Volume 3: The Early Years, 1986-88
5. Human health implications, notification, and slaughter and compensation
Discussion
The submission to Mr MacGregor
The letter to Sir Donald Acheson
March to July 1988

The submission to Mr MacGregor

Why was the submission made?

5.160 The first record of consideration by MAFF officials of a slaughter and compensation policy is a minute of the meeting chaired by Mr Rees on 15 December 1987 (see paragraph 5.35). Slaughter and compensation was one of a number of options that it was agreed should be considered at a meeting on 8 January prior to making a submission to Ministers. Slaughter and compensation was the option adopted at that meeting. What were the factors that led officials to consider slaughter and compensation at this stage?

5.161 It seems that Lord Montagu's letter of 4 December was one of the factors that led officials to give formal consideration to this measure, as the evidence of Mr Lawrence and Mr Cruickshank so suggested (see paragraphs 5.30-5.32 above). Lord Montagu's letter set out the case for slaughter and compensation with admirable clarity. His logic was to be adopted by MAFF officials in their submission to Mr MacGregor and was the logic that led the Southwood Working Party to recommend slaughter and compensation at their first meeting over six months later. He is to be congratulated.

5.162 Another factor that led officials to conclude in December that the time for action had come was the escalation of the numbers of confirmed and suspected cases of BSE. Dr Peter Dawson advanced this as the primary factor responsible for the move towards slaughter and compensation. ¹ Mr Rees said that before December 1987 he did not believe the number of BSE cases would have justified a requirement for notification, whereas by 8 January, 157 cases had been confirmed on 35 farms, justifying a recommendation for notification, slaughter and compensation. ²

5.163 Reports of suspected cases were, indeed, rising at an alarming rate: the total was 66 on 4 September, 82 on 2 October, 128 on 6 November, 303 on 10 December, and 398 on 7 January. We can well understand why, in December, MAFF officials decided that they would have to consider the options for action. Had they, as we consider they should have done, started to discuss with DH the human health implications of BSE in the summer, they would have been much better placed to consider those options in December.

The slaughter and compensation recommendation

5.164 Mr Cruickshank told us that the critical factor leading to recommendation of a slaughter and compensation policy was learning, as he did in mid-December 1987, of the theory that BSE was caused by scrapie crossing the species barrier through MBM.

Until we had a reasonably plausible theory as to the origin of the disease it was extremely difficult to address the question of how to stop it. The difficulty had two aspects: science related and resource related. As regards the former, it was only when the crossing of a species barrier was perceived as a real rather than a theoretical possibility that we could begin to grasp the nature of the risk to human health. This risk had up till then been seen by both MAFF and, apparently, DHSS as rather theoretical; now it appeared as real albeit remote. On the resource point, it was only once this step change in perception of the problem took place that there was any realistic chance of justifying the use of significant amounts of money to tackle the problem.

The meeting on 8 January 1988 ³ was the first opportunity to consider the issues following this step change in perception. This meeting did indeed decide that a slaughter and compensation policy should be recommended. It is difficult even in retrospect to see how this decision could have been reached much earlier. Progress in tackling the disease depended crucially on progress with the epidemiology, which in turn depended on having sufficient data to draw meaningful conclusions. At the end of 1987 there were 132 confirmed cases, so that the situation was totally transformed by comparison with the previous July. ⁴

5.165 Not all shared Mr Cruickshank's appreciation that the identification of scrapie as the origin of BSE carried adverse implications for human health. On the contrary, most found the scrapie theory reassuring. His input into the discussion of the policy options, the drafting of the submission and the covering minute was commendable. He spelt out clearly the fact that the primary justification for the slaughter and compensation policy was the protection of human health.

