Animal Health and Welfare (Scotland) Bill: Stage 2
Agenda item 4 is stage 2 of the Animal Health and Welfare (Scotland) Bill. Rhona Brankin, the Deputy Minister for Environment and Rural Development, is tasked with steering us through stage 2 from the Executive's perspective. I welcome her officials.
I will recap on stage 2 procedure so that everybody knows where we are from the start. Members should have before them a copy of the bill as introduced, the marshalled list of amendments that was published on Monday—SP Bill 47-ML1—and the groupings of amendments.
The groupings paper sets out the amendments in the groups in which they will be debated. The running order is set by the rules of precedence that govern the marshalled list. It can be confusing, but members need to remember to move between the two papers. I will call amendments in strict order from the marshalled list—we cannot move backwards; we must always move forwards. The target for today is to reach the end of section 16 of the bill. I will see how we do on that. If we do not make it, it will not be the end of the world.
There will be one debate on each group of amendments. I will call the member in whose name the first amendment in each group is, to move that amendment and to speak to all the other amendments in the group. Members who have not lodged amendments in a group should indicate that they wish to speak to amendments by catching my attention in the usual way. Debate on the group will be concluded by inviting the deputy minister or the member who moved the first amendment in the group to wind up. Only committee members are entitled to vote.
After we have debated the amendments to a section, the committee must decide whether to agree to each section of the bill as a whole. If members want to, we can have a short debate at that point if it would be useful to allow discussion of points that were not raised by amendments. That is not compulsory.
Those are the ground rules for our debate this morning. I hope that they are clear for everybody.
Section 1—Slaughter for preventing spread of disease
Group 1 concerns conditions for the exercise of powers of slaughter. Amendment 4, in the name of Richard Lochhead, is grouped with amendments 12, 14, 1, 2, 2A, 10, 6 and 8.
Amendments 4 and 2A, both in my name, are similar. They seek to include in the bill an obligation that the minister, when using the slaughter powers, must consider the impact of their use on Scotland's economy and biodiversity. That debate cropped up during stage 1. The bill will give ministers extra powers to slaughter not only infected animals but any animal that they see fit to slaughter, which could include wild animals or companion animals. That is a concern for many organisations and to members of the committee, so I seek to provide that the minister must consider the impact on biodiversity, which could have implications for the slaughter of rare breeds and species.
I also seek to provide that the minister must consider the impact on the economy, as the slaughter of wild animals on any significant scale—which would be well within the minister's powers under the bill—would have an impact on Scotland's rural tourism industry in particular and its rural economy in general. At stage 1, the minister assured us that any minister would take those factors into account before exercising the slaughter powers. However, there is a common theme in many of the amendments to section 1, in which we are being asked to act on faith and to rely on the minister's word. Of course, we are talking about the current minister's word, but the bill will affect all future ministers should it be agreed to, which is why, in some cases, committee members want those assurances to be in the bill.
Amendment 4 would insert a paragraph into schedule 3A of the Animal Health Act 1981 to ensure that the impact of exercising the slaughter powers on the economy and on biodiversity would be considered.
Amendment 2A seeks to amend amendment 2, in the name of Mark Ruskell, which seeks to ensure that the minister will take veterinary and scientific advice before using the slaughter powers. It would simply add to that amendment a clause to ensure that the minister will take into account the impact of using the powers on the economy and biodiversity.
The committee should support Mark Ruskell's amendment 2, which returns to the general theme of the use of the additional, significant and radical slaughter powers. Although I understand the need for ministers to act swiftly in the event of a disease outbreak, safeguards must be in place to ensure that the powers are not misused or used in error. For that reason, I support the proposal to state in the bill that any action that the minister takes must be taken only after veterinary and scientific advice has been sought. There is widespread support for that position across the parties, and the committee expressed sympathy for that position in its stage 1 report.
Amendment 6 is similar to my other two amendments in the group. It would insert in the bill an obligation on the minister to take into account the impact of the use of the slaughter powers on the economy and biodiversity.
I move amendment 4.
Amendment 12 is a simplified version of amendment 2. Given that we have the Minister for Environment and Rural Development's assurances that he would not use the extended powers of slaughter without first consulting the relevant scientific and veterinary authorities, there is no reason why the minister should not want to have that requirement stated in the bill. As we heard in the debate last week, the minister is a reasonable man; however, the legislation will be there in perpetuity and we do not know who might follow him. I cannot understand why the minister would not want to have that provision in the bill.
On Maureen Macmillan's amendment 14, I am not sure that we need to go so far as to require the minister to publish a statement of the reasons for the use of the powers of slaughter.
Mark Ruskell's amendment 2 is comprehensive and I cannot disagree with the thrust of it, but I am not sure that we need to go into so much detail. I think that what is suggested in amendment 12 is enough.
I support Richard Lochhead's amendments. The impacts on biodiversity and the economy must be in ministers' thoughts when they decide whether to use the powers of slaughter. I support the amendments in the names of Richard Lochhead and Mark Ruskell and my amendment 12.
The committee has expressed concern that there should be transparency in the process by which the minister reaches his decision on whether to order the slaughter of animals instead of, for example, ordering vaccination. The bill will introduce new powers of slaughter about which the committee has expressed concerns. The minister has said that he does not see the need to include in the bill a requirement for him to take into account scientific or veterinary advice because he believes that it would be inconceivable for him to do otherwise. However, we have expressed concerns about what might happen if someone else was minister.
I lodged amendment 14 because there is more than one way to skin a cat. Perhaps I should not have used that expression, given that we are discussing the Animal Health and Welfare (Scotland) Bill. I would like to withdraw that statement.
It is important that Parliament, the farming industry and the general public know the reason why a minister will exercise the slaughter powers before the slaughter takes place, and that they get an explanation of why slaughter, rather than another method of control, is necessary. I will not list all the details that might be included in such a statement. Unlike some of my colleagues, I do not believe in such lists, because something always gets left out. I would expect such a statement to refer, as appropriate, to scientific and veterinary advice, and to the weight that has been given to economic, environmental or biodiversity factors and to wild animals and rare breeds.
Amendment 14 suggests another way of showing to the public the process that has been followed, rather than stating in the bill that there is a requirement for specific consultation. I trust that the minister will consider that the amendment has some worth and that its implementation would help to allay some of the anxieties that remain about decisions being made without proper consideration of all the consequences.
I think that we agree that ministers need to have wide powers in the event of a disease outbreak, but we are discussing what checks and balances need to be put in place. The concern that we have heard from various stakeholders, including the NFU Scotland, is about contiguous culls of apparently healthy animals. The term "act of faith" has been used. We are putting a lot of faith in ministers, so it is important to include checks and balances in the bill, which is what amendments 1 and 2 would introduce.
I appreciate where Ted Brocklebank is coming from in amendment 12; he wants to insert a simple provision. However, its effect would be that ministers would have to seek veterinary and scientific advice in situations in which animals are deceased, for which I do not see the need. We need scientific and veterinary advice to be brought into play where animals are not affected by the disease, have not been in contact with the diseased animals, have not been exposed in any way to the disease or have been treated with a vaccine.
On Maureen Macmillan's amendment 14, I agree that a statement is useful and I would support it as a part of a package, along with the requirement to take veterinary and scientific advice, but the amendment only half skins the cat. A statement would be useful, but it is only part of the story.
The provisions in Richard Lochhead's amendments on the economy and biodiversity would be useful, but the important thing is that we ensure that veterinary and scientific advice is taken.
