TREATMENT: POWER OF ENTRY

HC Deb 06 November 2002 vol 392 cc368-85

Lords amendment: No. 14.

Mr. Morley

I beg to move amendment (a) to the Lords amendment.

Mr. Deputy Speaker (Sir Alan Haselhurst)

With this it will be convenient to consider Lords amendments Nos. 15 to 21, 22 and Government amendment (a) thereto, Lords amendments Nos. 23 to 29, 35 and Government amendment (a) thereto, Lords amendments Nos. 36 to 42, 65 and Government amendment (a) thereto and Lords amendments Nos. 66 to 72.

Mr. Morley

The amendments deal with warrant provisions. In the other place, the Government accepted a series of changes to warrant provisions that reflect the concerns expressed about powers of entry under the measure.

We understand that the issue is sensitive and we would not use powers of entry unless there was justification for doing so. The main justification is the need to take swift and rapid action in order to prevent the spread of disease. The provisions were recommended in the independent reports to ensure that the Government can take speedy and effective action on disease control. These provisions cover entry to farms for the purposes of vaccination, slaughter, testing and sampling, and the scrapie provisions of the Bill.

The Government listened carefully to the arguments about the warrant conditions that were made in Committee, on Report and in another place. The Government amendments tabled in another place introduce further safeguards to reinforce substantially the conditions that must be satisfied before any warrant can be granted. Again, that is because we recognise the importance of the issue. Taken as a whole, the changes satisfy the need to ensure that the powers are subject to a rigorous and transparent test of reasonableness and that the overall balance of public interest takes proper account of the private interests and rights of farmers and landowners.

However, the Opposition amendments provide for representations to a magistrate; that would be legally unprecedented and unwelcome, in the sense that it would be difficult to make such a system work. The previous system also led to delays in some circumstances. There are no precedents in legislation for providing a right to make representations during the warrant-issuing process. I want to emphasise that.

If we were to allow representations to the magistrate, there would have to be a reasonable period in which to make them and the opportunity to seek legal advice before making them. That condition would have to be applied. The risk is that we would have further delays if the court then required additional or expert evidence, or if there were an application for legal aid. We cannot delay disease control by several hours, or even days in some cases, while this goes on. That would undermine one of the principles of the Bill. If we are to deal with disease control—whether by culling, vaccination or serology—we must get on with it as quickly and effectively as possible. We will not do that by overriding people's rights, because the occupier does have the right to make representations to the divisional veterinary manager, as we discussed in Committee.

It may be worth noting that the final figures from the 2001 outbreak show that there were a total of 584 appeals against slaughter, of which all but four were dealt with by the local DVM. Of the 584 cases where animal owners challenged decisions to slaughter livestock, 534 were appealing against contiguous culls. In total, 376 of those appeals were upheld, 336 of which were appeals against contiguous culls.

I mention the figures because there has been a tendency for one or two people to say that appealing to the DVM will not get anyone far, as the DVM is part of the machinery of the process. However, the figures demonstrate that, during the 2001 outbreak, hundreds of people made appeals that were upheld. The request to review a decision to slaughter is an effective mechanism by which farmers are able to challenge such decisions. I recognise that it is not a formal appeal process, but it can lead to people making representations and to the decision being reconsidered. There are hundreds of examples of where that has been the case. I should emphasise, as I did in Committee, that the subsequent right to seek judicial review also remains.

Mr. Heath

The Under-Secretary is just coming to the important point of judicial review. Is not it also correct to say that a farmer could seek an injunction from the High Court for a stay of the operation until such time as the judicial review was held, which could create a much greater delay than the one the hon. Gentleman is trying to avoid by the process that he is describing?

Mr. Morley

That is a possibility, and I shall come to it in a moment. However, the processes are different, and it would be rather extreme to seek injunctions in such cases. It has been argued that the speed of the judicial review process might mean animals being vaccinated, blood-tested or culled. That is true; nevertheless the Department is still subject to that judicial review. That is a serious issue and one that the Department must take into account. We must make sure that whatever we do is proportionate and applied properly. Those legal rights remain. The hon. Gentleman is right in the sense that the Bill does not take away a farmer's right to seek a High Court injunction blocking the warrant. The warrant procedure also has fundamental safeguards built in, and the magistrate must always be satisfied that there are reasonable grounds for an inspector to enter the premises. That issue, too, was discussed in Committee. One cannot just ask for a warrant and expect to get it automatically: one must have a reasonable case to present to the magistrate to be granted that warrant.

Mr. Bacon

It is a relief to hear that the Government are not proposing to abolish judicial review of administrative action. The Under-Secretary described that as rather extreme, and it would be extreme if a farmer had to go to the High Court to get an injunction to stop the action before it had occurred. Is not the whole point of the amendment that simply being able to go before a justice of the peace and argue the toss at the time would obviate what he calls extreme?