5.166 Other justifications were advanced for recommending the slaughter and compensation option. It dealt with the animal welfare problem that arose when sick animals were taken to the slaughterhouse. It also precluded the risk that BSE might be transmitted from one animal to another. In that respect a slaughter policy represented a conventional approach to disease containment. We are inclined to think that Mr Rees saw this as the principal justification for the slaughter and compensation policy. ⁵

5.167 One feature of the submission to Mr MacGregor, and of the minutes relating to it, was the emphasis placed on the distinction between BSE and diseases for which eradication policies had been funded by industry. Thus the submission itself pointed out that BSE could not be treated as comparable to Newcastle disease or Aujeszky's disease, for which industry had funded eradication programmes. Mr Cruickshank's covering minute said that there was little prospect of industry agreeing to fund an eradication scheme. ⁶ Mr Edward Smith, in his covering minute, explained why he considered an industry-funded scheme to be inappropriate. ⁷

5.168 All of this suggests that officials anticipated a degree of resistance on the part of Mr MacGregor to the suggestion that MAFF should fund compensation for animals compulsorily slaughtered. Mr MacGregor was aware that a submission was being prepared in which one of the options under consideration was slaughter and compensation. ⁸ It may be that he had already expressed reservations about paying compensation which had percolated to officials.

5.169 Alternatively, officials may have been doing no more than anticipating a probable reaction having regard to the fact that there was likely to be resistance from the Government to paying compensation to farmers ⁹ and that Mr MacGregor's previous post had been that of Chief Secretary to the Treasury.

Mr Thompson's meeting on 26 February

5.170 The minute describing the meeting on 26 February records that Mr Andrews felt that it was now necessary to consult the CMO on the question of human health and that the CMO should be told the decision that Ministers were being asked to take. This minute also recorded that it was agreed that the options in Mr Andrews's minute of 24 February could not be considered until the new evidence on feedstuffs had been fully researched. This we found puzzling, for we could not see how research into feedstuffs could impact on the risk to human health. We explored what had transpired at this meeting with the witnesses.

5.171 Mr (now Sir Derek) Andrews told us that the minute describing the meeting telescoped two separate questions which were being considered in parallel: what to do about animal health and what to do about human health. Whether action should be taken to deal with the risk to human health depended upon advice from the CMO. If he advised that no action was necessary, the question would remain of what action should be taken to deal with the animal disease. That question could not be answered until there had been further research into the theory that BSE was transmitted through feed.

From my point of view, I think throughout this period, I was convinced in my own mind that unless we got a response from the CMO in terms that enabled us to set on one side the human health issue, we would have to go down the slaughter and compensation route. That was clearly my judgement at that time. ¹⁰

5.172 Sir Derek stated:

The evidence before the Inquiry shows therefore that the Minister was aware of the different policy considerations which applied depending upon whether or not there was a risk to human health. ¹¹

5.173 Mr (now Sir Donald) Thompson was not able to assist us with any recollection about this matter. He remarked to us:

It seems, with hindsight, that Mr Andrews must have thought that once we changed the feed the disease would stop immediately. That was not so and Mr Andrews realised it was not so soon afterwards. But that is what I think now. I do not know what I thought at the time. ¹²

5.174 So far as his own view was concerned, Sir Donald told us that it was that MAFF should make the disease notifiable and should introduce a slaughter and compensation scheme. That was his view before the meeting of 26 February and he pursued that line privately with Mr MacGregor and other Ministers throughout. ¹³

5.175 Mr Cruickshank described the suggestion that a slaughter and compensation policy might be obviated by evidence of a link with feedstuffs as:

. . . a bit of a pious hope actually, which was expressed briefly but I do not think was pursued. As I recall, the Permanent Secretary was pretty strongly in favour of the recommendation in the submission. ¹⁴

Mr MacGregor's reaction

5.176 We have set out above (see paragraph 5.58) the description of Mr MacGregor's reaction to the submission and the accompanying papers in the minute his private secretary, Mrs D B Haine, sent to Mr Andrews's private secretary, which was copied to Mr Thompson's private secretary and to senior MAFF officials.

5.177 Mr Cruickshank described to us Mr MacGregor's response in this way:

All the senior staff concerned had been very disappointed with the Minister's reaction to our February submission. It should be noted that, contrary to normal practice, officials had not been given an opportunity of discussing that submission with the Minister. So far as we could see, it had simply been rejected peremptorily. ¹⁵

5.178 In oral evidence Mr Cruickshank explained why he and his colleagues considered Mr MacGregor's response to be a peremptory rejection of the submission:

It does not address what seemed to us the essential point of the health risk, and it dealt with rhizomania, which seemed to us to be quite irrelevant. ¹⁶

5.179 He said that the submission repeatedly said that there was a human health aspect, but Mr MacGregor:

. . . did not seem to have fastened on to it. He had not picked it up at all, so far as we could see. ¹⁷

5.180 Rhizomania is a disease of sugar beet. Mr Cruickshank's view of the significance of this in the context of BSE appears from the following passage of his evidence:

Q: Rhizomania seemed to you to be quite irrelevant. One of the reasons I imagine it was irrelevant was that it did not pose a risk to humans?

