Lords Sitting of 4 November 2002

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers —Read by the Lord Bishop of Southwark.

Judicial Appointments
Baroness Howe of Idlicote Baroness Howe of Idlicote asked Her Majesty's Government:
What is their response to the "significant concerns about the judicial appointments process" recently identified in the first annual report of the Commission for Judicial Appointments.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, my first response is that these concerns have to be kept in perspective. In the period 15th March 2001 to 31st March 2002, the commission accepted only 10 complaints out of 3,626 unsuccessful applicants. Six of the 10 are covered by the commissioner's first report. Of these six, three were about Silk applications and were upheld; one was about judicial appointments and was partially upheld; two were about judicial appointments and were rejected. All four outstanding at the end of March this year were about judicial appointments. Since the report was published, three of these have been rejected and one remains under consideration. The complaints that were upheld, however, were on the basis of procedural and administrative failings that did not go to the merits of the substantive decisions.
I turn to the concerns. One was that the system may not be fully understood. We publish the most detailed guidance for applicants and provide detailed feedback for the unsuccessful. We shall redouble these efforts.
Another concern is that the quality of responses from consultees is variable. I agree, and I constantly urge that they should be based on stated experience as fully particularised as possible and expressly related to the criteria.
Finally, concern was expressed about the lack of a clear audit trail to show that assessments that should have been disregarded were in fact disregarded. That we shall improve too, and we are putting very substantial further resources into this year's Silks round.
Baroness Howe of Idlicote: My Lords, I thank the noble and learned Lord for that helpful Answer. However, I want to query a slightly wider aspect of the report. The commission expressed concern not least about the continuing lack of diversity. Should we, for example, be worried that there are not enough suitably qualified women or members of ethnic minorities among the appointments made? Is it now time to involve the commission directly in the actual process of selection and appointment of judges and QCs—as,
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I believe, was originally envisaged in Sir Leonard Peach's report in 1999? Will the noble and learned Lord further accept that such a change might ensure that the selection and appointment of judges was then perceived as a much more open and democratic process, and above all more plainly independent of Ministers?
The Lord Chancellor: My Lords, I know that the noble Baroness has a keen interest in this subject—and I appreciate the interest of the noble Baroness, Lady Kennedy. I acknowledge the important work that the noble Baroness, Lady Howe, undertakes as chair of the Hansard Society Commission on Women at the Top. But, in fact, women are doing very well against the competition. Only this morning, I had the pleasure of swearing in Laura Cox QC as a High Court judge.
It is important not to make false comparisons. A false comparison is: what is the proportion of women in the profession today and why are not the same proportion of women judges today? The true comparison relates to the profile of practitioners of 20 or more years ago. That is the pool from which judges are appointed. Twenty or more years ago, women were a very much smaller proportion of the profession. By this standard—the true standard—women are doing very well at all levels.
Baroness Kennedy of The Shaws: My Lords, perhaps I may indicate to my noble and learned friend that there is great support for his efforts to make the Bench much more diverse. However, a question has been raised as to whether the appointments might not be better undertaken by a judicial appointments commission. This report was conducted by Sir Colin Campbell with the assistance of a very diverse group of people, half of whom were women and two of whom were from ethnic minorities. It indicated how an independent group of people can bring some real clarity to issues relating to appointment. Would it not be better to have an independent judicial appointments commission rather than have decisions made ultimately by someone—albeit someone whom we greatly respect—who is both the head of the judiciary and a Cabinet member? Is it not time to separate those powers and to create a truly independent judiciary?
The Lord Chancellor: My Lords, as I have said a number of times, I have not excluded the possibility of a judicial appointments commission that would have a greater role in the appointments system than the present supervisory commission which is intended, through its reports, to give greater public confidence. However, I believe that we should live with the present commission for some time before considering going further.
Some suggest a judicial appointments commission; others suggest that Silk appointments should be made by the profession—by the Bar Council and the Law Society. But that would have its perils as well. It would be said that the professions were feathering their own nest by appointing too many Queen's Counsel; on the

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other hand, it would be said that if your face did not fit at the Inn you would not get Silk. Furthermore, a judicial appointments commission which made or recommended appointments would be a quango—which many might not favour—with all the risks of deals, compromises and quotas which would undermine a merits-based system. I have an open mind, but these are serious considerations.
Lord Goodhart: My Lords, the report of the Lord Chancellor's Department on judicial appointments for 2001-02 indicates that, out of nine new appointments to the High Court Bench in the period under review, none was the appointment of a woman, nor was either of the appointments to the Court of Appeal or to the House of Lords. Does the noble and learned Lord agree that this suggests that something is badly wrong? Will he consider, for example, abolishing the circuit system for High Court judges, which is likely to be a serious deterrent for women who might otherwise be suitable for appointment? Will he accept that the consultation system may place at a disadvantage women who have cut their workload temporarily because of childcare commitments?
The Lord Chancellor: My Lords, the noble Lord focuses attention on the senior judicial appointments. Certainly, I would like to see many more women in these appointments in the future but without prejudice to a merit-based system. But if we look at judicial office overall, for the fourth year running the number of women appointed to judicial office has increased. Women are doing very well. First, let us take the proportion of successful applicants who were women in 1998–99: it was 23.5 per cent. It is now 34.4 per cent. Let us take the proportion of men and women who apply and are successful: in 2001, 23.5 per cent of women who applied were successful, compared to 20.8 per cent of male applicants. There is a similar pattern in applications for Silk. In every year since 1998, the proportion of women applicants for Silk who were successful has been greater than the proportion of male applicants who were successful. It may, of course, be that women are better judges of their own merits than men are of their own merits.
Lord Graham of Edmonton: My Lords—
Baroness Buscombe: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, we are in the ninth minute now. I am afraid that we have overrun our time.

Children Act Proceedings: Organic Illness
2.44 p.m.
Countess of Mar Countess of Mar asked Her Majesty's Government:
Whether proceedings under the Children Act 1989 are appropriate where children are known to be suffering from professionally diagnosed organic illnesses.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, under Part IV of the Act, local authorities will make an application to court for an order only where they are satisfied that the child concerned is suffering, or is likely to suffer, significant harm. In some cases where proceedings are appropriate, the children concerned may be suffering from a professionally diagnosed organic illness.
The Countess of Mar: My Lords, I thank the Minister for that reply, which is exactly in line with what I expected. He will recall that for the past four years I have been drawing individual cases to his attention by letter and highlighting more general cases in Starred and Unstarred Questions in your Lordships' House. At his request, on 15th January this year I wrote to his friend Jacqui Smith MP in the Department of Health. It took her until 22nd October to tell me that the social workers had discharged their statutory duties and to tell me many facts that I knew already.
I find it appalling that the Department of Health seems unable to grasp the fact that aggrieved parents have sought out Members of the House of Lords to have their problems highlighted and, it is to be hoped, settled. I sent the department a list of 10 parents, none of whom was asked about the problem. Is it not time that parents were spoken to? Will the Minister look at the problem and find out what is going on with social services?
Lord Hunt of Kings Heath: My Lords, I regret that it took a lengthy time to respond to the concerns of the noble Countess. She gave details of 16 children. Time and care had to be taken to ask the relevant local authorities for their views. We have made a judgment that the proper procedures were followed. It would be inappropriate for my department to talk directly to parents. It cannot be appropriate for Ministers or officials to intervene in individual cases; nor would it be appropriate for them to comment on such cases, especially those that have been the subject of court proceedings. Our responsibility is to ensure that local authorities carried out the proper procedures, and they did.
Earl Howe: My Lords, does the Minister agree that one of the main aims of social workers in this field should be to provide help and support to families who need it? Is he satisfied that in cases such as those cited by the noble Countess, families are being properly listened to rather than being put immediately under a

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pall of suspicion by social workers? Should not social workers and social services assessments take seriously and address themselves fully to the concerns expressed by parents?
Lord Hunt of Kings Heath: My Lords, parents' views must be made known in any childcare proceedings. But I refer the noble Earl to the comments of the Chief Medical Officer's working group on the illness CFS/ ME, which is very relevant to this Question. It concluded that evidence that is clearly suggestive of harm needs to be obtained before convening child protection procedures or initiating care proceedings in a family court. It also makes the point that social services should be made aware that medical opinion in the field of CFS/ME is divided and that consideration should be given to obtaining further opinion from an expert medical practitioner with specialist knowledge of the illness.

Political Parties: State Funding
2.49 p.m.
Lord Goodhart Lord Goodhart asked Her Majesty's Government:
What are their views on the report Keeping it Clean—The Way Forward for State Funding of Political Parties, published by the Institute for Public Policy Research.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, while the Government welcome the contribution that the I PPR's report has made to the current lively debate on state funding, it is clear that there remains no consensus as yet about the way forward. The independent Electoral Commission, which is charged with a statutory obligation to review and report on matters relating to the regulation and funding of political parties, has already begun its review of the arguments for and against state funding and a cap on donations. The Government await its recommendations with interest.
Lord Good hart: My Lords, I thank the Minister for that reply. The IPPR has close links with the Labour Party. Does she agree that there is now a great deal to be said for caps on large donations, for a lower limit on election spending at national level and for increased public funding of the political process, particularly through matching funding, or possibly tax relief, for small donations?
Baroness Scotland of Asthal: My Lords, the noble Lord has rightly identified a number of issues of real importance. He will know that there are wide-ranging and differing views about them. I am sure that the commission will fully consider all those issues. That is why I say that we anxiously await the outcome of its deliberations. I am sure the noble Lord will make good use of the procedure for consultation in relation to that report.
Lord Neill of Bladen: My Lords, can the Minister shed any light on this matter? In their 1999 response to
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the report of the Committee on Standards in Public Life—of which I had the honour then to be chairman—the Government said:
"The Neill Committee, whilst recognising the essential role played by political parties in our parliamentary democracy, came down against any general system of support from public funds for their general activities. The Government agrees with this conclusion".
Has there been any shift in that position?
Baroness Scotland of Asthal: My Lords, your Lordships will know that there has been an active and anxious debate. It was thought right that the commission should now look at this issue again. It will report in 2004. Your Lordships will know that the debate goes backwards and forwards. Those who are in favour of state funding say that it gives transparency, security and a fair playing field. Those who are against ask why the public should pay for political parties that they do not support. These are all deeply interesting and lively issues, which, I am sure, will delight the commission when it considers its report in the final days in 2004.
Earl Ferrers: My Lords, the noble Baroness has said that she awaits the commission's report with interest. Can she also give an indication that the Government will not change their mind and will not support state funding of political parties?
Baroness Scotland of Asthal: My Lords, I cannot give any such assurance, as the noble Earl knows The whole point of having the commission is allowing it to do its work and then doing it the courtesy of listening to what it has to say. Once we hear what it says, we shall make an informed decision.
Lord Lea of Crondall: My Lords, is my noble friend aware that, although there is much useful analysis in the IPPR report, and there is a case for increased funding on research for political parties, when it comes to trade union contributions, there is a fallacy in supposing that when you have a political fund, a larger union with many thousands of members does not have to give pound for pound a lot more as a contribution than a small union with only a few hundred members?
Baroness Scotland of Asthal: My Lords, these are all valid points. The IPPR says in the back of its report that it does not offer a detailed route, but a basic path to be followed. Its suggestions are only a contribution. It does not pretend to have all the answers. I am sure that that is another issue that will need to be carefully scrutinised by the commission.
Lord Phillips of Sudbury: My Lords, if she cannot speak for the Government, will the Minister at least comment for herself on the fact that the current problem with under-funding of political parties is the simple fact that the public do not identify with politics in Westminster and Whitehall? If we were seen to take more interest in the public and in their hopes and fears—and I am not sure that last night's film did much

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in that direction—might not they in turn take more interest in politics and be willing to fund it out of their own resources?
Baroness Scotland of Asthal: My Lords, no one can say of anyone sitting in this House that we do not have an active and deep interest in the public. My deliberations in participating with your Lordships have made it clear that we seem to think about nothing else. Your Lordships will know that I cannot but speak for the Government. It is my privilege and pleasure so to do.
Lord Strathclyde: My Lords, it sounds as though the Government have changed their mind since their 1999 response to the report of the noble Lord, Lord Neill of Bladen, on state funding. Does the noble Baroness agree that most people would find it abhorrent if all political parties were paid for 100 per cent out of taxpayers' money? Is not a slightly more rounded way of looking at the issue to consider the case for tax deductions for the noble service of supporting those political parties that must be a necessary evil in our political environment?
Baroness Scotland of Asthal: My Lords, we certainly have not changed our minds. We have remained open to the evidence that we may be given. That is not changing our minds, it is making informed, proper choices. The noble Lord will know that there were a number of reasons why the Government felt unable to accept the recommendation of the noble Lord, Lord Neill, on tax relief. We recognise that a certain level of focused financial support in the form of policy development grant should be made available, but we considered that tax relief as then suggested amounted to general state aid by another route. A tax relief scheme would be expensive for both the Inland Revenue and the political parties to administer. The loss of revenue would have to be balanced against other spending priorities. As I have already said, we will be interested to see the Electoral Commission's view on the matter, as on others. Our minds are not closed in the way that the noble Lord would like. We remain open and we remain able and willing to do that which is in the best interests of our country.
Lord Campbell-Savours: My Lords, is it not true that in the minds of the political activists on the ground, particularly in the Labour Party, there is deep concern about these large political contributions? Is it not also true that for many people in both Houses, the position taken on this issue by the Committee on Standards in Public Life only a few years ago was utterly wrong?
Baroness Scotland of Asthal: My Lords, this interchange demonstrates the breadth of disagreement on the issue. There is much force in what the noble Lord says and in the argument that political parties—particularly the more aberrant nature of certain aspects of some political parties—should not be funded by taxpayers' money. This is a very important,
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complex, difficult issue. We need a broad and deep discussion about it. I hope that the commission will be able to do just that.
Earl Russell: My Lords, did the noble Baroness notice, in responses from those who were asked why they did not vote in the last election, numerous people complaining that they had received no visit from any political party, nor any literature from them? If, as the noble Baroness says, there is no consensus, is this perhaps because, not for the first time, voters expect more than they are prepared to pay for? Will the Government join the other political parties in making clear to the voters that they cannot have it both ways?
Baroness Scotland of Asthal: My Lords, I think the noble Earl has just done that.

Bradford University: "Drinking and Society" module
2.58 p.m.
Lord Trefgarne Lord Trefgarne asked Her Majesty's Government:
Whether there is any cost to public funds arising from the course available to students at Bradford University relating to beer drinking in Yorkshire.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, the University of Bradford offers a part-time degree programme in local and regional studies, with a module entitled "Drinking and Society". The course is supported by the university's grant from the Higher Education Funding Council for England and by tuition fees paid by students.
Lord Trefgarne: My Lords, I am grateful to the noble Baroness for that reply. Is she satisfied that in general terms universities are not packing their prospectuses with absurd courses such as this one just to keep up their numbers and the public funding that goes with that?
Baroness Ashton of Upholland: My Lords, I shall deal slightly more fully with the specific issue of Bradford University. The course has been running for five years and this new module will be offered for the first time after Christmas. Bradford expects 15 of the 55 students currently studying this degree course to take up the module. It is worth noting that the total cost to HEFCE for the 15 students will be £5,700. Universities take enormous care to ensure that the courses they offer are relevant. Sometimes media reports take the courses out of context and perhaps make them sound less than they might be.
Lord Shutt of Greetland: My Lords, does the Minister agree that, in raising the virtues and qualities of the University of Bradford, the noble Lord could alternatively have praised the Department of Peace Studies and its work in conflict resolution?

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Furthermore, will the Minister join me in congratulating the Rotary Foundation on giving more than £1 million in grant aid to the Department of Peace Studies to enhance its work in conflict resolution?
Baroness Ashton of Upholland: My Lords, I would indeed pay tribute to the Rotary Foundation. It is perhaps also worth saying that, since November 2000, the University of Bradford has received excellent scores in various subject reviews covering pharmacy, physiotherapy, radiography, optometry, nursing/ midwifery and archaeological sciences, with top marks for peace studies and interdisciplinary human studies.
Lord Pearson of Rannoch: My Lords, have the Government considered setting up a system of independent quality control in our universities and higher education instead of continuing to rely on the somewhat shaky system of quality assurance, which many of us from outside the universities, but who have worked in the system, believe to be run far too much by academics for academics?
Baroness Ashton of Upholland: My Lords, as the noble Lord has indicated, I think, the Quality Assurance Agency—to which he referred—is an independent body funded by subscriptions from universities and colleges of higher education and by contracts with HEFCE. Under this system, the institutions are audited every six years. If there were particular concerns about a university or a course, those could be reviewed separately. We have no concerns at the moment about this quality assurance.
Baroness Strange: My Lords, is the Minister aware that the yeast in beer is very good in alleviating acne, pimples and spots, and that beer drinking is also very good for nursing mothers?
Baroness Ashton of Upholland: I am now, my Lords.
Lord Peston: My Lords, does my noble friend believe that the noble Lord, Lord Trefgarne, has much experience of universities if he thinks that this course is absurd? If he had attended any of the courses that I have taught over the years he might not feel as he does. Nevertheless. is this not a very serious topic which should be dealt with seriously, as I am sure that the University of Bradford is doing? Does the topic not also have the merit of possibly interesting students? Those of us who have taught courses to which no one—as we realised years later—was even remotely interested in listening might occasionally learn something from what universities are doing today in trying to do something useful. I should hope that my noble friend will agree with and reinforce what the University of Bradford is doing rather than criticise it.
Baroness Ashton of Upholland: My Lords, I was seeking to reinforce what the University of Bradford is doing. Indeed, Bradford University is one of the top 10 universities for graduates moving into work, with 95
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per cent of year 2000 graduates in employment six months after graduating. Bradford should be credited for that record.
Lord Wallace of Saltaire: My Lords, does the Minister accept that drinking beer in Yorkshire is one of the great pleasures of life, particularly after a five-mile walk in the dales? On a more serious point, does she accept that the revival of local brewing in Yorkshire and of rural pubs is a very useful part of preserving and promoting employment in dales which are currently suffering very badly from the decline in farming? Is the subject not something that local universities ought to be encouraging the study of and the recruitment of new people into?
Baroness Ashton of Upholland: My Lords, the noble Lord may be interested to know that Heriot -Watt University offers several courses in brewing and distilling specifically in order to support the needs of industry. I therefore very much agree with him.
Lord Trefgarne: My Lords, is the noble Baroness satisfied that, in general terms, the universities are sufficiently concerned to be offering the courses that our economy and our nation really require and not things that are just headline catchers or catch the fancy of a student who is not particularly concerned to do very much?
Baroness Ashton of Upholland: My Lords, I am indeed satisfied. As I know that the noble Lord has a great interest in engineering, he will be pleased to hear that I have come prepared with lots of information about engineering courses which I should be happy to discuss with him later. As I said, universities sometimes offer courses that are quite relevant within a given context, as is this Bradford course which provides only 20 credits of the 360 credits required. Sometimes, however, the media make more of those courses than they should. There is always a tension between ensuring that university courses are truly relevant to the needs of students and that they are interesting and perhaps contemporary.
Baroness Blatch: My Lords, I will not disappoint the noble Baroness because I am going to mention engineering. Does she agree that it does not help the image of higher education when the public hear of degrees in beer drinking, for example, when we also know—I certainly know—of courses in engineering and other near-market occupations for which the Higher Education Funding Council has refused funding?
Baroness Ashton of Upholland: My Lords, I cannot comment on the specific courses to which the noble Baroness refers. I reiterate, however, that this is not a course in beer drinking; it is unfortunate that it has been so described in some press reports. The noble Baroness is absolutely right that engineering is a crucial subject, which is why we have been very keen to support engineering courses. It is also worth noting

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that the specialist school programme now includes engineering colleges. The first four colleges began operating from 1st September 2002. There are many different ways in which we would want to support engineering in our schools and universities, not least by encouraging women to go into engineering as a career.
Earl Russell: My Lords, does the Minister agree that one of the most important criteria as regards whether a subject is suitable for degree work is whether it produces a serious body of published research? Does she agree further that the country is full of unemployed graduates in subjects which we thought 30 years ago we were going to need?
Baroness Ashton of Upholland: My Lords, it is certainly not the case in Bradford. Research is very important. I should hope, however, that degree courses enable our young people to develop and to go into careers that provide them and their future families with the type of worthwhile employment and the income levels that are relevant to them. Research is important, but research per se is not the only issue.

Animal Health Bill
3.6 p.m.
Read a third time.
Clause 1 [Foot-and-mouth disease]:
Lord Greavesmoved Amendment No. 1:
Page 2, line 5, at end insert
"(5) In section 16(1) of the Animal Health Act 1981 (c. 22) (treatment and exposure to infection) after paragraph (c) insert "; or
(d) which the Secretary of State thinks should be treated in order to create a buffer zone to prevent the spread of foot-and-mouth disease.""
The noble Lord said: My Lords, this amendment, which is in my name and that of my noble friend Lord Livsey of Talgarth, is a part of an amendment that we tabled on Report. Its purpose is to clarify the Secretary of State's powers to enforce vaccination—whether a firebreak or other type of preventive vaccination—during a foot and mouth outbreak. What powers does the Secretary of State have under current legislation to enforce such vaccination? The Minister did not satisfactorily deal with that point on Report. He simply said that, in his view, the Secretary of State has such powers. He did not clarify those powers or say where they are provided in legislation.
The only powers for compulsory vaccination that I have been able to locate are found in Section 16(1) of the Animal Health Act 1981. That provision states:
"For the purpose of preventing the spread of disease, the Ministers may cause to be treated with serum or vaccine, or with both serum and vaccine, any animal or bird"—
obviously referring to diseases other than foot and mouth—
"(a) which has been in contact with a diseased animal …
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(b) which appears to the Ministers to be or to have been in any way exposed to the infection of disease …
(c) which is in an infected area".
During the recent foot and mouth outbreak, the Government consistently said that there were slaughter powers which enabled contiguous culls, firebreak culls and so on. Nevertheless, they have accepted that there is some ambiguity in the matter. Consequently, they are proposing this legislation to provide them with the powers that they believe they need.
Those vaccination powers seem very similar to the slaughter powers also provided in the 1981 Act—although the former include the interesting phrase,
"which is in an infected area".
It appears that there is still ambiguity about what an infected area is. In relation to a preventive vaccination programme that the Government were enforcing in a zone around, or perhaps in a region of the country near to, an outbreak of foot and mouth disease, it would be open to people resisting compulsory vaccination to argue that they were not in the infected area.
It would be helpful if the Minister clearly stated where those powers exist. Without them, the approach that pretty well all noble Lords want to be carried out to a future outbreak—that is, the use of vaccination rather than slaughter as a first-preference option—would appear to be impossible. I beg to move.
The Countess of Mar: My Lords, I support the amendment of the noble Lord, Lord Greaves, and the principle that prevention is better than cure; in this case, the cure is a cut throat. I should much prefer the use of widespread vaccination as a preventive measure. I, too, have looked through the Bill but can see nothing that covers the "buffer zone" principle. I look forward to the Minister's explanation.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, I hope that I can clarify the situation to the noble Lord's satisfaction. As I said on Report, we do not need to clarify the powers in relation to vaccination as we are required to clarify—and extend—the powers relating to slaughter, so as to provide the Government with all options in preventing the spread of a disease. The noble Lord drew attention to the powers in Section 16(1) of the 1981 Act. The difficulty to which he referred is that the provision covers vaccination in an infected area, which is a wider power than those relating to slaughter. In the event of an outbreak, an infected area will include any or all of the country that is designated a controlled area. In the foot and mouth epidemic, all of the United Kingdom was at one point designated a controlled area. The provision gives one plenty of scope to run a preventive vaccination campaign without amending the Act.
The issue of priority and preference is not dealt with in the noble Lord's amendment or the existing powers. The powers to vaccinate already exist. They are available in relation to whichever part of the country is designated a controlled area. In the recent epidemic,

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that involved the whole of the country. Those powers already exist to a greater extent than they do in relation to slaughter. Powers to prevent the spread of a disease, as distinct from dangerous contacts or exposure in the strict sense, are already in place in relation to vaccination.
The Countess of Mar: My Lords, before the noble Lord concludes, will he clarify the difference between an infected and a controlled area'? During the foot and mouth outbreak, our farm at home was in an infected area and our movements were restricted for a very long period. However, an area a few hundred yards up the road from us was not designated an infected area. I understand that it was in a controlled area; in other words, there were some controls. Is there not a difference between an infected area and a controlled area? The Act refers to an infected area.
Lord Whitty: My Lords, the designation "infected area" in the 1981 Act refers to any area that is designated as being subject to controls. During the previous outbreak, the whole country was an area that was subject to controls. The infected area in the immediate ring round where disease was found was subject to a certain degree of controls; other areas at various stages of the disease were subject to different forms of control. The whole country was affected by controls and therefore fell within the designation. That is the distinction between this provision and that relating to slaughter in the 1981 Act.
Lord Greaves: My Lords, it is unusual for those on the Opposition Benches to try to give Ministers more power and for Ministers to resist and say that they do not need them. Having the Minister's clarification in black and white is useful. I still have some doubts about whether what he said is adequate and whether that approach would be adequate in an outbreak if it were subject to legal challenge. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.15 p.m.
Clause 4 [Explanation of preventive slaughter]:
Lord Whittymoved Amendment No. 2:
Page 4, line 15, leave out "for the exercise of the power"
The noble Lord said: My Lords, I hope that this a sign of things to come. On Report, the noble Lord, Lord Greaves, proposed an amendment about the need to explain why, in particular circumstances, vaccination was not being used. I said then that I accepted the principle of that amendment but that I should bring forward another amendment on Third Reading. This amendment sets out clearly that the Secretary of State must, when publishing her reasons for using the preventive slaughter power, also set out the reasons for not using vaccination. I believe that that meets the objective of the noble Lord's previous amendment. l beg to move.
Lord Plumb: My Lords, I thank the Minister for this amendment but I seek clarification on a couple of
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matters. On Report, the noble Lord, Lord Whitty, explained that in a court of law "conclusive in the appropriate Act" does not necessarily mean "conclusive". He said that,
"if the court was uneasy for whatever reason about the declaration of certification, and believed that it had been made in had faith, it would be able to consider the evidence behind that, irrespective of whether or not it had been deemed conclusive proof. In other words, if there were sufficient doubts, the court could re-open the matter".—[Official Report, 29/10/02; col. 129.]
Having reflected on the ramifications of that statement, I now look behind everything that the Government have tabled today for the hidden meaning. That is of course our responsibility as a revising Chamber. However, the Bill refers to "section 16". Will the Minister confirm that that involves Clause 16, which is about the national contingency plan? Should not the amendment therefore refer more specifically to the relevant subsection—perhaps to subsection (3)?
Lord Whitty: My Lords—
Lord Greaves: My Lords, I do apologise; my attention was being distracted by my noble friend Lady Harris of Richmond. I apologise to the House on her behalf and mine.
I thank the Minister for the amendment, which is very much along the lines that were promised on Report.
Lord Whitty: My Lords, the answer to the noble Lord, Lord Plumb, is that because much of the Bill amends the 1981 Act, the reference to Section 16 is to that section of that Act, which relates to vaccination. It does not relate to Clause 16, which relates to the contingency plan.
Lord Campbell of Alloway: My Lords, I read the provision as in no way affecting the relationship between Clause 1(3) and Clause 1(1); in other words, the priority—the amendment of the noble Countess was about the priority—is not detrimentally affected by the clause. Am I right? If I am not, I should like to come back at a later stage.
Lord Whitty: My Lords, I hope that it is in order for me to reply again. While I am on my feet, I thank the noble Lord, Lord Greaves, for his support for the amendment. The Bill as it stands includes a reference to priority. Noble Lords will recognise that that was agreed to against the advice of the Government; nevertheless, it is in the Bill. Without prejudice to that, if the Secretary of State decided against the priority, having assessed it, he or she would have to give reasons for doing so.
On Question, amendment agreed to.
Lord Whittymoved Amendment No. 3:
Page 4, line 16, at end insert—
"(a) for the exercise of the power;
(b) for not exercising his power under section 16 to cause animals to be treated with serum or vaccine."

