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The Countess of Mar: My Lords, I listened with great care to what the noble Baroness said. I say again that there is still not a shred of evidence that sheep scrapie causes CJD in humans. It is all supposition and theory. I could float a theory that multiple sclerosis was caused by sheep and huge amounts of money could be spent investigating that. We still have not got to the bottom of the matter.

I refer again to phenotyping. Every single sheep was killed in Iceland and sheep that were apparently scrapie free were brought in. Scrapie is now again found in certain valleys in Iceland. Shetland has a high incidence of scrapie in sheep. Yet, as I said, Scottish Blackface sheep do not appear to get scrapie. In Australia and New Zealand sheep do not appear to get scrapie. We need to look not only at genetics but also at phenotypes. Certain animals may have a genetic propensity to contracting a disease but they do not actually get it. We need to know why they do not get it. Much research needs to be devoted to that.

I am perfectly happy to withdraw my amendment but I wholeheartedly support that of the noble Lords, Lord Greaves and Lord Livsey. I shall also withdraw Amendment No. 18 when we reach it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Greaves moved Amendment No. 17:



"( ) This Part shall not come into effect unless an order has been laid before, and approved by, a resolution of each House of Parliament."

The noble Lord said: My Lords, I say two things to the noble Baroness, Lady Farrington. First, to avoid any doubt, we on these Benches wholeheartedly support the voluntary National Scrapie Plan—let no one think or suggest that we do not. Secondly, as we would expect, the noble Baroness explained to us in some detail the amount of public consultation that would be undertaken before the provision we are discussing was brought into effect. However, that nullifies her argument that introducing an affirmative resolution would cause huge delay. The preparatory processes could clearly take place at the same time as

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that. The additional delay involved in having an affirmative resolution is not that great in the context we are discussing. I beg to move.

Baroness Farrington of Ribbleton: My Lords, I did not deploy the argument that such a measure would involve delay, but rather the argument about it being time consuming and unnecessary in the context of the widespread consultation.

Lord Greaves: My Lords, I am grateful to the noble Baroness. However, any time that was consumed would be our time. I argue that that would be time well worth spending. I wish to test the opinion of the House.

7.46 p.m.

On Question, Whether the said amendment (No. 17) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 103.

Division No. 3

CONTENTS

Addington, L.
Alderdice, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bridgeman, V.
Byford, B.
Campbell of Alloway, L.
Carlile of Berriew, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Dahrendorf, L.
Dixon-Smith, L.
Elliott of Morpeth, L.
Fearn, L.
Fookes, B.
Forsyth of Drumlean, L.
Goodhart, L.
Gray of Contin, L.
Greaves, L. [Teller]
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Hereford, Bp.
Hodgson of Astley Abbotts, L.
Holme of Cheltenham, L.
Hooson, L.
Howe of Aberavon, L.
Hunt of Wirral, L.
Jacobs, L.
Jopling, L.
Kimball, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Maddock, B.
Maginnis of Drumglass, L.
Mancroft, L.
Mar, C. [Teller]
Mar and Kellie, E.
Masham of Ilton, B.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monson, L.
Moran, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
Onslow, E.
Park of Monmouth, B.
Parkinson, L.
Peel, E.
Plumb, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Russell-Johnston, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Stodart of Leaston, L.
Stoddart of Swindon, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Tope, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Wigoder, L.
Wilcox, B.
Williams of Crosby, B.
Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.
Alli, L.
Andrews, B.
Ashton of Upholland, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Boston of Faversham, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L.
Chandos, V.
Clark of Windermere, 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.
Desai, L.
Dixon, 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.
Gladwin of Clee, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskins, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howe of Idlicote, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
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.
Morgan, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Strange, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Tomlinson, L.
Turner of Camden, B.
Varley, L.
Walker of Doncaster, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L. (Lord Privy Seal)
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

22 Oct 2002 : Column 1295

7.56 p.m.

[Amendment No. 18 not moved.]

Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure. In moving this Motion, I suggest that the Report stage begin again not before 8.55 p.m.

22 Oct 2002 : Column 1296

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.57 until 8.55 p.m.]

Lord Campbell of Alloway moved Amendment No. 19:


    Before Clause 5, insert the following new clause—


"EXERCISE OF POWERS
(1) On or before entry upon land or premises under the provisions of sections 5 to 7, a copy of the sworn information shall be presented with the warrant for entry.
(2) On conviction of an offence under section 16(16) (inserted by section 5 of this Act), 66A(2) (inserted by section 6 of this Act) or 62F(8) (inserted by section 7 of this Act) of the 1981 Act the court is to be satisfied that the required assistance was reasonable and proportionate in all the circumstances.
(3) The provisions of subsections (1) and (2) may be suspended by statutory instrument subject to affirmative resolution of each House if requisite in the national interest.
(4) In implementation of sections 5 to 7 of this Act the Secretary of State may issue a Code of Practice as to slaughter, and vaccination, of animals a draft of which has been laid before Parliament and approved by resolution of each House."