A: (Mr Cruickshank) Yes.

Q: Was it not appropriate to point that out to the Minister?

A: The Minister was extremely familiar with rhizomania. I think in fact he was the Constituency MP for the area in which rhizomania occurred. If it was not in fact his constituency, it was the neighbouring one.

Q: Would it not have been appropriate to say to him 'You need not worry about this having an effect on rhizomania, there is a perfectly valid distinction, rhizomania poses no risk to human health'?

A: I think that was entirely obvious. Everybody knew rhizomania was no risk to human health.

Q: So it is a question of the difference between perception of officials and perception by the Minister. Officials thought rhizomania was completely irrelevant, the Minister thought it was relevant, but you could see no basis for him thinking so?

A: I think one could see the political relevance of it. One could see that the sugar beet growers in East Anglia would get upset if the cattle rearers were getting money for compensation for a disease when they were not getting compensation for their disease. That was clear. So to that extent it was relevant, but it seemed to us to miss the fundamental point, that BSE was something really to worry about. ¹⁸

5.181 Mr MacGregor did not accept that he had rejected the submission. He said that far too much significance was being attached by the Inquiry to the reference to rhizomania in Mrs Haine's minute. In accordance with his normal practice he would have scribbled that word on his papers as an aide-mémoire, being shorthand for compensation schemes in general. His private office had put their own interpretation on his shorthand and circulated it around officials so that they could be briefed before they came to have discussions with him. Mr MacGregor said in oral evidence:

I am a little surprised to find significance attached to things which were an aide-mémoire to me as to the detailed points I wanted to raise. That is relevant to rhizomania actually, because rhizomania was a big issue at that time. It was worrying sugar beet growers enormously and they were asking for compensation for any steps we took to eradicate it through not letting them grow the beet on the farms which one had to fumigate and do other things on the field which meant that they were not available for sugar beet growing for ten, twenty years. They were asking for compensation.

I had much more in mind other areas like Newcastle disease, Aujeszky's disease. There was a very clear policy at the time. We had made clear that Government compensation, Government funding would only come where there were clear public health analogies and I was anxious to make sure we had the public health side correct, otherwise (a) I probably would not have got any agreement in Government for Government compensation, and (b) it would set dangerous precedents, it would change the policy. What I was raising there was we need to get clear the grounds for compensation. That was the point, it was an aide-mémoire to me. ¹⁹

5.182 Mr MacGregor said that at the time that the submission was put forward:

. . . the Permanent Secretary suggested to me that we would have to give a lot of thought to this, that there were a lot of difficult decisions to be made, and that we could not do so until further evidence had come forward, particularly in relation to what the cause of the disease was . . . ²⁰

5.183 He said that he regarded the submission as:

. . . a very early draft submission, it is quite clear from later papers that there was a good deal of discussion among officials as to whether this was the right course of action or not. I think that you will see on 26 February the Permanent Secretary himself wondered whether it was the right thing to do . . . ²¹

5.184 He added a little later:

. . . within a few days of getting that submission, you could see that a number of officials were wondering whether it was the right solution, because of all the uncertainties. I was conscious of that; I was conscious that we all knew that it was not a clear-cut issue. ²²

5.185 Mr MacGregor said that it was made clear that there would have to be further thought given to all the issues before a decision could be taken. These included the question of whether MBM was definitely the cause. When asked why it was so critical to establish whether MBM was the cause, he replied that this was important for the understanding of all the various courses of action that should be taken and that it was important to act in a comprehensive way. ²³

5.186 Mr MacGregor's evidence on his approach to the slaughter and compensation recommendation is encapsulated in the following paragraphs from one of his written statements:

The submission stated that a number of epidemiologic and other studies were underway or planned, that new experiments were focusing on the possibility that the cause was linked to feedstuffs derived from sheep carcasses, and that discussions were taking place with representatives of the feed industry to obtain more information about the production and composition of animal feed since the late 1970s.