Mr. Morley

The hon. Gentleman, who knows a thing or two about law, knows well that such duplication of the legal process does not currently exist. It would be unique in law to have such a procedure in front of a JP when seeking a warrant. There is no precedent for that, and it would have implications for the whole question of issuing warrants. That cannot be conceded, and he will recognise the reasons for that, too. In amending this part of the Bill, we are trying to reassure people that whatever measures are applied in the Bill, it is not just about culling, which people focus on because it is an emotional and important issue; it is about serology, taking samples and vaccination. I am absolutely certain that when applying some of these measures in future disease epidemics, a warrant will have to be sought in some cases to enter people's property to vaccinate and blood-test. I repeat to Members the example of one individual who delayed the lifting of restrictions in a whole region because he would not allow the Department to take blood samples from his goats on the grounds that it would upset them. That had far-reaching detrimental effects on the whole area. We therefore need measures for a range of techniques in terms of disease control, and culling is only one of them.

Andrew George

In that case, surely the Under-Secretary would want to avoid a situation in which a farmer might seek to use a much more lengthy legal process to delay the matter further. Given that he says that a reasonable case would need to be made to a magistrate, does he accept that the point of the original Lords amendment was that that reasonable case need not be one-sided, and that the facts about the farm from the farmer's perspective should be put to the magistrate, too?

Mr. Morley

The hon. Gentleman has returned to the problem that, if there is to be such a process, the Department may want its lawyers and vets to make a case, but the farmer may want to make his case, take legal advice, consult on his legal advice, and apply for legal aid. The delays would therefore go on and on. We need to avoid that while taking into account the issue of people's rights. That is what we are trying to do with the measure, as we have made significant changes during the passage of the Bill to take into account the concerns that people have raised. I appreciate that going for a High Court injunction could also cause a delay, but that is a much bigger step than going to the High Court, and I doubt whether many people would want to do that. It does not take away people's rights, however, which we cannot do in relation to seeking such an injunction—that right is not removed. We are trying to give people the right to appeal to DVMs, who know the local area and the local circumstances, and who, as I demonstrated, upheld the cases of hundreds of people who made representations to them during the last outbreak, all around the country. The system acknowledges that when a case needs to be taken into account and investigated, the DVM is prepared to do that.

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I also emphasise that the Joint Committee on Human Rights reported that the procedure for making representations to the DVM and with regard to existing legal rights is fair and does not contravene human rights. It stated that the provisions of the Bill are in principle unlikely to be incompatible with either the right in national law under ECHR Article 6(1) to a fair hearing by an independent and impartial tribunal in the determination of civil rights and obligations, or the right in international law to an effective remedy before a national authority for violations of Convention rights under ECHR Article 13. That is unequivocal guidance. It is clear that the measures are considered fair and proportionate.

The provision for farmers to make representations to magistrates as part of the warrant process would be unprecedented. Hon. Members might recall that that was raised in Committee. I was not sure whether the procedure could be supported. However, after receiving proper legal advice and consulting other Departments, it is clear that the process would be unprecedented and make a fundamental change to the nature of warrant provisions.

Andrew George

On a technical matter, can the Minister clarify how the new procedure will work if the Government amendment is accepted? Will the farmer have a right to appeal to the DVM after a warrant has been granted?

Mr. Morley

That is an interesting point. It might be a bit late to appeal to a DVM after a warrant is issued. We want to ensure that farmers are aware of the provision and understand how to make representations to the DVM. That is dealt with in the slaughter protocol. I promised that we would include clear guidance on the procedures to be followed when culling policies are applied so that farmers are aware of their right to make representations to the DVM, so I can reassure the hon. Gentleman on that.

Mr. Browning

The Minister will recall that in Committee I raised the legal basis on which he was introducing the Bill and suggested that it might be subject to legal challenge. I hear what he said about having taken legal advice. He will know that such things are ultimately challenged in the court, which ends up the determinant in such matters. However, I am glad that he took further legal advice and hope he understands the underlying concern—the gravity—with which people view the powers that he is taking to himself.

Mr. Morley

I understand that, but the way in which the powers will be exercised has been exaggerated. People have ignored the fact that a Minister will have to apply a power proportionately and responsibly. It is not possible simply to go and ask for a warrant; it is necessary to make the case and demonstrate why a warrant to go on someone's property is needed. The Department would not take the decision to apply for a warrant lightly and I am sure no magistrate would take the decision to grant a warrant lightly.

Mr. Heath

I am grateful to the Minister for giving way; he is being patient with us as we try to understand the process. Having heard representations from a farmer, would the DVM be required to provide that information to the magistrate when seeking a warrant and proving the correctness or otherwise of an application? That would allow the magistrate to be in possession of information from people on both sides of the case when he makes an assessment. A response to that would help enormously in ascertaining whether the process is satisfactory.

Mr. Morley

On the detailed questions, the hon. Gentleman will appreciate that I am not a lawyer and I am careful not to offend lawyers—it can be an expensive business. People will have the right to make representations to the DVM. It would not be unreasonable for the magistrate to ask whether the farmer's representations had been taken into account. The magistrate would have the right to ask that. Of course, we are making sure that people are aware of their rights. It is entirely up to individuals whether they avail themselves of the right to appeal to the DVM, but it is a provision. As I outlined to the House, many hundreds of farmers did so and the DVM recognised and conceded the cases of many hundreds of farmers, which demonstrates that the system works and that, if people have a reasonable case, the DVM will take note of it and respond—the evidence is there for all to see.

