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Lord Carter: My Lords, the noble Earl was kind enough to quote what I said about an earlier amendment. That was, of course, a personal view. Although I support the Government, I no longer speak for the Government.

We all understand what the noble Earl is driving at, but I am not sure that the amendment is required. It will be interesting to hear the Minister's view. The government amendment is rather complicated. Subsection (2)(b) of the proposed new clause refers to,

Before the government officer can exercise the power of slaughter, he or she must take into account all the principal factors. If there is a diagnostic test available and the Government have decided not to use it, which would be extraordinarily unlikely, the Government would not be taking the principal factors into account, as that would be one of those factors. I suspect that the Government would be subject to judicial review on that. I shall be interested to see whether my noble friend agrees.

22 Oct 2002 : Column 1269

Subsection (2)(b) of the new clause already deals with the point that the noble Earl made so persuasively. The amendment is, therefore—to use a favourite word that appears in all briefings—otiose.

Lord Peyton of Yeovil: My Lords, my noble friend Lord Peel has already fallen over backwards to be reasonable and modest in his amendment. I was pleased that the noble Lord, Lord Carter, seemed to agree with it. My noble friend's proposal—he will correct me if I misunderstood—is that, if effective diagnostic equipment is available, it must be used. My noble friend nods his agreement; I am relieved that I have got it right. The amendment seems reasonable.

The Government will, once again, convey the wrong impression, if they do not accept the amendment. They will give the impression that they are wedded to culling and that they are reluctant to accept anything that dents the armoured plating of their attitudes. I shall be shocked if the Minister cannot accept such an exceedingly modest amendment.

The Lord Bishop of Hereford: My Lords, I studied the face of the noble Lord, Lord Carter, and of the Minister while the noble Earl spoke. I expected to see them wreathed in smiles and with their arms open to welcome the amendment.

The amendment is sensible and desirable. It is not otiose. As the noble Lord, Lord Carter, said, subsection (2)(b) of the new clause refers to,

    "the principal factors to be taken into account in deciding whether to exercise the power".

However, if we are to take into account the state of diagnostic testing as a factor, why should we not say so? There is something strange about the way the Government are declining to say what they say they believe. They are wanting it to be assumed; to be taken for granted.

I can see no conceivable justification for the Government not accepting the amendment. It has the advantage of providing for the steady development of the science which we know is continuing. It is not asking for anything which is beyond where we actually are—the point made by the noble Lord, Lord Carter. We are in a changing situation. Amendment No. 7C provides for the best available diagnostic testing to be used at whatever stage we have reached when the need arises. I hope that the Government will accept the amendment.

Lord Crickhowell: My Lords, I have not intervened previously, but surrounded in my part of Wales by farms where sheep were culled when they were certainly not infected, I feel strongly about these issues. I agree with the right reverend Prelate the Bishop of Hereford, who has played a notable part in debates and knows more about the issues than any one of us.

I, too, noted the remarks made in an earlier debate by the noble Lord, Lord Carter. My reaction was different to that of my noble friend Lord Peel. I am

22 Oct 2002 : Column 1270

sure that if the noble Lord, Lord Carter—a man who has great experience in agricultural matters—was in charge and coping in the local area, he would act as he says all Ministers are bound to act. However, enough happened during that episode for us to have considerable doubts that those in charge will always act sensibly or will take account of the requirements unless they are clearly spelled out. The experience that we encountered during that lamentable episode should encourage the Government to write down the rules very clearly so that there can be no doubt where responsibilities lie—not just of Ministers sitting in this place, or presiding over the state, but of those who administer the business on the ground. I support my noble friend Lord Peel. I hope that he will press his amendment.

Baroness Byford: My Lords, I support my noble friend's modest amendment. I hope that it is accepted by the Government in the light of the costs and the emotional stress and strain experienced last time. We all agree that we do not want to go through that again. The tremendous advances in science are recognised. I hope that the weight of argument put from all sides of the House will enable the Minister to accept this humble amendment.

Lord Whitty: My Lords, I am sorry to disappoint. The amendment is to a new clause which states what aspects should appear in the protocol. Clearly, subsection (2)(b) and (c) would need to involve the circumstances of the technology for testing. They would be principal factors in subsection (2)(b). The circumstances under which the power is exercised are in subsection (2)(c).

The amendment proposed by the noble Earl, Lord Peel, would constrain either one of those provisions. The House will be familiar with the argument—a legalistic one—that if one designates certain of the principal factors or certain of the circumstances, other circumstances do not have the same weight in law. It is already an indirect procedure, but its inclusion would suggest that subsection (2)(c) in Amendment No. 7 was limited by reference to the technology rather than anything else.

