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Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2007

Volume 690: debated on Thursday 15 March 2007

rose to move, That the draft order laid before the House on 24 January be approved.

The noble Lord said: My Lords, the draft orders were laid before the House on 24 January. The purpose of the draft Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2007 is to extend the list of controlled pathogens and toxins in Schedule 5 of the Anti-terrorism, Crime and Security Act. When the Act was originally drawn up, the classical list of agents from state biological warfare programmes was used as the basis of Schedule 5 and primarily addressed the state proliferation of chemical and biological weapons. It was a familiar and logical starting point for this United Kingdom counter-terrorism legislation and was used in the absence of any other considered criteria.

Since then, there has been considerable debate within government and the United Kingdom scientific community about the pathogens caught within the scope of the legislation. Following these discussions, it has been concluded that terrorist scenarios could involve more pathogens than those currently listed in Schedule 5, so the list has been revisited by a cross-government group with the aim of placing it more squarely within the current United Kingdom context.

The Science and Technology Committee endorsed the view that the Act should be updated to be fully reflective of all materials of concern from a counter-terrorist perspective. That view was also echoed by the committee of Privy Counsellors, which reported on the Anti-terrorism, Crime and Security Act in December 2003. We added pathogens and toxins to the list only when we were satisfied that the pathogen or toxin could be used in an act of terrorism to endanger life or cause serious harm to human health.

The approach that generated the revised list is robust and will withstand wider challenge—the process is proven and auditable. Experience with lists of pathogens produced for other purposes, such as health and safety at work, is that there is always debate about the precise position of individual agents on such lists and that they need to be reviewed from time to time as more information becomes available.

There have already been a number of attacks using pathogens and toxins. For example, several envelopes containing anthrax powder were sent to addresses in the United States in autumn 2001. Some 22 people were affected and five, sadly, died. In 2004, ricin powder was discovered in the office of the US Senate majority leader. The threat posed by the possible terrorist use of pathogens and toxins therefore remains real and active.

However, I am aware that in this area, as in so many other areas associated with terrorism, there is a need to balance the protection of the public against placing undue burdens on industry. We certainly do not want to force unnecessary security requirements on industry. I do not think that this is the case here or that the way in which the provisions have operated to date have caused any problems, which is largely due to the sensible way in which they have been applied by the police.

As my right honourable friend the Minister of State with responsibility for crime reduction, policing, community safety and counter-terrorism at the Home Office said in another place, we have listened to concerns that have been raised about the orders and how they should apply in relation to genetically modified organisms. As a result of these representations, we have decided that it would be useful to have guidance drawn up in conjunction with the police on how the orders should apply in that area. We will also ensure key representatives from the commercial sector are involved in drafting the guidance and that arrangements are put in place for monitoring the implementation of the orders.

The second order is the Part 7 of the Anti-terrorism, Crime and Security Act 2001 (Extension to Animal Pathogens) Order 2007, which extends the legislation to cover animal pathogens. Under Section 75 of the Anti-terrorism, Crime and Security Act, the Secretary of State may, by order, extend the legislation to cover animal pathogens, plant pathogens, toxic chemicals and pests. The powers may be extended where the Secretary of State is satisfied that the chemicals concerned could be used in an act of terrorism to endanger life or cause serious harm to human health, or the pathogens or pests could be used in an act of terrorism to cause widespread damage to property, significant disruption or alarm.

Following concerns being raised about the possible use of animal pathogens as terrorist agents, a group made up of representatives from the police, government and Security Service confirmed that the World Organisation for Animal Health list A of animal pathogens provided a means of identifying which were of concern. My right honourable friend the Secretary of State for Environment, Food and Rural Affairs subsequently proposed additional animal pathogens considered to be potential bio-terrorist agents, which form the list of animal pathogens we are discussing today. Plant pathogens were not considered as suitable controls were already in place.

It is imperative to ensure that terrorists do not have access to dangerous substances. The benefit of increasing the scope of substances subject to control is difficult to quantify as it is impossible to assess to what extent greater national safety is secured and potential dangers avoided by such preventive measures. However, denying terrorists access to such substances is an important part of the preventive measures taken by government.

If the draft Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2007 is approved, it will come into force 14 days after it has been made. If the Part 7 of the Anti-terrorism, Crime and Security Act 2001 (Extension to Animal Pathogens) Order 2007 is approved, it will come into force two months after it has been made. I therefore commend the orders to the House. I beg to move.

Moved, That the draft order laid before the House on 24 January be approved. 7th Report from the Statutory Instruments Committee.—(Lord Bassam of Brighton.)

My Lords, the Opposition support the need to extend the controls and to update the list of toxins and animal pathogens. The risk of a terrorist attack remains as great as ever. According to Dame Eliza Manningham-Buller, the current terror threat will “last a generation”. The number of individuals identified as being actively engaged in plotting terrorist acts runs well into four figures. Dame Eliza claimed that MI5 knew of no less than 30 groups plotting actual attacks. She warned that in the future terrorist attacks were likely to come from,

“the use of chemicals, bacteriological agents, radioactive materials and even nuclear technology”.

Nor has the use of such techniques been merely a theoretical threat. Ever since the sarin nerve gas attack on the Tokyo subway in 1995, the public have been concerned by the danger of terrorist groups obtaining chemical weapons. Such fears were only exacerbated when several people were killed in the United States five and a half years ago. In their way, these sorts of attacks are unquestionably among the most chilling. Therefore no one could possibly dispute the need for effective legislation in this field.