Thus, the position at the date of the submission, 24 February 1988, was that there was no evidence that the disease was transmissible to humans and its cause was uncertain.

I knew from my experience as Chief Secretary that I had to be sure of my ground before making an application to Treasury to fund a compensation scheme. If I had made an application to Treasury at the end of February 1988 the likelihood was that the proposal would have been rejected on the state of the evidence at that time. Alternatively, I would have been told to come back later when the evidence had firmed up. The crucial point was that we needed to be sure of the public health grounds if we were going to introduce a compulsory slaughter scheme and if we were going to persuade Treasury that the Government should fund the compensation.

Furthermore, I was conscious that if I made a decision at that point in time to introduce compulsory slaughter when there was no firm information available about the cause of the disease and no evidence that the disease was transmissible to humans, there might be grounds to challenge that decision by way of judicial review.

I was also conscious that we had to be as sure as we could be of the basis on which we were taking action because if we took a step such as slaughter and compensation, which would have considerable consequences for the industry, and were then found to have done so on an insecure and possible false basis, we would have been subjected - and rightly - to serious parliamentary and public criticism. ²⁴

5.187 Later, Mr MacGregor commented that he was astonished to discover that Mr Cruickshank thought that his comments recorded in Mrs Haine's minute of 29 February 1988 ²⁵ were indeed his definitive answer. Mr MacGregor told us that his method of working on complex papers like the minute of 24 February 1988 ²⁶ and the Animal Health submission ²⁷ was to give some immediate reactions to enable officials to know the kind of issues that he would want to explore at a meeting, and a number of those were outlined in the minute of 29 February 1988. ²⁸ He thought it must have been obvious that he could not, over a weekend, which was always busy with other things anyway, have given full consideration to a document that had taken months to produce on one of the most complex areas of policy, and without consulting anyone else, have come to a conclusion. Even if he had come to a conclusion, the minute would have done much more than just raise a few questions. It would have responded to all the detailed points in the submission sent to him by Mr Andrews under cover of his note of 24 February 1988 ²⁹ summarising 'our present state of knowledge on BSE', and those in his own note. It very clearly did not. Indeed, it made no references at all to the full submission, and so patently was not a response to that.

5.188 Mr MacGregor made the point that he lost no time in acceding to Mr Andrews's suggestion that the advice of the CMO should be sought. He emphasised that this was the obvious first step, something that had to be done before they could proceed further with the submission.

Conclusions

5.189 The submission made to Mr MacGregor represented a classic example of the precautionary principle. There was a possibility that BSE might be transmissible to humans. The position was succinctly described by Mr Cruickshank in correspondence about the draft submission with Mr George Thomson of the Department of Agriculture and Fisheries for Scotland:

. . . our vets take the view that, looking at the balance of probabilities, the likelihood is that BSE is not transmissible to man. The problem is that we cannot say there is no risk - indeed, I do not think we can even say the risk is insignificant. So we are dealing with a relatively low probability of a very serious danger. ³⁰

5.190 In these circumstances MAFF officials had decided to recommend that a slaughter and compensation policy should be introduced, for both animal and public health reasons, the latter being paramount. Mr Andrews endorsed this approach, advising that unless the CMO supported Mr MacGregor in taking no immediate action, there was no real option but to proceed to a slaughter and compensation policy (see paragraph 5.54). At the meeting on 26 February Mr Donald Thompson lent his support to this approach. It was agreed that the CMO should be told of the decision Ministers were being asked to take and asked for his opinion on the possibility of BSE's transmission to humans.

5.191 Approximately four months elapsed between the receipt by Mr MacGregor of the submission recommending a slaughter and compensation policy and Mr MacGregor's request for Treasury approval of such a policy. We have been concerned to explore whether this delay was attributable to an initial rejection by Mr MacGregor of that submission, or to opposition to the policy falling short of rejection and, if so, whether Mr MacGregor's reaction was one which warrants criticism.

5.192 In oral evidence Sir Derek Andrews did not agree with Mr Cruickshankthat there was a peremptory rejection of the submission. He observed that Mr MacGregor:

. . . was concerned, and he was quite rightly concerned, that we should have a proper basis upon which to approach the Treasury, if we had to approach the Treasury, in order to tackle this through slaughter and compensation . . .