The noble Lord said: My Lords, this amendment is concerned with the exercise of powers under the Bill. Proposed new subsection (1) seeks to ensure that the information on which the writ of entry is granted is presented with the writ, save at a time of national emergency, which under subsection (3) would suspend this amendment. It would be suspended by Parliament under statutory instrument.

In a sense, this is—I do not know how to describe it—a quadrilateral Bill. It is concerned with the slaughter or vaccination of animals, either in times of national emergency or at any other time. There is no precedent for such a Bill. Either we have emergency legislation or we do not. Therefore, there is no precedent for the amendment, which, when there was no national emergency in the opinion of Parliament, would restore to Parliament the business of Parliament and, to the judiciary, the business of the judiciary.

At the outset, I should explain with gratitude that long before today I had a constructive and enjoyable discussion with the noble Lord, Lord Whitty. Although we cannot agree on most things, and probably never shall, we agreed on one thing—that this was a matter that should be dealt with through this type of amendment and not scattered around the Bill, as it was at Committee stage. We agreed that it was certainly a matter which had not been debated and which was worthy of debate. Naturally, the noble Lord never gave any form of commitment.

The exercise of powers is geared to slaughter under Clauses 5 to 7, albeit mitigated by the amendment of the noble Countess, which now gives priority to the policy of priority of vaccination. That exercise of powers is governed by Clause 1(1) as amended, Clause 1(2), and Clause 1(3) as amended. But, as amended, what should be done to prevent disease is dependent upon what the Secretary of State thinks, which is not justiciable on judicial review, and not upon what he decides, which would be justiciable under judicial review. As I said previously, there is here an absolute discretion.

22 Oct 2002 : Column 1297

What the Secretary of State decides is justiciable because the grounds for his decision are subject to judicial review. What will the grounds be? They will be some reports of inspectors or veterinary practitioners. They may be in-house reports from the department, which, of course, would be privileged. But the reports of the inspectors and the veterinary practitioners would not be privileged. They would be examined by a court in order to decide where, for example, a decision to slaughter—not to vaccinate—was such as any reasonable Secretary of State properly directing himself could have made.

That information would have been incorporated in a report on which the application for a writ of entry was granted, which is not disclosed until after the animal has been slaughtered or vaccinated. This at a time when Parliament, by statutory instrument, has not declared a state of national emergency under Subsection (3) of the amendment.

I understand the noble Lord's position as a Minister of the Crown; he must understand mine as a very ordinary lawyer who has led his life and earned his living at the Bar. The noble Lord said in Committee that Ministers have to act reasonably. But one cannot really rely on that because every six months or so the High Court decides otherwise and returns a decision for reconsideration.

The noble Lord, Lord Whitty, in total good faith, suggested that the word "thinks" was used—it is obviously in his brief, but that brief is a little unsatisfactory—because it was used in the 1981 Act. That Act was not geared to slaughter in a national emergency. Therefore, when the noble Lord says—again obviously from his brief—that it was used to maintain consistency in drafting when drafting amending legislation, with respect, that makes no sense at all.

The court must be satisfied that priority—and I give one example again—was given to the policy of vaccination to live. That is the effect of Amendment No. 1 of the noble Countess, whom I am delighted to see at this hour in her place. One can ask the noble Lord—I asked before—what is this resistance? What was restrictive about her amendment? Was it just that the court would have to be satisfied that the requirements of the amendment had been complied with? I do not know.

It comes to this. Unless the amendment were to be accepted in principle, the Secretary of State gives no reasons for slaughter. The owner or keeper can never know the grounds on which entry was granted for slaughter unless, after slaughter, there is a judicial review. But that is small comfort either to the animals or to the keeper.

There would be no judicial hearing of any kind—no appeal to the court that granted the warrant, no judicial review and no safeguard. This at a time when there is no national emergency. And what are the grounds? Delay. And what would be the delay? It would be minimal. Similar considerations to failing to

22 Oct 2002 : Column 1298

give required assistance under pain of fine and imprisonment are referred to in subsection (2) of the amendment.

Under subsection (4) there are the codes of practice which no doubt, particularly in the light of the amendment of the noble Countess, will be issued to deal not only with aspects of the system likely to be sought on slaughter but also on vaccination. Assistance which is not given renders those who fail to give it liable to fine and imprisonment.

The 29th paragraph of the 10th report of the Joint Committee on Human Rights was referred to in Committee but, as I seek to make a constructive case, perhaps by leave I may again refer to one short passage from it. It states:


    "We consider it desirable for a copy of the information sworn by the 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"—

a word that I have never used, but I have taken it straight from the report—


    "and to make judicial review of the warrant an effective remedy for any violation of Convention rights".

That is the advice of the committee.

In conclusion—I apologise for speaking at such length at such an hour—other than at a time of national emergency, all of your Lordships will appreciate that the separation of powers is the bedrock of our unwritten constitution, of which this House is the sole guardian. For the sake of administrative convenience, in fulfilment of the Quentine prophecy, what has happened? Parliament proposes to confer its powers to the Executive and to stifle the powers of the judiciary. I beg to move.


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