The orders have, I accept, the demanding task of including all the pathogens, viruses and other substances that actually or potentially give rise to concern without, at same time, imposing unnecessary burdens on those whose commercial activities involve using such substances in an entirely legitimate way. It is in the context of achieving the right balance that the Association of the British Pharmaceutical Industry has some preoccupations about the manner in which the categories of organisms and toxins have been extended under Schedule 5. It is especially concerned about the effects of notes (c) and (d) of the draft instrument which relate to the transfer of elements of genetic material from specified pathogens to new hosts. In a letter written to the Secretary of State on 20 February the association stated:

“As currently worded, the content could be construed as suggesting that storage and use of the modified host organisms should be subject to high security measures even where the pathogenicity of the modified host is unaffected”.

As a result it argues that,

“genetically modified organisms that have low or minimal pathogenicity and which would normally safely be handled in low containment facilities with no special security measures will now have to be subject to the high security standards required for high risk organisms which require containment in level 3 or, in some cases level 4 facilities”.

The association believes that the consequential obligation to invest in higher levels of security by the enterprises concerned will prove extremely expensive. It concludes that this could deter legitimate and beneficial research into genetic modification in the United Kingdom.

I know that it is the Government’s policy to deal with this very delicate but important balance in the form of guidance. I do not know what stage the drafting of this guidance has reached. I would be most grateful if the Minister could enlighten your Lordships as to what the proposed timeframe will be. I would also like the Minister to give your Lordships’ House some idea of who will be consulted in the drawing-up of this guidance. I know that he will appreciate the importance of making sure that commercial concerns are properly involved before any final decisions are reached.

My Lords, I thank the Minister for explaining the need for these two orders. We support both of them. Matters affecting the security of our country can never be taken lightly. Almost daily, we see on our monitor the level of security risk not only in Parliament but across the country as well. We must therefore do everything possible to ensure that such risks are reduced to a minimum. There is obviously no such thing as total security, but we will fail in our duty if we do not take account of advice offered to us by experts.

I endorse what the noble Lord, Lord Kingsland, said. It is frightening to think that our own citizens are involved in harming our country. I need to ask the Minister three questions. The first is based on the explanation that was given by Mr McNulty in the other place. He said:

“I am aware that, in this area, as in so many others associated with terrorism, we need to balance the protection of the public against placing undue burdens on industry”.—[Official Report, Commons, First Delegated Legislation Committee, 26/2/07; col. 5.]

What discussions have taken place with industry on this matter?

Secondly, what areas of legitimate use of pathogens will be affected by the attempt to clamp down on those who may want to use them illegitimately? It would be helpful to have some explanation from the Minister on that point. Thirdly, to what degree are the Government listening to advice and recommendations on trying to ensure that the maximum possible number of harmful chemicals will be banned from wide use with the minimum impact on those who have legitimate reasons for holding those chemicals?

My Lords, will the noble Lord repeat his second question? I did not pick it up—I am going a bit deaf, I think.

My Lords, it was about the areas of legitimate use of pathogens that will be affected by the attempt to clamp down on those who may wish to use them illegitimately.

My Lords, I am grateful to both noble Lords for their supportive interventions. Before I respond to the specific points that they raised, perhaps I may say a few other words in conclusion about the terrorism threat.

As I think both noble Lords recognise, the terrorism threat is real, current and serious. As they both agreed, the events of the past few years have graphically demonstrated that. The noble Lord, Lord Kingsland, referred to the sarin incident, which, as he said, was a truly chilling occurrence. It is essential that we do everything in our power to reduce the risk and maximise protection of our citizens. We do it in a variety of ways. Some are very visible, through changes in legislation. As we are discussing today, we are also increasing physical security in public and business places.

Both noble Lords rightly drew attention to the need to get the balance right and to ensure that we do not unnecessarily overburden those who are involved in entirely legitimate business concerns. We have gone to considerable lengths to achieve that. The noble Lord, Lord Kingsland, rightly raised questions about achieving that balance and some of the concerns about notes (c) and (d). We endeavour to ensure that organisms that require appropriate security are covered. The guidance will be produced to address the points that the noble Lord has made. We have been in extended discussions with the Association of the British Pharmaceutical Industry, which was initially concerned, as the noble Lord, Lord Kingsland, rightly said. Perhaps events have overtaken the concerns to which he referred, as I understand that it is now somewhat more content with the approach adopted. We have had some constructive discussions, and the issues of the potential impact on research relating to genetic modification have now been resolved to its satisfaction. I will endeavour to check that that continues to be the case.

On how the list was arrived at, we consulted carefully with representatives from the Health and Safety Executive, the Health Protection Agency, the Ministry of Defence, Defra, the National Counter Terrorism Security Office and the Security Service. They met to consider which pathogens handled in UK facilities could have the potential to cause serious harm if used by a terrorist. That group is known as the Salisbury group, and we worked closely with it to ensure that we had the list right. We therefore consulted across the industry sector, and I can advise the House that while we have not yet produced guidance it is in an early stage of development. I make it clear today, and am putting it on the public record, that we undertake to work closely with the ABPI to produce guidance—we hope, by this autumn.

I hope that answers the central point to the noble Lords’ satisfaction. This is an important duo of orders, which will enable us to get the balance about right on control and so on. If noble Lords wish to raise particular concerns with me about the two orders and their impact outside this short discussion, we will be more than happy to meet them again.

In addition, I should say that we have consulted extensively in the scientific community. Meetings were constructed involving some 100 scientists, from all over the UK, with a view to getting comments on the contents of this and future lists. In drawing up this new list, information was also drawn from the US, Canada and other British sources—some directly from leading scientists working with particular agents. I understand that the scientific advisory committee on genetic modification was also consulted, so we did go some long way to cover all the bases.

On Question, Motion agreed to.