TREATMENT: POWER OF ENTRY

HC Deb 07 November 2002 vol 392 cc472-9

Lords Reason 14B.

The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Mr. Elliot Morley)

I beg to move, That this House insists on its disagreement with the Lords in their amendment.

Mr. Deputy Speaker

With this it will be convenient to take Government amendment (a) in lieu, Lords Reason 22B, the Government motion to insist and Government amendment (a) thereto, Lords Reason 35B, the Government motion to insist and Government amendment (a) thereto and Lords Reason 65B, the Government motion to insist and Government amendment (a) thereto.

Mr. Morley

We held a detailed debate on the issuing of warrants, and I made it clear that we understood the arguments of Opposition Members and some of my hon. Friends, especially in Committee, on representations.

I made it very clear that it was impossible for the Government to accept the Lords amendment because of the difficulties with legal precedents that it would create for the process of issuing warrants. However, I took the point made by Members from both Opposition parties and by my hon. Friends that we should give some reassurance to people who choose to make representations to the divisional veterinary manager. Their case might be accepted or rejected. I explained to the House that many hundreds of applications to the DVM in relation to contiguous culling and other issues had been accepted and exemptions had been made. However, it is not impossible that, for the purposes of disease control, the Department would apply for a magistrate's warrant to enter private property.

I followed the debate in the other place, where a few people still seemed to be obsessed with the culling issue, so I must emphasise that the Bill is not just about culling, as I think this House accepts. There will be cases—as there have been in the past—where people will refuse access for serology and even for vaccination. I stress that point.

In cases where representation to the DVM has been made and turned down, a magistrate's warrant is sought. I repeat again that the magistrate has an obligation to take into account the representation made by the Department and to grant a warrant for such application only if there is a reasonable case to do so. I am sure that magistrates will take that obligation seriously.

Mr. David Drew (Stroud)

During the last foot and mouth outbreak how many powers-of-entry cases did the Government lose?

Mr. Morley

I think that there were four cases and the Government lost two, although I am not sure that all of them involved powers of entry—there was a range of issues. I can give my hon. Friend the details. In fact, in one case that we lost, the premises were subsequently found to be infected.

Our proposals would speed the process and ensure that people have opportunities to make representations to the DVM. As I pointed out, the magistrate's obligation is only to grant a warrant when there is a reasonable case to do so. The intention of the amendment was to allow the farmer to ensure that his or her side of the story is taken into account by the magistrate.

We cannot concede the idea of having a High Court-type hearing in front of a magistrate because it is impossible to move one legal procedure to a magistrates legal procedure, and there would be all sorts of difficulties relating to precedent. However, what we propose is that the information that the Department will make available to the magistrate must include a statement on whether any representation has been made by the occupier of the land or premises to an inspector about the purpose for which the warrant is sought. First, the magistrate will need to know whether an objection has been made. Secondly, there will be a summary of any such representation.

Obviously, the Department will put its side of the case in the application and say why it seeks a warrant, but it will also provide a summary of the objections made by the occupier of the land or premises, so that the magistrate can consider both sides of the argument in deciding whether to grant the warrant. Those are the principal points that Opposition Members made, and I understand them, so I am trying to respond in a way that reflects not only the legal process, but the concerns that have been expressed.

Andrew George (St. Ives)

The Minister will understand that the primary reason why the amendment was tabled was to ensure that both sides of the story are fully presented to the magistrate. Can the hon. Gentleman assure the House that the summary will be a fair representation of what the farmer or landowner has put to the DVM? Will the farmer or landowner have an opportunity to inspect that summary before it is forwarded to the magistrate?

Mr. Morley

Of course we will issue internal guidance on the details of the summary and the way that our Department, vets and DVM will proceed. Of course that internal guidance will be open to parliamentary scrutiny by asking parliamentary questions, and we have no reason to keep it secret.

The arrangements must not be too bureaucratic and complicated, but there is a legal obligation on any member of the Department to be truthful and honest in his or her submission when applying for a warrant. Therefore, there is a legal obligation on the Department to ensure that the principal points are fairly and accurately represented in relation to the submissions that the farmer, occupier or landowner may make to the DVM, so I give the hon. Gentleman that assurance. Of course, the work of the Department will be open to normal parliamentary scrutiny.