Mr. Browning

May I put to the Minister a case that was common during the foot and mouth outbreak? It concerns farms that were in a contiguous area and were due to be culled out, but the cull did not take place immediately. He kindly saw me about two farms in my constituency. In those cases, we had reached day 19 before they received notification that they were going to be culled out. Surely, it must be obvious to the DVM that that is unreasonable. As it happens, the four farms in my patch that fell into that category are still alive and doing well. However, when that sort of thing happens, unless a Member of Parliament or some other such person intervenes, orders can be executed in an unreasonable time frame.

Mr. Morley

That is not an unreasonable point. However, we are talking retrospectively about something that happened at the height of an epidemic, when there was a real need to get to grips with the situation and people were under enormous pressure. We have learned a lot of lessons from the epidemic. It would be very irresponsible of us had we not learned them and had we not recognised that there were things that we could do better. That is why the protocols that have been agreed give clear guidance, for example, to the DVM on dealing with contiguous culls and on how the guidance should be applied.

Indeed, there is an argument for taking local conditions into account and for more flexibility. Those are some of the issues that people have put to us and we are not unsympathetic to them. I believe that we have responded in the Bill and, in particular, in putting in place the protocols, which are also published. People can see the sort of guidelines and procedures that our DVMs and vets have to follow.

Ms Joan Walley (Stoke-on-Trent, North)

In view of what my hon. Friend the Minister has just said about the protocols that are now in place and the lessons that the Government are learning, is he convinced that the Government now have the balance right? The introduction of SI 843, Animal Health, England, which applied to BSE, caused some alarm because of provisions on forced entry—indeed, my constituent Mrs. Jones shared that concern. Does he think that there are now safeguards and that people need not be concerned about that power of entry in view of the raft of measures that we are introducing?

Mr. Morley

Absolutely. My hon. Friend is referring to the statutory instrument dealing with the TSE regulations, which we debated in Committee and which was carried with no opposition. I made it clear to the Committee that there had been an enormous amount of disinformation as regards that regulation, which has somehow got tied up with the measures in the Bill. The TSE regulations deal with BSE and TSE. There are no entry powers within that regulation. It deals with BSE and cohort cases—if a cow goes down with BSE, the cohort is slaughtered to safeguard public health.

One of the more incredible allegations was that the TSE order had been sneaked in by the back door, despite the fact that we consulted nearly 1,000 organisations about it, none of which expressed any concern. That shows that even well-meaning people can sometimes get carried away with the wrong interpretation of the Government's actions and intentions. I hope that I can reassure my hon. Friend and that she can reassure her constituent. I have answered one or two letters on the matter, and have made it clear that people have been misled. I am sure that that is true in the case of my hon. Friend's constituent.

Mr. Bacon

Will the Minister confirm that the amendment requiring warrants to be executed only at a reasonable hour unless the inspector thinks that the case is urgent is the result of an amendment tabled by the Government? If so, does the Minister accept that no one would expect such a condition to apply to a warrant for a drugs bust, when one would not want to give advance notice to drug dealers? His earlier argument that the amendment fundamentally undermines the nature of warrant issue is therefore flawed.

Mr. Morley

The hon. Gentleman's example is very different from the warrants under discussion. We are not dealing with criminals. We are trying to deal reasonably with people. The amendment was a Government amendment, tabled in the light of representations that we received in Committee and in the other place. It is a genuine attempt to allay people's concerns. We understand that if we are taking powers to go on to someone's property in order to carry out disease control measures, whatever they are—not necessarily culling—people need to be reassured that they would be used only if it were absolutely necessary, and that they would be applied in a proportionate and reasonable way. That is what we are trying to do.

Mr. Bacon

Of course I realise that we are not dealing with criminals; that was precisely my point. The Minister, if I understood him correctly, was arguing that we could not accept the amendment because it would set a precedent and would have far-reaching implications for the issue of warrants. I was arguing that it was surely possible to distinguish between different kinds of warrants issued for different reasons, so there is no reason not to accept the amendment.

Mr. Morley

I repeat that I am not a legal expert, but from my knowledge of warrants I know that they are issued in different ways for different circumstances. What is proposed in this case is a fundamental difference—an unprecedented change in the way in which warrants are issued. It suggests that the farmer and DEFRA officials can stand in front of a magistrate and almost have a mini court scene. If there is to be such a facility, people must be given reasonable time to prepare, to make applications for legal aid, and all the various aspects of representation, which is unprecedented—[Interruption.]

Mr. Deputy Speaker

Order.

Mr. Morley

That can be done by a High Court judge, but it is a completely separate matter from the issue of a warrant by a magistrate. The hon. Gentleman, who is familiar with legal procedures, knows that to be true. If the positions were reversed, I do not believe that he would want to change fundamentally the precedents and the entire procedure for the issue of magistrates warrants. That is why we must reverse the amendments.

There are amendments with which we do not disagree. Amendments Nos. 15,25, 38 and 68 expressly permit an inspector to take on to premises equipment that he or she requires. It may be presumed that an inspector will carry relevant equipment, but there is in theory the potential for disputes over whether an inspector may take equipment on to premises. The amendments are required to avoid any doubt.