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On Question, amendment agreed to.
Clause 5 [Slaughter of vaccinated animals]:
Baroness Farrington of Ribbletonmoved Amendment No. 4:
Page 4, line 37, leave out "infected" and insert "affected"
The noble Baroness said: My Lords, in moving Amendment No. 4, I shall speak also to Amendment No. 5. These amendments are proposed to correct an error in the drafting of the Bill. Removing the word "infected" and inserting "affected" in this part of the Bill is necessary to ensure consistency with paragraph 3(2)(a) of Schedule 3 to the Animal Health Act 1981, which provides for compensation for slaughtered animals where they are affected, or suspected of being affected, with or exposed to foot and mouth disease. I beg to move.
Baroness Byford: My Lords—
Lord Swinfen: My Lords, I raise just a small point. Should not the noble Baroness's first amendment read,
"leave out 'infected with' and insert 'affected by';
otherwise, the wording would be grammatically incorrect? Perhaps the government advisers could look at this matter and the wording could be changed when it goes back to the other place.
Baroness Byford: My Lords, I was going to make a quick point and it certainly was not that. I am very impressed that my noble friend picked up an issue that we missed. I want to take this opportunity to thank the Government for listening to our arguments in Committee and for returning with this amendment.
Lord Livsey of Talgarth: My Lords, the amendment seems logical to me. But does this description occur because the vaccine can have an effect on an animal which might not be quite the same as the animal being infected? It also appears to mean that compensation can be paid for an animal which is affected, and it is rather important for the definition to be precise. Can the Minister give us an explanation on that point?
Baroness Farrington of Ribbleton: My Lords, the noble Lord, Lord Livsey, is right. If an animal were subsequently slaughtered, the compensation would be the value of the animal before it was vaccinated. At present, this section of the Bill is not clear because it refers only to compensation for infected animals slaughtered. By changing the wording in this part of the Bill from "infected" to "affected", the compensation arrangements take account of vaccinated animals which were slaughtered but not necessarily infected.
I thank the noble Baroness, Lady Byford, for her observation. In response to the noble Lord, Lord Swinfen, it is just possible that, prior to my admission to your Lordships' House in 1994, the noble Lord was not in the Chamber when the original Act was passed. It may be that, in order to comply with the original Act, we have to use the language in that Act. It is
486
possible that the original Act is defective in that it could state "affected with". I am thinking on my feet and trying to cover my back, if the noble Lord understands that mixed metaphor. I suspect that the noble Lord is right. With that proviso, will he accept that we shall look into the matter?
On Question, amendment agreed to.
Baroness Farrington of Ribbletonmoved Amendment No. 5:
Page 4, line 39, leave out "infected" and insert "affected"
On Question, amendment agreed to.
Lord Livsey of Talgarthmoved Amendment No. 6:
After Clause 5, insert the following new clause—
"20-DAY LIVESTOCK MOVEMENT RESTRICTION RULE
In the 1981 Act the following subsection is inserted after section 8(1) (movement generally)—
"(1A) In making an order under subsection (I) restricting the movement of animals in connection with an outbreak of foot-and-mouth disease, any restriction of 20 days or more shall lapse at the end of a period of 8 weeks following the last confirmed case.""
The noble Lord said: My Lords, this amendment concerns the vexed question of the 20-day livestock movement restriction rule. I believe that all Members of the House will be aware of the immense problems that the rule has caused the agriculture industry. Therefore, I make no apologies for tracking through some of the things that have occurred since the last outbreak of foot and mouth disease nor, indeed, for asking how a different scenario would apply in the case of—God forbid!—a new outbreak somewhere down the line.
The amendment refers to any future outbreak of foot and mouth disease in relation to the imposition of a 20-day livestock movement restriction rule. As the amendment states, any restriction of 20 days or more will lapse at the end of a period of eight weeks following the last confirmed case of foot and mouth disease in any future outbreak. The question that must now be asked is: why do we still have a 20-day movement restriction on animals?
That was undoubtedly sensible during the decline and the ending of the 2001 outbreak, and I should have been the first to support the Government when they took that action. But the last confirmed case of foot and mouth disease was on 30th September 2001; the United Kingdom was declared free of foot and mouth disease on 15th January 2002; the OIE gave an FMD-free status to the UK on 22nd January 2002; and the European Union sanctioned UK exports on 5th February 2002. That was exactly nine months ago.
I believe that three factors are closely related to biosecurity. It is my belief that the continuing 20-day rule is closely related to the total inadequacy of meat import controls into the United Kingdom on the one hand and, on the other, DEFRA's time mismanagement of the risk assessment that it commissioned. Livestock farmers have had to shoulder the brunt of the 20-day rule in order to save DEFRA's neck.

487
We all know of the tremendous hardship that livestock farmers have suffered as a result of the 20-day rule. That is especially the case in relation to the movement of breeding stock, where it is absolutely vital to be able to move rams, bulls and young breeding sheep in the autumn markets, let alone in relation to the movement of store lambs, calves and so on.
Why has this huge delay come about in trying to lift the 20-day movement restriction? I believe that it is because the Government had to wait for the Lessons to be Learned report until 22nd July 2002. Secondly, that report advocated the carrying out of a risk assessment. Thirdly, a subsequent delay occurred during the month of August, when farmers are at their busiest and when bureaucrats are on holiday. As a result, there was a delay in putting out tenders and in making appointments. Only in mid-September, almost two months after the Lessons to be Learned report was published, was the risk assessment ready to start. Even then, it was said that it would be completed before the end of October. Now we are told that it may be ready by 'December or January, with a new verdict on the 20-day rule to be given in February.
This is an appalling delay. By February 2003, it will be more than one year since the UK was declared free of foot and mouth disease. This is incompetence of the highest order. It is clear that the risk assessment, variously described in veterinary circles as a "buzz word", can be carried out within two months. If one tracks back through what I have just said, that was already the Government's original target.
We have been told by Ministers on several occasions that lifting the 20-day movement rule is dependent on a risk assessment being carried out. The Lessons to he Learned inquiry indicates the relaxation of the 20-day rule in due course. Given that the timescale predicted for the completion of a risk assessment by the Government is, in any case, eight weeks by my calculation, I refuse to believe that any attempt to alter upwards the timescale in my amendment is acceptable. It stands up to its statement that,
"any restriction of 20 days or more shall lapse at the end of a period of 8 weeks following the last confirmed case",
of foot and mouth disease. That refers to any future outbreak. If Ministers consider that to be reckless, it most certainly is not. It still allows for a restriction of less than 20 days and delays with risk assessments are unacceptable, as are wholly inadequate controls on meat imports. Those three things have a stark bearing on why the 20-day rule is still there.
The amendment seeks far better controls on imports which would have a major effect. There is no doubt that risk assessment can be carried out far more expeditiously. I understand some of the reasons why there has been a delay. I beg to move.
3.30 p.m.
Earl Peel: My Lords, I very much support the principles behind the amendment. I do not underestimate the need for proper biosecurity controls. I do not think anyone does. There is no question of doubt: this 20-day rule creates enormous
488
practical difficulties throughout the countryside. We ask the Minister for a firm commitment that the Government are thinking of alternative methods to overcome this difficult problem.
I do not have the facts in front of me. But in Scotland there is a different system and I believe that the maximum number of days for restriction is six. The Minister shakes his head, so clearly I am wrong. But there is certainly a different system in Scotland which is easier for the farmers to operate on. I ask the Minister to reconsider the matter urgently. It is causing enormous difficulties.
Lord Carter: My Lords, can the Minister say in reply whether he has any information of the effect of the 20-day restriction on sheep dealers as opposed to sheep farmers? I find it hard to know exactly how this hurts a farmer who wishes to bring in and keep stock as compared to sheep dealers who buy sheep and move them around the country. The nearest outbreak to where I live in Wiltshire was in an abattoir in the next village. I think it was about the sixth or the eighth outbreak. It was found in a sheep, which had started in Northumberland, had gone to Cumberland, had then gone to Devon and had then come to Wiltshire to be slaughtered. That illustrates what was happening and it was a major factor we now know in the spread of the disease.
Is there any information on how many sheep farmers of the breeding flock, who wish to bring in new lambs or who have taken in fattening lambs to keep over the winter or whatever, and farmers who are dealers, who wish to move sheep on quite quickly, are affected by the 20-day restriction?
Can the Minister confirm that the 20 days is linked to the 21 days incubation of the disease? It takes 21 days for the disease to incubate and to show itself. I have assumed that the 20 days was linked to that. Also, as we know, the lessons to be learned from the Anderson inquiry report—which your Lordships asked the Government to wait for before bringing the Bill back—recommends that we should keep the 20-day restriction until the risk assessment is completed. I am sure that my noble friend the Minister will tell us how the risk assessment is going.
Lord Jopling: My Lords, when I first heard that the Government were introducing the 20-day rule a long time ago, my reaction was, "How wise". I thought that if I still had responsibility for these things I would have been tempted to do much the same thing for the reasons that the noble Lord, Lord Carter, has just explained to us, with animals going from one end of the country and back again. It seemed to me that the movement of animals in certain circumstances from market to market has become an absurdity.
One has since become more aware of the massive problems, to which my noble friend Lord Peel referred, that this rule causes within the industry. I hope that the Minister will be able to tell us that he is sympathetic to the huge problems that the 20-day rule causes; and that the Government are of a mind as soon as possible to do something about it so that these problems do not

489
become a permanency and that a way can be found of trying to deal with the advantages of the rule, while at the same time dealing with all the problems.
Baroness Mallalieu: My Lords, I support what the noble Lord, Lord Jopling, and the noble Earl, Lord Peel, have just said. Perhaps I can give a slight answer to my noble friend Lord Carter. I declare a particular interest. We start lambing on Friday in the West Country. If, as is inevitably the case, there are orphaned lambs which need regular feeding, I would want to move those lambs to my shepherd's farm, which is a short distance away. If I do that he will be unable to sell any of his lambs from his own farm during the 20 days.
That is an absurdity. I am a small hobby farmer. People on a larger scale find themselves pushed to a point where they find it very difficult to stick within the rules. All we ask is that someone in the department recognises the real problem that is being caused and gets to grips with it now. I hope that we shall hear some encouraging response from the Minister.
The Countess of Mar: My Lords, the noble Baroness, Lady Mallalieu, has highlighted a point with sheep. The noble Lord, Lord Carter, has talked about people buying in ewes while at the same time selling lambs. There is a difficulty in that they cannot sell lambs when they have bought in the ewes. It is the same if one buys a ram. This is the period of time when these things happen.
Also, in the case of beef, where people raise young stock, take it to market and then buy in replacements, there is a problem. The replacements come in as the other ones go out. It is constant. I know that small beef breeders—I declare an interest here although it does not affect us—who go to market, buy calves and then rear them on suffer considerable hardship because they cannot work out their fodder requirements, and their income is affected. They like to have a steady income—like us all. So I support what the noble Lord, Lord Livsey, has said. We need to think about the matter very carefully.
I am sure that the noble Baroness will not forget my question about the male goats.
Lord Monro of Langholm: My Lords, I share the concern of my colleagues on all sides of the House about this point. Can the Minister explain in some detail the scientific advice that he has been given on the 20-day rule and why it is still in force? I have noticed a number of academics at various conferences—in particular the Moredun Research Institute—saying that there is no justification for keeping the 20 days now. I hope too that he can explain exactly how we stand on cross-border movement between Scotland and England; what discussion he has had with the Executive in Scotland; and how it will work out in practice? Perhaps he could give a clear indication of the present position.
490
There is no doubt at all, as my noble friend Lord Peel said, that farming generally is gravely concerned about the 20-day rule. It makes farming even more difficult than it is at the present moment. All of us, bearing in mind what he said in his original remarks, are very concerned that there is no chance of foot and mouth coming back, but at the same time farming has to go on in a practical way. This rule makes life extremely difficult, particularly when dealing with sheep farming and the movement of cups and ewes.
Baroness Gibson of Market Rasen: My Lords, I can well understand the reasoning behind the amendment. I know of the unpopularity, to say the least, of the 20-day rule. But I am not sure that the amendment is the answer. It is inflexible. Tying in a time limit to the lifting of the restrictions is not terribly helpful. For example, why a period of eight weeks? Why not seven or nine weeks? I am not at all sure that that is needed. I can understand the difficulties that have been raised and the reasoning behind the amendment. But I do not think that this amendment is the answer.
Lord Plumb: My Lords, I fully support the amendment tabled by the noble Lord, Lord Livsey. I am sure that the noble Lord, Lord Whitty, would say that he has spent more than 20 days discussing the matter with the industry in recent weeks—to some effect, because I know that he has been listening to many of the flock masters and other livestock people, who are extremely concerned. The situation is and has been desperate, especially as concerns the movement of sheep. The Minister may tell us that the 20-day standstill period is fine as a concept for preventing disease spread during an outbreak. It would be accepted if it were not causing so many difficulties in the market-place and so on.
The noble Lord, Lord Carter, referred to the problem that arose because of the quantity of sheep moved around the country. But as he and the whole House well know, that system has operated for many years. Sheep and sheep flocks are moved from one area to another and split up en route because of the very numbers moved. But when there is no foot and mouth disease in the country—thank God, we are clear at the moment—the increased cost the standstill period brings to extensive livestock producers, in particular, is far too heavy a burden to inflict on an already hard-pressed sector. It is therefore totally unacceptable in peacetime, and alternative methods must be found that provide biosecurity but allow flexibility for the industry to operate.
As my noble friend Lord Peel and the noble Lord, Lord Jopling, asked: why is the provision different here from in Scotland? Why is there a different attitude towards dealing with the species, as well as regards the number of days for which movement is restricted? Like others, I await the Minister's reply and the scientific advice. Knowing that it is impossible for him today to give us the answer that we want, I hope that he can give us some sort of commitment about how the matter may be dealt with in future—by which I mean the immediate future, not the long term.
3.45 p.m.
Lord Whitty: My Lords, some general issues have been raised about the standstill to which I feel obliged to reply, as well as addressing the specific terms of the amendment.
As my noble friend Lord Carter and the noble Lord, Lord Jopling, have said, the reason for the 20-day rule and the Government's approach was that it was absolutely clear that the devastation of the disease was caused by the rapidity of its spread, and that the rapidity of its spread was caused by a large number of rapid movements—especially of sheep—around the country. That is not in dispute. That was further aggravated by the fact that the disease was not detected for three weeks—it might not be again.
For all those reasons, a regime to restrict movement is a strong recommendation of both veterinary and other scientific advice available to the Government. That is based on two premises. The first relates to the incubation period—in fact, the veterinary advice is ideally for a double incubation period that would take us to 28 rather than 20 days. The second relates to slowing down the movements. So there are two objectives: first, allowing time for detection; and, secondly, in any case slowing down the speed of movement and therefore the rate of infection. Both those arguments still stand.
As noble Lords have pointed out, both inquiries advise that until we have a robust risk assessment recommending that we should change the provision, the 20-day rule should remain in place. We are following that advice. However, there have been considerable modifications to the full-scale range of that rule. The noble Lord, Lord Plumb, referred to my continuous discussions with all sections of the industry on the matter. As a result, a significant number of concessions, relaxations and modifications have been introduced during the past few months. The largest of those relates specifically to the current breeding season and provides exemptions to the movement of breeding animals provided that those animals are on isolated premises on the farm that they enter.
There are differences between our regime and that in Scotland, the principle difference being that the isolation exemption is available for all animals in Scotland, but only for breeding animals in England and Wales. That results from a different judgment made by Scottish Ministers on the basis of similar veterinary arid scientific advice. That clearly causes some problems for cross-border trade, but is one consequence of devolution in this matter.
We are continually considering how the regime may be further modified. In particular, we have commissioned a risk assessment and a cost-benefit analysis, as recommended by the Anderson and Royal Society inquiries, but which we would have commissioned anyway. The noble Lord, Lord Livsey, is right to say that there has been some slippage in the risk assessment—although of only about a month, which means that we will receive the results around the end of this month. As we stated when we introduced substantial modifications to the regime in August, the
492
next major change will come before the spring movements—towards the end of February next year. We are currently addressing the matter on the basis of the best possible advice and will consider the information from the risk assessment and cost-benefit analysis.
On parallel activities, the better the biosecurity, the better the position and the further we can consider relaxing the movements regime. Likewise, the more effective the import controls, the less likely it is that diseased meat may enter the country. But, as have always emphasised in the House and elsewhere, no system of import checks provides 100 per cent security that no diseased meat will enter the country. We therefore need a regime to prevent it entering the food chain and spreading among flocks and herds across the land, as happened last time.
It is therefore incorrect to say that there is a tradeoff between the level of import controls and the level of movement restrictions and other biosecurity precautions to be taken internally. We must act on both fronts. I have tightened import controls and there is more to be done on that front, but that is not an alternative; we must move in parallel.
We recognise that the current 20-day rule imposes costs and disruption—on parts of the livestock industry, quite heavy disruption. Substantial parts of the livestock industry can live reasonably well with the 20-day rule. Indeed, in certain respects the rule helps sections of the industry. For other parts, especially the sheep sector, there is grave impact on costs and on traditional methods of trading and operating. That is why we are considering the cost-benefit analysis. The department's figures for costs were not accepted by the industry, but the impact falls substantially on a relatively small section of farmers, rather than across the board of livestock farmers.
All of that will be taken into account in assessing the current regime and considering what would be more appropriate for the longer term—in particular, from next spring. However, the House should recognise that we shall not return to the status quo ante. It is unlikely that there will be no movement control regime.
Whether the 20-day limit applies and whether the precise requirements for isolation in Scotland or England are a feature of the regime is all for discussion. But we do not intend to return to the complete free-for-all of movements—aggravated, as my noble friend Lord Carter implied, by the rapidity of turnover by some dealers, especially in the sheep trade. Whatever regime is in place, it will not involve the complete removal of all movement controls. That is the position on the issue generally.
I accept that some noble Lords will not agree with some of that and that many in the farming community will say, "That is all very well, but, actually, the cost is too high". I recognise that that argument is still there. However, there is another serious consideration about the amendment. Whether or not we agree that the 20-day rule should be there now, it would be extremely reckless to lift that rule only eight weeks after the last confirmed case.

493
As the noble Lord, Lord Livsey of Talgarth, said, the granting of FMD-free status by the EU and the OIE happens at a minimum of three months—not eight weeks—after the last confirmed case. It is clear that, had we been unable, at that point, to say to the OIE and the EU that restrictions on movements—the main cause of the spread of the disease—were still in force, the granting of the exemption at the earliest time allowed by their rules would not have been forthcoming. Therefore, instead of having the ban lifted at the first possible moment under international rules, we would have had a further built-in delay in our trade, had we been required to lift the movement controls within eight weeks.
That is not a killer argument as to whether the 20-day rule should stand now. Wider issues are involved, some of which have been raised by noble Lords and some of which I have discussed. However, to accept the amendment would be to place us in danger, in any future outbreak of disease, of not getting the understanding of the international community and the European Union. It would restrict our farmers from trading for a longer period than was necessary, thanks to their understanding of and co-operation with the biosecurity precautions that we put in place, including, at that point, the 20-day rule. Whether we would always be required to go on with the 20-day rule as long as we have is another issue. Making an amendment to include the eight-week period would border on the reckless. It would not be appropriate for the House to pass the amendment.
Lord Plumb: My Lords, can the Minister say what the situation is in other countries? It is a matter of concern.
Lord Whitty: My Lords, there are no movement restrictions of that sort in other EU countries, except on intra-Community trade, for which there are restrictions on moving animals across borders. There is a requirement to wait for, in most cases, 28 days. In other countries in which there has recently been disease, there are movement restrictions, although they are not the equivalent of the 20-day standstill.
Your Lordships must recognise that the rapidity of movements in the sheep trade in this country is almost unique. There is a particular problem with the 20-day standstill in this country. However, that is not my main argument against the amendment. My argument is that the eight-week period would damage our international position.
Lord Livsey of Talgarth: My Lords, in summing up the debate on the amendment, I shall make several points. First, the noble Lord, Lord Carter, spoke correctly about the 21-day infection cycle. I agree with him. Like the noble Lord, Lord Jopling, I thought that it was an excellent thing when it was introduced. The problem is that time moves on. The noble Lord, Lord Carter, mentioned the activities of dealers. I know them well. Perhaps we should legislate for dealers. The 20-day rule has an impact equivalent to closing part of
494
the Stock Exchange down for nearly 12 months. If we blackballed some of the dealers in the Stock Exchange, we would hear about it within 24 hours, not nine months.
It is normal trading. We depend on the market. The new Labour Government proclaim the market-place. However, there is a risk in the market-place; there have been huge risks in the Stock Exchange in the past six to 12 months. There have also, in another sense, been risks in the livestock market. If we are to rely on a market price, the market must be able to trade under normal conditions. We cannot have one and not the other.
The noble Earl, Lord Peel, and the noble Lord, Lord Jopling, made supportive speeches, and I believe that they fully understand the seriousness of the present situation. The noble Baroness, Lady Mallalieu, and the noble Countess, Lady Mar, stated clearly the difficulties with the movement of lambs or cattle. In a farming community, those are normal, everyday events. Lambs and calves must be moved around. If a farmer has a cow whose calf has died, he must quickly find another one. It would be extraordinary if bringing in that other calf caused all activities to be suspended for 20 days, even though the farmer had 200 lambs to sell the next Friday.
The noble Baroness, Lady Gibson of Market Rasen, asked why it should be eight weeks. The Minister tacitly admitted that a risk assessment could be done in that time, when he said that there had been a delay in DEFRA. I would ask, "Why nine months until now?". There is still a 20-day rule in place.
The noble Lord, Lord Plumb, mentioned the movement of sheep flocks and the increased cost to the farming community caused by the delay. As I was not wealthy enough to be a farmer's son, I started life in the agriculture industry as a drover. At the age of 10, I was involved in the moving of sheep from the local market. I hate to think what the Welsh drovers of the nineteenth century would have said about some of the current rules, had they applied when they were trying to get cattle to Northamptonshire, Kent and the rest of the United Kingdom. Times have moved on; they have moved on too far, if we are talking about the restrictions that have been put in place.
We do not know what parameters will be used for the risk assessment. We know that there will be a cost benefit analysis, and we know that imports will also feature in the risk assessment. The Minister rightly mentioned the rapidity of spread and the incubation period, as did the noble Lord, Lord Carter. That is the case at the height of an outbreak. However, it is now over 12 months since the last case of foot and mouth disease. The Scots may have a different system of isolation, but, as the Minister said, better import controls would help. We must act on both fronts. It is possible to carry out a risk assessment within eight weeks, and we must lift the 20-day rule after a future spread. We are wiser than we were: we have had the Lessons to be Learned report and the Royal Society report. We can start to use those reports to create

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foolproof preventive measures that make sense in the market-place, as well as from a biosecurity point of view.
I have not said that it is not possible to have a period of fewer than 20 days in certain circumstances following an outbreak, if that is the Government's wish. It would be an advantage to run a 20-day restriction for two months, so that we could trade for at least, one month, before getting EU clearance. The amendment would underwrite that for such a situation. It is not reckless. We have learnt from our terrible experiences of 2001, and we cannot put on the are on them now. Therefore, I seek the opinion of the House on the amendment.
4 p.m.
On Question, Whether the said amendment (No.6) shall be agreed to?
Their Lordships divided: Contents, 165; Not Contents, 128.