Vaccination is the other side of the coin. When ministers make a decision about slaughter, they will have, equally, to make a decision about vaccination. With amendment 8, I seek to introduce consistency in our approach. Vaccination should be considered on the basis of the same veterinary and scientific advice as is received in relation to slaughter.
Amendment 10 relates to the slaughter of rare breeds and, once again, would provide a check and balance that would be worth introducing. Concerns were expressed in 2001 about the future of the Herdwick sheep breed as a result of contiguous culls in England. I urge members to vote for amendments 1 and 2 and to consider voting for amendment 14, as part of a package.
The committee is trying to strike a balance between allowing ministers room to act quickly in emergencies and ensuring transparency. I am interested to hear what the minister has to say about the amendments.
Like Maureen Macmillan, I am a bit wary of lists. For example, in amendment 4, Richard Lochhead lists the economy and biodiversity. Should we stop there or should we start listing things like the possible impacts on the owners of companion animals and so on?
I reiterate the concern that has prompted the amendments. It is desirable to have in the bill some assurance that what we expect the minister to do will be what the minister does.
Minister, could you say something about the powers in the Westminster Animal Health Act 2002? It has been suggested that that contains a different way of dealing with safeguards. Do you have any views, from the perspective of the Executive, on the different approaches that have been taken?
I share my colleagues' view about getting the balance right in the legislation and I accept what Mark Ruskell said, in respect of appropriate checks and balances in the bill, about the amount of work that will have been done by the Executive before the slaughter powers are exercised. It would be interesting to get a sense of your thoughts on how the checks and balances will operate, on consulting of stakeholders on a contingency plan and on the points that Maureen Macmillan made about the possibility of ministers' making statements to set out the reasons for actions that will be taken.
Amendment 4 would place a requirement on ministers to consider the impacts on the economy and, separately, on biodiversity before they could exercise one or more of the slaughter powers to prevent the spread of disease, as provided for in paragraphs 1 to 6 of proposed new schedule 3A of the Animal Health Act 1981.
On the impact on the economy, ministers have already given a commitment, in the contingency plans, to consider how disease-control measures will affect not only the market in general, but society and the environment. Later, I will say more about contingency plans and how our system will differ from the Westminster system.
On biodiversity, any slaughter of wild or feral animals must be on a veterinary risk basis and must first take into account the species and the degree to which that species will be affected by the relevant virus strain. The local circumstances and environment that might give rise to a greater chance of spreading infection have to be considered with regard to the intended timing of slaughter or poisoning and the overall effectiveness of the measure. Wilder feral animals tend to avoid areas in which disturbance by people and vehicles occurs and some animals' and birds' natural grooming behaviour suggests that the risk of spreading disease physically would be minimal.
Experience has shown that the risk of disease dispersal is greater if action is taken against specific wild animals or birds. However, in specific circumstances, European Union legislation can require that wild animals that are infected and which pose a disease risk be slaughtered. The power is, therefore, sought to facilitate the implementation of those obligations. Therefore, I urge the committee to reject amendment 4.
On amendment 12, I am aware of the concerns that members of the committee and others have expressed about the lack of an explicit requirement that ministers must take veterinary and scientific advice before they exercise powers to prevent the spread of disease. I emphasise that although the proposed new powers for new schedule 3A of the Animal Health Act 1981 might be an appropriate component of a disease-control strategy, the exercise of those powers would not be the response of first resort. The first step would be confirmation of the presence of disease through veterinary or scientific analysis. In the initial stages of a disease outbreak, existing powers in the 1981 act enable us to deal with most fast-spreading diseases.
In evidence to the committee and during the stage 1 debate, ministers clarified that before they can discharge their responsibilities in dealing with a disease outbreak they must first establish the existence of the disease, and that the role of veterinary and scientific advice is self-evident in that context. In any determination of how best to prevent the spread of disease, ministers would necessarily consider the opinions of relevant experts.
If amendment 12 were agreed to, the effect would be explicitly to subject the powers in new schedule 3A of the 1981 act to a requirement to take advice. Given that other powers in the 1981 act are subject to no such requirement, an unintended consequence of agreeing to amendment 12 could be the implication that different powers would be exercised in different ways. The implication might be that ministers would not need to consult before they exercised certain powers. I therefore urge the committee not to agree to amendment 12.
We agree with the principles behind amendment 14. The exercise of the new powers in new schedule 3A would be a matter of substantial public interest and amendment 14 seeks to provide for transparency that would improve understanding of how a decision had been reached, how a decision would be implemented and the benefits that proposed measures would bring. The statement that is envisaged in amendment 14 would not only give the veterinary and scientific justification for a decision, but would encompass the wider stakeholder dialogue that had helped to inform the decision, which would include farming interests and others with an interest in eradicating disease quickly and effectively, such as representatives of the rural economy and rural society. We will consider the matter with a view to lodging an amendment at stage 3. I therefore ask the committee not to agree to amendment 14 and to allow us to consider the matter further.
Amendments 1 and 2 would require ministers to be satisfied on the basis of scientific and veterinary advice that the slaughter of animals, birds or amphibians that
"are not affected with the disease or suspected of being so affected … are not and have not been in contact with animals, birds or amphibians affected with the disease … have not been in any way exposed to the disease … or have been treated with serum or vaccine (or both) against the disease"
was necessary to prevent the spread of disease. The implication of the amendments is that advice would not be required if animals, birds or amphibians were diseased or suspected of being diseased, or if they had been exposed to disease through contact with diseased animals, for example.
Amendments 1 and 2 would require ministers to be satisfied that slaughter was necessary to prevent the spread of disease. However, in the bill the purpose test for the use of slaughter powers in proposed new schedule 3A of the 1981 act is that the powers can be used
"with a view to preventing the spread"
of disease and when the Scottish ministers think fit. The slaughter powers could therefore be used not just if slaughter was essential to the prevention of the spread of disease, but if slaughter would contribute to prevention of the spread of disease and was appropriate in the circumstances. The purpose test acknowledges that quick action to curb the spread of disease is central to disease control.
Disease spread can be prevented by a range of measures, which include slaughter, and it might be possible to prevent disease spread without the use of slaughter powers. However, such action might not be as effective as slaughter and might mean that more animals were affected before the spread of the disease was arrested.
In previous evidence to the committee and during stage 1, ministers made it clear that in discharging their responsibilities in dealing with a disease outbreak, they must first establish the existence of the disease, in which the role of veterinary and scientific advice is self-evident. In any determination of how best to prevent the spread of a disease, ministers would necessarily need to consider the opinions of relevant experts. For those reasons, I urge the committee to reject amendments 1 and 2.
Amendment 2A would require ministers to take account of the impacts of slaughter on the economy and biodiversity only in relation to the slaughter of animals that were not diseased or suspected to be diseased; that were not and had not been in contact with or exposed to diseased animals; or that had been treated with serum or vaccine against the disease. Animals that were known to be diseased, that were suspected to be diseased or that had been in contact with diseased animals or exposed to disease could be slaughtered without any consideration of the impacts of their slaughter on the economy and biodiversity. Thus, amendment 2A presents only a partial picture of the wide range of factors that must and would be taken into account in all aspects of the disease-control response. For those reasons, I urge the committee to reject amendment 2A.
Amendment 10 seeks to amend section 2. It would place on ministers an expressed statutory requirement to take scientific advice before causing the slaughter of animals or birds of "rare breed or type" that are covered by the section. The implication is that ministers would have to satisfy themselves, on the basis of that evidence, that it was necessary or desirable to slaughter for the purpose of securing, or contributing to the securing of, disease-free status. In practice, during an outbreak of an exotic disease, rare breed or type animals or birds—if treated or vaccinated—would not be expected to be slaughtered merely to obtain international disease-free status, but would have been vaccinated or treated to live. However, if disease suspicions arose, slaughter would be carried out under the existing powers in the Animal Health Act 1981. I emphasise that the provisions in section 2 provide for flexibility in achieving international disease-free status during a potentially complex exotic disease situation. I therefore ask the committee to reject amendment 10.
