that all Ministers are subject at all times to a public law requirement to behave with reasonableness and proportion. That is an important point. If they do not behave in that way, they are subject to judicial review. So, it is not feasible that Ministers would exploit the proposed subsection (6)(b) in the way suggested by the right reverend Prelate. If they did, they would be in breach of their obligations under public law.
Lord Peyton of Yeovil: That tempts me to intervene. I had the impression that the noble Lord, Lord Carter, had been earning point after point of merit from the Government during the passage of the Bill for the marvellous and gallant way in which he has saved them from almost impossibly bad argument. Now, he has said something that runs contrary to the spirit—if that is the right word—of the Bill. The words, which will be inscribed in Hansard, will also be inscribed in my memory; I shall be tempted to use them again and again.
Lord Carter: If I have behaved in that way, it was certainly not in the hope of promotion.
Lord Whitty: My noble friend Lord Carter makes a point that is an essential qualification to all the concerns that have been expressed about paragraphs (a) and (b). In general, the rest of the amendments have been welcomed.
Not only is the Minister obliged to behave reasonably and not descend into the black hole into which the right reverend Prelate tempted us, but his officers are also required to do so in the circumstances. They must reasonably ensure that, if there is nobody there, they have made every effort to find the most conspicuous place to leave the notice and ensure that they arrive at a time at which it could reasonably be expected that the occupier would be there. That goes back to the other point, in the later amendment, about reasonableness. At an earlier stage of the Bill's
passage, we discussed whether it was correct to identify certain hours as reasonable for office workers and for farmers. We take that point about reasonableness, and that is why it must apply to farming practice and to the hours thought likely to be kept by the occupier. Throughout, we must behave reasonably.That also applies to the definition of premises. There is no point in having access to premises that have nothing to do with the carrying out of the vaccination, culling or blood testing covered by the powers included at various points in the Bill. Reasonableness runs through it all. Despite the deep suspicion that several noble Lords expressed about the motives and behaviour of departmental staff, we are all subject to the reasonableness criterion.
Most concern expressed related to the proposed new subsection (6)(b). Regrettably, there will, as the noble Lord, Lord Greaves, said, be a few rogues about. Some will try, if they get too much notice of the matter, to use the notice of application for warrant to avoid the implications. That might mean moving the animals around, or it might mean some other means of preventing the application of disease control measures. We must provide for that in the Bill, but, again, reasonableness applies. We could not, as the right reverend Prelate suggested, treat every farmer as being likely to use the notice of application for warrant as a reason for trying not to comply with the law. That is not the normal behaviour of the farming community. However, for a particular case, for which there was prior intelligence or previous behaviour that indicated that it might happen, it would be reasonable for an officer to vary the procedure to avoid that result.
I am happy to say to the Committee that we will consider the precise wording of the amendment to see whether there are ways in which we could avoid raising anxieties of the type mentioned by the right reverend Prelate. However, we need a power to vary procedure for cases in which intelligence suggests that a farmer or stockholder might take evasive action, were he to receive early notice of an application for warrant. That is why proposed subsection (6)(b) is there. However, as with all the other provisions, it is, as my noble friend Lord Carter said, subject to the requirement to behave reasonably.
Baroness Byford: I ask the Minister to pay particular regard to proposed subsection (6)(a) and to how officials will notify people. I am unhappy with the phrase "conspicuous place on the premises". As I said, there are, sometimes, 10 or 15 businesses in one highly developed area. What if somebody left a message for somebody else in the wrong building or left a message for the wrong person? Of all things, that provision should be tightened up. I hope that the Minister will bear that in mind.
Lord Campbell of Alloway: The Minister said that an officer or inspector—I cannot remember which—could vary the power. Those were his words. That goes almost to the heart of the problem, as it relates to the exercise of the power. I do not object to the creation of the power; we need it for a national emergency. It is the exercise of that power that worries me. Can the Minister consider how that relates to flexibility and the way in which it is administered? It is not a difficult concept, but it is difficult to draft.
Lord Jopling: It seems to me that, if the Minister's amendment is accepted, several amendments later on the list will fall. One of those is Amendment No. 216, which stands in my name. In it, I have suggested that it might be sensible for details of the time and place at which a magistrate will deal with an application to be given to the occupier so that he might have the opportunity to make representations at that time. The law should not run its course behind closed doors.
Will the Minister consider amending his amendment on Report, so that it incorporates something on the lines of Amendment No. 216 that will give the occupier of premises the opportunity to know where and when the application is to be made? Surely, it is only fair that someone whose premises are to be taken over should have the opportunity to hear the case before the magistrate and to make representations if he feels that it is unfair. This is my only opportunity at this stage to raise that matter. I realise that my amendment—or something like it—cannot be made, if the amendment that we are debating now is agreed to. It would be helpful if the Minister could tell us whether on Report he would give a fair wind to a similar amendment to his amendment.
6 p.m.
Lord Whitty: Although I had thought that the noble Lord, Lord Jopling, was ever present at this debate, he was probably not in the Committee when we previously discussed representation. I would not be prepared to accede to an amendment such as his Amendment No. 216—which, as he rightly said and the Deputy Chairman of Committees indicated, would fall were this group of amendments to pass—for the reasons I have spelt out before.
Any right of representation runs a risk of slowing down the process and is unprecedented in other forms of warrant application. There is no good reason—indeed, there are good reasons in the opposite direction in terms of the need for speed and the effective carrying out of disease control measures—why normal warrant procedures should be varied in this case. I would therefore not be inclined to accept the noble Lord's amendment were we not to pass Amendment No. 212A and go on to debate it. I regret to say that neither am I prepared to table a further
amendment in that respect. The other safeguards I have built in, plus the protocol we propose, in my view provide adequate safeguard.
Lord Jopling: I am grateful to the Minister. I am sorry that I was not in my place when the issue was discussed earlier. I had to attend a Select Committee upstairs.
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