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Baroness Amos: My Lords, I hope that in the answers I have already given it is clear that I endorse the comments which were made by the noble Lord when he opened his question with respect to the importance and the value that we place on the role of the United States in international peacekeeping, which is why we are going down this road. With respect to Germany, I again make it clear that the European Union agreed these guiding principles, which will apply to all member states should they wish to enter into bilateral agreements. The guiding principles do not prevent individual member states from entering into those agreements.

Baroness Williams of Crosby: My Lords, does the Minister agree that a number of countries have taken advantage of the bilateral agreements which a small number have signed, and that those are hardly representative of the international community as a whole? Will she say therefore what in her view will be left of the usefulness of the International Criminal Court, which is intended to be an attempt to bring the rule of law to bear on all countries in the world at a time when it is crucial to do so?

Baroness Amos: My Lords, I again repeat that we are strong supporters of the International Criminal Court and that we will do nothing which conflicts with the statute. Therefore, in entering into a bilateral agreement our support for the ICC will remain.

Livestock Movement Restrictions

3 p.m.

Lord Greaves asked Her Majesty's Government:

Baroness Farrington of Ribbleton: My Lords, this will depend on the outcome of the detailed risk assessment and cost-benefit analyses we are now commissioning, in line with the FMD inquiry recommendations.

Lord Greaves: My Lords, I thank the Minister for that Answer, which was not unexpected. She will be aware that her noble friend Lord Whitty told the

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Farmers Guardian newspaper, in an article on 13th September, that in many upland areas, in the sheep industry particularly, this rule could lead to "100 per cent wipe-out". Will the Minister tell the House what the Government are doing to avoid this catastrophe during the remainder of this year? Noble Lords such as myself are now being told by sheep farmers in such circumstances that they are faced with the impossible choice of survival or compliance with a rule which is unfair, unenforceable and unnecessary.

Baroness Farrington of Ribbleton: My Lords, the noble Lord, Lord Greaves, asserts that the law is unfair, but there is strong scientific and veterinary support for the measures we are taking. Both the Lessons to be Learned and the Royal Society inquiries recommended that we should retain the 20-day movement order. However, the Government have recognised the practical difficulties posed by the 20-day rule for cattle and sheep and have introduced a number of specific exemptions, particularly in regard to breeding animals going into isolation. We are aware of the concerns being raised by the NFU and people in the industry. That is why we have regular meetings and why the exemptions that have been introduced over quite a wide range of areas have been welcomed.

Lord Carter: My Lords, the enormous number of sheep movements in February 2001—in excess of 1 million, I believe—was an important factor in the spread of foot and mouth disease. The 20-day restriction is not perfect, but is it not a lot better than the arrangements that we had before?

Baroness Farrington of Ribbleton: Yes, my Lords. I believe that all noble Lords, however close their links to agriculture and however great their knowledge of it, are aware of the great concern that was felt, not only by those not involved in agriculture but by many involved in agriculture, about the wide movement of animals, which was beyond anything that anyone anticipated.

The Countess of Mar: My Lords, I declare an interest as president of the Dumfries and Galloway Goatkeepers' Association. The Minister has mentioned sheep and cattle, but the poor goats north of the Border are suffering from the havoc caused to their breeding programmes. Although the Scottish Executive Environment and Rural Affairs Department has decreed that male goats may visit female goats under derogation, this goes completely against their normal breeding pattern. The female goat is normally taken to the male goat because his legs get a bit wobbly after a 30-mile journey and he cannot perform the act. In view of the fact that only a small number of animals are affected and that the Scottish Executive has stated that the movement of male breeding animals, including goats, poses a lower disease threat than female animals, will the noble Baroness prevent the clandestine equivalent of the lady sliding down the drainpipe to visit the gentleman in the

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evenings from occurring north of the Border? Can she tell the House what happens in England and Wales? Will she put pressure on the Scottish Executive for us?