Division No. 1

CONTENTS

Aberdare, L.

Fookes, B.

Addington, L.

Fowler,L.

Alderdice, L.

Freeman,L.

Allenby of Megiddo, V.

Gardner of Parkers,B.

Ampthill, L.

Geddes,L.

Anelay of St Johns, B.

Geraint,L.

Arran, E.

Glentoran,L.

Astor of Hever, L.

Goodhart,L.

Attlee, E.

Gray of Contin,L.

Avebury, L.

Greaves,L.

Barker, B.

Hamwee,B.

Beaumont of Whitley, L.

Hanningfield,L.

Blatch, B.

Harris of Richmond,B.[Teller]

Boardman, L.

Hayhoe,L.

Bowness, L.

Higgins,L.

Bradshaw, L.

Hodgson of Astley Abootts,L.

Brittan of Spennithome, L.

Holme of Cheltenham,L.

Brooke of Sutton Mandeville, L.

Hooson,L.

Brougham and Vaux, L.

Howarth of Breckland,B.

Burnham, L.

Howe of Aberavon,L.

Buscombe, B.

Howe of Idlicote,B.

Byford, B.

Howell of Guildford,L.

Campbell of Alloway, L.

Jellicoe,E.

Campbell of Croy, L.

Jenkin of Roding,L.

Carlile of Berriew, L.

Jopling,L.

Carnegy of Lour, B.

Kimball,L.

Cavendish of Furness, L.

Kingsland,L.

Chalker of Wallasey, B

Laing of Dunphail,L.

Chorley, L.

Lester of Herne Hill,L.

Cope of Berkeley, L.

Liverpool,E.

Craig of Radley, L.

Livsey of Talgarth,L.[Teller]

Crickhowell, L.

Luke,L.

Darcy de Knayth, B.

Lyell,L.

Deedes, L.

McColl of Dulwich,L.

Denham, L.

Mackie of Benshie,L.

Dholakia, L.

Maclennan of Rogart,L.

Dixon-Smith, L.

McNally,L.

Elles, B.

Maddock,B.

Elliott of Morpeth, L.

Mallalieu,B.

Ezra, L.

Mar,C.

Falkland, V.

Mar and Kellie,E.

Fearn, L.

Marlesford,L.

Ferrers, E.

Marsh, L.

496

Masham of liton, B.

Saltoun of Abernethy,Ly.

Mayhew of Twysden, L.

Sandberg,L.

Miller of Hendon, B.

Scott of Needham Market,B.

Monro of Langholm, L.

seccombe,B.

Moran, L.

Selsdon,L.

Mowbray and Stourton, L.

Sharman,L.

Moynihan, L.

Sharp of Guildford,B.

Murton of Lindisfarne, L.

Sharples,B.

Naseby, L.

Shaw of Nothstead,L.

Newby, L.

Shutt of Greetland,L.

Noakes, B.

Slim,V.

Northover, B.

Smith of Clifton,L.

O'Cathain, B.

Steel of Aikwood,L.

Oakeshott of Seagrove Bay, L.

Stewartby,L.

Onslow, E.

Stoddart of Swindon,L.

Oxfuird, V.

Strange,B.

Park of Monmouth, B.

Sutherland of Houndwood,L.

Pearson of Rannoch, L.

Swindfen,L.

Perry of Southwark, B.

Taverne,L.

Peyton of Yeovil, L.

Taylor of Warwick,L.

Phillips of Sudbury, L.

Tebbit,L.

Pilkington of Oxenford, L.

Tenby,V.

Plumb, L.

Thomas of Gresford,L.

Prior, L.

Thomas of Walliswood,B.

Rawlings, B.

Thomson of Monifieth,L.

Rawlinson of Ewell, L.

Tope,L.

Razzall, L.

Trumpington,B.

Reay, L.

Tugendhat,L.

Redesdale, L.

Waddington,L.

Rennard, L.

Wade of Chorlton,L.

Rix, L.

Wakeham,L.

Roberts of Conwy, L.

Walker of Worcester,L.

Rodgers of Quarry Bank, L.

Wallace of Saltaire,L.

Roper, L.

Walmsley,B.

Rotherwick, L.

Wamock,B.

Russell, E.

Watson of Richmond,L.

Russell-Johnston, L.

Wigoder,L.

Ryder of Wensum, L.

Wilcox,B.

St. John of Bletso, L.

Williamson of Crosby,B.

Williamson of Horton,L.

NOT-CONTENTS

Acton, L.

Dixon,L.

Ahmed, L.

Dormand of Easington,L.

Alli, L.

Dubs,L.

Amos, B.

Elder,L.

Andrews, B.

Evans of Parkside,L.

Archer of Sandwell, L.

Evans of Temple Guiting,L.

Ashton of Upholland, B.

Falconer of Thoroton,L.

Bach, L.

Farrington of Ribbleton,B.

Barnett, L.

Farrington of Worcester,L.

Bassam of Brighton, L.

Filkin,L,

Berkeley, L.

Fitt,L.

Bernstein of Craigweil, L.

Gale,B.

Bhatia, L.

Gavron,L.

Blackstone, B.

Gibson of Market Rasen,B.

Borrie, L.

Gilbert,L.

Bragg, L.

Gladwin of Clee,L.

Brett, L.

Goldsmith,L.

Brooke of Alverthorpe, L.

Gordon of Strathblane,L.

Brookman, L.

Goudie,B.

Bruce of Donington, L.

Gould of Potternewton,L.

Campbell-Savours, L.

Grabiner,L.

Carter, L.

Graham of Edmonton,L.

Christopher, L.

Gregson,L.

Clark of Windermere, L.

Grenfell,L.

Clarke of Hampstead, L.

Grocott,L.[Teller]

Clinton-Davis, L.

Hardy of Wath,L.

Cohen of Pimlico, B.

Harris of Haringey,L.

Corbett of Castle Vale, L.

Harrison,L.

Crawley, B.

Haskel,L.

David, B.

Hayman,B.

Davies of Coity, L.

Hilton of Eggardon,B.

Davies of Oldham, L.

Hogg of Cumbernauld,L.

Desai, L.

Hollis of Heigham,B.

497

Howells of St. Davids, B.

Pitkeathley, B.

Howie of Troon, L.

Prys-Davies, L.

Hughes of Woodside, L.

Ramsay of Cartvale, B.

Hunt of Kings Heath, L.

Rendell of Babergh, B.

Irvine of Lairg, L. (Lord Chancellor)

Richard,L.

Roll of Ipsden, L.

Islwyn, L.

Rooker, L.

Janner of Braunstone, L.

Sainsbury of Turville, L.

Jay of Paddington, B.

Sawyer, L.

Jeger, B.

Scotland of Asthal,B.

Jones, L.

Sheldon,L.

Jordan, L.

Simon,V.

King of West Bromwich, L.

Stallard,L.

Lea of Crondall, L.

Stone of Blackheath, L.

Lipsey, L.

Strabolgi, L.

Lofthouse of Pontefract, L.

Symons of Vernham Dean, B.

Macdonald of Tradeston, L.

Taylor of Blackburn, L.

McIntosh of Haringey, L.[Teller]

Temple-Morris, L.

Thornton, B.

MacKenzie of Culkein, L.

Tomlinson, L.

Mackenzie of Framwellgate, L.

Turnberg, L.

Mason of Barnsley, L.

Turner of Camden, B.

Massey of Darwen, B.

Varley, L.

Merlyn-Rees, L.

Warwick of Undercliffe,B.

Milner of Leeds, L.

Weatherill, L.

Mitchell, L.

Wedderburn of Charlton, L.

Morgan, L.

Whitaker, B.

Morris of Aberavon, L.

Whitty, L.

Orme, L.

Wilkins, B.

Patel of Blackburn, L.

Williams of Elvel, L.

Pendry, L.

Williams of Mostyn,L.(Lord Privy Seal)

Peston, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.11 p.m.
Clause 7 [Treatment: power of entry]:
Lord Greavesmoved Amendment No. 7:
Page 6, line 3, at end insert "and of the reasons for that decision including a copy of the sworn information;
( ) he has been provided with an opportunity to make representations to the justice of the peace about whether the warrant should be issued;
( ) he has been provided with the opportunity to present sworn information in person or in writing to the justice of the peace who is to consider the application for a warrant."
The noble Lord said: My Lords, this amendment stands in my name and that of my noble friend Lord Livsey. The noble Baroness, Lady Byford, has also attached her name to it. In moving the amendment, I shall speak also to the other amendments in the group, Amendments Nos. 11, 16 and 33, which are identical in seeking to amend what have become uniform parts of the Bill since the Minister moved a series of generally helpful amendments to that effect. The amendments refer to the question of warrants for entry in different circumstances where the Secretary of State may require entry to land in order to carry out various measures in connection with animal diseases.
Three of the amendments relate to foot and mouth. The first refers to treatment; that is to say, vaccination. The second, Amendment No. 11—in many ways the crunch amendment—refers to slaughter. I am grateful to the noble Countess, Lady Mar, and to the noble
498
Baroness, Lady Mallalieu, for adding their names to that amendment. The third, Amendment No. 16 refers to test and samples, while the fourth, Amendment No. 33, refers to the part of the Bill concerned with the elimination of scrapie. So, in a sense, they are the same amendment. But they apply to different parts of the Bill.
The Bill removes existing procedures by which people can go to court and appeal against the man from the ministry who wants to slaughter their animals, test them to see whether they should be slaughtered, or, in the future—it is to be hoped—vaccinate them. The amendments would not replace existing provisions. We have deliberately gone as far as we believe reasonable in the direction that the Government would wish us to go to speed up procedures, especially as regards a foot and mouth outbreak. The amendments would redress the balance somewhat in the face of what have been widely seen as draconian powers to enter land without giving people any real opportunity to argue and put forward their case when someone comes along and says, "Right, you are next on the list".
We are not, essentially, talking about infected animals on infected premises; we are talking about the whole question of what have come to be known as "contiguous", "contact", or "ring-fence" culls. The amendments would not slow down the process, nor would they cause undue difficulties in tackling the disease. However, they would put back into the Bill some element of fairness and balance. As I have said previously, the fact that people are farmers does not mean that they do not also have human rights in relation to what happens to their livestock. In particular, the powers of entry for slaughter are quite different from most existing powers of entry because, quite literally, they are terminal.
I do not wish to say more at this stage. We discussed these matters in great detail at both previous stages of the Bill. I believe that the issues are well understood and well known. The amendments are put together as a compilation and a compromise. They relate to amendments previously tabled by the Conservative Front Bench, by noble Lords on these Benches, and by noble Lords from other parts of the House. I commend them to the House. I beg to move.
Lord Campbell of Alloway: My Lords, I support the amendment and those relating to it. Having moved Amendment No. 211 in Committee and supported Amendment No. 212 moved by my noble friend Lady Byford, there is no cause for repetition save to say that if the "sworn information" does not set out the reasons for rejecting the priority of vaccination under Clause 1(1), and other reasons for the decisions to seek entry for the purposes of slaughter under Clause 1(3), that sworn information will be defective, the warrant will be defective, the entry will be unlawful, and the slaughter will be unjustified.
One is dealing with a situation that wants a little care; it wants an opportunity for a measure of natural justice to be applied. This amendment, and the related amendments, would afford the minimum measure of

499
natural justice to safeguard the use of this warrant as a rubber stamp for slaughter. These are the very tests that would be applied by the High Court on judicial review after slaughter; but that is too late. Under the amendment, this opportunity would be confirmed expressly on the face of a statute—primary legislation—by reference to,
"the justice of the peace",
and so on. I f it is not done that way, it would have to be done in the other way set out under Amendment No. 10. But the amendment now before the House is more comprehensive. I shall move Amendment No. 10 only if this amendment does not commend itself to the House as a final longstop safeguard.
I have one further point to make. It is an important point because it would be the position that the High Court would take on judicial review. The reasons set out in the proposed subsections (4) and (5)(a) afford no substitute whatever for having a copy of the sworn information with the grounds on the face of it. It is no use just leaving paragraph (a) on the face of the statute because justice cannot he done to the occupier.
Baroness Byford: My Lords, my name is attached to this group of amendments, and to Amendment No. 10 to which my noble friend Lord Campbell of Alloway has just referred. Both in Committee and on Report the issue now before us challenged the House the most and, perhaps, brought the strongest reprimand, if I may put it that way, to the Government for not having, in our view, a built-in balance of what is fair as regards the control of diseases, the total open access policy, and the taking away of rights from those concerned. We feel it is important that there is a balance; that is why we support the amendments. As the noble Lord, Lord Greaves, said, we are not talking about infected animals; we have said all along that infected animals should be culled. We are talking about contiguous culls. It is important that people are properly represented.
The four amendments relate to the Government's power to go o a magistrate to seek a warrant to treat, to take samples or to carry out tests to see whether anything needs to be done; or, in extremis, to slaughter. The only amendment that does not necessarily involve the handling of animals is the one that relates to the power of entry for the purposes under the scrapie part. That is non-urgent and the arguments for swiftness advanced by the Minister on 22nd October would not apply in this case.
Our argument is that reasonableness must be built into the procedure. That requires further examination today. For example, how is the magistrate to know whether what the inspector tells him is reasonable, unless he can be satisfied in the first place that no one is challenging that interpretation? How can he balance the inspector's view against that of the owner of the premises to which the inspector requires access if he
500
has not heard the other side? I add our strong support to the amendments and I hope that under the circumstances the Government will accept them.
Lord Carter: My Lords, this is a difficult area. Three parties must be considered; first, the farmer who risks his stock being slaughtered as a result of inspection; secondly, the tens of thousands of farmers whose animals do not have the disease, which the Government's actions are intended to prevent; thirdly, the Government, who have a responsibility to ensure that the process moves as quickly as is practicable and fair to deal with the problem.
We have to strike a balance between those three responsibilities. It is interesting how we increasingly seem to be turning Third Reading into another Report stage, but that is a matter of definition. As I said before in Committee and on Report, we have seen throughout the Bill from the Opposition and the Cross Benches a concern about the farmer who may have his animals slaughtered, vaccinated or whatever, but less regard for the tens of thousands of farmers whose animals do not have the disease.
The noble Baroness, Lady Byford, shakes her head, but all the amendments are intended, entirely fairly, to respect the rights of the individual farmer who may be inspected and even slaughtered out. If we are erring on the side of toughness with individual farmers, we should think about the tens of thousands of farmers whom we are trying to protect.
Baroness Byford: My Lords, at no stage has there been a question of trying to put weight in favour of farmer A against farmer B. Nor has there been any suggestion that our amendments do not have due regard to the seriousness of the spread of disease. The noble Lord should recognise that. He is a little unfair to many of us in this House who are fighting strongly for a balance in the Bill between the control of disease and the rights of individuals. Whether that is one or 30 individuals, we are not in any way decrying the rights of the other farmers. The noble Lord is being rather naughty.
Lord Carter: My Lords, I am talking not of the rights but of the protection of the other farmers. The amendments are understandably and properly concerned with the rights of the farmer who is to be slaughtered out or whatever. But we sometimes overlook the other rights. I repeat, if we are erring on the side of toughness on individual farmers, we should think about the tens of thousands of farmers whom we are trying to protect from disease.
The noble Lord, Lord Livsey, in moving the amendment said that he did not think it would cause any delay. But he did not produce any evidence or proof. I understand that there will be delay in taking action if representations are made. That is common sense.
The noble Lord also referred to human rights. The Joint Committee on Human Rights has said that the procedure is fair and does not contravene human rights. We have read previously a quotation from the

501
committee. It is a powerful committee, certainly as powerful as the Delegated Powers and Regulatory Reform Committee. The House is understandably always anxious to call in aid that committee's reports when it does not support the Government. It also has a responsibility to support the committee's arguments when it does support the Government.
I understand the concern of those noble Lords who have spoken to the amendment, but it is a heavy responsibility if the Joint Committee on Human Rights have said that the procedure is fair and we vote to say that it is not.
Lord Campbell of Alloway: My Lords, before the noble Lord sits down, does he realise that he is arguing in blinkers? The right of one farmer is the right of all farmers. They are all in the same generic condition. Let us forget about the Joint Committee on Human Rights for a moment. The noble Lord said that the procedure had to be fair. How can you have fair administration if no one can make representations?
Lord Carter: My Lords, I have already said that the Joint Committee on Human Rights, of which I believe the noble Lord is a member, has said that the procedure is fair and does not contravene human rights.
The Countess of Mar: My Lords, I have put my name to some of the amendments. I support what the noble Lord, Lord Greaves, and other noble Lords have said. I am not a lawyer, but I believe the noble Lord, Lord Carter, does not understand the fine distinction between natural justice and the legal human rights aspects. Natural justice dictates that we should consider these matters in a balanced situation. After all the coming and going in the various stages of the Bill we have the balance in the amendments. I am happy to support them.
Baroness Mallalieu: My Lords, I have put my name to Amendment No. 11. I would have put it to all the amendments in the group if I had been quicker before the Marshalled List was printed. Everyone must accept that mistakes were made during the last outbreak. Whole farms were slaughtered out that should not have been. One thinks only of the luckily isolated incidents of postcode errors to see that in many cases injustice was done. It is now clear to all of us that a large part of the slaughter was wholly unnecessary and did nothing to halt the spread of the disease.
If there is one lesson to be learnt above all others, it is that there is little confidence that future decisions on slaughter in the unfortunate event of any other major animal disease outbreak will be made correctly by the department. What surprises and saddens me about the Government's refusal to accept these amendments or similar ones tabled at earlier stages, is that I would have thought that they would accept that where a decision is made within the department to slaughter, it must be prepared to justify at an early stage what it has
502
decided to do; to give reasons; to have the opposite view heard, if there is one; and to have an independent decision taken.
That can be done by the magistrate when the warrant is issued if the farmer is given an opportunity to be present or to be represented. It was said on the previous occasion, and I expect it will be said again, that that will cause delay. We are not dealing with infected animals or animals that are dangerous contacts, but with animals beyond that area. There will be some delay, but it will be a minimal delay in arranging for a solicitor to attend the appointment that has been fixed.
If there is not to be such a provision, in my judgment the alternative would be likely to be greater delay. The farmer will make an ex parte application for an injunction. There will have to be a full hearing at a later stage at which the department will be represented. Greater cost and greater delay is likely to result.
I am applying my mind to slaughter, as that amendment stands in my name. It cannot be right to take a decision about slaughter and to deny someone the right to be represented and have their views put forward in a decision which is likely to destroy possibly a lifetime or even generations of work.
It is not the case that people are normally represented when an application for a warrant is made. We are normally dealing with the power of search and with an arrest and if a mistake is made it can be corrected. In this case, the mistake cannot be corrected because the animals are lying dead on the barn floor. I am surprised and saddened, but I would be astonished and delighted if even at this late hour the Government could see their way to accepting the amendments.
4.30 p.m.
Earl Peel: My Lords, I, too, support the amendment. Before doing so, I want on behalf of the House to express commiseration to the right reverend Prelate the Bishop of Hereford who witnessed the tragic death of his daughter. I know that he would have been here had that not happened. It is a very sad occasion.
I concur with what the noble Baroness, Lady Mallalieu, said. I cannot believe that if it were not for the prospect of delays he would not in principle accept the reasons behind the amendment. I would have thought that natural justice would have demanded that such an amendment would be accepted.
Apart from anything else, I would have thought that the justice of the peace would have welcomed the opportunity of a balanced presentation. As the noble Countess, Lady Mar, said at a previous stage, mistakes were made; false grid references were given; animals were slaughtered which should not have been slaughtered. Yet the farmer to whom that happened did not have the opportunity to put his case to the justice of the peace.
The noble Lord, Lord Carter, made a valid point when talking about the need to protect other farmers. However, I say to him I am certain that if one were to

503
consult any of the tens of thousands of farmers to whom he referred, they would welcome the amendment. There can be no question about that. As the noble Baroness, Lady Mallalieu, said, the prospect of a farmer watching a lifetime's work go down the plughole under his nose and not having the right to be able to present his case to a justice of the peace in such dire circumstances seems totally unjust.
Therefore it is a question of balance. From the evidence we have heard from all sides of the House, I do not believe that the delays will be that substantial. At he previous stage we heard an impassioned speech from my noble friend Lord Jopling, a former Minister of Agriculture. We have also heard the noble Baroness, Lady Mallalieu, with all her legal knowledge and experience. They clearly believe that such an amendment will hardly delay the processes about which the Minister feels strongly and for which he has responsibilities. However, if those delays will not be serious and the opportunity of justice can be placed on the face of the Bill through the amendment, it is imperative that we support it.
Lord Carter: My Lords, before the noble Earl sits down, can he deal with the point I made that the Joint Committee on Human Rights stated that the procedure is fair and does not contravene human rights?
Earl Peel: My Lords, I never mentioned the words "human rights". I was talking simply about normal, every-day justice.
Lord Whitty: My Lords, the point here is that we are not dealing with an every-day situation. We are dealing with a situation which is life and death to the livestock industry of this country. The Government have heavy responsibilities to ensure that any future epidemic is controlled as rapidly and effectively as possible.
If one is in the Government's shoes, and the inquiries have underlined that view, there is a need for us to sharpen up our powers in terms of preventive measures and there is a need to ensure that those measures are carried out as rapidly as possible. As we know to our cost, in the previous epidemic the failure to act quickly and to engage in control measures as rapidly as we should have done led to a wider epidemic than might otherwise have been the case. Indeed, in such situations hours matter, not days. The spread of a disease from one part of the country to another over several miles can be affected by the fact that one has not carried out those preventive measures in the time one has set.
It is all very well for the noble Lord, Lord Greaves, to say that he has accepted that we need to speed up the process, but he is reintroducing a provision which cannot but delay the process again. Whatever arguments one puts forward for the measures to provide for representation, it is undoubtedly the case that in almost all situations the time for representation will delay the time for action. In this situation, the Government's responsibility is clear. The powers that
504
the Government need are clear. The protection of the tens of thousands of farmers, as my noble friend Lord Carter said, is clear.
It is not as though we were removing from the situation all natural justice or all powers of redress. As my noble friend Lady Mallalieu said, the individual farmer still has the right to go to the court for an injunction. The procedure provides for the right of the occupier to make representations to the DPM and the warrant procedure requires the magistrate to judge whether the request for such powers is reasonable. Ultimately, admittedly post facto, there is a judicial review. Therefore, it is not as though we were taking away the human rights and the rights to natural justice of an individual farmer. We are providing powers in the Bill which enable future governments to take decisions and disease-control measures which effectively protect the vast majority of farmers from infection by this disease or indeed any other.
I do not believe that the arguments on human rights stand up. As my noble friend Lord Carter said at least twice during the debate and several times previously, if we are to take seriously our procedures in relation to human rights, the Joint Committee which we have established for that purpose does not suggest that the provisions contravene that purpose.
The reasons adduced for providing the additional representation, the additional delay, in the process have not been accepted in any other warrant procedure. And I disagree that this is entirely different from other warrant procedures. Other warrant procedures can put people out of business and can mean that a lifetime's business is destroyed. Often the situations are not as acute as trying to control the kind of epidemic that we saw last year.
I know that it is a leap of imagination, but I ask the Opposition Front Benches to put themselves in the position of a future government trying to control this disease. The powers are necessary for that control. If they were undermined by the kind of provision that the amendments indicate, they would be a less effective means of providing that control. How would they. as government Ministers, explain to the farming community and to the taxpayers faced with an enormous bill as a result of the failure to control the disease as rapidly as possible that they had failed to take those powers at a time when it was possible to take them?
While the amendments may be well-motivated in one sense, they are extremely blinkered. They see the situation through the eyes of lawyers and those who defend individuals in entirely different situations, where the consequences of those procedures do not mean devastation for whole communities and for the economy as a whole.
I repeat: we are not taking away all rights from those affected. We are simply speeding up a procedure that will defend the rights, property and livelihood of tens of thousands—possibly hundreds of thousands—of other people. That is a central responsibility for government in relation to disease control. To remove that power would be reckless and irresponsible. If the