. . . I do not recall that the submission was rejected. It was not pursued immediately. There was some further discussion before we settled down to a policy decision on it, but I do not recall he rejected it as such. ³¹

5.193 We agree with Mr Andrews that Mr MacGregor did not reject the submission, but he did not accept it either. His initial response was one of reservation as to whether a slaughter and compensation policy could be justified as a precautionary measure against what was no more than a possibility of a risk to human health. His reaction was that more positive evidence of risk to humans was required before the expense of government compensation could be recommended.

5.194 We consider that the advice in the submission was sound and that it was unfortunate that it did not immediately commend itself to Mr MacGregor. Had he rejected it out of hand, as Mr Cruickshank suggested that he had, he would have been open to criticism. We do not consider, however, that he can be held at fault for what was no more than an initial reaction, albeit we believe a strong one. What mattered was the action that he decided to take.

5.195 That action was to agree to Mr Andrews's suggestion that the views of the CMO should be sought. We consider that this was an appropriate course to take - indeed, we believe that it was the appropriate course having regard to the fact that the submission had been proposed without involvement on the part of DH.

The letter to Sir Donald Acheson

5.196 Mr Cruickshank told us that the original intention of MAFF officials was that DH should be asked to approve a slaughter and compensation policy. ³² The minute describing the meeting of 26 February 1988 noted that Mr Andrews felt that it was now necessary to consult the CMO on the question of human health. He should be told the decision that Ministers were being asked to take and should be asked for his opinion on the possibility of BSE's transmissibility to humans. We believe he clearly intended by this that the CMO should be told that Ministers were being asked to introduce a slaughter and compensation policy. In the event the CMO was simply asked for his advice:

. . . on the view we should take of the possible human health implications and how we should handle questions about the risks to human health. ³³

5.197 Mr Cruickshank said that Mr MacGregor's reaction, as expressed in Mrs Haine's minute, was critical in bringing about the change in drafting of the letter to Sir Donald. The letter could no longer say that MAFF were proposing to implement a slaughter and compensation policy. ³⁴ He added:

I think it is difficult to overestimate the point, because I think it is clear from papers I have seen more recently that people like Sir Donald Acheson and Sir Richard Southwood did not understand that MAFF officials were actually keen to get the carcasses taken out of the human consumption chain, because this letter did not say that . . . ³⁵

5.198 Sir Derek Andrews initially did not think that the Minister's reaction affected the way in which the matter was raised with the CMO. On reflection, however, he acknowledged that the Minister's response made it difficult for him to raise matters with the CMO in the way he had planned, and he agreed that the letter had to reflect what Mr MacGregor was telling him at the time. ³⁶

5.199 Sir Derek Andrews, who drafted the letter to Sir Donald Acheson, was asked why he did not inform him of the policy options in front of MAFF Ministers. He replied that he was seeking advice on the particular point of the risk to human health. He would have thought it unnecessary and a bit surprising to rehearse everything in the submissions he had put to Mr MacGregor, particularly as he knew that MAFF officials were going to discuss details with DH officials. ³⁷ Later in his evidence he agreed that in drafting the letter he had to have regard to what his Minister was telling him. His own view was that unless MAFF got clear advice that there were no implications for human health he 'did not see any alternative but to go down the slaughter and compensation route'. ³⁸

5.200 Had Mr MacGregor shared that view, and had he made this plain to Sir Donald Acheson, the question arises as to whether there might have been a different outcome. We asked Sir Donald what he would have said if told that MAFF intended to introduce a slaughter and compensation policy unless he advised that this was not necessary:

Q: If you had been asked the direct question: should we introduce a slaughter and compensation policy, Sir Donald, what might you have said?

A: It is easy to say now, is it not, with knowledge? I hope I would have said: do it now.

Q: This minute does not suggest to me that that was the way it might have been put to you. The minute suggests it might have been put to you: we think, unless you can reassure us, that we ought to introduce such a policy. Can you reassure us there is no need to do anything at the moment?

A: The answer is I would not have reassured them there is no need, I would have said do it. I think that is putting it the same way. Do it now, we do not need to have a meeting for that but let us have a meeting anyway. Well, no, I think I would have said: let us organise a meeting and consider it there, to be fair, which is going to be within a couple of weeks. ³⁹

5.201 Views expressed by witnesses about hypothetical situations have limited value. Faced with the letter he did receive, Sir Donald, after consultation, decided that the situation did not warrant immediate action, but could await the time necessary to set up an independent working party and obtain their advice.