Amendment 6 would require ministers to consider the impacts on the economy and biodiversity before slaughtering any serum-treated or vaccinated animals or birds. Proposed new section 16B of the 1981 act will provide for the slaughter of serum-treated or vaccinated animals or birds for the purpose of securing, or contributing to the securing of, disease-free status—potentially to reopen our international markets early for the benefit of our meat and allied industries.
On the impact on the economy, ministers have already given a commitment, in our contingency plans, to consider how disease-control measures affect not only the marketplace in general, but society and the environment. On biodiversity, it is unlikely that during a disease outbreak wild or feral animals would have been treated or vaccinated, given the risk that disease dispersal will disturb of their habitats. Zoo or rare-breed animals, however, may have been vaccinated. Therefore, in their case, daily disease inspection and surveillance would be likely, with the result that only if disease became evident or suspected would prompt action be taken, which would most likely be slaughter, under the existing powers in the 1981 act. It is unlikely that such animals would be slaughtered simply so that we could to obtain disease-free status. I therefore urge the committee to reject amendment 6.
Amendment 8 would place a requirement on ministers, when seeking to prevent the spread of a disease, to seek the advice of the veterinary and scientific professions before ordering the treatment or vaccination of any animals or birds. Ministers would be required to be satisfied, on the basis of that advice, that it was necessary to treat or vaccinate the animals or birds in order to prevent the spread of the disease. That would apply to the treatment of any animal or bird, irrespective of whether it was exposed to disease, in contact with a diseased animal or bird, or in an infected area. That is a more rigorous requirement than is currently provided in the proposed new section 16(1A) of the 1981 act. Proposed new section 16(1A) would allow treatment or vaccination to be used when the Scottish ministers considered such action an appropriate contribution to preventing the spread of disease, rather than make such action essential or indispensable to the aim of preventing the spread of disease.
It is self-evident that, in considering the policy of exotic disease control in the face of its spreading, ministers must act responsibly. Ministers will be informed by veterinary and scientific advice on the merits or demerits of treatment with serum or, more likely, vaccination of animals and/or birds against a particular strain of the relevant disease. I therefore urge the committee to reject amendment 8.
The convener asked me to deal specifically with what happens at Westminster. I understand that, at Westminster, a specific protocol is examined and consulted on every year. That is a different way of approaching the matter. In Scotland, we have specific contingency plans, which are reviewed regularly; in fact, they can be reviewed three times a year. For example, a contingency plan for avian flu was updated recently. We think that the contingency planning that we have in Scotland, with the consultation and openness around that as well as the additional commitment to increase transparency to Parliament, provides a system that is responsive and in which ministers can move quickly. We develop the contingency plans based on consultation of key stakeholders, and we are able to move quickly when necessary.
Thank you. I ask Richard Lochhead to wind up the debate and to state whether he wishes to press or withdraw amendment 4.
I wish to press amendment 4. The debate that the committee is having with the minister over whether an act of faith is required or whether the assurances and safeguards should be provided in the bill is on-going. Although I recognise the minister's concession to Maureen Macmillan on amendment 14 and accept the need for us not to support that amendment but to allow the minister time to lodge a similar amendment at stage 3, I think that many of the other amendments should be supported.
I was slightly confused by the minister's suggestion that, if we were to place conditions on some powers in the bill, those conditions would not apply to other powers in the 1981 act. As far as I can see, the powers that we are discussing concern the slaughter of animals, and the issue that is causing great concern is the proposal for additional slaughter powers in wide-ranging circumstances. The assurances that we seek on the slaughter of animals need to be included in the bill; it is a bit of a red herring to suggest that those conditions would somehow not apply to other powers elsewhere. I do not think that the argument that the minister has put forward stands up; therefore, I wish to press amendment 4.
The question is, that amendment 4 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 4 disagreed to.
Amendment 12, in the name of Ted Brocklebank, has been debated with amendment 4.
I intend to move amendment 12. Like Richard Lochhead, I found the minister's response, in which she cited the 1981 act, unconvincing. The minister says that it is self-evident that ministers would take scientific and veterinary advice, so I fail to understand why that simple provision should not be included in the bill.
Amendment 12 moved—[Mr Ted Brocklebank].
The question is, that amendment 12 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
The result of the division is: For 3, Against 5, Abstentions 1.
Amendment 12 disagreed to.
Group 2 is on slaughter protocols. Amendment 13, in the name of Maureen Macmillan, is grouped with amendments 5, 17, 11 and 11A.
Amendments 13 and 17 are probing amendments. The minister dealt with some of the issues when she addressed group 1. I want to find out why we do not have protocols, similar to those that the Department for Environment, Food and Rural Affairs has in place, which outline the factors that are to be taken into account when decisions on slaughter are made. Amendments 13 and 17 propose that such documents should be prepared.
Such protocols could act as safeguards against future unsound decisions. I do not maintain that we should have them just because DEFRA has them, but perhaps the minister could give a more detailed explanation of why we are not being offered them and what safeguards, if any, are being proposed instead. The protocols that are proposed in amendments 13 and 17 are fairly open-ended—I am simply asking for the principal factors that will be taken into account when slaughter is being considered to be put on the record; I am not asking for a list of all the criteria to be provided, as some of my colleagues have done. I would have thought that it would not be too inflexible to have protocols such as those that amendments 13 and 17 envisage.
I move amendment 13.
I invite Mark Ruskell to speak to amendments 5, 11 and 11A and the other amendments in the group.
I will deal with amendment 11 first, which proposes to insert in the 1981 act a requirement that a slaughter protocol be produced for Scotland. That act required the production of such a protocol for England and Wales and I see no reason why such a protocol should not be produced for Scotland, which would ensure greater consistency throughout the United Kingdom.
Amendment 13, in the name of Maureen Macmillan, picks out two elements of a slaughter protocol:
"the principal factors to be taken into account"
and
"the means by which a particular decision to exercise the powers may be reviewed."
However, I would say that that we need a full slaughter protocol. We must be able to examine the purposes for which any power to carry out slaughter will be exercised, as is set out in subsection (2)(a) of the new section that amendment 11 seeks to insert in the 1981 act, and the procedures that will be followed, as is outlined in subsections (2)(c) and (2)(d) of the proposed new section. If we do not have an understanding of what the procedures are, it will not be possible to challenge them.
At stage 1, a number of members—including Elaine Smith—expressed concern about the procedures that are used to handle situations involving sensitive emotional issues to do with pets, sanctuary animals, rare breeds or wild animals. The fact that we did not have the right procedures in place was a problem during the foot-and-mouth outbreak in 2001; the whole process was slowed down as a result. We need to be clear about the procedures that are to be followed in such circumstances, so we must have in place a protocol for dealing effectively with those sensitive issues right from the outset.
An important point is that amendment 11 would also require that people are given an opportunity to have an input into, and be consulted on, the protocol. I heard the minister's argument on that issue—I will return to it later when we debate contingency plans—but consultation has not always been completely adequate, so it is important that we put in place a statutory requirement for consultation.
Amendment 11A is an option for the committee. As I argued in the previous group of amendments in respect of scientific and veterinary advice, I believe that a rigorous process should also be applied to the slaughter of vaccinated animals. For that reason, amendment 11A provides the committee with the option of applying the slaughter protocol to vaccinated animals as well.
