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6 Nov 2002 : Column 368—continued

Clause 6

Treatment: Power Of Entry

Lords amendment: No. 14.

Mr. Morley: I beg to move amendment (a) to the Lords amendment.

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

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

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

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

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

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

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effectively as possible. We will not do that by overriding people's rights, because the occupier does have the right to make representations to the divisional veterinary manager, as we discussed in Committee.

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

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

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

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

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

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

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

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

8.45 pm

I also emphasise that the Joint Committee on Human Rights reported that the procedure for making

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representations to the DVM and with regard to existing legal rights is fair and does not contravene human rights. It stated that

That is unequivocal guidance. It is clear that the measures are considered fair and proportionate.

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

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