We support amendments Nos. 16, 18, 26, 28, 39, 41, 69 and 71. They deal with the requirement to give assistance to officials carrying out functions under the vaccination, slaughter and serology entry provisions, and with the issue of those from whom assistance can be requested. They again reflect concerns expressed by hon. Members. We do not want to make demands in respect of assisting officials that would be unreasonable or go beyond what an individual could be expected to provide. An inspector could not, therefore, make unreasonable demands on people who were not qualified to help, such as children or elderly people.

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We are, however, sympathetic to the suggestion that, for the sake of clarity, the powers should be limited to the occupier of the premises, the keeper of the animals or persons under the control of people in those two categories. In Committee, concerns were expressed about visiting friends or relatives, or people who merely happen to be on the premises and might be dragooned into providing assistance.

We do not have that intention. We are prepared to amend the Bill to make that very clear and to remove the perceived risk of any bystanders or even children being requested or required to assist. Such an amendment also responds to the recommendation of the Joint Committee on Human Rights that, for the sake of clarity, the powers should be explicitly limited to the protection afforded by convention rights and in keeping with it.

Lords amendments Nos. 17, 27, 40 and 70 deal with the requirement to give assistance to officials carrying out functions under the vaccination, slaughter and serology provisions. They are also designed to allay concerns that the requests for reasonable assistance would not involve unreasonable legal demands on people who are not qualified to help.

The purpose of Lords amendments Nos. 19, 29, 42 and 72 is to ensure that, in the event of a warrant being granted, an inspector will serve a copy on the owner of the premises or, in their absence, leave a copy in a conspicuous place. That ensures that people are aware that the warrant has been issued. Given the weight of argument about the warrant conditions, we tabled the amendments to introduce more safeguards to ensure that the powers are subject to a rigorous and transparent test of reasonableness and that the overall balance of public interest takes proper account of the private interests and rights of the farmer.

That last comment sums up the Government's approach to dealing with warrants and access. We firmly believe that the disease control measures are necessary. Let me emphasise again that we are not talking only about culling, but about vaccination and serology. The need for speed and very clear measures was recognised in the independent reports, and we are responding to that in the Bill. We are trying to reassure people that the powers would be applied only in a reasonable and proportionate way.

I think that the House will agree that we have moved a long way in the amendments to reflect people's concerns. While we are trying to be as reasonable as we can to ensure the appropriate checks and balances and to be open and transparent, we cannot concede on setting down unprecedented legal changes in relation to the issuing of warrants by magistrates, although we have conceded a number of significant changes to reflect hon. Members' concerns.

Mr. Hayes

The Minister is right to say that the Government have accepted a number of the suggestions made in the other place. They have done so in line with the suggestions made by the Joint Committee on Human Rights. It might be useful for the House to hear what the Committee said:

legislation which confers apparently wide powers or imposes apparently wide liabilities should make clear the limitations which are imposed by Convention rights. This is desirable in the interests of legal certainty and the notion of the rule of law, ideas which are central to effective guarantees of human rights.

The Minister has acknowledged that some of the proposals that were made in the Lords amendments were necessary to comply with those demands. Having said that, there is still disagreement between the two Houses over the balance between the rights of the individual, to which the Minister rightly paid attention, and the need to effect the speedy delivery of measures to deal with a crisis such as the one from which we suffered recently.

I will return in a moment to the point made by the hon. Member for Somerton and Frome (Mr. Heath) about the presentation of information to a justice of the peace. Before I do so, I emphasise that, when examining this group of amendments, we must bear it in mind that we are dealing with animals likely to be slaughtered as part of a ring-fenced cull—not with animals already infected in their own right—in circumstances in which a firebreak policy has been adopted around an infected area to protect the health of the wider national animal stock. As Lord Greaves pointed out in the other place, the issues involved in these amendments are pertinent to that point.

The Minister and the whole House will be aware that the tactics relating to such culling caused immense controversy during the foot and mouth epidemic. Much of the bitterness that ensued is still felt in many rural communities, and many hon. Members will have farmers in their constituencies who still feel the effects very deeply. Given that, and given that the strategy for dealing with these outbreaks should be based on a partnership approach and on collaboration between the industry and the Government, the issue of warrants seems to be a particularly sensitive one. After all, we are talking about going on to someone's property and slaughtering healthy animals, albeit—arguably—for the necessary purpose of preventing the spread of disease.

The National Farmers Union has commented on this issue. I do not want to become the lackey of the NFU, but it is important that we consider what it has to say. It states that it regrets that the Government has decided to overturn the amendments … which provide for farmers to be informed of the reasons for the authorities applying for a warrant to a JP and to have an opportunity to make representations to a JP including the presentation of sworn information. That point was raised by the hon. Member for Somerton and Frome when he questioned the Minister on the ability of a farmer to make such a representation directly to a justice of the peace. It is a matter of grave concern that a JP could issue a warrant on the basis of information from the Ministry that could not be challenged. If I were the Minister, I would want checks and balances here, because we are all fallible. Those checks and balances are important in regard to the hearing of the cases of people directly affected by the events that I am describing. The amendment would afford protection for individual farmers; but—more subtly, perhaps—it would give some protection to Ministers from their own powers.