5.202 We cannot be sure that the result would have been any different had Sir Donald been asked whether he could provide reassurance that there was no need immediately to introduce a slaughter and compensation policy. We think the likelihood is, however, that if told that MAFF's provisional intention was to introduce such a policy, he would have endorsed that policy.

5.203 We have thus concluded that, although Mr MacGregor cannot be held at fault for expressing reservations about the policy recommended by his officials, the fact that he had those reservations resulted in the issue of the appropriate response to the risk posed by BSE to human health being passed to the CMO without any steer as to the direction in which MAFF officials were minded to go.

Sir Donald Acheson's advice

5.204 After receipt of Mr Andrews's letter of 3 March, Sir Donald received Dr Ann Dawson's minute of the meeting between DH professionals and Mr Rees and Dr Watson on the same day. Apart from the information already summarised (see paragraph 5.61), this inaccurately stated that the Treasury had refused to meet the cost of culling and incinerating BSE suspects.

5.205 On 17 March Sir Donald chaired the meeting that he had called to discuss the response to Mr Andrews's letter (see paragraph 5.64). At that meeting it was decided that there was 'something to worry about which should be considered by an expert group' but that the threat was not 'sufficient to require an immediate recommendation for action'. ⁴⁰

5.206 On the first occasion that Sir Donald gave evidence he was asked for the reasoning that led him to conclude that the situation did not require him to advise 'stop feeding these to humans now' but permitted passing that question to an expert committee. He answered:

. . . honestly I cannot remember. I suspect I felt I needed the help of some experts first. ⁴¹

5.207 We had serious concerns about a decision which was likely to allow BSE-affected animals to continue to enter the human food chain for the period of months that would probably elapse while an independent committee was appointed and deliberated. We asked Sir Donald to provide us with further information about this decision.

5.208 Sir Donald dealt with this matter first of all in a written statement. The principal point he made in this statement was that the decision taken at the meeting was the unanimous decision of all present and that he had in practice no option but to accept it.

I believed at the time, and even with the benefit of hindsight continue to believe, that the correct course of action on 21 March 1988 was to seek Ministerial permission to appoint an independent group of distinguished scientists in the relevant disciplines to evaluate the issue in a more considered manner. I would emphasise that there was no support at the meeting from any of the officials or scientists present for the view that the risk to human health was such as to require immediate action in relation to animals entering the food chain. ⁴² Had I attempted to overrule the unanimous advice of the scientists at the meeting on this point, I regard it as highly unlikely that my personal advice, unsupported by experts, would have been accepted by the Treasury. ⁴³

5.209 Sir Donald made a further point:

. . . it was reported that within MAFF there had already been considerable controversy and concern about the issue of the cost of introducing a slaughter and compensation policy. In consequence, both Dr Watson and Mr Cruickshank stated at the meeting that formal appraisal of the risk to human health was a prerequisite for the introduction of such a measure. In other words, a more considered view than was possible at a single meeting summoned at short notice and without pre-circulated papers was necessary if the costs of a slaughter and compensation policy were to be justified to the Treasury. ⁴⁴

5.210 In oral evidence he reiterated both points. He emphasised the calibre of those whom he had summoned at short notice to advise him on 17 March, and their universal response was that immediate action was not necessary but that the matter should be considered by an expert group. ⁴⁵

5.211 On the second point, Sir Donald said:

. . . the excellent group of people I managed to get together, which included four excellent scientists and officials, including Mr Cruickshank, made it absolutely clear that it was necessary to get further information before a proper decision could be made to advise MAFF.

I should point out that when Mr Cruickshank minuted Mr Andrews about the 17 March meeting he omitted - and I am not suggesting it was deliberate - to say that it was he at the 17 March meeting that had said it was necessary for further information and assessment to be made before it would be justifiable to incur the costs. ⁴⁶

5.212 It became apparent to us as Sir Donald gave evidence that the passage of time had robbed him of a reliable recollection of events in 1988 and that his oral evidence was in large part an attempted reconstruction based on contemporary documents.

