Skip to main content

Animal Health and Welfare (Scotland) Act 2006 (Consequential Provisions) (England and Wales) Order 2006

Volume 687: debated on Tuesday 5 December 2006

rose to move, That the Grand Committee do report to the House that it has considered the Animal Health and Welfare (Scotland) Act 2006 (Consequential Provisions) (England and Wales) Order 2006. First Report from the Statutory Instruments Committee.

The noble Lord said: I thank the Committee for agreeing to take together these two orders being made under Scotland Act powers. This is well-established practice and continues to make the best use of parliamentary time.

The two orders are made under different sections of the Scotland Act. The order concerning animal health is made under Section 104, which allows for necessary or expedient changes in consequence of an Act of the Scottish Parliament.

The order relating to the transfer of functions—in this instance, functions concerning the Healthy Start scheme and recent climate change legislation—is made using the powers in Section 63 of the Scotland Act. The power is commonly referred to as an executive devolution order and allows for the transfer to Scottish Ministers of functions that they can then exercise in or as regards Scotland.

I hope that it will be helpful to Committee members to give a brief explanation of both orders. The Animal Health and Welfare (Scotland) Act 2006 (Consequential Provisions) (England and Wales) Order 2006 is made in consequence of the Animal Health and Welfare (Scotland) Act 2006, which received Royal Assent on 11 July and is an Act of the Scottish Parliament. The 2006 Act introduces in Scotland a duty of care for all those who are responsible for animals to ensure that their welfare needs are met.

The power of courts to disqualify a person who has been convicted of an animal welfare offence from certain activities such as owning or keeping animals, which was previously contained in the Protection of Animals (Amendment) Act 1954, is retained and strengthened in the 2006 Act. By “strengthened”, I mean that the 1954 legislation contained powers that could be used to disqualify people “for having custody of” any animal. The 2006 Act widens the scope of disqualification to catch owning, keeping, arranging to keep, dealing in or controlling animals, whether directly or indirectly.

The specific purpose of the order is to maintain reciprocal arrangements on the enforcement of disqualification orders made by the Scottish courts in England and Wales. As was the case with disqualification orders made under the 1954 Act, the order also ensures that a person subject to a Scottish disqualification order made under the 2006 Act is unable to obtain a licence in England and Wales to keep an animal boarding, riding or dog-breeding establishment. That is consistent with the Animal Welfare Act, which was also given Royal Assent this year. It contains provisions—agreed to by the Scottish Parliament in December 2005—allowing recognition in Scotland of disqualification orders made by a court in England or Wales; effectively the mirror image of the order we are discussing today.

The Government and Scottish Executive believe that there should be co-operation to ensure that there is no scope for the exploitation of gaps between the animal welfare regimes north and south of the border. Both Administrations support the maintenance of the established principle of reciprocal recognition of court orders. This ensures that those convicted of serious cruelty to animals, and consequently disqualified from keeping animals in one jurisdiction, cannot escape the effect of that disqualification simply by crossing the border into another jurisdiction.

The second order before us is the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No.3) Order 2006. It allows for the transfer to Scottish Ministers of functions in two distinct policy areas. First, the Healthy Start scheme is the replacement for the current Welfare Food Scheme, introduced in Britain to combat food shortages during the Second World War. Latterly, the scheme offered milk and infant formula to low income families. Following a Department of Health review of that scheme, Section 13 of the Social Security Act 1988 was substituted by the Health and Social Care (Community Health and Standards) Act 2003, among other things to enable the Welfare Food Scheme to be replaced by Healthy Start.

The new scheme offers vouchers that can be exchanged for milk, fresh fruit and vegetables, and infant formula to pregnant women and children under the age of four in certain low income families. The vouchers can be used in a wide range of participating shops and pharmacies. Under the Welfare Food Scheme, tokens could only be exchanged for milk and infant formula, but the new scheme offers much more flexibility and choice.