Baroness Farrington of Ribbleton: My Lords, let me make it absolutely clear that it is not a matter of the Government in Westminster putting pressure on the Scottish Executive and the Scottish Parliament. This is a devolved matter and it is for them to determine. However, cross-border movements can take place—so the goats will not be going up and down drainpipes—because licences are recognised on both sides of the English/Scottish Border. Where rules are different, the licences take that into account. If the process of breeding goats leads to wobbly legs, the noble Countess may receive a lot of letters from animal lovers about undue stress.

Baroness Byford: My Lords, on a slightly more serious note, the Minister will know that the industry is very concerned about the 20-day movement restriction. Can the Minister say why there is greater flexibility in Scotland? What is the scientific evidence for Scotland deciding on a different policy from England? Why are we only now commissioning a report and looking further into the matter when it should have been done months ago?

Baroness Farrington of Ribbleton: My Lords, DEFRA began studying this issue before the results of the inquiry reports. The studies are very complex and will involve considerable work by both economists and epidemiologists. The work will be carried out independently of DEFRA and we hope to award contracts shortly. We hope to have advice by the end of the year. We are aware that cattle and sheep farmers would like the rule to be relaxed and we have regular discussions with the NFU. However, I return to the central point. Surely the noble Baroness, above all others, accepts that the Government should heed very strongly the recommendations of the Lessons to be Learned and the Royal Society inquiries, both of which suggested that these studies should take place and that in the mean time the 20-day rule should remain in place, with the exceptions that have been granted to, and welcomed by, the industry.

Lord Livsey of Talgarth: My Lords, the Minister will realise that it is more than 12 months since foot and mouth was banished from the United Kingdom. Has she taken into account that the livestock breeders, the livestock keepers and their families are suffering grievously over this matter? There are some market towns in which markets have not reopened since the 20-day rule has been in place. The crisis is now spreading to small businesses in such areas. Will not the Minister consider at least a reduction in the rule to about three to five days?

Baroness Farrington of Ribbleton: My Lords, I am sorry that I am unable to reassure the noble Lord. The recommendation of 20 days is quite clear and specific. Where we have felt able to be more flexible without

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incurring greater risk, we have been so on a variety of issues. The noble Lord is only too aware that there was general criticism and concern about the movement of animals being a major contributory factor to the spread of the disease last time. We want to act cautiously, proportionately and reasonably in this regard. We are trying to respond, wherever we can, to the interests of the industry.

Adoption and Children Bill

3.8 p.m.

Report received.

Clause 1 [Considerations applying to the exercise of powers]:

Lord Campbell of Alloway moved Amendment No. 1:

    Page 1, line 15, at end insert "which if the child is of sufficient understanding shall be heard as expressed by the child"

The noble Lord said: My Lords, the amendment relates to Clause 1(4)(a), which states:

    "The court or adoption agency must have regard to the following matters (among others)—

    (a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding)".

The amendment seeks to add the words,

    "which if the child is of sufficient understanding shall be heard as expressed by the child".

I shall speak also to Amendment No. 2—which relates to Clause 1(4)(b), the needs of the child—and to Amendment No. 3, which seeks to safeguard the legal efficacy of ministerial guidance and affords the making of rules of court in implementation of these and other provisions of Clause 1.

Albeit interconnected, each of these three amendments is self-standing. There is no variation from the intendment of the Bill or from the status of Clause 1 as a building block.

In one way or another, these amendments serve the interests of the welfare of the child in respect of whom an adoption order is sought. These interests were judicially formulated by Judge Hodson, in the leading adoption case to which reference was made at Second Reading and in Grand Committee. I quote:

    "they are such as would include the prospects and outlook for material and financial provision, education, general surroundings, happiness, stability of the home, and such like".

If your Lordships wish to read that statement in context, the reasoning can be found at page 719(c) of the list of appeal cases for 1971.

Such was the basis of that decision, which broke the mould of a series of decisions of the Court of Appeal favouring the blood tie now sought to be reintroduced by statute by amendment to this Bill. I refer to Amendments Nos. 51, 61 to 65 and 160, which are to be debated on Wednesday. This judicial formulation of the noble and learned Lord stands as authority applicable to the Bill as to the interests of children seeking adoption and after adoption.