505
Opposition parties wish to go down that road, I regret it. They show a lack of imagination, given that they may find themselves in this position in the future. It is not sensible for this House, which must cover all future contingencies—including, regrettably, the possibility of a recurrence of this or a similar disease—to place such restraints on those who carry out government policy. It will not be in the interests of the farming community and it is not in the interests of the country. I therefore beg those who are pursuing these amendments to reconsider the position and not to press them.
Lord Greaves: My Lords, the Minister has perhaps uncharacteristically gone slightly over the top in his response. If our proposals were a reversion to the status quo, his remarks might be justified—although many people believe that what the Government are doing to change the status quo is wrong. We are not saying that. We have bent over backwards to look for a suitable procedure by which people can have their say without causing substantial delays. That is surely the most basic right that people ought to have. The Minister himself has said that people can appeal via the veterinary route. That in itself will cause some delay. So he is not advocating a totally draconian immediate response.
I am grateful to noble Lords on all sides of the Chamber who have supported these amendments. In particular, I thank the noble Lord, Lord Campbell of Alloway, who has said that he will support this amendment and will not press his own if it is accepted. That is helpful in terms of achieving a uniform response across the four amendments.
I do not want to repeat anything that has been said previously; therefore, I shall concentrate on two or three specific points. The noble Lord, Lord Carter, referred to tens of thousands of farmers who are not affected. In an outbreak of foot and mouth disease, it is not tens of thousands of farmers that we are talking about but those who are near enough to an affected area to be in fear of God that they will get the disease on their farm. I accept that in the last outbreak there were movements across the country, but most of those whose animals were taken in contiguous culls were, by definition, near to affected areas. It is because we are concerned about such farmers, as a result of our experience of the last outbreak, that during the course of the Bill many of us have argued for vaccination. It would provide such people with the necessary protection for their animals. In the last outbreak some farms were slaughtered out, but there was always the next farm, where people sat, embattled, wondering whether their animals would get the disease. Vaccination is the way to give them the kind of protection and peace of mind that the noble Lord, Lord Carter, was talking about.
I do not accept the arguments about delay. Any delay built in as a result of these proposals would be minimal. Whatever the Minister says, our proposal would allow the procedures to be much faster than they were during the previous outbreak when people
506
went to court. We accept that the process needs to be speeded up but we are including absolutely minimal necessary safeguards.
Whatever the noble Lord, Lord Carter, and the Minister say, large numbers of farmers do not believe that the Bill as it stands is fair. Whether or not noble Lords like it, if future procedures are to be carried out with the minimum amount of aggravation and obstruction on the ground—warrants can be obtained but people can still try to barricade their farms—those concerned must have a sense that they are being given the most basic right of all; namely, the right to be heard. There must be a basic sense that the procedure is fair.
Lord Carter: My Lords, the Joint Committee on Human Rights sees the procedure as fair and as not contravening human rights.
Lord Greaves: My Lords, I dealt with this matter in response to the noble Lord on Report. I accept that the Joint Committee has said that. However, as the noble Baroness, Lady Mallalieu, suggested, the legal framework of human rights is not the be-all and end-all of everything. It is a floor beyond which matters should not be allowed to fall. That does not mean to say that in many circumstances we should not aim to give people more rights than are laid down as an absolute minimum. The noble Lord is shaking his head. We disagree in this case.
When the Minister suggests that all the problems last time were due to the Secretary of State's lack of legal powers, we are back to square one—we have come full circle to our discussions at Second Reading. In the last outbreak, as we all know, most of the failures to act quickly had nothing to do with legal powers—they were all due to operational incompetence. I do not use the word "incompetence" in a pejorative way. People did not act in a way that was competent to deal with the outbreak. The whole process can be speeded up enormously in any future outbreak if the contingency plans and protocols are in place and if everyone concerned knows how the process is meant to operate. If that is there on the ground, 95 per cent of the problems referred to by the Minister will be sorted out.
The Minister says that I am blinkered and am looking at the matter through the eyes of lawyers. I have never in my life looked at anything through the eyes of lawyers. I certainly do not regard myself as being among the ranks of lawyers. I experienced the last outbreak on the ground in my part of the country. I am not blinkered. These amendments are necessary so as to redress slightly the balance in the Bill, so that it is seen to be fair by those involved. If it is seen to be fair, the procedures will be much more readily accepted, there will be less aggravation and the whole process will work better. I should like to test the opinion of the House.
4.48 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 174; Not-Contents, 132.

Division No.2

CONTENTS

Aberdare, L.

Howe of Aberavon, L.

Addington, L.

Howe of Idlicote, B.

Alderdice, L.

Howell of Guildford, L.

Allenby of Megiddo, V.

Jacobs, L.

Alton of Liverpool, L.

Jellicoe,E.

Ampthill, L.

Jenkin of Roding, L.

Anelay of St Johns, B.

Jopling, L.

Arran, E.

Kimball, L.

Astor of Hever, L.

Laing of Dunphail, L.

Attlee, E.

Lester of Herne Hill, L.

Avebury, L.

LiverPool,E.

Baker of Dorking, L.

Livsey of Talgarth, L.

Barker, B.

Luke, L.

Beaumont of Whitley, L.

Lyell, L.

Blatch, B.

McColl of Dulwich, L.

Boardman, L.

Mackie of Benshie, L.

Bowness, L.

McNally, L.

Bradshaw, L.

Maddock, B.

Bridgeman, V.

Mallalieu, B.

Brittan of Spennithome, L.

Mar,C.

Brooke of Sutton Mandeville, L

Mar and Kellie,E.

Brougham and Vaux, L.

Marlesford, L.

Burnham. L.

Marsh, L.

Buscombe, B.

Marsh, L.

Byford, B.

Masham of Ilton, B.

Campbell of Alloway, L.

Mayhew of Twysden, L.

Carlile of Berriew, L.

Miller of Hendon, B.

Carnegy of Lour, B.

Molyneaux of Killead, L.

Cavendish of Furness, L.

Monro of Langholm, L.

Chalfont, L.

Moran, L.

Chalker of Wallasey, B.

Mowbray and Stourton, L.

Chorley, L.

Moynihan, L.

Colwyn, L.

Murton of Lindisfarne, L.

Cope of Berkeley, L.

Naseby, L.

Craig of Radley, L.

Newby, L.

Craigavon, V.

Noakes, L.

Crickhowell, L.

Northbourne, L.

Cuckney, L.

Northbrook, L.

Darcy de Knayth, B.

Northover, B.

Deedes, L.

O'Cathain, B.

Denham, L.

O'Neil of Bengarve, B.

Dholakia, L.

Oakeshott of Seagrov Bay, L.

Dixon-Smith, L.

Onslow, E.

Elles, B.

Palmer, L.

Elliott of Morpeth, L.

Park of Monmouth, B.

Ezra, L.

Pearson of Rannoch, L.

Falkland, V.

Peel, E.

Fearn, L.

Perry of Southwark, B.

Ferrers, E.

Perry of Walton, L.

Fookes, B.

Peyton of Yeovil, L.

Fowler, L.

Phillips of Sudbury, L.

Freeman, L.

Pilkington of Oxenford, L.

Gardner of Parkes, B.

Plumb, L.

Geddes, L.

Prior, L.

Geraint, L.

Rawlings, B.

Glentoran, L.

Rawlinson of Ewell, L.

Goodhart, L.

Razzall, L.

Gray of Contin, L.

Reay, L.

Greaves, L. [Teller]

Redesdale, L.

Hamwee, B.

Rees-Mogg, L.

Harris of Richmond, B.

Rennard, L.

Hayhoe, L.

Roberts of Conwy, L.

Higgins, L.

Rodgers of Quarry Bank, L.

Hodgson of Astley Abbotts, L.

Roper, L.

Holme of Cheltenham, L.

Rotherwick, L.

Hooper, B.

Russell, E.

Hooson, L.

Russell-Johnston, L.

508

Ryder of Wensum, L.

Taylor of Warwick, L.

Saltoun of Abernethy, Ly.

Tenby,V.

Sandberg, L.

Thomas of Gresford, L.

Scott of Needham Market, B.

Thomas of Walliswood, L.

Seccombe, B.

Thomson of Monifieth, L.

Selsdon, L.

Tope, L.

Sharman, L.

Trumpington, B.

Sharp of Guildford, B.

Tugnedhat, L.

Sharples, B.

Waddington, L.

Shaw of Northstead, L.

Wade of Chorlton, L.

Shutt of Greetland, L.

Wakeham, L.

Simon of Glaisdale, L.

Wallace of Saltaire, L.

Smith of Clifton, L.

Walmsley, B.

Steel of Aikwood, L.

Watson of Richmond, L.

Stewartby, L.

Weatherill, L.

Stoddart of Swindon, L.

Wigoder, L.

Strange, B.

Wilcox, B.[Teller]

Strathclyde, L.

Williams of Crosby, B.

Swinfen, L.

Williamson of Horton, L.

Taverne, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Gregson, L.

Ahmed, L.

Grenfell, L.

Alli, L.

Grocott, L. [Teller]

Amos, B.

Hardy of Wath, L.

Andrews, B.

Harris of Haringey, L.

Archer of Sandwell, L.

Harrison, L.

Ashton of Upholland, B.

Haskel, L.

Bach, L.

Hayman, B.

Barnett, L.

Hilton of Eggardon, B.

Bassam of Brighton, L.

Hogg of Cumbernauld, L.

Berkeley, L.

Hollis of Heigham, B.

Bernstein of Craigweil, L.

Howarth of Breckland. B.

Blackstone, B.

Howells of St. Davids, B.

Boothroyd, B.

Howie of Troon, L.

Borrie, L.

Hoyle, L.

Bragg, L.

Hughes of Woodside, L.

Brett, L.

Hunt of Kings Heath, L.

Brooke of Alverthorpe, L.

Irvine of Lairg, L. (Lord Chancellor)

Brookman, L.

Campbell-Savours, L.

IsIwyn, L.

Carter, L.

Janner of Braunstone, L.

Christopher, L.

Jay of Paddington, B.

Clark of Windermere, L.

Jones, L.

Clarke of Hampstead, L.

Jordan, L.

Clinton-Davis, L.

King of West Bromwich, L.

Cohen of Pimlico, B.

Kirkhill, L.

Corbett of Castle Vale, L.

Layard, L.

Crawley, B.

Lea of Crondall, L.

David, B.

Lipsey, L.

Davies of Coity, L.

Lofthouse of Pontefract, L.

Davies of Oldham, L.

Macdonald of Tradeston, L.

Desai, L.

McIntosh of Haringey, L.[Teller]

Dixon, L.

Dormand of Easington, L.

MacKenzie of Culkein, L.

Dubs, L.

Mackenzie of Framwellgate, L.

Elder, L.

Mason of Barnsley, L.

Evans of Parkside, L.

Massey of Darwen, B.

Evans of Temple Guiting, L.

Merlyn-Rees, L.

Evans of Watford, L.

Milner of Leeds, L.

Farrington of Ribbleton, B.

Mitchell, L.

Faulkner of Worcester, L.

Morgan, L.

Filkin, L.

Morgan of Huyton, B.

Gale, B.

Morris of Aberavon, L.

Gavron, L.

Orme, L.

Gibson of Market Rasen, B.

Patel of Blackburn, L.

Gilbert, L.

Pendry, L.

Gladwin of Clee, L.

Peston, L.

Goldsmith, L.

Pitkeathley, B.

Gordon of Strathblane, L.

Prys-Davies, L.

Goudie, B.

Radice, L.

Gould of Pottemewton, B.

Ramsay of Cartvale, B.

Grabiner, L.

Rendell of Babergh, B.

Graham of Edmonton, L.

Richard, L.

509

Roll of Ipsden, L.

Tomlinson, L.

Rooker, L.

Turnberg, L.

Sainsbury of Turville, L.

Turner of Camden, B.

Sawyer, L.

Uddin, B.

Scotland of Asthal, B.

Varley, L.

Sheldon, L.

Walker of Doncaster, L.

Simon, V.

Warwick of Undercliffe, B.

Stallard, L.

Wedderburn of Charlton, L.

Stone of Blackheath, L.

Whitaker, B.

Strabolgi, L.

Whitty, L.

Symons of Vernham Dcan, B.

Wilkins, L.

Taylor of Blackburn, L.

Williams of Elvel, L.

Temple-Morris, L.

Williams of Mostyn, L.(Lord Privy Seal)

Thornton, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.59 p.m.
Lord Plumbmoved Amendment No. 8:
Page 6, line 23, at end insert "which fall within section 16(1) of the 1981 Act and which are susceptible to the disease which is the subject of the inspection"
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 14, 19 and 37.
We discussed this matter at length in previous debates. The amendment refers to the suggestion that the Bill be amended to describe animals in these sections as affected animals. The Minister pointed out that the definition of animals in the 1981 Act does not include horses, fish or dogs, and that they are not, in any case, "susceptible to the disease"; that is to say, foot and mouth disease.
A more careful study of the 1981 Act has revealed that if the Minister so chooses, the definition of "animals" can be amended to include anything but humans. Normally, when a Minister uses statutory powers under negative resolution, the period for praying against the resolution ends after the date on which the resolution takes effect. That means that should a Minister decide to redefine "animals" he might well be able to act on the redefinition before Parliament was able to stop him.
The purpose of all four amendments is to ensure that, no matter what the problem is and no matter under which section—the treatment, slaughter, test and samples or TSEs—inspectors may deal only with animals susceptible to the disease of the day. Furthermore, the proposed new schedule that the Bill inserts in the 1981 Act covers many scourges other than foot and mouth disease. I beg to move.
Lord Livsey of Talgarth: My Lords, this is a logical set of amendments that tidy up the provisions on other diseases. They affect the person in charge of the animals and incorporate requests for assistance by the inspector in the circumstances described by the noble Lord, Lord Plumb. The amendments are right and proper. I see no reason not to support them and I have much pleasure in doing so.
Lord Jopling: My Lords, I raised this issue on the first day of Report stage when I drew the attention of
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the House to the fact that the provisions could include people who kept dogs, cats and fish. The Minister said that,
"we were working on the basis of the Animal Health Act 1981 in which animals are defined as animals being susceptible to the disease. That does not include horses, fish or dogs".—[Official Report, 22/10/02; col. 1316.]
I quoted those words last Tuesday in relation to the provisions of the 1981 Act, to which my noble friend Lord Plumb has just referred. The Minister can extend the definition to any animal except human beings. I am very glad that my Front Bench colleagues have taken up this point. I am grateful to them, because this is an important issue. We have to protect against a future government who might extend the provisions of the Act to cover any other sort of animal. That would be unfair. I strongly support the amendment.
Lord Peyton of Yeovil: My Lords, throughout the passage of the Bill the Minister has being singing the song, "If we'd only had the powers we're now asking for, there wouldn't have been any trouble last time, or the trouble would have been cut down". It came to my attention not long ago that in Devon a small number of alpacas had been slaughtered, despite the fact that, I understand, there has never been a case of an alpaca being infected with foot and mouth in this country. That seems an extreme case, but it increases people's anxiety considerably. They do not want it to happen again.
I do not want to be boring or to go on at length, but my fear is that in our procedures Ministers find themselves becoming ever more in loco parentis to a Bill. It is almost like adopting a child. They get to love the thing. I am glad that the Minister laughs. I agree that it is ridiculous that Ministers should get to love their Bills, but they certainly defend them line by line. Equally, oppositions get to hate Bills. I hope that the Minister will relax on this occasion and disregard the word "Reject" that is probably written at the bottom of his brief. It is very unhelpful. I am sure that accepting this modest amendment would be a valuable step forward.
The Countess of Mar: My Lords, although I have supported the Minister against the Opposition in the past, I support this amendment. The noble Lord, Lord Jopling, might be relieved to know that the 1981 Act specifically excludes fish, reptiles and crustaceans from the power to extend the definition of "animals". His fish are still safe in the goldfish pond. However, I support the amendments, which are rational and reasonable.
Lord Whitty: My Lords, I have two or three assurances for the noble Lord, Lord Peyton. I have never said that everything would have been all right had we had the powers in the Bill. I have said that these powers would have been useful in certain aspects of the control of the disease and could have been effective in controlling the spread of the disease. Various disease control issues need to be addressed; this is one of them.

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Nor do I think I have ever given the impression that I am in love with the Bill. If that is the case, it must be a peculiar form of love. I would love not to need these powers. I greatly hope that none of my successors in the department ever has to use them. However, were we to be in that unfortunate situation, the powers would be necessary. My flexibility is therefore more limited than the noble Lord, Lord Peyton, desires. I also have to tell him that camelids, which include alpacas, are susceptible to foot and mouth. It was therefore not outwith the susceptibility criteria that they were slaughtered.
Despite what the noble Lord, Lord Livsey, said, these amendments are not a logical grouping. Amendment No. 8 relates to powers relating to vaccination, but the other three—Amendments Nos. 14, 19 and 37—do not. It is therefore not logical for them to refer to Section 16 of the 1981 Act. Amendments Nos. 14 and 19 should refer to Section 62 and Amendment No. 37 should refer to Part II of the 1981 Act, not to Section 16. Whatever we do about Amendment No. 8, the others in the group are misplaced.
Amendment No. 8 relates to whether animals are susceptible. The definition of "susceptible" exists in the 1981 Act. That cannot be extended beyond the area to which that Act applies except by resolution in respect of a particular disease to which other animals may be susceptible. If an inspector was coming to a premises, the only animals that could be affected by the vaccination proceeding would be those susceptible to the disease for which the visit was proposed. That might cover a different range of animals from those susceptible to foot and mouth.
On every occasion that we have debated these provisions, we have said that assistance must be reasonably required. In various amendments, we have also defined those of whom assistance can be required: occupiers, those in charge of animals, and those who are working for them. I think that to go further and appear to restrict those requirements beyond that would be to create an ambiguous definition of those in charge of animals. I therefore cannot accept Amendment No. 8. I think that the other amendments are inappropriate for the reasons that I have explained.
Lord Plumb: My Lords, I thank the Minister for that response, which was not entirely unexpected. On various occasions he has referred to the importance of flexibility and told us that there is no intention of building into the legislation the degree of compulsion that many of us seemed to be reading into it. As my noble friend Lord Peyton has quite rightly said, however, the ultimate concern is that the Bill seems to make demands that those affected could regard as promoting the nanny state. Although those making the demands have no responsibility themselves, they seem to be saying that they know exactly how to deal with the particular problem. However, the Minister has made the position clear. I thank those who supported Amendment No. 8. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whittymoved Amendment No. 9:
Page 6, line 36, leave out from "date" to end of line 37 and insert "specified in the warrant as the date of its issue"
The noble Lord said: My Lords, the House will recall that, on Report, the noble Baroness, Lady Byford, moved an amendment which was very similar to her Amendments Nos. 13, 18 and 36 on today's Marshalled List requiring magistrates to put a date on the warrant. It is clearly necessary that whatever is stated in relation to this warrant procedure should he consistent throughout the Bill. I have therefore taken further legal advice on how that should be done. Although the noble Baroness's amendments are in a later group, I understand that she has agreed that, for convenience, we can take them with this group.
My legal advice is that the form of the amendment that I have tabled—which is consistent at all points where the warrant procedure applies—is the most legally appropriate form. My amendment also has the same effect as the noble Baroness's amendments and will avoid any disputes or ambiguity in the warrant process. Although I shall listen to her remarks, my legal advice is strongly that our form of words is the appropriate one to meet the objectives which she has set out. I beg to move.
5.15 p.m.
Baroness Byford: My Lords, I thank the Minister for moving his Amendment No. 9, speaking to his subsequent amendments and referring to my Amendment No. 13—which, on Report, was my Amendment No. 23. As noble Lords may recall, we debated my Amendment No. 23 very late in our consideration on Report, and it was intended to add the words that I have included in amendments on today's Marshalled List. In replying to that debate, the Minister said that he could see no reason why he could not accept this rationally argued amendment. We therefore face two problems, the first of which is that the Government have accepted my Amendment No. 23. As I understand it, as they have accepted the amendment and it has been accepted by the House, they cannot alter it. Noble Lords should be aware of that fact.
Secondly, and this is my fault, in moving Amendment No. 23, I failed to deal with subsequent amendments—Amendments Nos. 28, 35 and 54— which were relevant at that stage. I am therefore left with a slight difficulty, and the Minister and I are trying to agree on how to proceed. I gather that he is not able to alter my Amendment No. 23, although he could challenge my three other amendments which I did not formally record as consequential to it. Those amendments were not consequentially agreed to.
The Minister says that his legal advisers tell him that his wording is legally more acceptable than mine and that there is very little difference between our two versions. I think that there is a difference. Our debate on Report was short, but it was purposeful. I also specifically pointed out that we had debated the same subject in Committee, where the issue of whether the warrants were pre-signed was again raised. However, I do not want to revisit that issue.

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If the Minister wishes to press his amendments, I shall oppose them. My response, however, will hinge on the Government's response to my Amendment No. 13 and subsequent amendments. Nevertheless, regardless of how the Government respond to my other amendments, Amendment No. 13 must stand. My understanding is that the Government cannot alter it. Perhaps the Minister can clarify the point for the benefit of the House.
Lord Whitty: My Lords, on the procedural issue—which is obviously germane here—as with many procedures in your Lordships' House, there is no seriously clear advice. However, I think that the noble Baroness has at least an arguable case that we cannot overturn on Third Reading a provision that was agreed to on Report. My legal advice is that our amendments are preferable to hers. However, the consequence of that interpretation is that we would have her wording at this point in the Bill but different wording—if I were to press other amendments and they were accepted by the House—later in the Bill. I think that that would probably be the worst of all worlds.
I therefore suspect that, were the noble Baroness to press the procedural point, she would receive the support of the House. I think that she has at least a procedurally arguable case here, and I would not wish the House to fall into inconsistency in the Bill. On procedural grounds, therefore, I would withdraw Amendment No. 9. The logical consequence of that, I think, is that I should not press the other amendments in this group. It will be for me to discover what trouble that lands me in with the lawyers. However, partly because I accepted the amendment in good faith in the first instance, and partly because I think that the noble Baroness's procedural point is on balance correct, I think that that will have to be the outcome. It should therefore be the noble Baroness's amendments that stand when we reach that point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Slaughter: power of entry ]:
Lord Campbell of Allowaymoved Amendment No. 10:
Page 7, line 30, at end insert "and has been afforded an opportunity to apply for a stay of execution of the warrant on the ground that the first condition has not been satisfied"
The noble Lord said: My Lords, I have moved this amendment only to ask the noble Lord, Lord Whitty, for clarification. Does he accept Amendment No. 11 to Clause 8 in view of the Division on Amendment No. 7 to Clause 7? I beg to move.
Baroness Farrington of Ribbleton: My Lords, the Government accept that Amendment No. 11 is consequential on Amendment No. 7.
Lord Campbell of Alloway: My Lords, I am very much obliged. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Greavesmoved Amendment No. 11:
Page 7, line 30, at end insert "and of the reasons for that decision including a copy of the sworn information;

(d) he has been provided with an opportunity to make representations to the justice of the peace about whether the warrant should be issued;

(e) he has been provided with the opportunity to present sworn information in person or in writing to the justice of the peace who is to consider the application for a warrant."