Although, like the Welfare Food Scheme, Healthy Start is primarily based upon social security benefits, and is therefore reserved, the range of foods and matters relevant to the NHS link closely to devolved health policy. The draft order therefore transfers to Scottish Ministers the functions of prescribing the description of foods to be made available under Healthy Start in Scotland in the future and issuing directions to the health boards that will be administering parts of the scheme in Scotland.

The Scottish Ministers will deal directly with reimbursement in relation to Healthy Start vitamins. As with the Welfare Food Scheme, the intention is that contractors for the Department of Health will carry out day-to-day reimbursement functions for Healthy Start food. When dealing with reimbursement of suppliers and beneficiaries in Scotland, the Department of Health will be acting as an agent of the Scottish Ministers. This arrangement will enable the Scottish Ministers to take advantage of economies of scale and will be made possible by a further order under Section 93 of the Scotland Act. It will be made at the same time as this order. It will be subject to the negative resolution procedure and will go before the UK and Scottish Parliaments.

The draft order before us today also provides for the transfer to Scottish Ministers of payment and reimbursement functions in relation to Healthy Start food vouchers and Healthy Start vitamins provided to beneficiaries in Scotland. These functions are similar to those currently carried out by Scottish Ministers in terms of Welfare Food scheme reimbursement.

The second order transfers to Scottish Ministers functions in Sections 32, 32A and 32B of the Electricity Act 1989 as amended by Sections 23 and 24 of the Climate Change and Sustainable Energy Act 2006. The sections of the 1989 Act were previously executively devolved to Scottish Ministers and relate to functions allowing for the delivery of renewables obligations (Scotland), or ROS. The ROS is a key driver in increasing renewable generating capacity in Scotland. It works by imposing an obligation on licensed electricity suppliers in Scotland to provide an increasing proportion of the electricity that they supply from qualifying renewable sources, essentially sources of energy other than nuclear or fossil fuels, such as wind, wave power, solar and biomass.

As I mentioned, Sections 32, 32A and 32B of the 1989 Act have been amended by the Climate Change and Sustainable Energy Act 2006. These amendments make it easier for small/micro renewable generators to benefit from the support available under the ROS and its UK counterparts. The order therefore transfers the relevant amended functions to Scottish Ministers. It also transfers functions that will enable such generators to appoint agents to act on their behalf, greatly reducing the administrative burden that some small generators may experience.

Finally, the order transfers functions that will enable generators who generate and consume their own electricity to qualify for renewable obligation certificates without having first to sell their electricity to and then purchase it back from an electricity supplier. I hope that noble Lords will agree that both orders are a sensible use of the powers in the Scotland Act and that their very practical impact is something to be welcomed. I beg to move.

Moved, That the Grand Committee do report to the House that it has considered the Animal Health and Welfare (Scotland) Act 2006 (Consequential Provisions) (England and Wales) Order 2006. First Report from the Statutory Instruments Committee.—(Lord Evans of Temple Guiting.)

I thank the Minister for having laid out these matters so extensively. We have not always agreed to take all the Scottish orders at the same time, because we generally get quite a pot-pourri of issues and sometimes one can couple them together and sometimes that seems a little more difficult. I declare an interest as I rear livestock in Scotland.

Having sat through some of the discussion of statutes this afternoon and having noted the trials that have beset Defra in trying to transpose legislation from one printed source to another, we must congratulate the officials this time around. They have managed to pick up parts of the Animal Welfare Acts from Scotland and England, include them in this order and change all the numbers and, as far as I can see, they have done so in a perfect and accurate manner. I sometime wonder whether someone would like to run a competition between the departments on legislative drafting to see which can make the most perfect legislation. In this case, the Scotland Office is coming out ahead.