I return to the fact that I accept the point, which has been made on several occasions, that trust is an issue. We understand that and want to ensure that there can be trust in relation to what the Department is doing. In the end, we want to control disease effectively, minimise the impact on the livestock sector and, if there is a disease outbreak, control it while keeping the number of animals culled to a minimum and causing minimum disruption to the livestock industry, the countryside and the rural economy. That is our priority. That is why we are developing the contingency arrangements and the animal health and welfare strategy, all of which will be public documents and open for consultation and scrutiny in the parliamentary process. We very much welcome such participation; it is part of the trust-building process.

I acknowledge the constructive role of all parties and parliamentary spokespeople in both Houses in relation to the quite significant changes made during the proceedings on the Bill, and we have tried to acknowledge the genuine concerns and perfectly reasonable points that have been made by my hon. Friends and Opposition Members. That is reflected in relation to these amendments.

I very much hope that the House will agree to the motion and accept the amendments in the spirit in which they are offered to complete the passage of the Bill.

Mr. John Hayes (South Holland and The Deepings)

The Minister's gracious and generous approach is a healthy sign of the Government's recognition that the amendments made throughout the Bill's progress in the other place and the comments made in this Chamber were designed to be helpful. The amendments have been largely non-partisan, although they were of course pioneered principally by the Conservative party with help from Cross Benchers and the minor parties, including the Liberal Democrats. It is in that spirit that the Minister has come to the House with a helpful amendment to allow us to make progress.

I shall, however, briefly rehearse why the matter is significant. I want to amplify the point acknowledged by the Minister, which is that warrants are important. Magistrates should make a balanced and reasonable judgment based on a full understanding on each side of the argument, so that the landowner or farmer knows that his case has been heard, and the magistrate can be confident that he has all the facts at his disposal before he issues a warrant. That is important because most of these warrants will result in the culling of healthy animals. Obviously, that will always be done for proper purposes, but we must remember that dramatic events will ensue from the process.

Warrants are important also because they are emblematic of the trust mentioned by the Minister. Yesterday I repeatedly made the point that the trust of farmers and the industry in the Government's approach to important matters of animal health will be fundamental if we are to put together an effective strategy for dealing with these events cohesively. That trust was damaged by the foot and mouth outbreak.

I understand why the problems arose and I know that the circumstances were not easy, and one could make several points in mitigation, but trust was damaged. In that knowledge, we have to proceed with great caution, and in a spirit of generosity and co-operation, to rebuild the trust that predicates the right approach to dealing with any future such problems. Warrants are the salient issue, and the House of Lords has made such a great issue of warrants because they are at the apex of the concerns about trust, partnership and the rebuilding of relationships.

The issue boils down to people's ability to make their case to magistrates. The Government have said that the method suggested by the Lords is not legally possible. I am not qualified to make a judgment about the law, so we must take the Minister's statement at face value. We have been presented with a solution that is reasonable, although not perfect—the House would hardly expect me to say that it is perfect.

I am also reassured by the Minister's response to the intervention by the hon. Member for St. Ives (Andrew George), in which he said that representations would, of necessity, be made in a balanced and fair manner. That clearly answers many of the points made by Baroness Byford, who, with Lord Plumb and others, has played a remarkable role in framing so much of the important content of the Bill alongside—I will not say ahead of—those in the Government, who have also done their best. In those circumstances, it would be inappropriate for Conservative Members not to acknowledge that considerable movement and the splendid victory on the part of all Members on this side of the House, who have, by the force of their persuasive argument, encouraged the Minister to offer this generous settlement.

Andrew George

Like the hon. Member for South Holland and The Deepings (Mr. Hayes), I appreciate the concession that the Minister has brought to the House, and the graciousness with which he has handled it. We have had a proper debate, which has resulted in effective scrutiny of the relevant clause of the Bill. Although the measure does not go as far as we would like, we have reached a satisfactory concessionary position, which at least takes us considerably further forward in respect of making sure that the two sides of the story are clearly and transparently presented to magistrates.

Mr. Drew

May I pose one issue that worries me? If a warrant is issued, and, for whatever reason, the people concerned do not want the vaccination or cull, but a third party does want it, will they also be mentioned in the warrant, or will it be left to the divisional veterinary manager to take up their part?

Andrew George

Perhaps the hon. Gentleman is directing his question through me to the Minister. I shall happily act as a conduit on this occasion if he so wishes. If he is thinking of an example in which a landowner takes a particular view, but a tenant farmer takes a different view, that matter needs to be resolved. Perhaps the Minister will ponder on that before I conclude.