On Question, amendment agreed to.
[ Amendment No. 12 not moved.]
Baroness Byfordmoved Amendment No. 13:
Page 7, line 39, leave out "issue" and insert "approval by the justice of the peace, which date shall be clearly visible on the warrant"
On Question, amendment agreed to.
[Amendment No. 14 not moved.]
Clause 9 [Tests and samples: power of entry]:
Baroness Byfordhad given notice of her intention to move Amendment No. 15:
Page 9, line 8, leave out from "premises" to "infected" in line 9 and insert "is"
The noble Baroness said: My Lords, I thank the Minister for a letter that he sent me.
[Amendment No. 15 not moved.]
Lord Greavesmoved Amendment No. 16:
Page 9, line 35, at end insert "and of the reasons for that decision including a copy of the sworn information;
( ) he has been provided with an opportunity to make representations to the justice of the peace about whether the warrant should be issued;
( ) he has been provided with the opportunity to present sworn information in person or in writing to the justice of the peace who is to consider the application for a warrant."
On Question, amendment agreed to.
[Amendment No. 17 not moved.]
Baroness Byfordmoved Amendment No. 18:
Page 10, line 2, leave out "issue" and insert "approval by the justice of the peace, which date shall be clearly visible on the warrant"
On Question, amendment agreed to.
[Amendment No. 19 not moved.]
Lord Whittymoved Amendment No. 20:
Before Clause 15, insert the following new clause—
"BIOSECURITY GUIDANCE
In the 1981 Act the following sections are inserted after section 6 (eradication areas and attested areas)—
"6A BIOSECURITY GUIDANCE
(1) The Secretary of State must prepare guidance on the appropriate biosecurity measures to be taken in relation to—

(a) foot-and-mouth disease;

(b) such other disease as the Secretary of State by order specifies.

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(2) After preparing a draft of the guidance the Secretary of State—

(a) must send a copy of the draft to such persons and organisations as he thinks are representative of those having an interest in biosecurity measures;

(b) must consider any representations made to him about the draft by such persons and organisations;

(c) may amend the draft accordingly.

(3) After the Secretary of State has proceeded under subsection (2) he must publish the guidance in such manner as he thinks appropriate.
(4) The Secretary of State must from time to time review the guidance and if he thinks it appropriate revise the guidance.
(5) Subsections (I) to (3) apply to a revision of the guidance as they apply to its preparation.
(6) But if the Secretary of State thinks that it is necessary to revise the guidance urgently he may publish revised guidance without proceeding under subsection (2).
(7) Biosecurity measures are measures taken to prevent the spread of causative agents of disease.
(8) Causative agent includes any virus, bacterium and any other organism or infectious substance which may cause or transmit disease.
(9) The power to make an order must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(10) It is immaterial that anything done for the purposes of subsections (1) to (3) is done before the passing of the Animal Health Act 2002.
6B BIOSECURITY COMPLIANCE
(1) A person having a function under this Act relating to foot-and-mouth disease or a disease specified by order under section 6A(1) must not exercise the function unless the guidance under section 6A has been published and has not been withdrawn.
(2) Any act which is done in contravention of subsection (1) is done without lawful authority.
(3) If a person to whom subsection (5) applies fails to comply with the guidance he is not by reason only of that failure liable in any civil or criminal proceedings.
(4) But the guidance is admissible in evidence in such proceedings arid a court may take account of any failure to act in accordance With it in deciding any question in the proceedings.
(5) This subsection applies to—

(a) any person having functions under this Act;

(b) any person who is the owner or occupier of premises on which animals are kept;

(c) any person who has charge of animals;

(d) any person who is under the direction of a person mentioned in paragraphs (a) to (c)."

The noble Lord said: My Lords, this amendment deals with the position relating to biosecurity. Noble Lords will recall that on Report I committed myself to bring forward an amendment addressing the concerns raised on biosecurity measures. The amendment sets out clearly that the Secretary of State must draft and consult on biosecurity guidance, and that that must be reviewed from time to time.
New Section 6B states that any person carrying out an activity on behalf of the Secretary of State must not exercise the function unless the biosecurity guidance has been published and has not been withdrawn. On Report, noble Lords were keen for a statutory fine to be imposed on officials who failed to comply with biosecurity rules or guidance. That is touched on in later amendments. Having taken advice on that
516
matter, I am advised that it would be inappropriate to target such an offence solely at officials. We have therefore set out that if anyone to whom the provisions apply fails to comply with the guidance, that failure would be admissible as evidence in any subsequent court case. I believe that that conforms with the usual procedure in relation to codes of practice and that it is an appropriate sanction, which covers those employed by or acting on behalf of the Secretary of State.
We have a responsibility while drafting the legislation to ensure that we do not produce unrealistic and unworkable requirements. To put in place a requirement that all those working on behalf of the Secretary of State must be "conversant" with biosecurity rules implies that there would be some test, requiring regular and time-consuming assessment. It would be impractical to put that into place in relation to all field staff and contractors.
I agree that we must do more to address the issue of biosecurity. We will consult stakeholders to seek their views on the production of a long-term strategy for biosecurity publicity and awareness that will be aimed at the totality of the livestock industry, not just at farmers.
It may help the House and save some time if I comment on some of the amendments that are grouped with this amendment. Amendment No. 22 stands in the name of the noble Countess. She should consider what its effect would be. It could limit the number of people with whom we may need to communicate. However, if she feels it appropriate to press the amendment, we should have no objection to it.
I could accept Amendment No. 23, which stands in the name of the noble Countess, but I am not prepared to accept the other amendments in the group. I could go into further detail when it becomes clear which amendments are being pressed. I beg to move.
The Countess of Marmoved, as an amendment to Amendment No. 20, Amendment No. 21:
Line 13, after "those" insert "listed in section 6B(5)"
The noble Countess said: My Lords, I am grateful to the Minister for saying which amendments he is prepared to accept. I ask him to forgive my rather feeble voice. It is the result of being vaccinated; never again.
Lord Carter: My Lords, to live?
The Countess of Mar: My Lords, I do not feel very much like it at the moment, to be quite candid!
Noble Lords will recall that I tabled an amendment on Report, which was mentioned by the Minister. When he promised to take my amendment away and to come back with a similar one, I expected that it would bear some semblance to mine. Who was it on television who used to say, "I don't believe it!"? That is what I felt when I first read the Minister's amendments.

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After all our discussions during the somewhat painful passage of the Bill through its stages in this House, noble Lords will, I believe, agree that the importance of biosecurity has been stressed repeatedly. The Minister mentioned it today on a number of occasions. It has taken this long for the Government to produce a loosely worded amendment—one that fails to meet the needs of the argument. There is now no need for me to dwell on the amendments at length. They are, in the main, tweaking amendments.
The Minister did not mention Amendment No. 21. It specifies those who should be consulted in the drafting of the biosecurity guidance. Last week, I had no inkling that there would be today's press announcement and radio coverage of the formation of a new organisation, called "Farm". I was merely expressing my own dissatisfaction with the Government's apparent dependence on one or two organisations, with apparently large memberships, which I believe provide wonderful insurance and legal advice but which fail dismally to represent all but a minority of their members. If the Minister "thinks" that the NFU and the NSA—the two organisations that he has cited most—are representative of persons and organisations that should be consulted, I ask him to think again. Seventy per cent of farmers apparently do not believe that their interests are currently being represented. With modern communications, that need not be an expensive exercise. Not everyone contacted will respond, but they should be given the opportunity to comment. Indeed, the Minister may be surprised by the amount of constructive assistance that might be forthcoming. The list merely helps the Secretary of State to think.
The Minister said that he was minded to accept Amendment No. 22. I have had bitter experience of the publication of,
"guidance in such manner as he thinks appropriate",
from guidance note MS17 by the Health and Safety Executive on organophosphate poisoning. Noble Lords who have been in the House for a long time will remember that I have asked a number of questions about MS17. It is all too easy for government publications to gather dust on a shelf somewhere. I want to see on the face of the Bill the Government's stated intention that never again will we see such events as occurred during the recent epidemic of foot and mouth disease. Every registered individual concerned with keeping or handling animals must have the requisite biosecurity information. If there is to be certainty of distribution, that information can only be supplied centrally. It is then up to the individuals who receive the guidance to read and follow it. Penalties obviously follow if they do not.
I am pleased that the Minister is prepared to accept Amendment No. 23. Amendment No. 24 relates to new Section 6A(10). That is retrospective legislation and he should know that we do not accept such legislation in your Lordships' House. I shall press that amendment.
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Amendment No. 25 goes with Amendment No. 22. How is a person to know about biosecurity if he has not seen the guidance?
The Minister's amendment to new Section 6B(3) contains a remarkable provision. How does that fit in with Clause 12(1)? That states:
"A person commits an offence if without lawful authority or excuse (proof of which shall lie with him) he knowingly does anything"—
I stress that word—
"which causes or is intended to cause an animal to be infected".
After all that has been said, are we now to let off the hook those who disregard biosecurity measures? My amendment would restore the situation to its previous state.
Amendments Nos. 27 and 28 extend the list of those who should be consulted and receive guidance. Such people are all concerned with animals. Those whom I have added have temporary concerns and may not be remembered. Amendment No. 30 is self-explanatory and follows from our debate on Report. Having said that, and having run out of puff, I beg to move.
5.30 p.m.
Lord Livsey of Talgarth: My Lords, I support the amendments referred to by the noble Countess, Lady Mar. I believe that they add flesh to the biosecurity compliance part of the new clause inserted by the Minister's amendment. Indeed, I believe it is important to spell out who will be involved and who will be consulted. We must ensure that guidance is in place for all the people involved in the chain of animal production so that they know what the rules are. That is most important.
In previous debates, many of us were critical of the lack of control in situations where contractors who carried out certain work did not seem to adhere to sensible biosecurity. I consider the list of consultees to be reasonable. I am sure that, when they are armed with the information, they will attempt to comply with it. I am sure that naming people or organisations will assist in ensuring that compliance is carried out more effectively.
Baroness Byford: My Lords, I thank the noble Lord, Lord Whitty, for coming forward with his amendment, which, although long, is not sufficiently detailed. I believe that the noble Countess, Lady Mar, should be congratulated on bringing forward the amendments to which she spoke earlier. I am glad that the Minister has indicated that he will accept her Amendments Nos. 22 and 23. Obviously I hope that he will also accept Amendment No. 25, which, as the noble Countess, said, is linked directly to Amendment No. 22.
During the last outbreak of foot and mouth disease, it was obvious that different advice was being given at different times to different people. While we support the Government's amendment, which gives greater guidance to a whole range of people, I believe that the amendment tabled by the noble Countess, Lady Mar, is far more specific. We believe it is our bounden duty

519
to ensure that people who are legitimately trading when outbreaks occur have full knowledge of what is required of them. They should not be able to say, "Well, we didn't know". That, importantly, is what the amendment seeks to achieve.
During the recent outbreak, there was undoubtedly much uncertainty as to the best way to proceed. Different advice was given by DEFRA staff in different offices. In some ways, I cannot blame them, although, in others, we do so strongly. At times, when supplies of, for example, the best disinfectants ran out, there was misinformation about the most effective substitutes. Farmers sought advice and were told or sold what was available rather than what might have been preferred. If farmers had information in the first instance, then they would have only themselves to blame if they chose wrongly.
Therefore, I welcome the Government's amendment and thank the noble Lord, Lord Whitty, because much thought has obviously gone into it. However, our view is that it is good so far as it goes but that it needs the additional amendments which the noble Countess, Lady Mar, has tabled today. In our earlier debates, the Minister said that he recognised that several times during the passage of the Bill concerns had been raised about the fact that DEFRA officials did not appear to be subject to the same requirements and movements as others.
I believe that the amendments of the noble Countess, Lady Mar, add enormously to Amendment No. 20. I hope that, in responding, the noble Lord, Lord Whitty, will be able to consider including some of the other amendments tabled by the noble Countess. I shall be interested to hear why he is not able to accept some of them. He said that he did not consider them to be necessary.
Lord Carter: My Lords, when he moved Amendment No. 20, my noble friend the Minister said that, even though he could accept Amendment No. 22, he believed that it would be restrictive. It strikes me as odd when I read it. Subsection (2)(a) of Amendment No. 20 states that the Secretary of State must send the draft guidance to,
"such persons and organisations as he thinks are representative of those having an interest in biosecurity measures"—
that is, anyone. It includes vets, scientists, farmers, members of the NFU and whoever. But, when we add Amendment No. 22 in the name of the noble Countess to the list of those to whom the guidance is distributed, it includes only,
"registered owners and keepers of animals, registered animal hauliers, and any owner or manager of a registered slaughterhouse or slaughtering premises".
Perhaps I am not reading the amendment correctly, but it seems that all those organisations are consulted on the draft guidance but then, when the guidance is completed arid is ready to be published, it is sent only to the people listed in Amendment No. 22. That does not seem to be logical.
The Countess of Mar: My Lords, with the leave of the House, perhaps I may explain to the noble Lord,
520
Lord Carter, that, during the recent outbreak, those people had difficulty enough in knowing what the word "biosecurity" meant, let alone what the biosecurity measures were. Those are the people who need to be specifically targeted. If the Minister wishes to send the guidance to other people, there is nothing to stop him. I simply want to ensure that those people receive the information.
Lord Whitty: My Lords, in respect of the point to which several of the amendments relate, Amendment No. 21 refers to those listed in new Section 6B(5). That does not include some of the people to whom my noble friend Lord Carter referred but it would be sensible to distribute the guidance to them. I do not believe that the guidance should be restricted to those listed in the amendment.
With regard to Amendment No. 22, the noble Countess raises a valid point in relation to those who felt that they were excluded from the information circulated during the course of, and following, the recent epidemic. Therefore, there is an argument for including specific reference to them. However, there is also the danger, of which we must always remind the House when we discuss lists, that, in specifying certain people, it is possible that others will be excluded.
On balance, I believe that there may be an argument for including them, and I shall not resist that if the noble Countess wishes to press it. But she must recognise that, in doing so, she will exclude others. That becomes more acute when we relate the issue to Amendment No. 27, which effectively lists the same sort of people. The effect of that would be to include those at that part of the Bill but not others. I believe that that would be more damaging in terms of restriction of future interpretation than the list of people to whom the guidance would have to he circulated.
As I indicated, I accept the arguments in relation to Amendment No. 23 and I can agree to the amendment. The noble Countess referred to Amendment No. 24 as being "retrospective". It is not; it merely states that we should be able to use work on biosecurity that has already been carried out. It does not make retrospective any action against or towards people. That will only be prospective from the passage of the Act. But it refers to the need or desirability to take into account valuable work which has already been done and which, otherwise, would be wasted. I do not believe that the accusation of retrospection is appropriate. It relates to the work and not to the effect of the Act.
So far as concerns Amendment No. 25, again, I believe it is important that we do not restrict distribution to those listed. That would create an even greater restriction than referring to new Section 6B(5) in the earlier clause.
Amendment No. 26 seeks to remove from the biosecurity amendment the provision which confirms that if a person fails to comply with the guidance he is not, by reason solely of that failure, liable in any civil or criminal proceedings.

521
I was careful in moving Amendment No. 20. I indicated that the normal practice is to make the existence and adhesion or non-adhesion to the codes of practice admissible in a court of law. That is the normal way that we translate codes of practice into being effective in court proceedings. That is an important part of making sure that people take notice of this biosecurity practice. Those people include the officials of DEFRA or other government departments and those contractors and others working on their behalf. I think therefore that the purpose of the amendments of the noble Baroness, and indeed her subsequent Amendment No. 30, is met by Amendment No. 20 as it stands.
I have referred to Amendments Nos. 27 and 28. A possible interpretation that this was a restriction to those listed in the amendments could be quite damaging because other people should be included at a subsequent stage. I would therefore resist that, not because I do not want to make sure that such people are included under this clause but because it could limit the Secretary of State's ability to include others.
Can I clarify whether the noble Baroness referred to Amendment No. 30?
The Countess of Mar: My Lords, before the noble Lord goes on, I should be grateful if he would call me the noble Countess rather than the noble Baroness. I know that I am the only one in the House. I do have to keep reminding him. I did speak to Amendment No. 30.
Lord Whitty: My Lords, I apologise. Amendment No. 30 is intended to make sure that everyone follows the guidance. It is not an amendment which we would be able to enforce in primary legislation. There is no method by which the Secretary of State could ensure absolutely that the guidance is followed by everyone.
The amendment provides the objective, but gives no sanction should the agents of the Secretary of State fail to comply. Therefore, it is incomplete in itself. In any case, the requirement in the amendment that I propose—that the terms of the code of practice would be admissible in court, and the failure to adhere to those terms would be admissible in court—provides that degree of control over the actions of the servants or contractors of the Secretary of State. It therefore follows that they must have regard to it and that that would be admissible in the case brought against them by anyone who had a complaint about the way they carried out that action.
I therefore can accept, if the noble Countess presses it, Amendment No. 22. I accept with a light heart Amendment No. 23. But I resist the remainder of the amendments of the noble Countess. I apologise unreservedly for failing to call her the noble Countess at various points in my response. I shall try my best to avoid that mistake again.
The Countess of Mar: My Lords, I am grateful to the noble Lord. Perhaps he would appreciate being called the Secretary of State when he is not.
522
I still feel that we need to expand the list in proposed new Section 6B(5). It is already an extensive list. I have added groups of people who are likely to be forgotten. They do not have permanent care of animals. They are kind of will-o'-the-wisps: they pass in the night. I think they should be added to the list. Therefore, I wish to test the opinion of the House.
5.45 p.m.
On Question, Whether the said amendment (No. 21) shall be agreed to?
Their Lordships divided: Contents, 167; Not-Contents, 139.

Division No. 3

CONTENTS

Addington, L.

Geraint, L.

Alderdice, L.

Glentoran, L.

Allenby of Megiddo,V.

Goodhart, L.

Alton of Liverpool, L.

Gray of Contin, L.

Anelay of St Johns, B.

Greaves, L.

Arran,E.

Greenway, L.

Astor,V.

Hamwee, B.

Astor of Hever, L.

Harris of Richmond, B.

Attlee,E.

Hayhoe, L.

Avebury, L.

Higgins, L.

Baker of Dorking, L.

Hodgson of Astley Abbotts, L.

Barker, B.

Holme of Cheltenham, L.

Beaumont of Whitley, L.

Hooper, B.

Biffen, L.

Hooson, L.

Blackwell, L.

Howe of Aberavon, L.

Blatch, B.

Howe of Idlicote, B.

Boardman, L.

Hunt of Wirral, L.

Bowness, L.

Hylton, L.

Brabazon of Tara, L.

Jacobs, L.

Bradshaw, L.

Jenkin of Roding, L.

Bridgeman,V.

Jenkins of Hillhead, L.

Brittan of Spennithorne, L.

Jopling, L.

Brooke of Sutton Mandeville, L.

Kimball, L.

Brougham and Vaux, L.

Kingsland, L.

Burnham, L.

Laing of Dunphail, L.

Byford, B.

Lang of Monkton, L.

Campbell of Alloway, L.

Lawson of Blaby, L.

Campbell of Croy, L.

Lester of Herne Hill, L.

Carlile of Berriew, L.

Lindsay, E.

Carnegy of Lour, B.

Liverpool, E.

Cavendish of Furness, L.

Livsey of Talgarth, L.

Chalfont, L.

Lucas, L.

Chalker of Wallasey, B.

Luke, L.

Colwyn, L.

Lyell, L.

Cope of Berkeley, L.

MacGregor of Pulham Market, L.

Craig of Radley, L.

Craigavon,V.

Maclennan of Rogart, L.

Crickhowell, L.

McNally, L.

Cuckney, L.

Maddock, B.

Darcy de Knayth, B.

Mancroft, L.

Deedes, L.

Mar, C. [Teller]

Denham, L.

Mar and Kellie, E.

Dholakia, L.

Marlesford, L.

Dixon-Smith, L.

Masham of Ilton, B.

Elles, B.

Mayhew of Twysden, L.

Elliott of Morpeth, L.

Monro of Langholm, L.

Erroll,E.

Monson, L.

Falkland,V.

Moran, L.

Fearn, L.

Mowbray and Stourton, L.

Ferrers,E.

Moynihan, L.

Fookes, B.

Murton of Lindisfarne, L.

Freeman, L.

Naseby, L.

Gardner of Parkes, B.

Newby, L.

Geddes, L.

Newton of Braintree, L.

523

Noakes, B.

Sandberg, L.

Northbrook, L.

Scott of Needham Market, B.

Northover, B.

Seccombe, B.

O'Cathain, B.

Selsdon, L

Oakeshott of Seagrove Bay, L.

Sharman,

Onslow, E.

Sharp of Guildford, B.

Park of Monmouth,B.

Sharples,

Peel, E.

Shaw of Northstead,L.

Perry of Southwark, B.

Shutt of Greetland, L.

Perry of Walton, L.

Smith of Clifton, L.

Peyton of Yeovil, L.

Steel of Aikwood, L.

Phillips of Sudbury, L.

Stewartby, L.

Pilkington of Oxenford, L.

Stoddart of Swindon, L.

Plumb, L.

Swinfen, L.

Prior, L.

Taylor of Warwick, L.

Rawlings, B.

Thatcher, B.

Rawlinson of Ewell, L.

Thomas of Gresford, L.

Rarzall, L.

Thomas of Walliswood, B.

Reay, L.

Thomson of Monifieth, L.

Redesdale, L.

Trumpington, B.

Rennard, L.

Tugendhat, L.

Renton, L.

Waddington, L.

Roberts of Conwy, L.

Wakeham, L.

Rodgers of Quarry Bank, L.

Wallace of Saltaire, L.

Roper, L.

Walmsley, B.

Rotherwick, L. [Teller]

Watson of Richmond, L.

Russell, E.

Weatherill, L.

Russell-Johnston, L.

Wilcox, B.

Saatchi,L.

Williams of Crosby,B.

Saltoun of Abernethy,Ly.

Willoughby de Broke,L.

NOT-CONTENTS

Acton, L.

Evans of Temple Guiting,L.

Ahmed, L.

Evans of Watford, L.

Alli, L.

Farrington of Ribbleton, B.

Amos, B.

Faulkner of Worcester, L.

Andrews, B.

Filkin, L.

Archer of Sandwell, L.

Gale, B.

Ashton of Upholland, B.

Gavron, L.

Bach, L.

Gibson of Market Rasen, B.

Barnett, L.

Gilbert, L.

Bassam of Brighton, L.

Gladwin of Clee, L.

Berkeley, L.

Goldsmith, L.

Bernstein of Craigweil, L.

Gordon of Strathblane, L.

Billineham, B.

Goudie. B.

Blackstone, B.

Gould of Pottemewton, B.

Boothroyd, B.

Graham of Edmonton, L.

Borrie, L.

Grenfell, L.

Bragg, L.

Grocott, L. [Teller]

Brennan, L.

Hardy of Wath, L.

Brett, L.

Harris of Haringey, L.

Brooke of Alverthorpe, L.

Harrison, L.

Brookman, L.

Haskel, L.

Burlison, L.

Hayman, B.

Campbell-Savours, L.

Hilton of Eggardon, B.

Carter. L.

Hogg of Curnbernauld, L.

Chandos, V.

Hollis of Heigham, B.

Christopher, L.

Howarth of Breckland, B.

Clark of Windermere, L.

Howells of St. Davids, B.

Clarke of Hampstead, L.

Howie of Troon, L.

Clinton-Davis, L.

Hoyle, L.

Cohen of Pimlico, B.

Hughes of Woodside, L.

Corbett of Castle Vale, L.

Hunt of Kings Heath, L.

Crawley, B.

Islwyn, L.

David, B.

Janner of Braunstone, L.

Davies of Coity, L

Jay of Paddington, B

Davies of Oldham, L

Jones, L

Desai, L.

Jordan, L.

Dixon, L.

Judd, L.

Dormand of Easington, L.

Kirkhill, L.

Dubs, L.

Layard, L.

Eatwell, L.

Lea of Crondall, L.

Elder, L.

Lipsey, L.

Evans of Parkside, L.

Lofthouse of Pontefract, L.

524

Macdonald of Tradeston, L.

Rooker, L.

McIntosh of Haringey, L.[Teller]

Sainsbury of Turville, L.

Sawyer, L.

MacKenzie of Culkein, L.

Scotland of Asthal, B.

Mackenzie of Framwellgate, L.

Sheldon, L.

Mallalieu, B.

Simon, V.

Marsh, L.

Stone of Blackheath, L.

Mason of Barnsley, L.

Strabolgi, L.

Massey of Darwen, B.

Strange, B.

Merlyn-Rees, L.

Symons of Vernham Dean, B.

Milner of Leeds, L.

Taylor of Blackburn,

Mitchell, L.

Temple-Morris, L.

Morgan, L.

Thornton, B.

Morgan of Huyton, B.

Tomlinson, L.

Morris of Aberavon, L.