Amendment 5 is an alternative to amendments 11 and 11A, which replicate the law in England and Wales. Amendment 5 draws out the concerns that were reflected in the committee's stage 1 report. As Elaine Smith and others have commented, the treatment of animals that are kept as pets or in animal sanctuaries and of rare breeds and wild animals needs to be handled sensitively. We should ensure that appropriate protocols are put into place for that.
I urge the committee to vote for amendment 11 and to consider amendment 11A. Members should also consider amendment 5 as an alternative to amendments 11 and 11A.
When the minister responds to the debate, I would find it helpful if she could expand on whether the Executive's contingency arrangements and the DEFRA protocol are really the same thing. I do not really care what the procedures are called as long as they deliver. Will the minister clarify how our contingency arrangements compare with the DEFRA protocol? In what ways are they the same and how do they differ? Perhaps they address the same problem in different ways but with the same outcome.
Will the minister talk us through what would happen to companion animals, which Mark Ruskell raised, in the circumstances that we are discussing? If she will not accept the amendments, I ask her to concentrate in her response on why a protocol is unnecessary. The treatment of companion animals has been a concern for many people, including me.
I have a couple of questions. Mark Ruskell made a critical point about procedures—indeed, his and Maureen Macmillan's amendments provide a useful opportunity to debate such issues. To what extent is there a substantive difference between a contingency plan and a protocol? I feel that we are perhaps using a contingency plan as a way of addressing some of the issues that Mark Ruskell identified, but some of the procedural issues are critical.
During our stage 1 consideration of the bill, one could sense that people were still dissatisfied with their exclusion from the process during the most recent outbreak of foot-and-mouth disease. There is perhaps a need to give people a sense of the process of consultation that will be involved in a contingency plan and the extent to which that will differ from what has happened in the past.
We need to clarify the next bit of the process and what happens when people have been consulted but are unhappy with the result. That is different from not being consulted at all. How will that be resolved in the contingency plan? For example, given the range of different interests and the different animals and circumstances involved, what will happen when disagreements arise in consulting stakeholders? Will such matters be simply for ministers' judgment? Will ministers publish the reasoning for their judgments on the contingency plans? It would be helpful if people knew that they will be consulted and what will happen to their comments thereafter. That stage in the process will be absolutely crucial if the new set of arrangements is to be successful. I will be interested to hear the minister's answer on those points.
I am grateful to Mark Ruskell and Maureen Macmillan for their detailed suggestions, which allow us to test what should be on the face of the bill and make a judgment about how the contingency plans are meant to work in practice.
I will deal first with amendments 13 and 17. The danger with the disease control slaughter protocol that is envisaged in amendment 13 is that such a protocol could be too restrictive in what could be a fast-moving disease situation in which the causative agent may be capable of rapid mutation into a strain that could have different epidemiological characteristics. A protocol that was designed for the known behaviour of the disease agent could prove inadequate if such a mutation occurred. In the time that was required to amend the protocol, the disease could take hold, which could mean that more onerous control measures were required than would be the case if a more flexible approach were taken.
I emphasise that the Executive has a well-developed contingency planning framework for national and local levels. Those contingency plans set out the decision-making process and are subject to regular testing and review. Updated plans are published and widely distributed. Each Executive contingency plan includes a section that is entitled "Disease Response Assumptions", in which the available disease-control options are discussed and the policy on the use of each control method is made clear. That fulfils not only the purpose of the slaughter and vaccination protocols that amendments 13 and 17 suggest, but a wider function of informing plan users of other options that may be used, if the disease situation warrants them. The key point is that a wide range of stakeholders is consulted. Consultation took place recently because of the threat of avian influenza.
As enabling legislation, the bill is intended to cover a wide range of diseases. The options for disease control of several major diseases are set out in detail in the relevant European directives and in the domestic legislation that transposes them. The Executive has a policy of full public consultation on directives and on draft legislation. Therefore, the powers that are available to the Scottish ministers to fight diseases and the controls on the exercise of those powers are clear. In those circumstances, the extra control processes in the amendments are unnecessary.
We are not convinced that the same arguments apply to our undertaking to review amendment 14, which we have discussed. I agree with the principles behind amendments 13 and 17, which appear to seek greater transparency in the use of the slaughter power, and we will consider that in the context of amendment 14. That will help to ensure the appropriate use of the power. I ask the committee to reject amendments 13 and 17.
Nora Radcliffe asked how contingency plans relate to English protocols. The English protocols set out in detail the factors that will be taken into consideration. As I have said, we believe that doing that would reduce our flexibility. The contingency plans set out how the disease-control response will operate and the factors that will guide our considerations, so the factors in the English protocols are in the contingency plans. The contingency plans include a statement on disease-control options, which fulfils the basic role of a protocol. That explains the available options and leaves us able to respond to a situation.
Elaine Smith mentioned companion animals. Some species—including livestock species—that are kept as pets can be susceptible to exotic notifiable diseases. We must be able to make a full veterinary risk assessment and a biosecurity assessment before deciding whether to exempt an animal from slaughter.
The slaughter of certain animals protocol that amendment 5 proposes would contain a high level of substantive and procedural detail, which would minimise the scope for flexibility in dealing with what are often complex exotic disease situations. As I explained, the Executive has a policy of full public consultation on European directives and on draft legislation. Therefore, the powers that are available to Scottish ministers to fight diseases and the controls on the exercise of those powers are clear. Those controls include derogations to exempt from slaughter certain categories of animals
"provided that such derogations do not endanger disease control"—
that is, there should be exemplary biosecurity. With respect to avian influenza, for example, derogations could apply to
"a non-commercial holding, circus, zoo, pet bird shop, wildlife park, a fenced area where other captive birds are kept for scientific purposes or purposes related to the conservation of endangered species or officially registered rare breeds of other captive birds … provided that such derogations do not endanger disease control."
In those circumstances, the extra control process that would be added as a result of agreeing to amendment 5 is unnecessary.
Given that background and policy, I emphasise that animals or birds can be exempted from possible slaughter only on the basis of a veterinary risk assessment. Much depends on the nature of the disease and the virus in question as well as on biosecurity and other measures such as movement tracings being in place not only at the outset of the outbreak, but some time before it. For the reasons that I have given, amendment 5 is unnecessary and I ask members, therefore, to resist it.
I turn to amendments 11 and 11A. I have already explained our views on disease control. The proposed protocol would contain a high level of substantive and procedural detail, which would minimise the scope for flexibility in dealing with what are often complex exotic disease situations. The time that is taken to change, consult on and publish a revised protocol could be detrimental to effective disease control. Therefore, I urge members to resist amendments 11 and 11A.
I am grateful for the minister's comments on my amendments. I did not expect to get much comfort and so I am pleased that she said that their spirit will be considered to find out whether it can somehow be incorporated into the legislation. As a result, I seek to withdraw amendment 13.
Amendment 13, by agreement, withdrawn.
I will not move amendment 14 because of what the minister said about considering lodging an amendment at stage 3.
Amendment 14 not moved.
Amendment 1, in the name of Mark Ruskell, has been debated with amendment 4.
I still think that there is a fundamental area of disagreement and that stakeholders, especially those in rural Scotland, will have substantial concerns. Therefore, I will press amendment 1.
Amendment 1 moved—[Mr Mark Ruskell].
The question is, that amendment 1 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 1 disagreed to.
Amendment 2 is consequential to amendment 1, so I will not move it.
Amendment 2 not moved.