Mr. Heath

If a farmer had made representations to the district veterinary manager before a warrant was applied for, there would be a duty on the DVM to share that relevant information with a magistrate—not, as the Minister said, as a result of a request from the magistrate, but as part of his duty to the court. It would be a matter of disclosure.

Mr. Hayes

In respect of the information being provided, that is the nub of the issue. The difference between us and the Government is that we believe that the farmer affected should have a right to present that information in sworn form to a magistrate. The Minister, however, while trying to be helpful, was suggesting that that would probably take place—that local circumstances would probably mean that the magistrate was aware of the information—without guaranteeing a firm and comprehensive right for a farmer to make that information available. Perhaps the Minister will deal with that matter later.

Mrs. Browning

There is another aspect. Farmers remain on-farm in the throes of a foot and mouth outbreak, so their ability to make personal representations is limited. They need a third party—either a lawyer or an NFU representative—so the right for information to be put before a magistrate is important, as it would be very unusual for farmers to come off-farm to deliver it in person.

Mr. Hayes

That is right. Farmers, in addition to being physically isolated, would be intimidated, bewildered and frightened by such circumstances. Frankly, people who are running a business that is under threat, especially those who live on site, as farmers frequently do, might not be in a position to argue their case as comprehensively or persuasively as they otherwise might. All those considerations reinforce the spirit of partnership that I have recommended in the debate as the prerequisite to an effective national strategy.

That is the core of the issue, which was addressed in the other place by a number of Members, not least my noble Friend Baroness Byford.

Mr. Morley

Before the hon. Gentleman refers to his quote, may I deal with the point made by the hon. Member for Tiverton and Honiton (Mrs. Browning), which, again, is not unreasonable? Sometimes, it is important that people who are worried or under stress or who perhaps feel that they are too shy to make representations have someone to speak on their behalf, but there is no reason why NFU officials, or even a solicitor, could not make a case to the DVM on behalf of a particular farmer. There is nothing to prevent them from doing that, nor would we want to prevent them from doing it. Indeed, we want to encourage the NFU and other farming organisations to have the information to make such cases on behalf of their members if they so choose.

Mr. Hayes

Once again, the Minister is helpful and cooperative, but he has not gone as far as the Lords would ask him to travel. In that respect, the Lords probably have it right and it may be useful to hear some of what they said. In particular, I shall quote the Minister's noble Friend Baroness Mallalieu, who speaks not only with legal training and expertise, but with a keen interest in and knowledge of countryside matters. Before I do so, I want to refer to the remarks of my noble Friend Baroness Byford.

It is perhaps worth adding that my noble Friend has played an essential role in improving the Bill. The Minister, with his usual grace, will want to acknowledge that a bad Bill has been made better by the work done in the Lords, particularly by Conservative and, though it pains me to say it, Liberal Democrat Members of that House. In the words of Baroness Byford, they have made a bad Bill a better bad Bill. In a number of respects, she played a crucial role in that process. She said that it is surely reasonable that the magistrate should be satisfied that, in the first place, no one is challenging the interpretation that has been put to him by the Ministry, adding: How can he balance the inspector's view against that of the owner of the premises that the inspector requires access if he has not heard the other side?"—[Official Report, House of Lords, 4 November 2002; Vol. 640, c. 499–500.] That is a fair point, which was reinforced by a number of speakers in the Lords, not least Baroness Mallalieu. I hope that I may beg the House's indulgence and quote her at length, as she summed up the whole matter: One of the lasting legacies of the foot and mouth outbreak, which has led to continuing resentment, was the sense of powerlessness in the face of the authorities on the part of those faced with people attempting to get into their premises to slaughter their stock. I accept that a balance has to be struck between the need to control disease urgently and the rights of the owners of animals—the landowners and farmers. I appreciate that the paramount consideration in the Minister's mind—stung as he and his colleagues were by criticisms of their department—is that they should have the powers to act as swiftly as possible. We are not talking about diseased animals, however. We are talking about healthy animals that would be part of a ring-fence, firebreak approach to try to stop the spread of disease.

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Lady Mallalieu said that once the application had been made, the farmer should be given a chance to be heard. She summarised her argument thus: But surely, if you are going to destroy someone's healthy stock, which is the proposal here, you must give that person the opportunity to be heard at an early stage of the warrant."—[Official Report, House of Lords, 22 October 2002; Vol. 639, c. 1304.] We have heard from the Minister that there is the option of judicial review, and that of course exists; but, as a number of their lordships pointed out, the stock would be dead. The satisfaction of knowing that the due legal process had been followed would be of little use to those wanting to salvage their livelihoods or to deal with the immediate problem of someone going on to their land. I feel that immediacy is important in terms of access to a fair hearing and the due process of law.

I mentioned the United States national animal health emergency system, the US equivalent of our emerging national contingency plan. As I said, it is based on the collaborative approach that I believe is essential if we are to achieve the objectives that are shared by the two Houses and the two sides of this Chamber. The action guidelines at the heart of the US plan include strengthening partnerships and networks, reinforcing federal, state and industry co-ordination, expanding training, education and public awareness and a strong emphasis on co-operation between industry and every level of government. That is why the issue of warrants is so salient. They are not just important in themselves; they are important because they symbolise an attitude and a balance.