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As to Amendment No. 1, the question is whether the wishes and feelings of a child of sufficient understanding as to these prospects and outlook should be heard directly from the child in context with these judicial criteria, by the adoption agency and by the court, and whether entitlement should be asserted in primary legislation as mandatory justiciable provision, as proposed by this amendment. The question of the representation of the child, which is related to this, is dealt with in another part of the Bill and is covered by Amendments Nos. 110 to 115A.

I deal first with the idea of the child being "heard" by the court, according to the terms of the amendment. In this context, there are three practical assumptions which are consistent with extant procedure and which could be reflected in new rules of court to be made by the Lord Chancellor under the terms of Amendment No. 3. First, the wishes and feelings of the child are not to be expressed in open court. There will be no formal cross-examination. They will be expressed informally, in private, in the judge's room. The second assumption is that attendance at court is not compellable, but will be at the wish of the child to be heard, or at the invitation of the judge if the child consents. The third assumption is that the child shall have received independent advice and representation at court, which is the subject matter of the other amendments.

Attendance in order to be "heard" by the agency will, again, be at the wish of the child—who shall have received independent advice and will be represented. That provision is to be implemented either by ministerial guidance or by regulation as is proposed, for example, in Amendments Nos. 110 to 115A.

This amendment relates only to adoption but is wholly consistent with the Lord Chancellor's briefing paper of 4th October. Taking account of Article 8 of the European Convention on Human Rights, it disclosed the intention of government to revise arrangements for ensuring that children can participate in decision-making about their future and that the criteria of some courts as regards attendance are arbitrary and fail to meet the unique needs of each child.

Amendment No. 2 is concerned with the particular needs of the child—to which regard must be had by the court and by the adoption agency under Clause 1(4)(b). The criteria identified by Judge Hodson presently apply only on the making of an adoption order. It is proposed that they should continue to apply thereafter. It is suggested that the court that makes an adoption order should retain a discretionary supervisory jurisdiction both on the making of the order and thereafter.

There are two limbs to the amendment. The court is not obliged to make an order or recommendation under either limb. Under the first limb, an order for financial commitment would be legally enforceable and subject to review under new rules of procedure which could be made by the Lord Chancellor under Amendment No. 3. This in no way derogates from the jurisdiction of the High Court or any other court, or of any extant statute law. It is a purely discretionary

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jurisdiction, arising only on the making of an adoption order. But under the second limb, recommendations as to monitoring and other provisions in the interests of the welfare of the child are only advisory and not enforceable. Due account would no doubt be taken of any such recommendation, not only by the decision of the local authority but also, if necessary, on judicial review. There would be no direct enforcement of these recommendations. They would be purely advisory. The new jurisdiction proposed in Amendment No. 2 could be conferred only by primary legislation.

Amendment No. 3 is permissive. It allows the Secretary of State to give ministerial guidance; and it allows the Lord Chancellor, if so advised, to make rules of court. It is not mandatory and does not conflict in any way—nor is it intended to conflict—with a power to issue regulations.

There was discussion in Grand Committee on the legal efficacy of ministerial guidance. Neither the Minister nor I had the point resolved to our satisfaction. The Minister, having taken the advice of the department on "shall have regard to", relied upon the decision in Rixon, in which a grave breach of duty was held not to be justiciable because it was a target duty, so recourse could only be had to the Secretary of State. I have arranged for a transcript of that judgment to be left in the Library in case any of your Lordships wish to see it. I mentioned that judgment because it was of Byzantine complexity. In this fertile field for legal argument as to the status of guidance, I suggest, with respect, that the trigger proposed by Amendment No. 3 would confer legal efficacy on guidance under all provisions of Clause 1. This permissive power to issue ministerial guidance could afford a valuable aid to implementation for the adoption agencies as an adjunct to the fundamental review, dated October, that we have just received, and on which the Government should be congratulated. I beg to move.

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