The Minister was gracious in acknowledging—the hon. Member for South Holland and The Deepings was almost as gracious, although he did not properly reflect this fact—that the concession under discussion is the result of amendments tabled by Liberal Democrats in another place. My noble Friend Lord Greaves has been particularly assiduous in pursuing this matter to a rightful, better and more positive conclusion than might otherwise have been the case. Some issues still need to be clarified, however, and I shall quickly refer to four.

First, farmers need to know about their right to appeal to the DVM. Will the Minister make it clear—because it is not clear in the Bill—that when the farmer or landowner is informed of the intention to seek a warrant, a right of appeal is available to them at that stage? At the same time, will the Minister also address the question of what other information and transparency this process will be afforded? In particular, will it be made clear to the farmer or landowner what time scale is available in which to respond to any suggested application for warrant? What procedure must they follow, and in what form do they make that appeal? Will he ensure, too, that the procedure is clear and transparent?

Mr. Hayes

I do not want to prolong the debate or test the patience of the House by continuing too long. The hon. Gentleman may be mindful of the comments made by my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) last night, however, and it is important to point out that, in these circumstances, a landowner or farmer will often be in some difficulties. They may be trapped on their farm, and bewildered and confused by what they face. It is particularly important in those circumstances that clear and comprehensible information is made available to them, and that they are given every support in making their case as the Minister has described.

Andrew George

The hon. Gentleman is right. I am sure that the Minister fully appreciates that much trauma and emotion is associated with the process. As throughout the Bill's passage, I know that he understands that clarity and transparency are essential, because farmers and landowners might not think quite as straight in such circumstances as they would do on other occasions. That is why they need to be helped through the process.

4.30 pm

Farmers must be clear about their rights, the time scale and the procedure to be used. The Minister dealt with my earlier question about whether the farmer would be assured that the summary statement made to the magistrate would be a fair reflection of the message that the farmer intended to send. Therefore, on the basis of the Minister's clear and reassuring response to questions, I again make it clear that we think this is a helpful concession that goes some way to addressing the genuine concerns that were properly articulated in yesterday's debate and in the debates in another place.

Mr. Richard Bacon (South Norfolk)

Following the comments of my hon. Friend the Member for South Holland and The Deepings (Mr. Hayes), far be it from me to be anything other than gracious. However, I want to consider two or three points briefly.

The Minister said that Conservative Members appear to be obsessed with culling. That is not the case. We all recognise that the Bill is about many different issues. However, I merely point out that part 1 is entitled "Slaughter", so the issue is at the heart of the Bill. Therefore, it is not unreasonable to want to discuss that point in relation to the powers of entry, the misuse of which caused so much concern to farmers.

My second point is about whether the warrants would entail a novel legal principle. A moment ago, I was reading Hansard and the Minister's response to my second intervention when I said that it would surely be possible to distinguish between different kinds of warrants issued for different purposes. His only answer was: I am not a legal expert".—[Official Report, 6 November 2002; Vol. 392, c. 384.] Therefore, everything will depend on the quality of the legal advice that he receives from his departmental lawyers.

Mr. Morley

It is first class.

Mr. Bacon

I am sure that it is first class, but the Ministry went around merrily slaughtering perfectly healthy animals without either a legal or scientific basis for doing so until the case of MAFF v. Upton. At that point, the court had the full scientific information before it and MAFF stopped doing what it was doing and did not contest the action any further. That suggested that it had been wrong all along. The Minister did not address that point yesterday.

That brings me to my next point. The Minister is determined to avoid the creation of novel legal principles, but the creation of a situation in which the Government go into a magistrates court and effectively bat for both sides—they make the case for a warrant while carrying statements from the farmer saying why there should not be a warrant—will be nothing other than a novel legal principle. The Government will bat for both sides, but the farmer will not be allowed to act in his own interest or have a solicitor acting for him. That seems to be a novel principle.

However, it would be wrong to be graceless. My hon. Friend the Member for South Holland and The Deepings assures me that we have achieved a valuable victory, and if he is right, that can be due only to the work of the fine and noble Baroness Byford who is probably the heroine of the hour.