Amendment 2A falls because amendment 2 has not been moved.
Amendment 5 moved—[Mr Mark Ruskell].
The question is, that amendment 5 be agreed to. Are we agreed?
No.
There will be a division.
For
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 3, Against 6, Abstentions 0.
Amendment 5 disagreed to.
Group 3 is on compensation. Amendment 106, in the name of Ted Brocklebank, is grouped with amendments 107 to 111, 123 and 124.
As the convener said, this group of amendments deals with compensation. Compensation provisions should reflect a fair valuation of the animal immediately before the outbreak of the disease, slaughter or seizure, as the case may be. The bill should state that valuations will be made on an individual basis and should not be based on tabular or average values.
As the bill is drafted, when ministers slaughter animals, they will have unlimited discretion over the amount of compensation. However, if a live animal is seized under section 7 of the bill, compensation will be its value at that time. There seems to be no rationale for that. If ministers are prepared to compensate on seizing an animal, they should be prepared to compensate in the same way on slaughtering it. To give such wide discretion on valuing compensation for slaughtered animals means that there is no certainty that farmers will be compensated anything other than a nominal sum.
I move amendment 106.
Does anyone have any comments?
No.
Therefore, I invite the minister to speak to the group.
I will speak to amendments 106 to 111 inclusive, and amendments 123 and 124.
The bill provides that Scottish ministers must pay compensation for animals or poultry, as defined in section 87 of the 1981 act, that are required to be slaughtered in a disease outbreak. As introduced, the bill allows for the rate to be set out in secondary legislation and for ministers, in setting the rate, to make different provision for different cases and circumstances.
Specifying that the rate must be the market value of the animal on the day before it is slaughtered would restrict ministers to paying that value and nothing else at a time when the market for the animals in question might have plummeted or be non-existent. Under the bill as introduced, ministers would have considerably more flexibility and could look at the normal market value, take an average price over a set period, or provide for compensation at restocking prices, depending on all the circumstances at the time of the outbreak.
Such circumstances can vary greatly depending on the disease, whether it is known or entirely new, and the species affected. For example, a new disease could mean that a wide range of creatures was susceptible. For those reasons, it would be irresponsible of ministers and for the taxpayer, and possibly unduly harsh on the owners of the animals concerned, to agree to the amendments.
In practice, it is also unrealistic to guarantee that, in a fast-spreading disease outbreak, each animal's market value will be assessed on the basis of its value the day before its slaughter. For example, in a poultry disease scenario, a simplified and acceptable compensation formula is the best approach, and so-called table or book valuations are a long-accepted practice.
For all those reasons, I urge the committee to reject amendments 106 to 111.
I turn to amendments 123 and 124. The purpose of section 7 is to provide ministers with powers to seize and dispose of anything that it appears to them might be capable of carrying or transmitting certain diseases. The relevant diseases are those in respect of which a power of slaughter is exercisable under or by virtue of: new section 16B of the 1981 act, relating to slaughter of treated animals; new part 2B, relating to transmissible spongiform encephalopathies; or new schedule 3A, relating to slaughter for preventing the spread of disease. They include, for example, foot-and-mouth disease and diseases of poultry.
Section 7 obliges ministers to pay compensation for those things seized by them that are not carcases of animals or things produced by or obtained from those animals. Examples could include infected implements or equipment and animal housing or bedding. Section 7 also allows ministers, at their discretion, to pay compensation for seized carcases or other things obtained from or produced by animals. Examples could include milk or dung. The effect of amendments 123 and 124 would be to require that, where compensation was payable, the amount of compensation would be based on an individual valuation of every item, to determine its market value immediately before it was seized. That would introduce a heavy and impractical administrative burden that would be costly and time consuming to all concerned.
I urge the committee to reject amendments 123 and 124.
I invite Ted Brocklebank to wind up and say whether he wishes—
I wanted to respond to the minister.
I asked members earlier whether they wanted to speak in the debate.
How can we respond to the minister if we are not allowed to speak?
You can ask the minister questions, as others have done, or make points to her during the open debate.
I wanted to be supportive of the minister.
I saw everybody clock it when I asked the question. I can invite other members to speak at my discretion, but the convention is to let the minister in towards the end of the debate so that she can pick up on all the points raised by colleagues. However, we will get it quietly on the record that you are supportive of the minister—it is not often that I hear that.
I take on board some of the minister's points, but I believe that the only equitable way to compensate for loss of animals, whether they are seized or slaughtered, is to pay a market value ascertained from individual valuations rather than average or tabular figures. That has two benefits: first, it maintains confidence in the sector and enables farmers to restock quickly once the disease is eradicated; and secondly, it encourages farmers to be co-operative with the state veterinary service and others. That will combine to ensure that any disease outbreak is dealt with quickly and efficiently.
I want to ask the minister a question about the slaughter of fish in fish farms. Are fish farms covered by the legislation? What compensation might be payable in such circumstances?
You are meant to have the last word on the amendments. However, I have discretion to invite the minister to say something briefly about the fish farm issue. It might help us.
Disease control in aquaculture is administered under separate legislation, in recognition of the different approach required to deal with disease in an aquatic environment. However, Mr Brocklebank will be aware that, in advance of the proposed legislation on aquaculture, we have consulted on a discretionary power to provide compensation for the effects of fish disease. That will be introduced in the aquaculture and fisheries bill in June.
Ted Brocklebank has the last word. Does he wish to press or withdraw amendment 106?
I will press the amendment.
The question is, that amendment 106 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
The result of the division is: For 2, Against 5, Abstentions 2.
Amendment 106 disagreed to.
Amendment 107 moved—[Mr Ted Brocklebank].
The question is, that amendment 107 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
The result of the division is: For 2, Against 5, Abstentions 2.
Amendment 107 disagreed to.
Amendment 108 moved—[Mr Ted Brocklebank].
The question is, that amendment 108 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
The result of the division is: For 2, Against 5, Abstentions 2.
Amendment 108 disagreed to.
Group 4 is on subordinate legislation procedure. Amendment 15, in the name of the minister, is grouped with amendments 16, 19, 20, 27, 45, 68, 71 and 72.
The amendments are all technical amendments dealing with the procedure for subordinate legislation. They reflect commitments made in the light of the Subordinate Legislation Committee's report on the bill.
Amendments 15 and 19 amend sections 1 and 2 of the bill respectively. Amendment 15 provides that an order made under paragraph 8(1) of new schedule 3A to the Animal Health Act 1981, prescribing the amount of compensation for animals slaughtered under any of the powers of slaughter in that schedule, is subject to class 5 negative procedure, rather than class 7 procedure. Under class 7 procedure, an instrument does not require to be laid before the Parliament. The Subordinate Legislation Committee raised the issue during its consideration of the bill, and we have responded positively.
A similar situation arises with amendment 19, which provides that an order made under new section 16B(6) of the 1981 act, prescribing the amount of compensation for animals slaughtered under the powers of slaughter in section 16B(4), is subject to class 5 negative procedure rather than class 7 procedure.
I will provide background on amendments 16, 20, 27 and 45. When the Subordinate Legislation Committee considered the bill, it recommended that the maximum level of parliamentary scrutiny be applied in each instance where emergency powers are sought. It recommended that the emergency 28-day affirmative procedure should be used only where necessary and with an explanation to the Parliament.
Accordingly, amendment 16 is drafted to require that an emergency order to specify diseases of animals and describe animals that may be slaughtered under paragraph 6 of new schedule 3A must include a description of the emergency giving rise to the need to use the emergency procedure for the making of the order.