Turnberg, L.

Moser, L.

Turner of Camden, B.

O'Neill of Bengarve, B.

Uddin, B.

Orme, L.

Varley, L.

Patel of Blackburn, L.

Walker of Doncaster, L.

Pendry, L.

Warwick of Undercliffe, B.

Peston, L.

Wedderbum of Charlton, L.

Pitkeathley, B.

Whitaker, B.

Prys-Davies, L.

Whitty, L.

Radice, L.

Wilkins, B.

Ramsay of Cartvale, B.

Williams of Elvel, L.

Rendell of Babergh, B.

Williams of Mostyn, L. (Lord Privy Seal)

Richard, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and Amendment No. 21, as an amendment to Amendment No. 20, agreed to accordingly.
5.55 p.m.
The Countess of Marmoved, as amendments to Amendment No. 22, Amendments Nos. 22 and 23:
Line 19, at end insert "and distribute it to registered owners and keepers of animals, registered animal hauliers, and any owners or manager of a registered slaughterhouse or slaughtering premises"
Line 26, at end insert "provided that, in such a case, he includes in the guidance an explanation of why this was necessary"
On Question, amendments agreed to.
[Amendment No. 24, as an amendment to Amendment No. 20, not moved.]
The Countess of Marmoved, as an amendment to Amendment No. 20, Amendment No. 25:
Line 41, after "published" insert "and distributed to all those listed in section 6A(3)"
5.57 p.m.
On Question, Whether the said amendment (No. 25) shall be agreed to?
Their Lordships divided: Contents, 169; Not-Contents, 130.

Division No. 4

CONTENTS

Addington, L.

Attlee,E.

Alderdice, L.

Avebury, L.

Allenby of Megiddo, V.

Baker of Dorking, L.

Alton of Liverpool, L.

Barker, B.

Anelay of St Johns, B.

Beaumont of Whitley, L.

Arran, E.

Biffen, L.

Astor, V.

Blackwell, L.

Astor of Hever, L.

Blatch, B.

525

Boardman, L.

Mar, C. [Teller]

Bowness, L.

Marlesford, L.

Brabazon of Tara, L.

Masham of Ilton, B.

Bridgeman, V.

Mayhew of Twysden, L.

Brittan of Spennithorne, L.

Michie of Gallanach, B.

Brooke of Sutton Mandeville, L.

Monro of Langholm, L.

Brougham and Vaux, L.

Monson, L.

Bumham, L.

Moran, L.

Buscombe, B.

Mowbray and Stourton, L.

Byford, B.

Moynihan, L.

Campbell of Alloway, L.

Murton of Lindisfarne, L.

Campbell of Croy, L.

Naseby, L.

Carlile of Berriew, L.

Newby, L.

Camegy of Lour, B.

Newton of Braintree, L.

Cavendish of Furness, L.

Noakes, B.

Chalfont, L.

Northboume, L.

Chalker of Wallasey, B.

Northbrook, L.

Chester, Bp.

Northover, B.

Colwyn, L.

O'Cathain, B.

Cope of Berkeley, L.

Oakeshott of Seagrove Bay, L.

Craig of Radley, L.

Onslow, E.

Craigavon, V.

Park of Monmouth, B.

Crickhowell, L.

Peel, E.

Cuckney, L.

Perry of Southwark, B.

Darcy de Knayth, B.

Perry of Walton, L.

Deedes, L.

Peyton of Yeovil, L.

Denham, L.

Phillips of Sudbury, L.

Dholakia, L.

Pilkington of Oxenford, L.

Dixon-Smith, L.

Plumb, L.

Elles, B.

Prior, L.

Elliott of Morpeth, L.

Rawlings, B.

Erroll, E.

Rawlinson of Ewell, L.

Falkland, V.

Razzall,L.

Fearm, L.

Reay,L.

Ferrers, E.

Redesdale, L.

Fookes, B.

Rennard, L.

Freeman, L.

Renton, L.

Gardner of Parkes, B.

Roberts of Conwy, L.

Geraint, L.

Rodgers of Quarry Bank, L.

Glentoran, L.

Roper, L.

Goodhart, L.

Rotherwick, L.

Greaves, L.

Russell, E.

Greenway, L.

Russell-Johnston, L.

Hamwee, B.

Saatchi, L.

Harris of Richmond, B.

St. John of Bletso, L.

Hayhoe, L.

St John of Fawsley, L.

Higgins, L.

Saltoun of Abernethy, Ly.

Hodgson of Astley Abbotts, L.

Sandberg, L.

Holme of Cheltenham, L.

Scott of Needham Market, B.

Hooson, L.

Seccombe, B.

Howe of Aberavon, L.

Selborne, E.

Howe of Idlicote, B.

Selsdon, L.

Hunt of Wirral, L.

Sharman, L.

Hylton, L.

Sharp of Guildford, B.

Jacobs, L.

Sharples, B.

Jenkin of Roding, L.

Shaw of Northstead, L.

Jenkins of Hillhead, L.

Shutt of Greetland, L.

Jopling, L.

Smith of Clifton, L.

Kimball, L.

Stewartby, L.

Kingsland, L.

Stoddart of Swindon, L.

Laing of Dunphail, L.

Strange, B.

Lang of Monkton, L.

Swinfen, L.

Lawson of Blaby, L.

Taylor of Warwick, L.

Lester of Herne Hill, L.

Thatcher, B.

Lindsay, E.

Thomas of Gresford, L.

Liverpool, E.

Thomas of Walliswood, B.

Livsey of Talgarth, L.

Thomson of Monifieth, L.

Lucas, L.

Trumpington, B.

Luke, L.

Tugendhat, L.

Lyell, L.

Waddington, L.

MacGregor of Pulham Market, L.

Wakeham, L.

Wallace of Saltaire, L.

Maclennan of Rogart, L.

Walmsley, B.

McNally, L.

Watson of Richmond, L.

Maddock, B.

Wilcox, B. [Teller]

Mancroft, L.

Williams of Crosby, B.

526

Williamson of Horton, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Hoyle, L.

Ahmed, L.

Hughes of Woodside, L.

Alli, L.

Hunt of Kings Heath, L.

Amos, B.

Irvine of Lairg, L. (Lord Chancellor)

Andrews, B.

Archer of Sandwell, L.

Islwyn, L.

Ashton of Upholland, B.

Janner of Braunstone, L.

Bach, L.

Jay of Paddington, B.

Barnett, L.

Jones, L.

Bassam of Brighton, L.

Jordan, L.

Bernstein of Craigweil, L.

Judd, L.

Billingham, B.

King of West Bromwich, L.

Blackstone, B.

Kirkhill, L.

Borrie, L.

Layard, L.

Bragg, L.

Lipsey, L.

Brennan, L.

Lofthouse of Pontefract, L.

Brett, L.

Macdonald of Tradeston, L.

Brooke of Alverthorpe, L.

McIntosh of Haringey, L. [Teller]

Brookman, L.

Burlison, L.

MacKenzie of Culkein, L.

Campbell-Savours, L.

Mackenzie of Framwellgate, L.

Carter, L.

Mallalieu, B.

Christopher, L.

Massey of Darwen, B.

Clark of Windermere, L.

Merlyn-Rees, L.

Clarke of Hampstead, L.

Milner of Leeds, L.

Clinton-Davis, L.

Mitchell, L.

Cohen of Pimlico, B.

Morgan, L.

Corbett of Castle Vale, L.

Morgan of Huyton, B.

Crawley, B.

Morris of Aberavon, L.

David, B.

Orme, L.

Davies of Coity, L.

Patel of Blackburn, L.

Davies of Oldham, L.

Pendry, L.

Desai, L.

Peston, L.

Dixon, L.

Pitkeathley, B.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Puttnam, L.

Dubs, L.

Radice, L.

Eatwell, L.

Ramsay of Cartvale, B.

Elder, L.

Rendell of Babergh, B.

Evans of Parkside, L.

Richard, L.

Evans of Temple Guiting, L.

Rooker, L.

Evans of Watford, L.

Sainsbury of Turville, L.

Farrington of Ribbleton, B.

Sawyer, L.

Gale, B.

Scotland of Asthal, B.

Gavron, L.

Sheldon, L.

Gibson of Market Rasen, B.

Simon, V.

Gilbert, L.

Stone of Blackheath, L.

Gladwin of Clee, L.

Strabolgi, L.

Goldsmith, L.

Symons of Vernham Dean, B.

Gordon of Strathblane, L.

Taylor of Blackburn, L.

Goudie, B.

Temple-Morris, L.

Gould of Potternewton, B.

Thornton, B.

Graham of Edmonton, L.

Tomlinson, L.

Grenfell, L.

Turnberg, L.

Grocott, L. [Teller]

Turner of Camden, B.

Hardy of Wath, L.

Uddin, B.

Harris of Haringey, L.

Varley, L.

Harrison, L.

Walker of Doncaster, L.

Haskel, L.

Warwick of Undercliffe, B.

Hayman, B.

Wedderburn of Charlton, L.

Hilton of Eggardon, B.

Whitaker, B.

Hogg of Cumbemauld, L.

Whitty, L.

Hollis of Heigham, B.

Wilkins, B.

Howarth of Breckland, B.

Williams of Elvel, L.

Howells of St. Davids, B.

Williams of Mostyn, L. (Lord Privy Seal)

Howie of Troon, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and Amendment No. 25, as an amendment No. 20 agreed to accordingly.
6.9 p.m.
[Amendment No. 26, as an amendment to Amendment No. 20, not moved.]
The Countess of Marhad given notice of her intention to move, as an amendment to Amendment No. 20, Amendment No. 27:
Line 54, at end insert—
"(ca) any animal haulier;
(cb) any owner or manager of any registered slaughterhouse or slaughtering premises;"
The noble Countess said: My Lords, I believe that Amendment No. 27 is consequential on the other amendments and should be accepted.
Baroness Farrington of Ribbleton: My Lords, the Government do not accept that Amendment No. 27 is consequential.
The Countess of Mar: My Lords, I have spoken to the noble Lord, Lord McIntosh. He said that the amendment seemed to be consequential. I apologise if I am wrong. I shall not move the amendment.
[Amendment No. 27, as an amendment to Amendment No. 20, not moved.]
[Amendment No. 28, as an amendment to Amendment No. 20, not moved.]
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before putting the Question that Amendment No. 20, as amended, be agreed to, I have to inform your Lordships that we must deal with Amendment No. 29.
Baroness Byfordmoved, as an amendment to Amendment No.20, Amendment No. 29:
Line 56, at end insert—
"( ) any other person having cause to be in the countryside in a designated area."
The noble Baroness said: My Lords, I apologise for this amendment being taken separately. It is a small point upon which I do not intend to divide the House. Following last year's foot and mouth outbreak the Countryside and Rights of Way Act has come into effect and the Government have indicated that in any future outbreak they will not close footpaths and rights of way unless they are in infected areas.
The amendment draws the Government's attention to the problem of how to inform people who visit the countryside that they are in or near an infected area if such areas are not to be closed. The amendment seeks to discover whether the Government have considered a problem that arises under the Countryside and Rights of Way Act, particularly as in future the Government want to bring in a revision of how to compensate farmers for disease outbreaks. There is also the possibility that farmers may have to take out insurance policies or pay a levy.
528
I do not intend to divide the House, but I want to highlight a future problem and one which was not included in the biosecurity clause. With those few comments I hope that the Minister has followed my gist. I beg to move.
Lord Livsey of Talgarth: My Lords, last year, during the foot and mouth outbreak, a party of about 30 people came to the Brecon Beacons National Park apparently unaware that part of it was in an infected area. Officials had to turn them away. The amendment addresses such a problem and spells out the situation for the future.
Baroness Masham of Ilion: My Lords, is the Minister aware that during the foot and mouth outbreak someone, walking through stock, when challenged by a farmer, said, "I am all right; I am a vegetarian"? Many people just did not understand the situation.
The Countess of Mar: My Lords, I too support the amendment. My anecdote is of someone who was responsible for the burial of infected animals. When driving home, he stopped to walk his dog, which was on a lead, in a field containing sheep. He openly admitted that he had not thought about what he was doing. It is important that such people are included.
Lord Whitty: My Lords, those who carry out duties under the Act are covered by the amendment as it stands. While we would not close down the countryside, as we did last time, in the area immediately around any infected premises the footpaths would be closed. The situation would depend on what we meant by "infected area" if the footpaths within three kilometres of that area did not have footpaths or rights of way open under the Countryside and Rights of Way Act.
I understand the concern of the noble Baroness about others in that situation. Clearly we need to ensure that biosecurity provisions are as widely understood as possible. Anyone visiting the countryside—that is the intention of the amendment, because, as under the first amendment, designated areas could include the whole of the country—being made aware in the same way that contractors for the Government or occupiers of farm premises are made aware, is not appropriate and would be unenforceable.
The noble Baroness has a point about wider awareness. However, I do not believe that it would be appropriate to add such a broad list of people to the list of those who have specific responsibilities and requirements to understand biosecurity provisions in detail. She has indicated that she will not press the amendment. Therefore, I ask her to withdraw it.
6.15 p.m.
Baroness Byford: My Lords, I thank the Minister for his response. He recognises that there is a problem. My intention was to highlight the matter. Under the Countryside and Rights of Way Act we spoke of having information centres so that in non-disease

529
times people know what is or is not open. The matter needs to be addressed. I am glad to have on the record the fact that the Minister recognises that there is a problem. I hope that the Government will bring forward a system to cover the point. I beg leave to withdraw the amendment.
Amendment No. 29, as an amendment to Amendment No. 20, by leave, withdrawn.
The Deputy Speaker: My Lords, as Amendment No. 30 is grouped with Amendment No. 20, we must deal with that amendment first.
[Amendment No. 30 not moved.]
On Question, Amendment No. 20, as amended, agreed to.
The Schedule [scrapie]:
The Countess of Marmoved Amendment No. 31:
Page 17, line 8, after "genotypes" insert "and phenotypes"
The noble Baroness said: My Lords, this is another attempt at an amendment that I tabled on Report. It would enable the Secretary of State to specify phenotypes as well as genotypes. Sheep can be genetically susceptible to scrapie, although some such sheep may never contract it. In the country a number of areas and a number of breeds of genetically susceptible sheep have never had scrapie. As the science is still young, perhaps the Secretary of State would consider the phenotypic properties of sheep as well as the genetic properties. I beg to move.
Baroness Farrington of Ribbleton: My Lords, we recognise that the noble Countess has concerns about this issue. However, no scientific evidence or basis exists to suggest that phenotypic characteristics contribute in any way to resistance or susceptibility to scrapie. Resistance and susceptibility to scrapie are linked to variations in amino acids encoded at three specific points of the PrP gene—that is, the genotype—that confers genetic resistance or susceptibility to scrapie in each individual sheep.
We are aware that there are those who claim that beneficial traits, as the noble Countess said, will be lost through breeding for resistance, but there is no hard and fast evidence to support that view. However, we are currently funding research—I hope this reassures the noble Countess—to see whether scrapie-resistant sheep have different production traits—for example, carcass weight at slaughter—than scrapie-susceptible sheep. Further research is also planned to extend that to look at more breeds and to consider the effects of breeding for scrapie resistance on biodiversity, sheep health and welfare and production traits.
In the absence of any scientific justification, we believe that it would be inappropriate to accept the amendment.
The Countess of Mar: My Lords, I am grateful to the noble Baroness for her explanation. I hope that she and her colleagues will keep an open mind on the
530
matter and bear in mind that there can be new developments in science. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
Lord Greavesmoved Amendment No. 33:
Page 21, line 13, at end insert "and of the reasons for that decision including a copy of the sworn information;
( ) he has been provided with an opportunity to make representations to the justice of the peace about whether the warrant should be issued;
( ) he has been provided with the opportunity to present sworn information in person or in writing to the justice of the peace who is to consider the application for a warrant."
The noble Lord said: My Lords, this is the fourth amendment in the group led by Amendment No. 7. Following the Division on Amendment No. 7, Amendment No. 33 is consequential. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 34 and 35 not moved.]
Baroness Byfordmoved Amendment No. 36:
Page 21, line 22, leave out "issue" and insert "approval by the justice of the peace, which date shall be clearly visible on the warrant"
On Question, amendment agreed to.
[Amendments Nos. 37 and 38 not moved.]
On Question, Bill passed, and returned to the Commons with amendments.

Enterprise Bill
6.21 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, I beg to move that the Commons amendments and reasons be now considered.
Moved, That the Commons amendments and reasons be now considered.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.
COMMONS REASONS FOR DISAGREEING TO CERTAIN LORDS AMENDMENTS, COMMONS AMENDMENTS TO CERTAIN OTHER LORDS AMENDMENTS AND COMMONS AMENDMENTS IN LIEU OF LORDS AMENDMENTS AND MOTIONS TO BE MOVED ON CONSIDERATION OF COMMONS AMENDMENTS AND REASONS
[The page and line refer to HL Bill 92 as first printed for theLords.]
LORDS AMENDMENT
1 Clause 1, page 1, line 5, after "corporate" insert "with both a chairman and a chief executive"
The Commons disagreed to this amendment for the following reason—
1A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendments Nos. 1 and 176 to 186 to which the Commons have disagreed for the reason numbered 1A.
The amendments would provide for a statutory post of chief executive of the Office of Fair Trading. As originally drafted, the Bill provided for the OFT to consist of a chairman and no fewer than four other members, appointed by the Secretary of State, with the Secretary of State consulting the chairman before appointing any other member. That is a real depersonalisation of consumer and competition regulation. Instead of power being concentrated in the post of Director-General of Fair Trading, it will be vested in a statutory authority with at least five members, including the chairman. We expect the OFT to have a majority of non-executive members. That is an important change.
In our debates on whether the OFT should have a separate chief executive, noble Lords have referred to reports on corporate governance that advocate a separation of those roles. The combined code produced by the Hampel committee in 1998 is the most current of those reports. The code makes it clear from the outset that it is aimed at public listed companies. The OFT will not be a public listed company, nor will it be a commercial organisation. It will have no shareholders. There is no automatic read-across from the code to a public authority such as the OFT. We should not automatically assume that what is right for the private sector is right for all public authorities.
That said, the overriding principle of the code in relation to the roles of chairman and chief executive is to prevent a dominant individual from running a company unfettered by others. The code states:
"There should be a clear division of responsibilities at the head of the company which will ensure a balance of power and authority, such that no one individual has unfettered powers of decision".
It goes on to say:
"Whether the posts of Chairman and Chief Executive are held by different people or the same person, there should be a strong and independent non-executive element on the Board, with a recognised senior member other than the chairman to whom concerns can be conveyed".
By creating a statutory authority with a majority of non-executive members who will collectively be responsible for the OFT's performance, we are already ensuring that one person could not assume a dominant position at the OFT. Because members of the OFT will be appointed by the Secretary of State, following a fair and open competition, it will not be possible for the chairman to appoint a board in his own image that, he feels sure, will automatically support him at every turn. That is real de-personalisation. We envisage that one of the non-executive members of the OFT will be designated as a deputy chairman, to whom concerns can be conveyed and who will fulfil the role of a recognised senior member, as advocated by Hampel.
It is also important to remember that the chairman will be accountable for the OFT's performance to the Public Accounts Committee and the Trade and
532
Industry Select Committee. There will be rigorous accountability and scrutiny of a kind through which public listed companies need not go. As a public body and government department, the OFT will be subject to public law considerations. For example, its decisions could be referred to the Parliamentary Commissioner for Administration—the ombudsman—and/or for judicial review. Companies are not subject to such restraints.
The OFT's particular circumstances have been critical to our decision not to separate the roles of chairman and chief executive at this time. The Secretary of State will appoint John Vickers as chairman of the OFT for the remainder of his term as Director-General of Fair Trading. That honours the commitment that the Government made to him when he was appointed to that post. John Vickers will work together with the other members of the OFT to lead the organisation.
Given John Vickers's position, and in order to provide for an important degree of continuity through this period of great change, the OFT should not separate the roles of chairman and chief executive at this time. However, I emphasise that that does not mean that the OFT will never be able to have a chief executive. If, at any time, the OFT wishes to create such a post, it can do so and select the appointee. The Bill leaves open that possibility. I shall repeat a commitment given by my honourable friend the Parliamentary Under-Secretary of State for Competition, Consumers and Markets in the other place on 30th October. My honourable friend said that she envisaged that the arrangements at the top of the OFT would be considered again when John Vickers retired in 2005, in order to establish whether they would still be appropriate after that time. So. we are making it clear that what is appropriate now for the OFT may not necessarily be appropriate in the future.
Your Lordships' amendments would create a post of chief executive appointed by the Secretary of State. In contrast, the approach that we propose would allow the OFT itself to appoint a separate chief executive in the future. That is consistent with the approach taken towards the OFT throughout the Bill and with the approach adopted for other regulators. The chief executive of Postcomm is appointed by the chairman. who is a Secretary of State appointment, and the chief executive of Ofcom will be appointed by the board. It would not be appropriate to create a statutory post of chief executive of the OFT in the Bill, for the reasons that I have given.
The House has now played its role of making the other place think again about the matter. On 30th October, it did just that and the elected Chamber did, of course, confirm its view. For all those reasons and in view of the reassurance given by my honourable friend the Minister for Competition, Consumers and Markets in the other place, which I am happy to repeat in this House this evening—she envisages that the arrangements at the top of the OFT will be considered upon John Vickers's retirement in 2005—I beg to move.

533
Moved, That the House do not insist on their Amendments Nos. 1 and 176 to 186 to which the Commons have disagreed for the reason numbered 1A.—(Lord Sainsbury of Turville.)
MOTION MOVED ON CONSIDERATION OF COMMONS EASON NO.1A
1B Lord Hunt of Wirral rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason Number. IA, leave out "not".
The noble Lord said: My Lords, the Minister and his colleagues have underestimated the widespread concern that exists on the question of who regulates the regulators. I refer not just to the newly-created Office of Fair Trading, because I have received several representations from others affected by regulators, including David Green, the director of the Combined Heat and Power Association, in respect of Ofgem.
One way to meet that widespread concern would be to ensure that corporate bodies such as the OFT, created by the Bill, had a separate chairman and chief executive. As Melanie Johnson said in the other place last week, there are two separate roles: they should be carried out by two separate people. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A, leave out "not".—(Lord Hunt of Wirral. )
6.30 p.m.
Lord Borrie: My Lords, this House is often and very rightly concerned when Ministers take powers to themselves in a Bill that are more appropriate for Parliament—for example, the wide legislative powers in so-called Henry VIII clauses.
Your Lordships will recall that only last week there was a major controversy on that score on Second Reading of the Nationality, Immigration and Asylum Bill. This amendment—passed by your Lordships on Third Reading and disagreed with by the other place—does the opposite. It seeks to give Parliament power that is more appropriate to the executive, in terms of either the Government or the government agency concerned. The amendment passed in this House on Third Reading sought to compel Ministers to appoint two persons to head the Office of Fair Trading—one as chairman and the other as chief executive.
The Bill as originally drafted and to which the Government amendment proposes a return was more flexible in setting up the new corporate body, the Office of Fair Trading, to replace the original Fair Trading Act position of the Director-General of Fair Trading. The Bill as it originally stood meant that there would be a chairman and at least four other persons appointed by the Secretary of State. The Government said openly and in the advertisement for non-executive directors, which has been referred to many times, that they wanted to appoint the present
534
Director-General of Fair Trading, John Vickers, as both chairman and chief executive for the remainder of his five-year term.
Thereafter, it would be possible—my noble friend the Minister repeated this today—to separate the two roles or not as thought best at the time, in 2005 or whenever. The amendment passed by this House wants an inflexible rule that the roles be separated embodied in legislation. That, to my mind, is Parliament engaging in unduly detailed and prescriptive legislation.
The emphasis placed by spokesmen for Her Majesty's Loyal Opposition on corporate governance for public listed companies was rather beside the point. In any case, as they did not admit in the course of debate, the rules such as they are—recommendations as they really are in the combined code for plcs—are not embodied in legislation. It is only a code of practice. Nobody can deny that several public limited companies considering their own circumstances—rightly or wrongly you may think—have combined the offices of chairman and chief executive or, increasingly, have separated them.
It is important that the board of the Office of Fair Trading and for that matter of all regulators should be adequately accountable for its work. The question of who regulates the regulators has been put in relation to this debate in both Houses and it is a perfectly valid question.
Who will regulate the Office of Fair Trading under the Bill? There is a very long list and I will not try to make a comprehensive one. It will be accountable in various ways and in various circumstances to the courts, the parliamentary ombudsman, through its annual plan and report to the Public Accounts Committee, and to Select Committees. There are references to and appeals to the Competition Commission and Competition Appeals Tribunal. For its budget, it is accountable to the Treasury. In the graphic phrase of Melanie Johnson, my honourable friend the Minister in another place, there are also the mad and bad provisions whereby the Secretary of State can dismiss members of the board for incapacity or misbehaviour.
There are, very properly, numerous ways in which the Office of Fair Trading and its board will be accountable under the Bill. The inflexible approach of Her Majesty's Opposition in desiring to insist and compel by law that there be two people, as it were, at the top of the Office of Fair Trading is prescription by legislation too far.
Lord Hodgson of Astley Abbotts: My Lords, I rise briefly to support my noble friend. This issue has been widely discussed and forked over at least twice before in this House, so I do not wish to go through the corporate governance arguments. Nor do I wish to go through the question of the separate roles of the chairman and chief executive—about which the noble Lord, Lord Marsh, made a powerful speech the last time we discussed it.

