Volume 5: Animal Health, 1989-96
4b. Implementation, enforcement and monitoring of the animal SBO ban: discussion
Consideration given to the 1990 Order
Responsibilities for the 1990 Order
Fallen stock
The 1990 Order and accidental contamination at renderers
Enforceability of the 1990 Order
Reliance on the voluntary SBO ban
Could remedial measures have been included in the 1990 Order?

Responsibilities for the 1990 Order

4.789 The 1995 Order addressed a number of deficiencies in the operation of the animal SBO ban that had become apparent in the years that elapsed after it came into force. It addressed, in particular, two matters: (i) the need for enforceable obligations to keep SBO separate from other material in all places and at all times; (ii) the risk of contamination in the course of the rendering process. Should either or both of these matters have been appreciated and addressed when the 1990 Order was drafted?

4.790 Mrs Attridge was head of the Animal Health and Veterinary Group, which had responsibility for the legislation. She told us that Ministers wanted effect to be given to SEAC's recommendation to exclude SBO from animal feed as quickly as possible, and that it was her responsibility to ensure, insofar as she could, that the Animal Health and Veterinary Group carried out ministerial wishes. ¹ This responsibility extended to taking an active interest in the way the Order would operate. We explored with Mrs Attridge how far this responsibility required her to give personal consideration to the terms of the Order and who should have been applying their mind to the practical requirements of the Regulations to make sure that they were viable.

4.791 Mrs Attridge told us that this would have been a team effort. On the administrative side Mr Maslin would have been reporting to Mr Lowson on the terms of the legal conditions. The Chief Veterinary Officer (CVO) and the Meat Hygiene veterinarians would have been providing input on the practicalities. Mrs Attridge said that she would normally have left it to them:

. . . except if I had not been on leave I would probably have seen the draft and commented on it at the time it went to the lawyers, but I would not normally intervene until that stage. ²

4.792 In the case of an important Order she would 'keep an eye that any points of concern had been looked at'. ³

4.793 Mrs Attridge was on leave from 20 August to 10 September. We consider that she could properly leave it to her team, under Mr Lowson, to attend to the details of the Order. When she gave evidence to us it was apparent that she did not have previous knowledge of the manner in which the 1989 Regulations operated or of the details of the working of the voluntary animal SBO ban. We do not consider that she could reasonably be expected to concern herself with these details.

4.794 We do not think responsibility for considering how the Order would operate extended any higher in the administrative hierarchy. In particular, Sir Derek Andrews told us that he was not personally concerned with this statutory instrument, which was one of 153 that the Department made in 1990. ⁴

4.795 Mr Lowson, as head of the Animal Health Division, confirmed that the drafting of the Order fell within the responsibilities of his division. ⁵ In a written statement Mr Lowson explained the nature of his involvement in the preparation of the Order. He told us that once the policy decision had been taken to ban SBO in animal food, while he saw most of the papers, he was less directly involved. Mr Lowson said he left Mr Lawrence and Mr Maslin to consult with colleagues about and carry forward the preparation of legislation and associated documents. We were told by Mr Lowson that his role was to ensure that the necessary work was being carried forward and that the views of veterinary and legal colleagues were being taken into account.

4.796 We consider that Mr Lowson had ultimate responsibility on the administrative side of the team for ensuring that the terms of the Order were satisfactory.

4.797 As CVO, Mr Meldrum was responsible for seeing that the administrators had any veterinary advice that he could see was needed, either by providing this himself or by making sure that it was provided by the appropriate section of the SVS. Although originally he had no memory of personal involvement, Mr Meldrum was reminded by some contemporary documents that he had, in fact, been consulted about a draft of the Order. ⁶ Mr Meldrum told us that he would have been thinking about the position in slaughterhouses once he learned of transmission of BSE to a pig in August 1990. He added:

Quite clearly I was consulted on the Order. Therefore I obviously gave considerations to the provisions in that Order and how they would have applied. I would not have agreed to the Order going forward if I thought that a major problem could arise in a slaughterhouse in the implementation. ⁷