We are pleased at any moves to clarify or strengthen the powers that are needed to deal with an outbreak of infectious animal diseases. It is in everyone’s interest that someone who is proven guilty of the deliberate infection of animals, which is mentioned in the Explanatory Notes, should be subject to a disqualification. As the Minister mentioned, the duty of care towards animals in the Act in Scotland is parallel to that which was envisaged by the Animal Welfare Act 2006. The main question that still arises, and which must be of concern to the Government and the rest of us, is whether to ban in Scotland the docking of certified working puppies’ tails. The proposal has been withdrawn in Scotland and is now out for consultation. One can envisage that being an issue. Would the owner of a dog which has been certified and docked in England, who takes up residence with his dog in Scotland, which had a ban, be subject to a disqualification order? If this were so, would the order be upheld if the owner then returned to England? There are great possibilities for a new economic trade in what we might term “docking tourism”.

Clause 44 of the 2006 Act contained powers to subject those disqualified in England and Wales to the same sanctions if they removed themselves to Scotland. As the Minister pointed out, this measure provides for an equivalent power to operate in the other direction. Perhaps the Minister might be able to clear up an anomaly. If one breaches the disqualification order in England, one is liable to imprisonment for 52 weeks or a fine not exceeding level 5. If one then goes to Scotland and commits a breach there, one will be liable to only 26 weeks’ imprisonment and a level 5 fine. However, if one is disqualified in Scotland and commits a breach in England, one is liable under Article 3(3) of this order to only 13 weeks’ imprisonment or a level 5 fine. It cannot be that the Scots are always more ready to pay the fine, but there must be some reason behind it.

I express my interest in the transfer of functions order as someone who hopes to gain some benefit from renewable energy generation. The Healthy Start scheme seems to be entirely to be recommended. The rest of the order follows on from a great deal of legislation which gives Scotland greater autonomy over renewable electricity generation, be it on shore, off shore, on the hills, under the ground and other possible variations, and in which most Members of the Committee have been involved.

The Explanatory Note states that the three previous SIs in relation to the Electricity Act 1989, which amend Sections 32, 32A and 32B, have now been amended by the Climate Change and Sustainable Energy Act 2006. Could not these changes have been allowed to read across into the Scottish legislation, without us having to pass a separate instrument? Better still, could not this instrument have been drafted in such a way as to do away with earlier instruments and consolidate their powers into one, thereby simplifying the legislation? Will the Minister also explain whether the second statutory instrument which is mentioned in the Explanatory Memorandum—that is, SI 2000/3252—is that which is being modified in Article 3(3) of the order and described in note (f) as SI 2000/3253?

I, too, thank the Minister for his explanation of the legislation. On the animal welfare order, we as Liberal Democrats are keen to make sure that the Scottish Executive and the Scottish Parliament are able fully to use the powers that they should have in devolved areas.

It clearly makes sense to be able to ensure—this is the core of the proposal—that those who are disqualified in one part of the United Kingdom are disqualified also from farming or other trades involving animals. We greatly welcome that. I also understand that herds or animals which have been moved can still be seized and put into care by order of a court. Again, that seems reasonable. The alternative would seem bizarre, with extradition orders for animals or even using a European arrest warrant to bring animals back and ensure that they are cared for. Clearly, the order makes sense.

It is now some two months since the Scottish Act came into force on 6 October. Have there been any cases where people with disqualified orders have moved across borders and not been prosecuted? On the other order, I am sure my noble friend Lord Steel will have more to say.

To come back to power generation, it clearly makes sense for the greater authority in Scotland to move forward here as well. This seems to have happened through the passing of our own legislation, the Climate Change and Sustainable Energy Act 2006, which seems to have stopped what should be happening from happening. Can we have assurances that the Climate Change Bill, which will be introduced to Parliament in this Session, will not reverse what the Government are trying to with this order?