Amendment 20 is drafted to require that an order under new section 16B(2), specifying diseases of animals to which the slaughter power in section 16B(4) shall apply, must include details of the circumstances giving rise to the need for such an order.
Amendment 27 is drafted to require that an emergency biosecurity order must include a description of the circumstances giving rise to the need to use the emergency procedure for the making of the order.
Amendment 45 is drafted to require that an order modifying the list of specified diseases in inserted schedule 2B to the 1981 act must also state the reasons for making such an order to modify the list.
Amendments 68, 71 and 72 relate to section 10, which inserts new part 2B on TSEs—as the committee knows, those are transmissible spongiform encephalopathies—into the 1981 act. Amendments 68 and 71 are technical amendments. The purpose of amendment 72 is to provide that any compensation orders that are made under new section 36V(1) of the 1981 act will be subject to annulment in pursuance of a resolution of the Scottish Parliament. That meets the concerns of the Subordinate Legislation Committee, which it expressed in its report on the bill.
Section 91 of the 1981 act provides that order-making powers are exercisable by statutory instrument. Amendment 68 ensures that the regulation-making powers in new section 36O(1) of the 1981 act are also exercisable by statutory instrument. Amendment 71 is consequential to amendment 68. Given the combined terms of section 91 of the 1981 act and our revision of new section 36O, the provisions in amendment 68 result in new section 36W(1) being superfluous; it is therefore removed by amendment 71.
Amendment 72 removes the exception for compensation orders from new section 36W(2) of the 1981 act. As introduced, new section 36W(2) would provide that all statutory instruments that were made under the new part 2B powers, except compensation orders, were subject to the negative procedure. As the compensation orders would have been made under class 7 procedure, they would not have been required to be laid before the Parliament. The removal of the exception provides that all statutory instruments, including compensation orders, are subject to the class 5 negative procedure. I ask the committee to agree to amendments 15, 16, 19, 20, 27, 45, 68, 71 and 72.
I move amendment 15.
Thank you, minister. I invite colleagues to comment on the amendments in the group.
I welcome the amendments. Their provisions expand considerably the degree of scrutiny that the Parliament will have over the actions that will be taken under this legislation. That is to be welcomed.
As there are no further comments, I think that there is no need for you to wind up, minister.
Amendment 15 agreed to.
Amendment 16 moved—[Rhona Brankin]—and agreed to.
Section 1, as amended, agreed to.
Section 2—Slaughter of treated animals
Amendment 10 moved—[Mr Mark Ruskell].
The question is, that amendment 10 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 10 disagreed to.
Amendment 17 not moved.
Group 5 is on the extent of powers. Amendment 18, in the name of the minister, is grouped with amendments 74, 75 and 77.
The amendments relate to sections 2 and 11 of the bill. They are technical amendments to clarify the extent of powers. They clarify the powers of entry that are exercisable in connection with the slaughter powers that are specified in new section 62G(2) of the 1981 act; the extent of the purposes for which powers of entry may be authorised under warrant; and the extent of the powers that are ancillary to the powers of slaughter.
Amendment 18 is consequential on amendment 75. It will remove new section 16B(5) of the 1981 act, as amendment 75 renders that provision superfluous. Amendment 74 will amend new section 62G(2) of the 1981 act to clarify that the power of entry conferred by that section extends not just to entry for the purposes of ascertaining whether a power of slaughter should be exercised and to carry out the slaughter, but entry to take other action in connection with the slaughter.
Amendment 75 will insert a new subsection clarifying that the slaughter powers in new section 62G(2) of the 1981 act extend not just to the slaughter of the animals, but to any related action to that end, such as rounding animals up. Amendment 77 will make a provision, similar to that which amendment 74 makes, in relation to the power of entry authorised under a warrant. The power of entry that may be authorised will extend to a power to ascertain whether any of the relevant powers should be exercised and a power of entry to exercise any of the relevant powers or take other action in connection with the exercise of the power of slaughter. I ask the committee to agree to amendments 18, 74, 75 and 77.
I move amendment 18.
Amendment 18 agreed to.
Amendment 6 not moved.
Amendment 109 moved—[Mr Ted Brocklebank].
The question is, that amendment 109 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
The result of the division is: For 2, Against 5, Abstentions 2.
Amendment 109 disagreed to.
Amendment 110 moved—[Mr Ted Brocklebank].
The question is, that amendment 110 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 2, Against 7, Abstentions 0.
Amendment 110 disagreed to.
Amendment 111 moved—[Mr Ted Brocklebank].
The question is, that amendment 111 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
The result of the division is: For 2, Against 5, Abstentions 2.
Amendment 111 disagreed to.
Amendments 19 and 20 moved—[Rhona Brankin]—and agreed to.
Section 2, as amended, agreed to.
After section 2
Amendment 11 not moved.
Amendment 11A is pre-empted.
Before section 3
Group 6 is on the national contingency plan. Amendment 7 is the only amendment in the group.
I will summarise where I think we are up to in this debate. The situation in England and Wales is that there is statutory provision for a national contingency plan and for slaughter protocols, with detail in the legislation. I think that the minister has confirmed this morning that that is not the approach in Scotland. The approach here is to focus on the national contingency plan, and there are elements contained in that contingency planning process of what would be called a protocol in England and Wales. My concern remains that we do not have a light legislative framework in the bill for a national contingency plan to reflect the distinctive Scottish approach. I think that we need one.
Amendment 7 reflects the provisions relating to England and Wales and the need for certain elements of a national contingency plan. I will run through the provisions. There must be a document—a plan—which must be prepared first as a draft. That draft must go to representative persons and organisations, and there must be a process for amending it. The plan must also be laid before the Parliament and published in a way that ministers think fit. Those are all important, necessary statutory requirements.
Members might say that ministers are addressing the matter anyway—the avian influenza contingency plan has just been published—and that they are continually talking to stakeholders about it. I question whether that is a perfect process, however. We know that one of the biggest of the stakeholder groups that will be affected by avian influenza and by the difficult decisions that need to be taken to tackle it is the outdoor organic poultry industry. Unfortunately, that industry was not consulted in the production of the avian influenza contingency plan. I think that that is a problem. If provisions such as those in amendment 7 were included in the bill, it would ensure that those very important stakeholders were required under statute to be consulted about the production of the plans.
I therefore propose a light legislative framework. If the minister feels that it is inappropriate or that it could be improved upon, I will be prepared to withdraw the amendment on the basis that the minister will lodge an appropriate amendment at stage 3, reflecting what needs to be included in a Scottish contingency plan for the various diseases and outlining a statutory process for arriving at that.
I move amendment 7.
I ask the minister, when she responds, to outline what the statutory requirements are for the contingency planning that the Executive does. We have been told about the statutory underpinning of it, but where is the statutory requirement for contingency plans? It would be useful to know about that.
I am interested in the scope of the consultation under the current arrangements. I was not previously aware of what Mark Ruskell has just said, although I was aware of the point that he made about the restrictions and about who had actively been consulted. The issue concerns the publicity around contingency planning. The issues concerning owners of free-range or organic flocks have been covered extensively in the press. I wonder if we could use an example to see how the process would work and to ascertain how people's interests are safeguarded. It would be useful to test that when we are debating whether to amend the detail of the bill as Mark Ruskell suggests we do.
There is no need for the bill to contain a requirement to have a national contingency plan for dealing with the diseases specified in section 32E of the Animal Health Act 1981. Our belief is that Scottish industry stakeholders and others who are closely associated with them prefer an approach that is focused according to disease risk, as has been adopted in the Executive's respective existing contingency plans.