4.798 Mr Meldrum was also in a position, as a result of his previous experience with the rendering industry, to give consideration to how the Order would operate at the rendering stage of the animal feed chain. ⁸

4.799 It seems to us that Mr Meldrum had lead responsibility for providing veterinary advice on the practicalities of the Order. Mrs Attridge told us that she would have expected the Meat Hygiene veterinarians to be involved in advising on the practical side, but Mr Baker told us that he had no recollection of being consulted before the animal SBO ban was introduced. Had he been consulted he felt that he would have contributed to the discussion. ⁹ If Mr Meldrum had thought that input about slaughterhouse practices was required which Mr Meldrum was not himself in a position to provide, we do not doubt that he would have made sure that Mr Baker was consulted.

4.800 We appreciate that the preparation of the Order was a team effort and that others lower in the hierarchy were involved in it. We were concerned, however, that the matters which troubled us were matters which ought to have been considered personally by Mr Lowson and Mr Meldrum and it was with them and with Mrs Attridge that we explored our concerns about the adequacy of the Order.

Fallen stock

4.801 The 1990 Order had a drafting error which was overlooked by everyone. Because the definition of SBO was lifted from the 1989 Regulations, it failed to cover fallen stock. This error was quickly identified and instructions were given to the lawyers to rectify the error. We do not see that a drafting error of this nature, rapidly identified, calls for criticism. It was, as Mr Maslin remarked, a consequence of the speed with which the Order had been produced. Perhaps more significant is the fact that it took the lawyers a year to rectify the error. This is not a matter that we have felt it necessary to explore - there may have been reasons for the delay and, in practice, most knacker's yards were proceeding on the basis that the Order applied to them (see paragraphs 4.46-4.53 above).

The 1990 Order and accidental contamination at renderers

4.802 When the 1990 Order was being drafted, renderers were already drawing a distinction between SBO and other material, in accordance with the voluntary SBO ban. Many renderers were processing both categories of material, stockpiling or disposing of as waste the MBM derived from SBO, and selling to feed manufacturers the MBM derived from other material. Mr Meldrum had advised Ministers that it was desirable that renderers should continue to process SBO.

4.803 Mr Meldrum told us that he was conscious of the risk of contamination, where renderers used the same plant to process SBO and material fit for incorporation in animal feed. When giving evidence in Phase 2 he raised this matter:

The question could be asked by you later to yourselves as to why we did not go for dedicated lines in 1990. The answer was there was insufficient capacity within the industry to do that. Between 1990 and 1995 additional plant was put on stream, put in at quite high cost, so that by 1995 we were able in fact to go for dedicated lines in rendering plants.

At the same time there was a problem, I will not go into too much detail, but there was a Monopolies Commission problem that arose in all of this . . . ¹⁰

4.804 He went on to confirm that his mention of the Monopolies Commission was a reference to the position of Prosper De Mulder. They might have had sufficient capacity to provide a rendering service for all SBO produced in Great Britain. Had the 1990 Order required rendering of SBO in dedicated plant, this might have had the effect of setting up Prosper De Mulder as a monopolist provider of this service, which would not have been acceptable. ¹¹

4.805 The evidence does not appear to support Mr Meldrum's assertion that renderers had installed separate lines by 1995. ¹² They were granted six months to install such lines under article 26 of the 1995 Order. ¹³

4.806 We believe that there are two reasons why it did not occur to Mr Meldrum in 1990 that renderers should have been required to install separate lines for processing SBO. The first was that such a measure would have seemed disproportionate if its only purpose was to enhance the protection of non-ruminant animals against what was no more than a possible risk. The second was his failure to appreciate that cross-contamination in feedmills might put cattle at risk. We have found that Mr Meldrum should have addressed this at or soon after the introduction of the ruminant feed ban. He did not do so because of his failure to contemplate the possibility that a small quantity of infectious material might suffice to transmit BSE to cattle.