The noble Earl described precisely where we are in terms of technology. There are twin-track operations, but neither has yet reached a point where they could be "rolled out" for full field application with full validation for our own, EU and OIE purposes, in a crisis or emergency. It is hoped that that will soon be the case. Even then the availability and the application will take time to be generalised. Therefore, a situation could arise where in some circumstances of an epidemic, diagnostic testing would be available. In others, because of the typography, the limit of the kits, or the limits of the people who could use the kits, diagnostic testing could not be used. Therefore, a degree of flexibility is required.

22 Oct 2002 : Column 1271

I assure the noble Earl, Lord Peel, that subsection (2)(b) which relates to principal factors and subsection (2)(c) which relates to circumstances, includes using up-to-date technology and the protocol can spell that out. To put it in this clause would limit the terms of the protocol and therefore limit the facts that the Secretary of State would be bound to take into account in pursuing a slaughter option. I understand why the proposition is put forward. In certain circumstances, the protocol may move to a position that says testing is mandatory. Until we get to those circumstances it is not sensible to put that on the face of the Bill as a limiting prescription of what should and should not be in the protocol.

Therefore, I hope that on both procedural and operational grounds the noble Earl, Lord Peel, will not pursue the amendment.

Earl Peel: My Lords, I thank all noble Lords who have supported me. I am particularly grateful for the intervention of the noble Lord, Lord Crickhowell, who, I know, has not played a great part in the Bill but whose knowledge is well respected. I am grateful for his words.

The noble Lord, Lord Carter, in his inimitable fashion, managed to produce what I can describe only as the Chief Whip's smokescreen. It is effective; we have seen it many times before. The noble Lord basically says that my amendment is unnecessary. Perhaps it is unnecessary, but let us not worry if we have a belt and braces. Nothing could be more effective. I do not understand what the noble Lord was trying to achieve by his remarks.

The issue is the point made by the Minister. We have not, as yet, reached a situation where such diagnostic tests are effective. I acknowledge that; we all acknowledge that. Amendment No. 7C is designed to ensure that when they are up and running and are effective they will be used. I repeat: what is the point of having them if we do not use them? It should be incumbent on the veterinary service to use that. The noble Lord, Lord Carter, says that my amendment compromises flexibility. I simply do not subscribe to that view. I wish to test the opinion of the House. I beg to move.

6.18 p.m.

On Question, Whether the said amendment (No. 7C, as an amendment to Amendment No. 7) shall be agreed to?

Their Lordships divided: Contents, 186; Not-Contents, 127.

Division No. 2


Aberdare, L.
Addington, L.
Alderdice, L.
Allenby of Megiddo, V.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Biffen, L.
Blaker, L.
Blatch, B.
Bledisloe, V.
Boardman, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce of Donington, L.
Burnham, L.
Byford, B.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chalker of Wallasey, B.
Clement-Jones, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Cox, B.
Craig of Radley, L.
Crickhowell, L.
Dahrendorf, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Ezra, L.
Falkland, V.
Fearn, L.
Feldman, L.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Freeman, L.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Gray of Contin, L.
Greaves, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hambro, L.
Hamwee, B.
Hanham, B.
Hanson, L.
Harris of Richmond, B.
Henley, L.
Hereford, Bp.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Jacobs, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Masham of Ilton, B.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Monro of Langholm, L.
Monson, L.
Moran, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Parkinson, L.
Patten, L.
Peel, E. [Teller]
Perry of Southwark, B.
Perry of Walton, L.
Peyton of Yeovil, L.
Plumb, L.
Plummer of St. Marylebone, L.
Pym, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rotherwick, L.
Russell-Johnston, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Stewartby, L.
Stodart of Leaston, L.
Stoddart of Swindon, L.
Strange, B.
Swinfen, L.
Taverne, L.
Tebbit, L.
Tenby, V.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Tope, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Weatherill, L.
Wigoder, L.
Wilcox, B.
Williamson of Horton, L.
Willoughby de Broke, L. [Teller]


Acton, L.
Ahmed, L.
Alli, L.
Andrews, B.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Boston of Faversham, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L.
Chan, L.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Filkin, L.
Finlay of Llandaff, B.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskins, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mason of Barnsley, L.
Merlyn-Rees, L.
Mishcon, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Skidelsky, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Tomlinson, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Walker of Doncaster, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

22 Oct 2002 : Column 1274

6.30 p.m.

[Amendments Nos. 7D to 7Q, as amendments to Amendment No. 7, not moved.]

On Question, Amendment No. 7, as amended, agreed to.

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