We have already consulted on and published two contingency plans, one for foot-and-mouth disease and the other for avian influenza and Newcastle disease. There is an EU requirement to produce such plans under the relevant directives. Animal disease contingency planning is, and must be, an on-going process, governed by veterinary risk assessment and addressed at the regular stakeholder meetings that my officials hold with relevant interest groups.
For example, the foot-and-mouth disease contingency plan has been revised regularly since 2002 and an updated version of the avian influenza and Newcastle disease contingency plan—which was first issued in October 2005—was issued in February 2006, to reflect changes in our understanding. A further revision is planned shortly to reflect recent Commission decisions. We work closely with poultry keepers on the issue and will continue to do so. As a result of a request from them, specific additional information has been provided in the form of a leaflet for poultry keepers in Scotland. As I said, the Executive's contingency plans include a section entitled "Disease Response Assumptions", in which the available disease control options are discussed and the policy on the use of each control method is made clear. That has the wider function of informing users of other options that may be used if the disease situation warrants that.
In short, the Executive already has in place a requirement for contingency plans, as sought in amendment 7. However, that requirement is more risk-based and flexible, to support rapid and effective eradication of disease. I re-emphasise that consultation with stakeholders is on-going. In our consultation with stakeholders on avian influenza, organic producers were included in discussions. However, we are conscious that we need to develop links further. The Foot-and-Mouth Disease Order 1983 includes a legal requirement for a plan to exist and similar provision will feature in the forthcoming avian influenza legislation. I reassure the committee that we are absolutely committed to stakeholder consultation—we have engaged in it and will continue to do so.
I hear what the minister says about the EU requirement for a plan, but there is no due process in statute about how the plan is to be arrived at. During stage 1, the minister said that the checks and balances in the process were through judicial review. Unless we have due process in legislation that gives the ministers and their officials protection, any decisions that were taken during a disease outbreak would be wide open to judicial review. People from the organic sector whose livelihoods were threatened by a decision could argue that the ministers' actions were not reasonable and that they had not been consulted. At least if the ministers had to stick to a process, they would be able to check off the actions that had been taken and prove that due process, as laid out in statute, had been followed. It is important that we have a process.
In England and Wales, there are slaughter protocols and a process for national contingency plans, but in Scots law, we have nothing except a statutory requirement for some sort of plan to be produced at some point. That is not robust or helpful enough for the ministers or stakeholders. I intend to press amendment 7.
The question is, that amendment 7 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 7 disagreed to.
Section 3—Biosecurity codes
Group 7 is on biosecurity codes and outdoor access. Amendment 112, in the name of Ted Brocklebank, is grouped with amendments 114, 115, 117 and 118.
The only guidance on biosecurity that exists for members of the public who exercise their right of responsible access over farmland consists of sporadic, piecemeal statements that are dotted throughout the Scottish outdoor access code. Given the importance of biosecurity and the potential for members of the public to put it at risk, it is vital to have a separate code of practice on the matter. Such a code would be simply for guidance and would not carry any criminal sanctions. However, it would serve to raise the profile of good biosecurity among members of the public, who might not be aware of its importance to animal welfare and to the livelihood of the farmers over whose land they enjoy responsible access.
I move amendment 112.
I ask the minister to explain the role that the access fora will play in relation to biosecurity. I believe that it is a matter for them.
I wanted to ask a similar question. Also, I understand that exemptions can be made under the Land Reform (Scotland) Act 2003—for example, a limited right of access can be introduced if there is an outbreak of disease. I would be interested to hear the minister's views on how such exemptions would work.
I agree. There is an issue of transparency for people who use the countryside. If there was a significant outbreak of disease, it would be important to make sure that there was proper public information. The key thing is that that information should not confuse people. The publicity about the Scottish outdoor access code has been superb. It has covered a lot of the country and people know what their responsibilities are. Amendment 112 is helpful because it has provoked a debate about how things would work in practice. I am keen to hear the minister's comments on how things would work in practice so that, during an outbreak, people would know their responsibilities in relation to access.
Section 3 provides a power to allow ministers, by order, to issue a biosecurity code that sets out biosecurity measures to prevent diseases of animals. In section 3, "animals" is defined as any kind of mammal except man. The code may also set out measures to prevent the spread of causative agents of diseases of animals among animals, birds or amphibians or between them and humans. Section 3 also gives ministers a power to make emergency biosecurity orders in the event of an outbreak of certain specified diseases or other emergencies that relate to a disease of animals—for example, the outbreak of a currently unknown disease.
As has been mentioned, the Scottish outdoor access code, which was approved by the Parliament and published last year by Scottish Natural Heritage, provides advice both to the public and to land managers on how people can exercise access rights responsibly. Paragraph 3.33 of the code states:
"If there is an outbreak of a contagious notifiable disease, such as foot and mouth, more detailed advice will be provided by the Scottish Executive."
In that instance, access forums would play an important role by disseminating information and advice from the Scottish Executive. The forums would be important because they would help to make the public aware of where they could continue to take responsible access.
The Executive's relevant disease contingency plans contain detailed information for access takers that is based on appropriate veterinary advice. During a disease outbreak, it will be that information source, rather than a specific outdoor access biosecurity code, that will be the basis for responsible action by all people, whether they be members of the public or land managers. Of course, the detailed information in the contingency plans, which is based on veterinary advice, has to be disseminated.
In the context of amendment 115, it is important to emphasise that subsection (8) of new section 6C of the 1981 act provides that the biosecurity code can apply only to those who own, keep or are in charge of any creature of a kind to which the code relates. I give an undertaking that, when drafting and consulting on biosecurity codes to be made under section 3, the Executive will include organisations that are involved in access rights to ensure that, as far as is possible, guidance is provided on where the responsibilities of animal keepers stop with regard to exercising a right of responsible access to land.
I remind the committee that, in 2002, the Executive published an animal health and biosecurity code that contains general advice for all users of the countryside.
For those reasons, I recommend that the committee reject amendments 112, 114, 115, 117 and 118.
Would Ted Brocklebank like to press or withdraw amendment 112?
I would like to press it. I wonder whether the minister is aware that there are only three references to biosecurity in the Scottish outdoor access code. That backs up my view that the references are fairly sporadic and not specific enough. I do not believe that the code brings together in one place all the advice relating to biosecurity or provides detailed advice on how the public should behave in the event of an outbreak. Those deficiencies in the Scottish outdoor access code support the argument for the establishment of a separate biosecurity code. Therefore, I will press the amendment.
The question is, that amendment 112 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
The result of the division is: For 3, Against 5, Abstentions 1.
Amendment 112 disagreed to.
Group 8 concerns general biosecurity codes. Amendment 113, in the name of Richard Lochhead, is grouped with amendments 21 to 24, 116, 25 and 26.
I will speak to amendment 113 and listen to the minister addressing the bulk of the other amendments. I do not have a fixed view on amendment 116, in the name of Ted Brocklebank, so I will listen with interest to what he has to say in that regard.
We all recognise the important role that biosecurity codes will play in preventing the spread of diseases. I know that there is widespread support for the codes not only in the committee but among the various stakeholders, particularly the farmers, whom this proposal concerns directly.
The purpose of the codes is to prevent the "spread of disease". That means that it is self-explanatory that the disease must therefore be capable of spreading in the first place. For that reason, I wish to qualify the reference to the purpose of biosecurity code measures, which is to prevent the spread of diseases of animals. Amendment 113 would specify that the diseases in question are infectious or contagious diseases of animals.