4.807 Given that at this time Mr Meldrum did not envisage that the integrity of the animal SBO ban had any significance for cattle, we do not consider that he is open to criticism for considering that it was acceptable for renderers to use common plant to render sequentially SBO and other material. In such circumstances it would have been hard to justify requiring renderers to go to the expense of installing dedicated plant as a condition of continuing to render SBO. If the regulations had required renderers to avoid mixing SBO with other material, so that they would have been obliged to take reasonable measures to avoid contamination, this would have been an adequate response to what at the time was perceived as a remote risk. The County Councils would then have been in a position to insist that renderers took reasonable steps to avoid contamination. We deal with that aspect below, when considering our concern at the lack of an enforceable obligation to keep SBO separate from non-SBO material.

4.808 For similar reasons, we consider that Mr Meldrum acted reasonably in advising that renderers should continue to be permitted to render SBO. Renderers were already processing SBO as waste under the voluntary ban. Had this been forbidden, a significant waste disposal problem would have been created and it was reasonable to conclude that the better course was to avoid this consequence.

Enforceability of the 1990 Order

4.809 In the course of oral evidence, Mrs Attridge commented:

Would we make a law that we thought was unenforceable? No, I do not think we would is the short answer to that. ¹⁴

4.810 For the reasons that we have explored at length, the 1990 Order was unenforceable. The 1995 Order remedied that. Should it have been apparent to Mr Meldrum and Mr Lowson that the 1990 Order was defective in this respect?

4.811 Broadly, witnesses gave two answers as to why they believed that there would be no problem in relation to the implementation of the 1990 Order:

1. The human SBO ban already in place under the 1989 Regulations was working satisfactorily and thus there was no reason to believe that there would be any problem with the 1990 Order.
2. Separation of SBO from other unfit material was already taking place under the voluntary SBO ban and there was no reason to believe that this was not operating satisfactorily.

4.812 Mr Meldrum had this to say about the suggestion that he should have anticipated problems with the 1990 Order:

The information available to me in September 1990, was that there were no major problems with the SBO Regulations and voluntary separation of SBOs by slaughterhouses and renderers was already taking place . . . It is difficult to see, without the benefit of hindsight and experience gained over 4 years, what steps I could have taken when the 1990 Order was first introduced to ensure that there was a system to monitor compliance with the SBO Regulations and the 1990 Order. To do so, I and my staff would have needed unbelievable foresight verging on inspired guesswork and that is quite clearly an unacceptable manner in which to conduct Government business. ¹⁵

4.813 He added:

So far as the new SBO regulations were concerned in 1990 (ie, the 1990 Order) it was the primary responsibility of the relevant administrators to commission the draft statutory instrument and to draw up the relevant instructions to field staff and advice to Local Authorities based on advice from SEAC and the AHVG veterinary advisors. As CVO at the time, I would not have become involved with this procedure unless a particular problem was identified which required my input. However, since I was not aware of any particular problems with the implementation of the SBO regulations introduced in November 1989, I would not be in a position to provide any advice to Ministers as to how the existing regulations might be improved, if at all. ¹⁶

4.814 Mr Maclean's note of 5 July 1990 had called for MAFF to be ready with an immediate offal ban for pigs and poultry in the event of experimental transmission of BSE to a pig. ¹⁷ Mr Lowson's reaction had been that experimental transmission to a pig would not make it necessary to introduce an animal SBO ban. ¹⁸ He told us that he would have agreed this answer with his veterinary colleagues and it was endorsed by Mr Andrews. Mr Lowson acknowledged that it turned out to be wrong. ¹⁹ Mr Andrews also endorsed Mr Lowson's conclusion that:

There is not much that we can do now to prepare for the possibility that offals (presumably specified offals) will need to be banned from pig and poultry feed. ²⁰

4.815 In oral evidence Mr Lowson explained:

Yes, in response to Mr Maclean's minute I did think to myself, 'What will we have to do if it turns out that we are required to introduce a ban?' And my conclusion was not much because we already had what seemed to me to be a workable legislative framework, in that there were already controls on SBO in slaughterhouses, there was already a system which controlled the use of one category of animal feed, namely ruminant material into ruminants, that it would be legislatively straightforward to implement an SBO ban.