535
The Government's argument seems twofold. First, the argument that the Minister puts forward is that the Bill does not prohibit a separation of the two roles. It merely does not make a separation mandatory. When one creates a body as powerful as this, permitting the two roles to be held by one person, there has to be the danger that it becomes established practice. Furthermore, it is very unlikely that a person having taken up this role will want to give up half his particular task. Listening to the Minister today, it seems to me that we are really doing this to get the Government off the hook over a commitment made to John Vickers.
The second argument advanced by the noble Lord, Lord Borrie, is that there is no read-across between the plc sector and these types of regulatory bodies. The noble Lord has a good point. Read-across does not necessarily occur but can occur. I draw the Minister's attention to a recent report, Private Action, Public Benefit—a review of charities and the wider not-for-profit sector produced by the Strategy Unit in September.
Chapter 7 suggests the establishment of a new, more powerful Charity Commission to oversee that huge slice of British public life. Chapter 7.64 talks about governance and the dangers of a small board. Some of the arguments made earlier about the size of the board are addressed in a very direct way:
"A small board…has the advantage of manageability and ease of decision-making, but is open to the accusation that it is narrowly focused and that the interests of some groups of stakeholders arc not fully represented in discussions".
The real point is at paragraph 7.66:
"The Chief Commissioner is currently both Chair and Chief Executive of the Commission…With the…higher public profile that the Commission is to adopt, there is a strong case for introducing separate Chair and Chief Executive posts. The Chair's particular role would be in ensuring good corporate governance and the smooth functioning of the enlarged board, and in representing the Commission in public and at high level within Government and the charitable sector".
I could not have put the argument better myself.
The Government, by sticking obstinately to their position, are flying in the face of good practice in the private sector. It is also clear from the Strategy Unit report produced by the Government that, when governing a non-statutory body, they believe that the roles should he split as part of the way forward. In those circumstances, I do not see how the Government can object to my noble friend's amendment.
Lord Razzall: My Lords, as the Minister will understand, I rise to indicate the complete agreement of noble Lords on these Benches with the amendment moved by the noble Lord, Lord Hunt. I have two small points to make. First, on Third Reading I raised the analogy of the BBC. I was not then persuaded by the Minister's response. I am sure that noble Lords recognise the outrage that would be expressed at any suggestion that Mr Greg Dyke should be both chairman and chief executive of the BBC.
The Minister's argument—namely, that the BBC is a trading entity with large commercial interests—is not the point: the BBC is clearly a public body. We believe
536
that public bodies appropriately have both a chairman and a chief executive. Secondly, unlike his predecessor, the noble Lord, Lord Borrie, it appears from an article in yesterday's Sunday Telegraph that Mr John Vickers agrees with us.
Lord Sainsbury of Turville: My Lords, before the noble Lord sits down, perhaps I may correct him on his latter point. I believe that John Vickers was wrongly reported in the Sunday Telegraph. His view is that what goes into this Bill is a matter for Parliament. He rightly, therefore, does not wish his own views to he brought into the debate. I can assure the House that the Government appointed John Vickers as head of the OFT as executive chairman for a period of five years. That is the post that John Vickers accepted, and that is the position that he hopes to continue to carry out. His views were not correctly reported.
Lord Hunt of Wirral: My Lords, this has been a useful debate, but it has taken place over well-trodden ground. I wish to press my amendment.
The Deputy Speaker: My Lords, the original Question was that this House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1 A, since when an amendment has been moved to leave out "not". The question is that this amendment be agreed to.
6.41 p.m.
On Question, Whether the said amendment (No. 1 B) shall be agreed to?
Their Lordships divided: Contents, 148; Not-Contents, 136.

Division No. 5

CONTENTS

Addington, L.

Chalker of Wallasey, B.

Alderdice, L.

Chester, Bp.

Allenby of Megiddo, V.

Colwyn, L.

Alton of Liverpool, L.

Cope of Berkeley, L. [Teller]

Anelay of St Johns, B.

Craig of Radley, L.

Arm, E.

Craigavon, V.

Astor, V.

Deedes, L.

Astor of Hever, L.

Denham, L.

Attlee, E.

Dholakia, L.

Avebury, L.

Dixon-Smith, L.

Barker, B.

Elles, B.

Beaumont of Whitley, L.

Elliott of Morpeth, L.

Biffen, L.

Elton, L.

Blatch, B.

Feam, L.

Boardman, L.

Ferrers, E.

Bowness, L.

Fookes, B.

Brabazon of Tara, L.

Freeman, L.

Bradshaw, L.

Gardner of Parkes, B.

Bridgeman, V.

Glentoran, L.

Brittan of Spennithome, L.

Goodhart, L.

Brooke of Sutton Mandeville, L.

Goschen, V.

Brougham and Vaux, L.

Greaves, L.

Burnham, L.

Greenway, L.

Buscombe, B.

Hamwee, B.

Byford, B.

Harris of Richmond, B.

Carnegy of Lour, B.

Henley, L.

Chalfont, L.

Higgins, L.

537

Hodgson of Astley Abbotts, L.

Perry of Southwark, B.

Hooson, L.

Perry of Walton, L.

Howe, E.

Phillips of Sudbury, L.

Howe of Aberavon, L.

Pilkington of Oxenford, L.

Howe of Idlicote, B.

Plumb, L.

Hunt of Wirral, L.

Prior, L.

Jacobs, L.

Rawlings, B.

Jenkin of Roding, L.

Rawlinson of Ewell, L.

Jopling, L.

Razzall, L.

Kimball, L.

Reay, L.

Kingsland, L.

Redesdale, L.

Laing of Dunphail, L.

Rennard, L.

Lang of Monkton, L.

Renton, L.

Lester of Herne Hill, L.

Roberts of Conwy, L.

Lindsay, E.

Rodgers of Quarry Bank, L.

Liverpool, E.

Roper, L.

Livsey of Talgarth, L.

Rotherwick, L.

Luke, L.

Russell, E.

Lyell, L.

Russell-Johnston, L.

MacGregor of Pulham Market, L.

Saatchi, L.

St John of Fawsley, L.

Mackie of Benshie, L.

Scott of Needham Market, B.

McNally, L.

Seccombe, B. [Teller]

Maddock, B.

Selborne, E.

Mancroft, L.

Selsdon, L.

Mar, C.

Sharman, L.

Mar and Kellie, E.

Sharp of Guildford, B.

Marlesford, L.

Sharples, B.

Mayhew of Twysden, L.

Shaw of Northstead, L.

Michie of Gallanach, B.

Shutt of Greetland, L.

Monro of Langholm, L.

Smith of Clifton, L.

Monson, L.

Stewartby, L.

Montagu of Beaulieu, L.

Swinfen, L.

Mowbray and Stourton, L.

Thatcher, B.

Moynihan, L.

Thomas of Gresford, L.

Murton of Lindisfame, L.

Thomas of Walliswood, B.

Naseby, L.

Thomson of Monifieth, L.

Newby, L.

Trefgame, L.

Newton of Braintree, L.

Trumpington, B.

Noakes, B.

Vinson, L.

Northbrook, L.

Waddington, L.

Northover, B.

Wakeham, L.

O'Cathain, B.

Wallace of Saltaire, L.

Oakeshott of Seagrove Bay, L.

Walmsley, B.

Onslow, E.

Watson of Richmond, L.

Park of Monmouth, B.

Wilcox, B.

Peel, E.

Williams of Crosby, B.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Clark of Windermere, L.

Ahmed, L.

Clarke of Hampstead, L.

Alli, L.

Clinton-Davis, L.

Amos, B.

Cohen of Pimlico, B.

Andrews, B.

Corbett of Castle Vale, L.

Archer of Sandwell, L.

Crawley, B.

Ashton of Upholland, B.

Darcy de Knayth, B.

Bach, L.

David, B.

Bassam of Brighton, L.

Davies of Coity, L.

Berkeley, L.

Davies of Oldham, L.

Bernstein of Craigweil, L.

Desai, L.

Billingham, B.

Dixon, L.

Boothroyd, B.

Donoughue, L.

Borrie, L.

Dormand of Easington, L.

Bragg, L.

Dubs, L.

Brennan, L.

Eatwell, L.

Brett, L.

Elder, L.

Brooke of Alverthorpe, L.

Evans of Parkside, L.

Brookman, L.

Evans of Temple Guiting, L.

Burlison, L.

Evans of Watford, L.

Burns, L.

Farrington of Ribbleton, B.

Campbell-Savours, L.

Faulkner of Worcester, L.

Carter, L.

Filkin, L.

Chandos, V.

Gale, B.

Christopher, L.

Gavron, L.

538

Gibson of Market Rasen, B.

Milner of Leeds, L.

Goldsmith, L.

Mitchell, L.

Gordon of Strathblane, L.

Morgan, L.

Goudie, B.

Morgan of Huyton, B.

Gould of Potternewton, B.

Morris of Aberavon, L.

Graham of Edmonton, L.

Moser, L.

Grenfell, L.

O'Neill of Bengarve, B.

Grocott, L. [Teller]

Orme, L.

Hannay of Chiswick, L.

Patel of Blackburn, L.

Hardy of Wath, L.

Pendry, L.

Harris of Haringey, L.

Pitkeathley, B.

Harrison, L.

Prys-Davies, L.

Haskel, L.

Puttnam, L.

Hayman, B.

Ramsay of Cartvale, B.

Hilton of Eggardon, B.

Rendell of Babergh, B.

Hogg of Cumbemauld, L.

Richard, L.

Hollis of Heigham, B.

Sainsbury of Turville, L.

Howells of St. Davids, B.

St. John of Bletso, L.

Howie of Troon, L.

Sawyer, L.

Hoyle, L.

Scotland of Asthal, B.

Hughes of Woodside, L.

Sheldon, L.

Hunt of Kings Heath, L.

Simon, V.

Irvine of Lairg, L. (Lord Chancellor)

Smith of Leigh, L.

Stoddart of Swindon, L.

Islwyn, L.

Stone of Blackheath, L.

Janner of Braunstone, L.

Symons of Vernham Dean, B.

Jay of Paddington, B.

Taylor of Blackburn, L.

Jones, L.

Temple-Morris, L.

Jordan, L.

Thornton, B.

Judd, L.

Tomlinson, L.

King of West Bromwich, L.

Turnberg, L.

Kirkhill, L.

Turner of Camden, B.

Layard, L.

Varley, L.

Lea of Crondall, L.

Walker of Doncaster, L.

Lofthouse of Pontefract, L.

Warner, L.

Macdonald of Tradeston, L.

Warwick of Undercliffe, B.

McIntosh of Haringey, L. [Teller]

Weatherill, L.

Wedderburn of Charlton, L.

MacKenzie of Culkein, L.

Whitaker, B.

Mackenzie of Framwellgate, L.

Whitty, L.

Mallalieu, B.

Wilkins, B.

Masham of Ilton, B.

Williams of Elvel, L.

Massey of Darwen, B.

Williams of Mostyn, L. (Lord Privy Seal)

Merlyn-Rees, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.52 p.m.
LORDS AMENDMENT
2 Page 1, line 8, at end insert—
"(4) In managing its affairs the OFT must have regard to the generally accepted principles of good corporate governance."
The Commons agreed to this amendment with the following amendment—
2A Line 2, leave out from "OFT" to end of line 3 and insert "shall have regard—
to such general guidance concerning the management of the affairs of public bodies as the OFT considers appropriate;
subject to any such guidance and only to the extent that they may reasonably be regarded as applicable in relation to a statutory corporation, to generally accepted principles of good corporate governance."
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 2, but do instead agree with the Commons in their Amendment No. 2A.

539
Amendment No. 2A accepts the principle of the Lords amendment, that the OFT should have regard to the generally accepted principles of good corporate governance in its affairs. However, the Commons amendment makes two important changes. First, it ensures that the OFT should have an overriding regard for general guidance concerning the management of the affairs of public bodies. Secondly, it ensures that the OFT will have regard only to the principles of good corporate governance which may be reasonably regarded as being applicable to it. Perhaps I may deal with each of these.
Your Lordships' amendment would not allow the OFT to take prior account of guidance specifically aimed at public bodies. I am not surprised that the Conservatives are unable to understand this distinction, but I find it amazing that the Liberal Democrats should be unable to understand that a public body should take account of public concerns. The OFT will not be a company, and it cannot be right that principles aimed at such companies should take precedence for the OFT over guidance, rules and procedures for public bodies; for example, Treasury rules on public accounting. Additionally, the management of the government department of the OFT will be subject to public law considerations; for example, its decisions could be referred to the Parliamentary Commissioner for Administration—the Ombudsman—and/or for judicial review. Companies are not subject to those restraints.
Secondly, many of the principles of good corporate governance are aimed at business practices which do not have obvious equivalents in government. The OFT will he a non-ministerial government department—a public body—not a company or commercial organisation. Perhaps I may give some examples to illustrate how corporate governance principles do not necessarily relate to public bodies.
The code contains a section devoted to relations with shareholders covering the dialogue between the company and institutional shareholders, the use of annual general meetings and the counting of votes at such meetings. The OFT has no shareholders and so the section is irrelevant to it.
The code also recommends that all directors should be subject to election by shareholders at the first opportunity after their appointment and to re-election thereafter at intervals of no more than three years. Again, I make the point that OFT has no shareholders. Non-executive appointments to the OFT will be for specified terms of no more than five years under the Bill and will be made following Nolan procedures. Under these procedures, reappointment is a matter for Ministers following an assessment of the performance of the non-executive and second reappointments are not normally permitted.
So a quite different system of checks is in place for appointments to the OFT than would apply for a listed company. Another section of the code is concerned with directors' remuneration; both the policy of performance-related pay and the mechanics of remuneration committees. Again, the practice in
540
public bodies is subject to different checks. The salaries of non-executive members of the OFT will be determined by the Secretary of State, while any civil servants serving as executive members of the OFT will have the salary determined in the usual way for OFT civil servants.
I believe that Commons Amendment No. 2A reflects the will of this House that the OFT should have regard to the principles of good corporate governance, but achieves this in a way which is fully appropriate to the OFT as a public body. To revert to your Lordships' amendment would be to impose a set of principles on the OFT which are not entirely relevant to a public body and which do not recognise the existence of other guidance and procedures directed at public authorities. I do not think that would be right. I beg to move.
Moved, That the House do not insist on their Amendment No. 2, but do instead agree with the Commons in their Amendment No. 2A.—(Lord Sainsbury of Turville.)
LORDS AMENDMENT
2 Page 1, line 8, at end insert—
"(4) In managing its affairs the OFT must have regard to the generally accepted principles of good corporate governance."
2B Lord Hunt of Wirral rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment 2A, leave out from "House" to the end and insert "do disagree with the Commons in their Amendment 2A, and do insist on Lords Amendment 2".
The noble Lord said: My Lords, in moving Amendment No. 2B I point out to the Minister that the amendment originally agreed to in this House was taken directly from the Government's own words in the Financial Services and Markets Act. The Government's amendment asked the Financial Services Authority to have,
"regard to the generally accepted principles of good corporate governance".
That is a direct read-across to this position. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2A, leave out from "House" to the end and insert "do disagree with the Commons in their Amendment No. 2A, and do insist on Lords Amendment No. 2".—(Lord Hunt of Wirral.)
Lord Sharman: My Lords, I strongly support the amendment moved by the noble Lord, Lord Hunt. I was present for the majority of the debate on this issue at the time the Financial Services and Markets Bill was before your Lordships' House. The amendment previously accepted here says "have regard to". That is not the same as "must adhere to". To have regard to is to take into account. It was evident to me from the time I looked at audit and accountability in central government that elements of generally accepted corporate governance do indeed read across.
6.59 p.m
On Question, Whether the said amendment (No. 2B) shall be agreed to?
Their Lordships divided: Contents, 147; Not-Contents, 129.

Division No.6

CONTENTS

Addington, L.

Kingsland, L.

Alderdice, L.

Laing of Dunphail, L.

Allenby of Megiddo, V.

Lindsay, E.

Alton of Liverpool, L.

Liverpool, E.

Anelay of St Johns, B.

Livsey of Talgarth, L.

Arran, E.

Luke, L.

Astor, V.

Lyell, L.

Astor of Hever, L.

MacGregor of Pulham Market, L.

Attlee, E.

Avebury, L.

Mackie of Benshie, L.

Barker, B.

McNally, L.

Beaumont of Whitley, L.

Maddock, B.

Blatch, B.

Mancroft, L.

Boardman, L.

Mar, C.

Bowness, L.

Mar and Kellie, E.

Brabazon of Tara, L.

Marlesford, L.

Bradshaw, L.

Mayhew of Twysden, L.

Bridgeman, V.

Michie of Gallanach, B.

Brittan of Spennithome, L.

Monro of Langholm, L.

Brooke of Sutton Mandeville, L.

Monson, L.

Brougham and Vaux, L.

Montagu of Beaulieu, L.

Burnham, L.

Mowbray and Stourton, L.

Burns, L.

Moynihan, L.

Buscombe, B.

Murton of Lindisfarne, L.

Byford, B.

Naseby, L.

Carnegy of Lour, B.

Newby, L.

Chalfont, L.

Newton of Braintree, L.

Chalker of Wallasey, B.

Noakes, B.

Colwyn, L.

Northbrook, L.

Cope of Berkeley, L. [Teller]

Northover, B.

Courtown, E.

O'Cathain, B.

Craig of Radley, L.

Oakeshott of Seagrove Bay, L.

Craigavon, V.

Onslow, E.

Deedes, L.

Park of Monmouth, B.

Dholakia, L.

Peel, E.

Dixon-Smith, L.

Perry of Southwark, B.

Elles, B.

Perry of Walton, L.

Elliott of Morpeth, L.

Phillips of Sudbury, L.

Elton, L.

Pilkington of Oxenford, L.

Feam, L.

Plumb, L.

Ferrers, E.

Prior, L.

Fookes, B.

Rawlings, B.

Freeman, L.

Rawlinson of Ewell, L.

Gardner of Parkes, B.

Razzall, L.

Glentoran, L.

Reay, L.

Goodhart, L.

Redesdale, L.

Goschen, V.

Rennard, L.

Greaves, L.

Renton, L.

Greenway, L.

Roberts of Convey, L.

Hamwee, B.

Rodgers of Quarry Bank, L.

Harris of Richmond, B.

Roper, L.

Henley, L.

Rotherwick, L.

Higgins, L.

Russell, E.

Hodgson of Astley Abbotts, L.

Russell-Johnston, L.

Hooson, L.

Saatchi, L.

Howe, E.

St John of Fawsley, L.

Howe of Aberavon, L.

Scott of Needham Market, B.

Howe of Idlicote, B.

Seccombe, B. [Teller]

Hunt of Wirral, L.

Selborne, E.

Jacobs, L.

Selsdon, L.

Jenkin of Roding L.

Sharman, L.

Jopling, L.

Sharp of Guildford, B.

Kimball, L.

Sharples, B.

542

Shaw of Northstead, L.

Trumpington, B.

Shutt of Greetland, L.

Vinson, L.

Smith of Clifton, L.

Waddington, L.

Stewartby, L.

Wakeham, L.

Swinfen, L.

Wallace of Saltaire, L.

Taylor of Warwick, L.

Walmsley, B.

Thomas of Gresford, L.

Watson of Richmond, L.

Thomas of Swynnerton, L.

Wilcox, B.

Thomas of Walliswood, B.

Williams of Crosby, B.

Thomson of Monifieth, L.

Williamson of Horton, L.

Trefgarne, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Haskel, L.

Ahmed, L.

Hayman, B.

Alli, L.

Hilton of Eggardon, B.

Amos, B.

Hogg of Cumbemauld, L.

Andrews, B.

Hollis of Heigham, B.

Archer of Sandwell, L.

Howells of St. Davids, B.

Ashton of Upholland, B.

Howie of Troon, L.

Bach, L.

Hoyle, L.

Bassam of Brighton, L.

Hughes of Woodside, L.

Berkeley, L.

Hunt of Kings Heath, L.

Bernstein of Craigweil, L.

Irvine of Lairg, L. (Lord Chancellor)

Billingham, B.

Boothroyd, B.

Islwyn, L.

Borrie, L.

Janner of Braunstone, L.

Bragg, L.

Jay of Paddington, B.

Brennan, L.

Jones, L.

Brett, L.

Jordan, L.

Brooke of Alverthorpe, L.

Judd, L.

Brookman, L.

King of West Bromwich, L.

Brooks of Tremorfa, L.

Kirkhill, L.

Burlison, L.

Layard, L.

Campbell-Savours, L.

Lea of Crondall, L.

Carter, L.

Lofthouse of Pontefract, L.

Chandos, V.

Macdonald of Tradeston, L.

Chester, Bp.

McIntosh of Haringey, L.[Teller]

Christopher, L.

Clark of Windermere, L.

MacKenzie of Culkein, L.

Clarke of Hampstead, L.

Mackenzie of Framwellgate, L.

Clinton-Davis, L.

Mallalieu, B.

Cohen of Pimlico, B.

Masham of Eton, B.

Corbett of Castle Vale, L.

Massey of Darwen, B.

Crawley, B.

Milner of Leeds, L.

Darcy de Knayth, B.

Mitchell, L.

David, B.

Morgan, L.

Davies of Coity, L.

Morgan of Huyton, B.

Davies of Oldham, L.

Morris of Aberavon, L.

Desai, L.

Moser, L.

Dixon, L.

O'Neill of Bengarve, B.

Donoughue, L.

Orme, L.

Dormand of Easington, L.

Patel of Blackburn, L.

Dubs, L.

Pendry, L.

Eatwell, L.

Pitkeathley, B.

Elder, L.

Prys-Davies, L.

Evans of Parkside, L.

Ramsay of Cartvale, B.

Evans of Watford, L.

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Richard, L.

Faulkner of Worcester, L.

Sainsbury of Turville, L.

Filkin, L.

Sawyer, L.

Gale, B.

Scotland of Asthal, B.

Gavron, L.

Simon, V.

Gibson of Market Rasen, B.

Smith of Leigh, L.

Goldsmith, L.

Stoddart of Swindon, L.

Gordon of Strathblane, L.

Stone of Blackheath, L.

Goudie, B.

Strange, B.

Gould of Potternewton, B.

Symons of Vemham Dean, B.

Graham of Edmonton, L.

Taylor of Blackburn, L.

Grenfell, L.

Temple-Morris, L.

Grocott, L. [Teller]

Thornton, B.

Hannay of Chiswick, L.

Tomlinson, L.

Hardy of Wath, L.

Turnberg, L.

Harris of Haringey, L.

Turner of Camden, B.

Harrison, L.

Varley, L.

543

Walker of Doncaster, L.

Williams of Elvel, L.

Warwick of Undercliffe, B.

Williams of Mostyn, L. (Lord Privy Seal)

Whitaker, B.