Mr. Morley

I am grateful for the comments of hon. Members. On the question raised by the hon. Member for South Norfolk (Mr. Bacon), the important point about the warrants is the procedure under which they will be issued. The magistrate must consider whether the request is reasonable, whoever applies for a warrant, and must also take account of why someone should want to resist a warrant. We are going a little further by providing information to the magistrate, who has an obligation to take into account all the arguments when making the decision.

In response to the hon. Member for South Holland and The Deepings (Mr. Hayes), I very much hope that applying for a warrant will be an act of last resort—that it will not be common, a standard procedure or something that we would want in the normal course of any disease-control strategy. Sadly, as with a range of issues and not only those relating to disease control, there will always be times when we might need such a power, especially in disease control when facing a national emergency. We accept that this is a major issue, which is why the power should be used only as a last resort. It is important that we engage stakeholders in considering disease control and management in a way that minimises any need for such a measure. That is the Government's declared objective.

Bob Spink (Castle Point)

Will the Minister clarify whether the magistrate would if he thought it necessary be able to offer a hearing to the farmer or tenant farmer against whom the warrant had been issued?

Mr. Morley

That was the intention of the original Lords amendment, but as a Government we cannot concede that. All our legal advice suggests that it would be unprecedented to allow, in effect, a court hearing in front of a magistrate. As we debated yesterday, if that concession were made, we would have to allow the individual time to find a solicitor to seek legal advice or secure legal aid. The time taken would expand and the situation would become so complex that it would negate the idea of moving quickly. I am trying to retain the facility to move quickly on disease control in an emergency while respecting people's right to put an alternative point of view. The procedure will be to make representations to the DVM, who can decide to support them. The next step would he to apply for a warrant—now with the guarantee of a written submission on the other side of the argument.

It is true that when the Prime Minister met Cumbrian farmers during the last epidemic, they told him not that there was too much slaughter but that there was not enough and that culling needed to be speeded up. For whatever reason, people might argue that animals should be culled—I assume that that is the point that my hon. Friend the Member for Stroud (Mr. Drew) was making—but the decision whether to do so must be taken only on veterinary grounds, and that depends on the veterinary and scientific advice at the time.

We want to support alternative approaches as part of engaging the industry and relevant stakeholders in future contingency plans for a range of diseases, and in the longer term strategy on animal health and welfare. That is all part of building confidence and trust and involving the industry—giving it a say in the strategies and helping it to understand the reasons and arguments behind them. That must be a priority. I very much hope that the measures in the Bill will be of last resort.

Mr. Roger Williams (Brecon and Radnorshire)

Does the Minister agree that it is essential that magistrates receive training in the exercise of these powers and duties? Although we all hope that the need to use them would never arise, if it did, there would be no time to instruct them on their nature.

Mr. Morley

Magistrates already receive training, and part of it is to take into account reasonableness.

The hon. Member for St. Ives (Andrew George) raised an important point about how farmers and landowners would become aware of the procedures. I reassure him that one of the changes that we have introduced as part of the lessons learned is that, should there be a decision to cull, the first thing that will be done is to send a note to the farmers concerned informing them of that fact and why the decision had been taken. We can include information on such procedures in those notes, so that they will be aware of their rights.

The whole idea of the slaughter note, which is part of the slaughter protocol, is to explain why a measure is being applied. The need to explain in certain circumstances why culling may be necessary is an improvement and marks a step forward in communication. Even with the greater prominence of vaccination, which I welcome, we have to accept that it is likely that culling will be used for different reasons, depending on the epidemic and the advice given. We need to understand that.

I thank my colleague, Lord Whitty, and my parliamentary colleagues for their contributions. I also thank my officials for their hard work. They have been very much involved in the Bill. I am also grateful for the guidance from the Chair on procedural matters.

The Bill is not about looking back. I hope that its measures allow us to look forward to future disease control strategies, which I have no doubt will be very different from earlier strategies. There will be greater involvement in the process. There are new opportunities, new technologies, new methods of working, improved communications and better contingency arrangements for a range of risks that threaten the livestock industry. I hope that the Bill is seen not as a threat to the industry, but as part of a range of measures designed to engage it, to give people a say and, above all, to ensure that we have a first-class livestock industry equipped to deal with the various threats that it faces from a variety of sources.

Question put and agreed to.

Government amendments in lieu of subsequent Lords amendments agreed to.

4.43 pm

Sitting suspended, pursuant to order [29 October].

6.30 pm

On resuming—

Message to attend the Lords Commissioners:

The House went; and, having returned: