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Lord Peyton of Yeovil: My Lords, I was astonished when the noble Lord found it impossible to accept the noble Countess's amendment. Here is one which I should have thought is almost equally easy for the Government to accept. As has been pointed out, the word "thinks" is very subjective. Indeed, one of our problems is that the Government do not seem to have thought enough about the Bill. Perhaps they should rethink it altogether. However, on the face of it, to use "thinks" as opposed to "decides" seems to me to introduce a quite unnecessary piece of vagueness. If the Government do not accept so simple a measure as this amendment, all I can say is that it is just one more instance of the Government being absolutely wedded to a stonewall defence of a very bad Bill.

Lord Whitty: My Lords, this group of amendments includes some issues of terminology which one can argue about and one of serious principle. As regards the issues of terminology, the Government's Amendment No. 4, which I shall move shortly, recognises that the use of the term "immaterial" in the Bill as currently drafted gives rise to a somewhat negative response. We did not intend to imply that the relevant issues did not matter, rather that they would not determine the matter. They could well be taken into account and they may well be the most important issues but they will not of themselves determine or constrain the relevant decision.

The right reverend Prelate the Bishop of Hereford is no longer present. He promised us a Te Deum with regard to the amendment. That reflects the view of the

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House that the word "immaterial" is offensive. Therefore, I hope that noble Lords will accept my amendment to remove it.

I should like to be as accommodating with regard to Amendment No. 3. It may appear a little perverse of me not to be. I assure the noble Baroness that I engage in conscious and rational decisions, as I know that she sometimes doubts that. On this occasion, the problem is that the clause is an amendment to the Animal Health Act and consistency with the phraseology of that Act is necessary. Throughout, that Act uses the word "thinks". Whatever weight one may put on the views of the noble Earl and the noble Baroness, my advice is that we should maintain consistency. Therefore, with regret to some extent, I cannot agree to Amendment No. 3.

With Amendment No. 5, we come to an important issue of principle. The noble Lord, Lord Greaves, rightly said that the issue is not whether we use the word "immaterial" but what processes are involved. The amendment would reverse the intent of the clause, which is, as I said in relation to the previous group of amendments, to give effect to the clear recommendation of the Anderson inquiry that the Government should unambiguously give themselves powers to carry out preventive slaughter in certain situations. That is what the clause attempts to do. I know that some noble Lords oppose that but if the House believes that we are following the advice of the committees that we commissioned, it should agree to the clause and its intent. Amendment No. 5 would reverse that and constrain the slaughter powers to what they currently are. I know that that is what the noble Lord, Lord Greaves, wants, but it is not what the Anderson committee advised us to do and it is not what the Government advise the House to do. I therefore most strongly resist Amendment No. 5.

Baroness Byford: I do not know whether I thank the noble Lord for that response to my amendment, which I regard as an important amendment. It would give powers to the Minister to slaughter. Proposed new Clause 1(2) states:


    "In sub-paragraph (1) . . . after paragraph (b) insert—


    '(c) any animals the Secretary of State thinks'".

I am not minded to press the amendment to a vote but, in view of the slight encouragement in the Minister's response, I hope that he will ask the department to consider the proposal again. The issue is not about the word "immaterial"—we shall come to that later and I do not want to labour it at this stage. The Bill will give the Secretary of State powers relating to animals that he "thinks"—rather than "decides"—


    "should be slaughtered with a view to preventing the spread of foot-and-mouth disease".

That is an important issue, not a minor one. I thank those noble Lords who supported the amendment. I hope that the Minister will seek further advice and return to the issue at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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The Deputy Speaker (Baroness Gould of Potternewton): My Lords, I have to inform noble Lords that if Amendment No. 4 is agreed to, I cannot call Amendment No. 5 for reasons of pre-emption.

Lord Whitty moved Amendment No. 4:


    Page 1, line 13, leave out from beginning to "whether" and insert "The Secretary of State may exercise the power under sub-paragraph (1)(c)"

The noble Lord said: My Lords, I beg to move.

Baroness Byford: My Lords, I thank the Minister for having listened to the arguments that were advanced in Committee. We support the amendment.

On Question, amendment agreed to.

[Amendment No. 5 not moved.]

[Amendment No. 6 had been withdrawn from the Marshalled List.]

Clause 2 [Extension of power to slaughter]:

[Amendment No. 6A not moved.]

Lord Whitty moved Amendment No. 7:


    After Clause 2, insert the following new clause—


"DISEASE CONTROL (SLAUGHTER) PROTOCOL
In the 1981 Act the following sections are inserted after section 32A (as inserted by section 2 above)—
"32B DISEASE CONTROL (SLAUGHTER) PROTOCOL
(1) This section applies to a power exercisable by the Secretary of State under—
(a) paragraph 3(1)(c) of Schedule 3;
(b) such other provision of that Schedule (as amended by an order under section 32A(1)(a)) as the Secretary of State by order specifies;
(c) such other provisions of this Act relating to the control of disease as the Secretary of State by order specifies.
(2) The Secretary of State must prepare a document (the disease control (slaughter) protocol) indicating—
(a) the purposes for which any power to which this section applies will be exercised;
(b) the principal factors to be taken into account in deciding whether to exercise the power;
(c) the procedure to be followed in deciding whether in any circumstances or description of circumstances the power is to be exercised;
(d) the procedure to be followed by persons who have functions in relation to the exercise of the power;
(e) the means by which a particular decision to exercise the power may be reviewed.
(3) After preparing a draft of the disease control (slaughter) protocol the Secretary of State—
(a) must send a copy of the draft to such persons and organisations as he thinks are representative of those having an interest in the exercise of the power;
(b) must consider any representations made to him about the draft by such persons and organisations;
(c) may amend the draft accordingly.
(4) After the Secretary of State has proceeded under subsection (3) he must publish the protocol in such manner as he thinks appropriate.
(5) The Secretary of State must from time to time review the protocol and if he thinks it appropriate revise the protocol.

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(6) Subsections (2) to (4) apply to a revision of the protocol as they apply to its preparation.
(7) The power to make an order must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(8) It is immaterial that anything done for the purposes of subsections (2) to (4) is done before the passing of the Animal Health Act 2002.
32C PROTOCOL: EXERCISE OF POWERS
(1) A power to which section 32B applies must not be exercised unless the protocol mentioned in that section has been published and has not been withdrawn.
(2) Any act which is done in contravention of subsection (1) is done without lawful authority.
(3) If a person who has any function in relation to the exercise of a power to which section 32B applies fails to act in accordance with the protocol he is not by reason only of that failure liable in any civil or criminal proceedings.
(4) But the protocol is admissible in evidence in such proceedings and a court may take account of any failure to act in accordance with it in deciding any question in the proceedings.""

The noble Lord said: My Lords, the purpose of the amendment is to help to allay the concerns expressed in this House and elsewhere about the use of the new slaughter powers. It places in the Bill our commitment to publish a disease control (slaughter) protocol, which will indicate the procedures that the Government will follow if we decide to exercise the new preventive slaughter power and the relevant factors that we will have to take into account when deciding to exercise that new power. The intention is to consult fully on the protocol with all stakeholders. As experience and science change, it could be reviewed regularly.

Another condition is that the new preventive slaughter power could not lawfully be used without the prior publication of the protocols; in other words, we could not use the powers without explaining in what circumstances we would do so. Our intention is that the use of the new slaughter power should be as open and transparent as possible. With the publication of the protocol, coupled with the requirement to publish reasons for using a preventive power, the Bill will achieve the reassurance that has been sought from a number of quarters about how the powers in Clause 1 will be used. I beg to move.


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