The real differences exist between a Government who, understandably, want legislation that delivers immediacy, effectiveness and a degree of predictability and control and an Opposition who, I suspect, want more flexibility. Flexibility is important. If we have learned anything from the dreadful business of 2001, we have learned that the disease strikes unexpectedly, progresses in a way that is hard to predict, changes its form and is dynamic; and that a new outbreak of this disease—or another disease entirely—would be just as unpredictable. Of course the contingency plan must take account of some factors of which we can be reasonably certain, but it must be flexible enough to allow Ministers, officials and all the proper agencies to react in a way that is appropriate to local conditions and circumstances that are particular to a disease at a certain point.

Another difference between us relates to the balance between the rights and responsibilities of farmers and owners and the power of Government to deal with the disease. There must, of course, be a balance between those two imperatives, but the Opposition believe that rights are of paramount importance in the context of reassuring the industry about the need to adopt many of the necessary measures that are in the Bill and will be included in the national plan. Unless we have the necessary confidence and raise the morale of the industry, we will not have an easy passage in adopting and implementing some of the necessary changes on which I think we mostly agree.

Those are the two salient differences between what was said in the other place and what the Minister is now saying and between what the Opposition believe and what the Government advocate. Warrants are at the very heart of that difference. For those reasons, it will be necessary for Opposition Members to oppose the Government's position and support that adopted by the other place.

Andrew George

I agree with the hon. Member for South Holland and The Deepings (Mr. Hayes) that it is regrettable that the Government have taken this view. I shall concentrate on the Government amendments that seek to delete those essential lines from the warrant amendments. Since the hon. Gentleman referred to cooperation between constructive Opposition parties, it is worth noting that the amendments were tabled by my noble Friends in another place. They provide for farmers to be informed of the reasons for the authorities applying to a magistrate for a warrant to enter premises and to have the opportunity to make representations to that magistrate, including the presentation of sworn information. The provisions are relatively straightforward.

Part of the Minister's attempted justification for deleting those essential lines was, predictably, that the provision would produce unwanted delays in a process that requires speed. I shall return to that in a moment. His other main argument against it was that these measures, if they were allowed to remain in the Bill, would be unprecedented in the warrant-making process. The Minister needs to understand that this is not just about entry to premises; it is also about the destruction of the content of those premises.

The hon. Member for South Norfolk (Mr. Bacon) made some rather telling legal points. I do not have a legal mind, but it is clear to me that not all new law has a precedent. Many new initiatives would never happen if we said that we could not do something because it had never been done before. One example is the Government handing over to the Bank of England the power to set interest rates. They did not refrain from doing that because it was unprecedented. The argument that anything that is unprecedented must not be done is fallacious and does not stand up to scrutiny.

The Minister was aware of the amendment and had the opportunity to look at it in one of two ways. If he were genuinely concerned about the delay rather than the macho concern about the Bill being changed too much, he could have taken the view that it should be amended by the addition of further lines to clarify the time limits within which representations should be made, for example, rather than attempting to delete the essential provisions that give farmers a justifiable right to make representations in order to ensure that the magistrate hears both sides of the argument. Fundamentally it is all about ensuring that the magistrate, having been presented with the arguments, understands all the factors that pertain in the case of a particular holding. We believe that the principle is very important, and that the amendment should have been accepted.

The Minister made the predictable point that the provision would result in delay, but much of the evidence shows that, had it been available at the time of the outbreak, the process might have been speeded up. Opposition to entry for initial testing is far less likely, and even less so if vaccination to live were the Government's preferred policy. Farmers would certainly be reassured. Delays in dealing with the crisis last year had far less to do with farm owners appealing against decisions, and more to do with operational incompetence.

Evidence presented by the National Audit Office in its June 2002 report makes no reference to farmers holding up the system. The report states: The three main factors contributing to delays in slaughter were: shortages of resources: vets, valuemen, slaughtermen and equipment … Inspection and diagnosis protocols: Occasional delays may have occurred when laboratory results for the initial antigen test were inconclusive. There was also initially a requirement that during a report visit the Department's vet should check all livestock before carrying out a detailed clinical examination of the affected animal(s). In addition, at the beginning of the outbreak, vets were not permitted to undertake another visit within five days of visiting an infected premises. This constraint was addressed on 10 March 2001. There were also logistical factors: the time needed to round up large flocks of sheep and inefficient early arrangements to ensure the co-ordinated arrival of valuers, slaughtermen and disposal teams. Those were the factors—not farmers making clear objections to entry on to their farms.

Farmers were prepared to work with the Government, rather than refuse permission to enter their farms. The report continues: Some farmers challenged the contiguous cull: This took the form, on occasions, of refusing access to premises, which sometimes forced the Department to take out a High Court injunction. More commonly, farmers formally requested the Department to reconsider its decision to cull while there were also some challenges in court. The Minister does not properly understand the point that was well made by the hon. Member for South Holland and the Deepings: one lesson that we must learn from the last outbreak is the need properly to re-establish trust between the Government and the industry. Page 37 of the Anderson report states: Contingency planning is not just producing a written document. Rather, it is about putting in place the systems, processes and culture to respond effectively to crises. Above all, it about a shared sense of ownership and purpose across the relevant stakeholder community. It is important that that principle be carried through by ensuring that, in cases where a warrant is secured, farmers have a right to respond.