On the welfare food regulations, we entirely welcome the fact that the Scottish Executive have greater powers. In England and Wales, primary care trusts will ensure that children covered by the scheme are receiving nutrient benefits under it. Do the Executive have the power to give health boards similar responsibilities? It was clear when the Government introduced its Healthy Start scheme that the foods it covered would be under constant review. If a review takes place in England and Wales, will the Government expect the Executive to apply the findings to Scotland? Will they be shared, or will this be a completely autonomous matter for the Scottish Executive?

I shall make a few remarks about the second of these orders, the transfer of functions to Scottish Ministers. I assume that the answer to my noble friend’s question is that, yes, food matters would be devolved to the Scottish Ministers. That is the whole point of the order.

I want to say a few words because those with long memories will recall that, during the passage of the Scotland Act through both Houses, it was said many times by Donald Dewar, myself and others that devolution was not an event, it was a process. These orders, particularly the second, are proof of that: this is a furtherance of the whole process of bringing government as near to the people as is sensible.

At the time, we were promised that, after 10 years or so, there would be a review of the workings of the Scotland Act. That means that the review will take place during the next Scottish Parliament, the election of which is due in April—not far away. That election being due is causing a flurry of opinion polls and speculation as to what the composition of the next Parliament will be. I would appeal for a moment of calm because I recall—the noble Duke, the Duke of Montrose, will also recall, no doubt—that in 1998 we had similar opinion polls predicting that there would be a great surge for the Scottish National Party. I remember the SNP campaigning in 1993 under the slogan “Free by ‘93”. Doubtless, it will have a new one saying, “In heaven by 2007”. But there is no need for an absurd reaction to these things.

Recently, the Home Secretary, for whom I have a high regard, seemed to have taken leave of his senses in arguing that separation would make life easier for al-Qaeda in Scotland. This is an absurdity. There are far better arguments to combat separatism, one of which centres on the social security system to which this order relates. I recently chaired a commission to look at possible ways in which we might transfer taxation powers to the Scottish Parliament. On one thing we were certain: the complexity of the social security system is such that it makes sense to retain it as a United Kingdom function and that to try to dismantle or separate it would be extremely expensive and complex. This order is a practical measure devolving to Scottish Ministers those parts of the social security system which can sensibly be devolved, particularly the Healthy Start scheme, which is a hybrid. It is a health matter as well as a social security matter and its operation is sensibly left north of the Border to Scottish Ministers. I welcome this order as a demonstration of devolution, of the Scotland Act working effectively and I thank the Minister for introducing it.

I thank the noble Lord, Lord Steel, for supporting these orders. As he said, devolution is a process and not an event. Orders were always anticipated as part of the sensible management of Scotland’s devolution settlement and the provisions in the Scotland Act recognised this. I am most grateful to the noble Lord for his support and interesting comments. I hope to answer all the questions that I have been asked. If I miss any, I will write.

I am also grateful to the noble Duke, the Duke of Montrose, for the care and attention that he has obviously given to the order. He asked about the banning of docking tails of puppies and whether an owner moving from England to Scotland would be banned. At the moment, I believe that the answer is “no”, but I understand that the Scottish Executive are considering this. I will provide clarity in writing once the consideration has finished, if it would be helpful, as I am sure that it would. The noble Duke asked about the climate change elements of the Section 63 order. This will do away with and will replace the previous executive devolution order. He also asked why the penalties are lower for Scotland than for England. The Scotland Act requires them to be lower. The power to make orders under Section 104 of the Scotland Act only allows imprisonment of up to three months on summary conviction or a fine not exceeding level 5.

The noble Lord, Lord Teverson, asked whether there have been any cases of people with disqualification orders moving to England between the passing of the Scotland Act and this order. The Scottish Executive have advised that no one with this problem has moved from Scotland to England. The noble Lord also asked: if a review takes place of foods covered, will a review also take place in Scotland? The power to specify the foods covered will be a matter for Scottish Ministers, but we would expect co-operation between the UK Government and the Scottish Ministers. I again thank Members of the Committee for their comments on these orders.

On Question, Motion agreed to.