5.213 We cannot accept Sir Donald's evidence that he was told by Dr Watson and Mr Cruickshank at the meeting on 17 March that they required a more formal appraisal of the risk to human health than could be provided at that meeting. There was no hint of such a requirement in any of the evidence of the MAFF witnesses and it was in conflict with the evidence of Mr Cruickshank, whom we found an impressive witness.

5.214 Nor can we accept that there was unanimous agreement from all present at the meeting on 17 March that the appropriate course was to refer the issues raised to a group of experts. On the first occasion that Mr Cruickshank gave evidence he told us:

I think all the officials concerned were quite clearly of the view we should go for a slaughter and compensation scheme quickly. I recall at the meeting with the Chief Medical Officer I attended and when he suggested setting up a committee, my initial reaction was one of apprehension that this would delay us getting a move on with the business of setting up the scheme. ⁴⁷

. . . my initial reaction was, 'Oh no, that will delay us moving on with this', but when I left the meeting, and was walking back up to my own office, I thought: 'Oh well, perhaps he was right after all, that we do need these experts in'. ⁴⁸

5.215 We accept this evidence. It accords with his recorded comment at the meeting that 'it was important that both government departments arrange appropriate action' before the disease became newsworthy. ⁴⁹

5.216 Mr Cruickshank recorded that Sir Donald expressed the view that he thought it highly likely that the expert group would advise that carcasses of affected animals should not go for human consumption. ⁵⁰ That was indeed the advice the Southwood Working Party gave at their first meeting.

5.217 We asked Sir Donald whether, when the Working Party made that recommendation, he discussed with Sir Richard Southwood why they had formed that view. He replied:

I honestly cannot remember. I think I can remember my reaction, which was one of relief. I thought it was an excellent thing to do on commonsense grounds; and an excellent thing not to wait until he concluded his report. ⁵¹

5.218 It seems to us that once those at the meeting on 17 March had concluded that they could not be sure that it was safe to eat cattle sick with BSE and that an expert committee should be constituted to consider this, common sense suggested that BSE-affected cattle should be removed from the food chain in the meanwhile. We would have expected the CMO to take the lead in suggesting this.

5.219 While Sir Donald's response to MAFF's request for advice was disappointing, we do not consider that it was blameworthy. He was put in an invidious position, being asked for advice without notice on policy that had significant consequences. Had he been told, as MAFF officials originally intended, that MAFF proposed to introduce a slaughter and compensation policy unless he advised that this was unnecessary, we think it unlikely that he would have dissented. As it was, the onus was put on him to advise whether positive measures were called for. In the face of uncertainty on the part of those he had summoned to consider this, we do not feel he can be held at fault for recommending that the matter be referred to an expert group.

March to July 1988

5.220 The second quarter of 1988 saw growing confidence on the part of the Epidemiology Department of the CVL that ruminant protein was indeed the source of BSE infection. This led to Mr MacGregor's commendable decision to introduce a compulsory ruminant feed ban (see paragraph 4.9).

5.221 However, despite the fact that the source of BSE now seemed relatively clear, Mr MacGregor remained opposed to government funding for a slaughter and compensation scheme. When his officials once again recommended such a scheme, he stressed that industry should be under no illusions that it could be government-funded. Mr Cruickshank received a request from Mr MacGregor only a few days later to advise on steps to cut off the sources of BSE to humans (see paragraph 5.81). Once again he recommended compulsory slaughter and compensation. Mr MacGregor's response was to authorise exploration of whether the Milk Marketing Board might be a source of funding for such a scheme.

5.222 Mr MacGregor has urged that his insistence that industry funding should be explored was beneficial. It meant that when the Southwood Working Party recommended the compulsory slaughter and destruction of clinically affected animals, he was in a position to demonstrate to the Treasury that industry funding was not an option. ⁵² We consider that there is some force in this point.

5.223 The reality was that once the CMO had advised that the possible risk to human health did not justify immediate action, but that scientific advice should be sought, the die was cast. Treasury approval to paying compensation could not be anticipated unless and until supported by the advice of the appointed Working Party. In the interim attempts to find an alternative source of funding for compensation were not unhelpful. Once the Working Party had recommended slaughter and destruction of BSE-affected animals, Mr MacGregor lost no time in seeking, and obtaining, Treasury approval of a compensation scheme. ⁵³