Fundamentally, given that the Minister agreed in Committee that entry to premises to slaughter animals was different from other situations where the power to enter was sought and that, ideally, farmers should have the kind of rights contained in the amendments tabled by the Liberal Democrats in the House of Lords, I urge him to reconsider his position and accept that the change that we propose, even if unprecedented, is an acceptable and progressive measure, which the House should support.

9.30 pm

Mr. Bacon

I particularly agreed with the hon. Member for St. Ives (Andrew George) about one of the first points he made—the suggestion that nothing should be done because doing something would create a precedent. Of course it is true that everything is unprecedented until it is done for the first time. That seemed a curious argument to come from a new Labour Minister. The hon. Gentleman speculated that I did not want to effect such a fundamental change, but I have news for him: I came into the House precisely to effect fundamental change, and one day Conservative Members will have the opportunity to do precisely that. I shall remind him that I said that; I am very assiduous in keeping quotes, as he knows.

To understand this business about warrants and entry, it is important to go back to the fundamental basis of the Bill. I was rudely interrupted by the rules of the House on this point when I was the last hon. Member to speak on Third Reading and had to confine my remarks to the remaining one minute and 45 seconds. We have to reflect on the fact that the Government introduced the Bill because, during the foot and mouth crisis, they killed millions of healthy animals that they had no legal right to kill and no scientific basis for killing.

Paragraph 3(1) of schedule 3 to the Animal Health Act 1981—the relevant provision that refers to the Minister's powers to kill animals—states: The Minister may, if he thinks fits, in any case cause to be slaughtered … any animals affected with foot-and-mouth disease, or suspected of being so affected; and … any animals which are or have been in the same field, shed, or other place, or in the same herd or flock, or other in contact with animals affected with foot-and-mouth disease, or which appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease. In other words, the Minister had to have some grounds for thinking that the animals were infected before he could kill them. He had no basis in statute law for exercising the slaughter. We have to ask, therefore, whether any basis had developed in case law to undertake the cull. The answer is that, no, there was not.

I commend to the House an excellent speech made by Lord—

Mr. Deputy Speaker

Order. The question that the hon. Gentleman should ask himself is about the warrant conditions. His remarks so far indicate that he is going wider than the ambit of Lords Amendment No. 14.

Mr. Bacon

I respect what you say, Mr. Deputy Speaker, but if you will bear with me very briefly, I hope to show that these matters are intimately related because they go back to the non-existent trust between farmers and the Government. That lack of trust causes the power of entry that the Minister seeks to cause so much suspicion among farmers.

The fact is that there was no statutory basis for the cull; neither was there a basis in case law. Lord Willoughby de Broke referred to three relevant cases. The Government won the first two—that of Westerhall Farms v. Scottish Ministers and MAFF v. Winslade—but, crucially, not all the required scientific information was available to the courts. However, the Government lost the first case based on correct science—MAFF v. Upton—in which all the scientific information available to the Department was available to the court.

In his speech, Lord Willoughby de Broke said that, if the Minister was looking for a bedrock case for or against the continuous cull, he could find it in the Upton case. In that case, Dr. Donaldson's scientific evidence was produced by the defending solicitors and won the day for the defendants.

Mr. Hayes

Will my hon. Friend give way?

Mr. Bacon

Of course.

Mr. Hayes

I am grateful to my hon. Friend. I imagine that he is making the case—and he is doing it very well—that there is an intimate relationship between the lack of trust that farmers feel for the action taken by the Government in culling healthy animals and the Government's proposals for warrants and entry conditions. My hon. Friend suggests that farmers will mistrust the warrants in the form that the Government propose. The Lords tried to amend the warrants, but the Government clearly do not want to accept those amendments.

Mr. Deputy Speaker

Order. I am sure that the hon. Member for South Holland and The Deepings (Mr. Hayes) has provided an escape route, and I hope that the hon. Member for South Norfolk (Mr. Bacon) will take it. He has to be concise when he puts his argument, or he will be ignoring the ruling that I gave earlier.

Mr. Bacon

I am utterly serious when I say that I am not looking for an escape route, as my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes) has precisely enunciated the argument that I wanted to make. The Government forfeited farmers' trust because MAFF officials went to farms and slaughtered healthy animals even though their actions had no basis in statute, case law or science.

Various hon. Members have noted the importance of farmers being represented in a warrant hearing, and one might be able to give the Minister's case more credence were it not for the experience of what happened. Farmers generally have no trust in the Minister's proposals because of the way in the which the Government acted during the crisis. That was precisely the point that I was in the process of making. In his speech, Lord Willoughby de Broke asked why the Ministry never fought a case for an injunction to enable a contiguous cull to proceed after the decision in the Upton case was given. The reason was that the Ministry knew that it had been proceeding on a wholly inadequate basis.

That is the context for our consideration of the proposal that there should be no right in advance of slaughter for a farmer to go before a justice of the peace and contest a warrant.