Whitty, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.9 p.m.
LORDS AMENDMENT
After Clause 16, insert the following new clause—
7 "Tribunal: regulations
(1) The Lord Chancellor and the Secretary of State may together make regulations—
empowering the courts to transfer to the Tribunal for determination by it any issue arising in any civil proceedings the determination of which depends on whether provisions of Chapter I or II of the 1998 Act or of Article 81 or 82 of the Treaty have been infringed where, in the opinion of the court making the transfer, the transfer would he conducive to the efficient conduct of the proceedings;
making any rules that the Lord Chancellor and the Secretary of State may deem to be appropriate as ancillary to the power to make such transfers or to be reasonably required in connection therewith and in particular, but without prejudice to the generality of the foregoing, to the effect that—
on making such a transfer, the court making the transfer may state facts that the Tribunal shall then treat as established for the purposes of determining the issues transferred to it;
after having made its determination, the Tribunal shall remit the matter to the court that made the transfer to it, declaring the determination of that issue by the Tribunal, which, subject to any clarification or amplification by the Tribunal of its determination that may be requested by the court that made the transfer, shall then be treated as a determination of that issue by that court;
enabling courts that have made, or have in contemplation the making of, such transfers and the Tribunal to cooperate together in any way that they deem to be appropriate to enable issues arising in the proceedings before then to be determined as efficiently as possible.
(2) The Lord Chancellor may appoint as president and as chairman of the Tribunal judges of any of the courts provided that, before appointing a judge of the Court of Session or sheriff courts under this subsection, the Lord Chancellor shall first consult the Lord President of the Court of Session.
(3) In this section references to "the courts" are to the High Court of Justice and the county courts in England and Wales and Northern Ireland and the Court of Session and the sheriff courts in Scotland.
(4) The power to make regulations under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."
The Commons disagreed to this amendment but proposed the following amendment in lieu thereof—
7A "After Clause 15
Transfers of certain proceedings to Tribunal
The Lord Chancellor may by regulations—
make provision enabling the court—
to transfer to the Tribunal for its determination so much of any proceedings before the court as relates to an infringement issue; and
to give effect to the determination of that issue by the Tribunal; and
make such incidental, supplementary, consequential, transitional or saving provision as the Lord Chancellor may consider appropriate.
(2) The power to make regulations under subsection (1) is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(3) Rules of court may prescribe the procedure to be followed in connection with a transfer mentioned in subsection (1).
(4) The court may transfer to the Tribunal, in accordance with rules of court, so much of any proceedings before it as relates to a claim to which section 47A of the 1998 Act applies.
(5) Rules of court may make provision in connection with the transfer from the Tribunal to the High Court or the Court of Session of a claim made in proceedings under section 47A of the 1998 Act.
(6) In this section—"the court" means—

(a) the High Court or a county court; or

(b) the Court of Session or a sheriff court; and"infringement issue" means any question relating to whether or not an infringement of—

(a) the Chapter I prohibition or the Chapter II prohibition; or

(b) Article 81 or 82 of the Treaty,has been or is being committed;but otherwise any terms used in this section and Part 1 of the 1998 Act have the same meaning as they have in that Part."

Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendments Nos. 7 and 209 to which the Commons have disagreed but do agree with the Commons in their Amendments Nos. 7A and 209A.
Amendment No. 7 would give the Secretary of State and the Lord Chancellor a power to make regulations allowing the courts to transfer to the Competition Appeal Tribunal issues arising in civil proceedings that require a determination of whether there has been an infringement of competition law. This House debated the merits of providing a specific power in the Bill in Committee, on Report and again at Third Reading. My noble friend Lord McIntosh and I expressed the view that such a power was unnecessary and that the courts should and would be capable of building up the necessary expertise to determine competition law matters arising in civil proceedings.
However, we recognised the strong views expressed on the matter by noble Lords and by others in the competition law community that an explicit power should be provided in the Bill to allow regulations to be made allowing the courts to transfer competition law matters to the CAT.
On reflection, we now agree that an amendment along the lines of Amendment No. 7 would represent prudent future proofing and should be made. If the

545
proponents of the amendment are right and the courts are now not able to handle competition issues efficiently and effectively, then specific powers will be there to allow matters to be transferred. If the Government are right, the powers need never be used.
There are, however, some technical shortcomings with Amendment No. 7 as currently drafted. That is why we propose to replace it with Amendments Nos. 7A and 209A in lieu of Lords amendments. Perhaps I may highlight the main changes.
First, the redraft provides that the Lord Chancellor alone would exercise the power to make regulations rather than jointly with the Secretary of State. There is no particular significance to this change. It is simply more appropriate for the Lord Chancellor to have sole responsibility for this kind of matter in what is a reserved area. Secondly, the amendment in lieu refers not only to the regulation-making power, but also makes it clear that rules of court may be made in connection with a transfer. Thirdly, the amendment removes the power for the Lord Chancellor to appoint judges directly to the key positions on the CAT. I believe that it was widely accepted that this power was not needed. The power exists already in other legislation and is therefore unnecessary. To reinstate it here would cut across the policy of the Lord Chancellor's Department—a policy which is widely supported—that all appointments to tribunals should be by way of open competition.
Finally, the second amendment in lieu, Amendment No. 209A, makes a corresponding adjustment to the scope of the tribunal rules so that it may make provisions in connection with the transfer of proceedings from a court. Amendment No. 209, which was a government amendment, is superseded by the amendments in lieu. I believe that these amendments in lieu improve on the original amendment. That was certainly the view when they were debated in another place. I commend them to the House.
Moved, That the House do not insist on their Amendment No. 7 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 7A in lieu thereof.—(Lord Sainsbury of Turville.)
Lord Kingsland: My Lords, I am most grateful to the Minister for explaining the amendment in lieu. I accept entirely that, in some respects, it is an improvement on our own. In any case, it appears to me to reflect the intention of Lords Amendment No. 7. In those circumstances, for our part we are extremely happy to accept the noble Lord's proposal.
Lord Borrie: My Lords, I congratulate the Government on proposing in the other place an amendment to replace the one passed at Third Reading in this House on the initiative of the Opposition parties.
At Third Reading, I expressed the belief that there was merit in the Opposition amendment enabling High Court judges to transfer cases to the Competition
546
Appeal Tribunal when the greater expertise of that body in competition law suggested that such transfer would be sensible.
No one expressed a desire at Third Reading, nor has anyone done so now, to compel such transfer, or even to compel the Government to introduce regulations to make such transfer possible. However, the Government clearly recognise that such power could be valuable, especially when—as the Liberal Democrats pointed out—following implementation of the so-called modernisation project that is likely in 2004, more civil cases will come from the European jurisdiction to the UK jurisdiction.
Government Amendment No. 7A is an improvement on the one passed by this House, in part because it leaves out the unnecessary power regarding the appointment of judges.
Lord Bradshaw: My Lords, we on these Benches are content with the amendment in lieu. We are grateful to the Minister for explaining the differences between the two. We support the government amendment.
On Question, Motion agreed to.
LORDS AMENDMENT
20 Clause 22, page 12, line 4, leave out "£45 million" and insert "£100 million"
The Commons agreed to this amendment with the following amendment—
20A Line 1, leave out "£100 million" and insert "£70 million"
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 20 but do agree with the Commons in their Amendment No. 20A.
Amendment No. 20A replaces the £100 million turnover threshold for mergers with a figure of £70 million. This amends the change made in this House which replaced the Bill's original threshold of £45 million with a figure of £100 million.
The turnover threshold is one of two jurisdictional tests which make a merger eligible for investigation by the Office of Fair Trading. The other is where a merger would create or enhance the 25 per cent share of supply.
It is important to emphasise at the outset that these are eligibility thresholds only. If a merger involves the acquisition of a business with a UK turnover above the relevant threshold, the OFT is entitled to inquire into it. It does not mean that the merger will be referred or blocked. It simply means that the OFT can consider whether the merger raises sufficient competition concerns to justify a reference.
The great majority of qualifying mergers are not subject to any further action by the competition authorities, but it is important that they can be assessed. The purpose of the threshold is to strike a balance between excessive and necessary regulation. It should ensure that mergers of real concern are capable of examination while avoiding interference with cases of no material competition concern. Getting the levels right is necessarily a matter of judgment. The turnover

547
threshold replaces the existing assets threshold. There is wide support for that. Turnover is generally a more reliable indicator of the economic significance of a merger.
We have said all along that our goal in setting the level of the new threshold is to bring within the scope of the merger regime broadly the same number of companies as would currently qualify under the assets test were they to be involved in a merger. Our research indicated that a level of £45 million would have a neutral effect in this regard. However, we acknowledge that this is not an exact science and that the CBI has come up with different figures.
It is very difficult to achieve a direct comparison between a world-wide assets threshold and a UK turnover threshold. We are not comparing like with like. We also do not know whether companies that will be brought within the scope of the merger regime on the basis of turnover have a greater or lesser propensity to engage in merger activity than those caught by the assets threshold. This could affect the number of mergers that the OFT will be able to look at. We are conscious, too, that the assets threshold of £70 million has not been adjusted since 1994. Although we had no plans to do so, a review of that figure might have been appropriate before long.
We recognise that it would be unfortunate if the new regime unintentionally caught too many cases. In the light of these considerations and the arguments that have been made for a higher figure in this House and elsewhere, we now believe that it would be appropriate to set the turnover figure at £70 million. We believe that this would have a tangible deregulatory effect.
On the basis of the same database, moving to a £70 million threshold would result in a 31.5 per cent reduction in the number of companies that would meet the turnover test. We believe, none the less, that this is unlikely to undermine the pro-competition nature of the Bill to a significant degree.
The Bill, of course, provides powers for the Government to adjust the figure up or down if we have got it wrong. Clause 27(5) requires the OFT to keep the sum under review and to advise the Secretary of State from time to time whether the sum is still appropriate. If experience shows that a significant number of harmful anti-competitive mergers are escaping scrutiny altogether, the Government will have to reduce the threshold to an appropriate level. Conversely, the threshold could be raised if too many harmless mergers were brought within the scope of the regime. We shall need to keep the matter under review and to learn from experience.
I hope that the amendment to the Lords amendment will be acceptable. I commend it to the House.
Moved, That the House do not insist on their Amendment No. 20 but do agree with the Commons in their Amendment No. 20A.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.
LORDS AMENDMENTS
176 Clause 22, page 191, line 5, after "chairman," insert "a chief executive,"
The Commons disagreed to this amendment for the following reason—
176A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
177 page 191, line 7, after "chairman" insert "and the chief executive"
The Commons disagreed to this amendment for the following reason—
177A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
178 Page 191, line 10, after "chairman" insert ", the chief executive,"
The Commons disagreed to this amendment for the following reason—
178A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
179 Page 191, line 12, after "chairman" insert ", the chief executive"
The Commons disagreed to this amendment for the following reason—
179A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
180 Page 191, line 14, after "chairman" insert ", chief executive,"
The Commons disagreed to this amendment for the following reason—
180A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
181 Page 191, line 16, after "chairman" insert ", chief executive"
The Commons disagreed to this amendment for the following reason—
181A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
182 Page 191, line 21, after "chairman" insert ". chief executive"
The Commons disagreed to this amendment for the following reason—
182A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading
183 Page 191, line 22, leave out "either" and insert "any"
The Commons disagreed to this amendment for the following reason—
183A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
184 Page 191, line 23, after "chairman" insert ", chief executive"
The Commons disagreed to this amendment for the following reason—
184A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
185 Page 191, line 29, after "chairman" insert ", chief executive,"
The Commons disagreed to this amendment for the following reason—
185A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
186 Page 191, line 33, after "chairman" insert ", chief executive"
The Commons disagreed to this amendment for the following reason—
186A Because it is inappropriate to make express provision about the chief executive of the Office of Fair Trading.
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendments Nos. 176 to 186 to which the Commons have disagreed for their reasons numbered 176A to 186A.
Moved, That the House do not insist on their Amendments Nos. 176 to 186 to which the Commons have disagreed for their reasons numbered 176A to 186A.—(Lord Sainsbury of Turville.)
Lord Hunt of Wirralrose to move, as an amendment to the Motion that the House do not insist on their Amendments Nos. 176 to 186 to which the Commons have disagreed for their reasons numbered 176A to 186A, leave out "not".
Moved, That the House do not insist on their Amendments Nos. 176 to 186 to which the Commons have disagreed for their reasons numbered 176A to 186A, leave out "not".—(Lord Hunt of Wirral.)
On Question, amendment agreed to.
Motion, as amended, agreed to.
LORDS AMENDMENT
209 Schedule 4, page 205, line 1, leave out from "provision" to ", in" in line 2 and insert "in connection with the transfer of a claim to which section 47A of the 1998 Act applies"
The Commons disagreed to this amendment, but propose the following amendment in lieu thereof—
209A Page 205, line I. leave out paragraph 25 and inser—
"25 Tribunal rules may make provision in connection with the transfer of any proceedings from a court mentioned in paragraph 24 to the Tribunal under section (Transfers of certain proceedings to Tribunal)."
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 209 to which the Commons in their Amendment No. 209A in lieu thereof.
Moved, That the House do not insist on their Amendment No. 209 to which the Commons have disagreed but do agree with the Commons in their Amendment No. 209A in lieu thereof.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

Data Protection (Processing of Sensitive Personal Data) (Elected Representatives)Order 2002
7.21 p.m.
Baroness Scotland of Asthalrose to move, That the draft order laid before the House on 24th July be approved [38th Report from the Joint Committee].
The noble Baroness said: My Lords, the draft order deals with a problem that was drawn to the Government's attention by Members of the other place. They are concerned that the Data Protection Act 1998 prevents them from carrying out their constituency functions properly. There are two related problems, which are different sides of the same coin. The first problem occurs where MPs taking up constituents' cases need to disclose the constituents'
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personal data to, for example, a government department. If the constituents have not expressly authorised the MPs to disclose the constituents' personal data, the Act will normally require them to seek the constituents' explicit consent to the disclosure. The second problem is the mirror image of the first. It occurs where organisations, such as government departments, need to disclose individuals' personal data to MPs who are acting at the request of the individuals. Again, in most cases the individuals' explicit consent must be sought before the disclosure can be made.
It is important to recognise that the Data Protection Act does not have this effect in every case. As required by the 1995 EC Data Protection Directive, to which it gives effect, the Act distinguishes two categories of personal data: sensitive and non-sensitive. Sensitive personal data cover information about race, political opinions, religious beliefs, trade union membership, health, sex life and criminal activity. All other categories of personal data are regarded as non-sensitive for the purposes of the directive and the Act. The problems I have described arise only with sensitive personal data. But your Lordships should bear in mind that when any information, however trivial it may appear, falls into one of the categories of sensitive data, problems are likely to occur.
The Data Protection Act applies to personal information about individuals that is held in electronic form or on certain manual records. It is not the purpose of the Act to prevent the processing of personal data. Its purpose is, rather, to establish good practice rules with which those processing personal data must comply. I fear that the Act uses some technical terms. I should make clear that the term "processing" as used in the Act means doing anything at all with personal data, from collecting them right through to destroying them, including disclosing them and even merely holding them.
Consistent with the directive, one of the Act's requirements is that the processing of personal data must meet one of various general criteria if it is to go ahead. For non-sensitive data, these criteria pose no problems to MPs in dealing with constituency casework. But the Act sets narrower criteria for the processing of sensitive data. It is with these that problems arise. Among the criteria set out in the Act, and in an order already made under it, the only one that is likely to be relevant is that the individual has given his or her explicit consent to the processing.
Acting on the basis of explicit consent is a very strong safeguard for individuals. The best practice will normally be for elected representatives to seek consent. But there are circumstances in which it is neither necessary nor desirable to seek explicit consent. MPs and other elected representatives will be acting on the basis of requests from their constituents. Constituents will expect elected representatives to take the action necessary to deal with their requests. If they have written to their elected representatives asking them to take up a matter with the authorities, they are likely to be surprised and confused to find that the first action is a response from the elected representatives asking

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them to confirm that they may disclose their sensitive personal data. Most will surely have thought they had already given the necessary consent by making a request in the first place.
A requirement of explicit consent may also be harmful to individuals' interests, particularly where urgent action is needed. In one case, which led to the preparation of this draft order, a prisoner asked his MP to find out why he could not be given temporary release to at tend his aunt's funeral. The prison refused to give the MP the information without the prisoner's explicit consent. By the time the consent had been obtained, the funeral had taken place. The draft order would overcome that problem by allowing Members of the other place and all other elected representatives to process sensitive data without having to seek their constituents' explicit consent. I beg to move.
Moved, That the draft order laid before the House on 24th July be approved [38th Report from the Joint Committee].—(Baroness Scotland of Asthal.)
Lord Goodhart: My Lords, the order was welcomed by Members of all parties in the other place because it makes it easier for Members of Parliament and those of other elected bodies, such as the Scottish Parliament and local authorities, to help their constituents. It does not apply to your Lordships' House, which is entirely understandable, because it concerns elected representatives taking action on behalf of their electorate. This House is not elected; therefore, we do not represent anyone. We do not have regular casework.
There are circumstances in which it would be useful for this order to extend to your Lordships' House. For example, when we are dealing with issues raised by Bills such as the Nationality, Immigration and Asylum Bill, we may be contacted by individuals or organisations acting on behalf of individuals who tell us about their cases with a view to our making use of them in debates. I suspect that few Members of your Lordships' House—including myself, until today—were aware that, in doing so, we might be in breach of the Data Protection Act unless we get explicit consent from the data subject. We cannot rely on inferences. Have the Government considered extending this exemption, in any circumstances, to your Lordships' House? If so, why have they decided not to proceed? If, as I think is more likely, they have not considered extending the exemption, might they consider it, regardless of the outcome? We on these Benches will be happy to support this order here as we did in the other place.
Lord Kingsland: My Lords, as happens so frequently, the noble Lord, Lord Goodhart, has said what I wished to say. As a consequence of so speaking, he has rendered any further contribution by me wholly superfluous.
Baroness Scotland of Asthal: My Lords, any comments by the noble Lord will never be wholly superfluous.
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In response to the noble Lord, Lord Goodhart, the Government have considered the position of your Lordships' House. It was decided that this order should refer specifically to elected representatives, of which there are none in this House. We have yet to see whether that will remain the case in the long term. It is correct that the most important elements of the Data Protection Act are the principles that apply. Your Lordships may find that the distinction between sensitive and non-sensitive data is helpful. The majority of information that comes to Members of this House tends to fall into the latter category and not the former. I am sure that noble Lords have made judicious use of that distinction in the past.
On Question, Motion agreed to.

Maximum Number of Judges Order 2002
7.30 p.m.
Baroness Scotland of Asthalrose to move, That the draft order laid before the House on 15th October be approved [38th Report from the Joint Committee].
The noble Baroness said: My Lords, this order is made under Section 2(4) of the Supreme Court Act 1981. It raises the statutory ceiling for Lords Justices from 35 to 37. This ceiling was last increased, from 32 to 35, by the Maximum Number of Judges Order 1996. The purpose of raising the ceiling is to provide some flexibility to respond to changing workload patterns and increased pressures.
Due to changes in the type of cases coming to the Court of Appeal since the last increase there is a need for the court to sit 10 or 11 courts to deal with the workload. Over the past few years, it has had to make increasing use of High Court judges sitting in the Court of Appeal and of retired Court of Appeal judges in order to maintain these sittings. Both those practices offer positive benefits in moderation. However, they cannot go too far. The Government consider that it is now necessary to make a small addition to the permanent strength to give the court the flexibility to meet the demands on its time.
The most notable change in the workload of the Court of Appeal following the last increase has been in the complexity of the cases now being dealt with. As a result of the filter, provided by the Civil Procedure Rules' requirement to apply for permission to appeal, and the diversion of less complex appeals to the High Court since the passage of the Access to Justice Act 1999, the appeals dealt with in the Court of Appeal are of increasing legal complexity, requiring judges to spend more time in preparation and in writing judgments. So, while there has been a marked decrease in the number of county court appeals and interlocutory appeals coming to the Court of Appeal, High Court commercial appeals have more than doubled and appeals from the administrative court have gone up by more than 50 per cent. This change in the nature of the court's work is clearly evidenced by the steady increase over the last years in the percentage of appeals where judgment is reserved. Taking 1999 as

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the base, appeals increased by 44 per cent for 2000, then went up 52 per cent during 2001 and 54 per cent in 2002.
In addition, while the total number of appeals filed shows a slight decrease of approximately 3 per cent in the past three years, the number of appeals settled by consent—cases that will not involve a substantive court hearing—has decreased by more than 20 per cent in the same period. Moreover, the number of applications for permission to appeal shows no sign of diminishing and continues to make serious demands on the time of the court.
My noble and learned friend the Lord Chancellor believes that increasing the capacity of the court by two further judges will provide the flexibility needed to make additional appointments if they are required. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 15th October be approved [38th Report from the Joint Committee]. (Baroness Scotland of Asthal.)
Lord Goodhart: My Lords, we have no objection to the increase in the number of Lords Justices. We have serious concerns about the way in which members of the Court of Appeal and other members of the judiciary are appointed. We have been pressing for a considerable time for the creation of a judicial appointments commission that will choose the judges and not just oversee the process of selecting them, as the present body does.
We are also concerned about the slow progress in the increase in the number of judges who are women and members of ethnic minorities. However, we had a chance to air those issues briefly on the Starred Question asked earlier today by the noble Baroness, Lady Howe of Idlicote, so I shall not raise them further.
However, I have one brief point to raise. The Court of Appeal now sits wholly in London to hear appeals from the whole of England and Wales. We are now to have 37 members of the Court of Appeal, together, as I understand the figures, with 12 retired Lords Justices or Law Lords, who are available to sit up to half time. With those numbers available, sitting in 10 or 11 courts, I wonder whether the time is not shortly coming when we should seriously consider whether it would be possible to have one or two places outside London in which the Court of Appeal could sit permanently.
Lord Kingsland: My Lords, as your Lordships are aware, Her Majesty's loyal Opposition do not entirely share the views of the noble Lord, Lord Goodhart, on a judicial appointments commission. However, I shall not dwell on that, as our views are already well known.
I have two brief observations about the order. We support the increase in the number of judges from 35 to 37; but in contemplating a further increase, as no doubt the Lord Chancellor's Department will have to do in years to come, will some analysis be made of the relative value of an increase in numbers as against an increase in the productivity of each judge?
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I refer to the question of productivity in the context of two issues: first, the number and quality of research assistants available to each judge; and secondly, the quality of IT resources available to each judge. Next time the Lord Chancellor's Department is faced with pressures on the workload of the Court of Appeal, before it comes to your Lordships' House with a further request for an increase I hope it will do its sums on those two matters to see whether money is more usefully spent on improving the performance of each Court of Appeal judge, in terms of the volume of work satisfactorily produced, rather than simply adding to the number.
My second point relates to the criminal appeal work of the Court of Appeal. I pay tribute to the remarkable work done by Lord Justice Rose on criminal appeals. He has made an outstanding contribution to the work of the Court of Appeal and the development of criminal jurisprudence.
However—I hope this will not be seen as a criticism of the Court of Appeal's criminal work in general—its jurisprudence has flowed less mellifluously than the civil jurisprudence of the Court of Appeal. The reason is not hard to discern. The membership of the courts hearing criminal appeals tends to turn over rather more swiftly than the membership of courts hearing civil appeals. Hence, particularly on sentencing, we find the cases less easy to interpret in, for example, the Crown Court.
There is no easy solution. I recognise that the volume of work entailed in dealing with criminal appeals is often considerably greater than the volume of work entailed in civil appeals. However, in the allocation of resources between civil and criminal work, I hope that the noble Baroness will bear in mind that there may be a need for some readjustment of resources in the years to come.
Baroness Scotland of Asthal: My Lords, of course I shall bear in mind all that has been said by the noble Lords, Lord Goodhart and Lord Kingsland.
I shall answer the noble Lord, Lord Goodhart, first on regional sittings. The Lords Justices of Appeal do not just sit on appeals. They do many other worthwhile undertakings as well. For example, Lord Justice Auld was withdrawn from the work of the court for 18 months over the past two years to prepare his major report on the future of the criminal justice system. Such demands are vital in helping the Government's drive to improve the administration of justice and services in other areas. Additionally, Court of Appeal judges sit at the European Court of Human Rights in Strasbourg and fulfil commitments to the Judicial Studies Board, not to mention the great administrative duties required of the heads of division and other senior members of the court. These are not new requirements, but they obviously are a severe burden.
Your Lordships will be aware that we now have regional sittings of the High Court. We shall take the noble Lord's arguments into account, but I cannot promise him anything in that regard.

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As for the point made by the noble Lord, Lord Kingsland, on the productivity of judges, there is no question but that the productivity of the Lord Justices of Appeal is very fine indeed.
Lord Kingsland: My Lords, that was certainly not my suggestion. I think that the Lord Justices of Appeal do a quite remarkable job in the circumstances in which they have to work, with almost no judicial assistance and a very uneven quality of IT equipment. I am suggesting that, when the cost of future appointments is considered, the Lord Chancellor's Department ought to set an increase in the number of judges against the potential increase in the productivity of each existing judge. I am not for a moment suggesting that the Lord Justices of Appeal are doing anything other than magnificently.
Baroness Scotland of Asthal: My Lords, I am most grateful for the noble Lord's clarification. I can
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certainly reassure him that the need for IT equipment, and the need for training so that their Lordships can take advantage of that equipment, is very much at the forefront of the plans of the Lord Chancellor's Department. We shall continue to do all that we can to support the judges on that issue.
I join the applause from the noble Lord, Lord Kingsland, for Lord Justice Rose and his work on criminal appeals. I note what the noble Lord says about turnover and take all those comments into account. I also reiterate my endorsement of his evaluation of the high quality of the work done by the courts in this regard.
On Question, Motion agreed to.
House adjourned at nineteen minutes before eight o'clock.