The discovery of a new disease that is not infectious or contagious could lead to hysteria in the media and the public domain, which, in turn, could lead the Government to impose new biosecurity codes. That would lead to an additional burden for people who keep animals—particularly farmers—yet the use of a biosecurity code would be disproportionate in the circumstance that I described, as the disease would not be infectious or contagious.
We all want biosecurity codes to be in place, but they must be appropriate and proportionate. Such codes should be introduced for the purpose expressed in the bill, which is to prevent the spread of disease. That means that the diseases covered should be infectious or contagious. The purpose of the amendment is to ensure that that is made plain in the bill. The amendment qualifies the diseases to which we are referring, which I hope would set a standard for the diseases to which we are referring in the rest of the bill.
I move amendment 113.
I will speak first to amendment 113. Section 3 provides a power by order to allow ministers to issue biosecurity codes. The codes would deal with a range of scenarios in respect of particular diseases of animals—as defined by section 87 of the 1981 act—and groups or species of animals, birds or amphibians. Ministers also have the power to make emergency biosecurity orders in the event of an outbreak of certain specified diseases or some other emergency related to a disease of animals, such as an outbreak of a currently unknown disease.
Amendment 113 would prevent the code from dealing with the prevention of diseases that are not contagious or infectious. The Executive's position is that codes should be allowed to include measures to prevent all diseases. I therefore ask the committee to reject amendment 113.
Amendment 21 is drafted to ensure that biosecurity codes can include measures to prevent the interspecies spread of causative agents of diseases of animals, for example from animal to bird. Amendment 21 inserts a new subparagraph into paragraph (b) of section (2) of proposed new section 6C of the 1981 act.
Amendment 22 clarifies that biosecurity codes may include measures for preventing the spread of such agents from animals, birds or amphibians to humans.
Amendment 25 is a consequential amendment that follows from changes that result from amendment 22, which removes the reference to animals in subparagraph (ii) of paragraph (b) of subsection (2) of proposed new section 6C.
I ask the committee to agree to amendments 21, 22 and 25.
Amendments 23 and 24 relate to the tests and samples grouping that we are still to discuss. They make technical changes to proposed new section 6C, on biosecurity codes, to address current and future developments in the detection of the causative agents of disease. Amendments 23 and 24 clarify that the reference to causative agents in the provision is to causative agents of disease. I ask the committee to agree to amendments 23 and 24.
The bill provides a statutory defence of "lawful authority or excuse" to an offence of failure to comply with a relevant requirement of a code. Amendment 116 would alter that to require that the accused has a "reasonable excuse" for failing to comply. The phrase "lawful authority or excuse" has been used in connection with defences under part 1 of the bill because the terminology is consistent with that used in other provisions of the 1981 act. Although the amendment would not alter the substance of the defence, it could cast doubt on the extent of the defence in other provisions of the 1981 act. The inclusion of the phrase "reasonable excuse" in this instance could imply that in other provisions the excuse does not require to be a reasonable one and that any excuse would suffice. For those reasons, I recommend that the committee resists amendment 116.
Amendment 26 is a technical amendment that clarifies that the emergencies to which the biosecurity code contained in the emergency order may relate are the outbreak of a specified disease or some other emergency relating to the disease of animals as set out in sections 6D(1)(a) and 6D(1)(b) of the 1981 act. The addition of the word "other" makes it clear that an outbreak of disease is considered to be an emergency. I therefore ask the committee to agree to amendment 26.
Ted Brocklebank will speak to amendment 116 and to the other amendments in this group.
As the bill stands, a farmer will commit a criminal offence if he fails to comply with certain provisions of the biosecurity code unless he has "lawful authority or excuse". In our view, that is drawn too narrowly. Using the words "reasonable excuse" would provide consistency with the wording in other parts of the bill—for example, the words are used in section 26(2). Lawful authority would clearly be a reasonable excuse.
A failure to record the names of visitors is suggested as an offence in the memorandum on delegated powers. The farmer would not have any lawful authority for failing to record names, but it would surely be unreasonable to expect him to record the names of all visitors who access his land—including people such as horse riders or ramblers—as opposed to recording the names of people who access his working yard. There is surely a reasonable excuse for a farmer failing to record names if he could not reasonably have been aware that people were there, or if those people did not report their presence to him.
Would anyone else like to contribute to the discussion on this group of amendments?
No.
Minister, do you wish to respond to any of Ted Brocklebank's points, or do you wish to rest on your earlier comments?
I will rest on my earlier comments.
In that case, I ask Richard Lochhead to wind up the discussion and either press or withdraw amendment 113.
I draw the committee's attention to page 5 of the bill where, just above section 3, is the heading "Prevention of the spread of disease". Section 3 should not apply to diseases that are not capable of spreading; it should apply only to contagious and infectious diseases. The section gives new powers to the minister, so Parliament and the committee will want to be careful that we give appropriate powers in appropriate circumstances.
Amendment 113 seeks simply to qualify section 3 so that it refers only to the diseases that we are talking about—infectious and contagious diseases. The minister said that the section should apply to all diseases, but that is not the heading that is used. The heading is "Prevention of the spread of disease", so the section should apply only to diseases that are capable of spreading. We should not give the minister powers over and above those that are required.
I know that farmers and a number of vets support amendment 113, and that is why I was keen to lodge it. I will press amendment 113.
The question is, that amendment 113 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 113 disagreed to.
Amendments 21 to 24 moved—[Rhona Brankin]—and agreed to.
Amendment 114 moved—[Mr Ted Brocklebank].
The question is, that amendment 114 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
The result of the division is: For 3, Against 5, Abstentions 1.
Amendment 114 disagreed to.
Amendment 115 moved—[Mr Ted Brocklebank].
The question is, that amendment 115 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
The result of the division is: For 3, Against 5, Abstentions 1.
Amendment 115 disagreed to.
Amendment 116 moved—[Mr Ted Brocklebank].
The question is, that amendment 116 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
The result of the division is: For 1, Against 6, Abstentions 2.
Amendment 116 disagreed to.
Amendment 25 moved—[Rhona Brankin]—and agreed to.
Amendment 117 moved—[Mr Ted Brocklebank].
The question is, that amendment 117 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)
The result of the division is: For 3, Against 5, Abstentions 1.
Amendment 117 disagreed to.
Amendment 118 moved—[Mr Ted Brocklebank].
The question is, that amendment 118 be agreed to. Are we agreed?
No.
There will be a division.
For
Brocklebank, Mr Ted (Mid Scotland and Fife) (Con)
Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)
Against
Boyack, Sarah (Edinburgh Central) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Abstentions
Ruskell, Mr Mark (Mid Scotland and Fife)
The result of the division is: For 3, Against 5, Abstentions 1.
Amendment 118 disagreed to.
Amendments 26 and 27 moved—[Rhona Brankin]—and agreed to.
Section 3, as amended, agreed to.
I thank colleagues for that. It felt like a marathon slot but, given the nature of the debate, it was important to tease out the issues properly.
Although, on the basis of today's debates, the committee may view this as overambitious, the target that I am setting for next week's meeting is the end of the bill. If we do not finish our consideration of the bill by the end of next week's meeting, we will have one more week in which to finish it. There is still quite a lot of work to do. All amendments to the remainder of the bill should be lodged with the clerks by 12 noon on Friday 17 March. It is important for the Executive, committee members and anyone else who may want a member to move an amendment to ensure that all amendments are lodged by 12 noon on Friday. I hope that everyone is clear about that.
I thank the deputy minister and her officials. We still have two agenda items to get through, but I take it that my colleagues will be grateful if I suspend the meeting briefly before we move on to agenda item 5.
Meeting suspended.
On resuming—