Mr. Wiggin

Earlier, the Minister commented on the number of cases that the DVM upheld. That gave me cause for concern, as farmers are worried about whether warrants will arrive before or after animals are culled. I hope that the Minister, when he closes the debate, will say whether the cases to which he did not draw attention were also relevant. Does my hon. Friend think that farmers' human rights may be infringed by the proposal? Farmers who go to court must have a reason for doing so, and it is not fair to proceed without them.

Mr. Bacon

My hon. Friend makes a good point. The Government have had the grace to admit that they cannot abolish judicial review for administrative action, but their proposals seem to mean that big-ticket farmers with deep wallets and access to big lawyers can go straight to the High Court to secure an injunction. The Minister will be able to do nothing about that, as people have a legal right to obtain injunctions. Hundreds of people got satisfaction from the DVM, but that does not alter the fact that MAFF, as the Department then was, exceeded its powers and acted in excess of what a court would have considered reasonable. They may have been a minority, but many people were involved in such cases, which have been the subject of much comment and which have caused a great deal of mistrust.

Our courts are too full already, and we do not want them to become any more clogged up, but farmers should not have to have deep wallets so that they can take out a High Court injunction. Farmers should be able, in a simple and short procedure, to go before the magistrate when the warrant is being applied for and make their case. As I said to the Minister earlier, one could believe this to be a heinous alteration to the way in which warrants were issued if one were talking about big criminals. We would not want to give drugs dealers the right to contest a warrant—[Interruption]—well, the law could be changed. We do not want to give big drugs dealers the right to contest the warrant before a judge. If they knew that there was about to be a drugs bust, they would be long gone. As the Minister said, we are not talking about big criminals.

Mr. Wiggin

One of the problems throughout the debate is that it seems as though the Government are always blaming the farmers for the entire foot and mouth crisis. My hon. Friend's point emphasises once again that it is difficult, when discussing this, to distinguish between proper criminals who deal in drugs and people who are desperately trying to eke out a living farming livestock without having their stock slaughtered.

Mr. Bacon

Whether they meant it or not—and I am willing to accept that that at the highest levels of MAFF they did not mean it—the Government's actions made many law-abiding people feel criminal, when they were struggling to keep themselves afloat and seeing their farm income dropping through the floor.

In conclusion, the Government's basis for the slaughter was illegal and scientifically flawed. The basis of the Bill is to repair that deficit but in the context of the lack of trust created by the Government through their own actions, it is entirely reasonable to expect a farmer to be able to contest a warrant.

Mr. Morley

With the leave of the House, Mr. Deputy Speaker, I should like to say a few words about some of the points that have been made.

I recognise that this is an important aspect of the Bill. I repeat that the Government are trying to be reasonable and proportionate. We want to reassure people and ensure that these measures are used only when necessary. We want to ensure that there is a right of representation to the DVM and that farmers are aware of that right. Indeed, we have no objection to people making representations on their behalf. We have accepted other changes, such as retaining warrants for 12 months. Hon. Members have referred to the dating on the warrants and how they would be applied. That is in reflection of legitimate cases.

I am very aware of the United States system to which the hon. Member for South Holland and The Deepings (Mr. Hayes) referred. Indeed, aspects of that system are being built into some of our responsibilities. The hon. Gentleman and I seem to be talking different languages, but I agree with him about the need for maximum flexibility. The whole point of the Bill is to give our veterinary scientists and divisional managers maximum flexibility in dealing with any future outbreak.

Let me say to the hon. Member for St. Ives (Andrew George)—and I stress again that I am not a legal expert—that I have a distinct feeling that it would be difficult to set time limits for representations if there was a right for individuals to make representations against the issuing of a warrant. I am pretty sure that if the time scale is too short it will be challenged by lawyers who will say that they do not have enough time to make their case. That is inevitable. If the time available is too long, people will simply utilise the maximum time leading to delays and restricting flexibility.

There was a range of reasons for delays during the last epidemic, which we understand. We are trying to address that and we are willing, as I have always been, to consider a range of options in this case. However, I am convinced, because of the advice that I have received from the highest level, that this proposal would set a precedent that we cannot concede in relation to the changes in the issuing of warrants.

Mr. Hayes

rose—

Mr. Morley

I cannot give way, I am afraid, because I am about to conclude.

The hon. Member for South Norfolk (Mr. Bacon) seems to have an obsession with claims and conspiracy theories about healthy animals being culled. Many of the animals that were culled were developing the disease. There may well be a case for fire break culls in the future, although it is not my preferred option—I would much rather use vaccination. However, there must be flexibility. We recognise the points about people's trust and concerns. That is why we have made these changes to the Bill, which I hope that right hon. and hon. Members recognise. I hope that they also recognise that although we understand the reasons for the Lords amendments, they go too far in setting an unwelcome precedent that we cannot ignore and cannot accept.

It being five hours after the commencement of proceedings, MR SPEAKER, proceeded to put forthwith the Questions necessary to dispose of the proceedings to be concluded at that hour pursuant to Order [this day].

Government amendment (a) to Lords amendment No. 14 agreed to.

Lords amendment No. 14, as amended, agreed to.