In that case one would simply be adapting the existing legislation through statutory implementation, probably under the Animal Health Act which would be a very quick procedure, that the logistical problems, because a ban was de facto in place already, would probably not be overwhelming. ²¹

4.816 Mr Lowson did not suggest that there were detailed discussions prior to deciding on the Order, but summarised his perception of the position as follows:

At that time we knew that the industry itself was de facto operating a ban which we had I think good reason to believe I think was taken seriously. We knew that at the first stage of the process, that is in the slaughterhouse, rules had been adopted under a familiar and workable system, namely the old Staining and Sterilisation Regulations, which provided for the separate handling of SBO, so at the second stage of the process at the rendering plant, we knew that this was an industry in a relatively small number of hands and the major player in that industry was processing material separately already.

We knew there was a strong commercial incentive on each stage in the production chain, particularly the compounders, to ensure that keeping SBO material out of animal feed was in fact adhered to because if we go back to the meeting with the NFU, their concern arose from the demands being placed on them by the multiple retailers, so there was a strong commercial incentive to do the job properly already existing. ²²

4.817 In a written statement Mr Lowson made a number of points, which included:

I have been referred to legislative changes that were recommended as a result of a meeting of MAFF officials on 3 May 1994. If and in so far as such changes were a reaction to matters that became apparent only after the introduction of the Order, such matters could hardly have been identified when the order was introduced. ²³

The problems of enforcement which give rise to the possible problems of operation and enforcement . . . were in general not identified at this stage. This was not surprising as the proposed legislation followed a familiar format which had in the past, I understand, been found to work well . . . ²⁴

4.818 Mr Lowson described discussion of the 1990 Order, in which he took part, as 'straightforward as it required only relatively minor changes to the 1988 Order already in place'. ²⁵

4.819 We do not believe that Mr Lowson gave rigorous consideration to the requirements of an animal SBO ban in response to Mr Maclean's minute of 5 July. He differed from Mr Maclean on the need for this, in that he did not believe that experimental transmission to a pig would necessitate the introduction of an animal SBO ban. He was wrong about this, as he acknowledged, but his assessment was expressly endorsed by Mr Andrews and implicitly by other senior colleagues, including Mr Meldrum and Mrs Attridge (see Chapter 3, paragraphs 3.179-3.181). We do not consider that either he or they are to be criticised for what proved to be an error of judgement. It was important, however, that when SEAC advised that SBO should be withdrawn from animal feed, rigorous thought was given by Mr Lowson - and by Mr Meldrum - to the steps that needed to be taken to achieve this.

4.820 Mrs Attridge remarked that the report of transmission to a pig on 20 August could not have come at a worse time because August and September was when most of the top people in the Ministry took their leave, so that they were thin on the ground. ²⁶ A much more serious impediment to detailed discussion was, however, a policy that combined secrecy and haste in preparing the Order.

4.821 When Mr Meldrum learned that BSE had been transmitted to a pig, he decided that this should be kept confidential until it could be discussed by SEAC. He discussed the finding by video conference link with Mr Gummer, of which no record was made in order to preserve confidentiality. ²⁷ Mr Gummer endorsed and adopted the policy of keeping news of transmission to a pig confidential until the Government had its response to this in place. ²⁸

4.822 SEAC advised on 7 September that SBO should be excluded from the feed of all animals. This advice, also, was kept confidential until the draft Order was prepared, whereupon both the fact of transmission of BSE to a pig and MAFF's response were announced simultaneously (see Chapter 3, paragraphs 3.213-3.216).

4.823 It is a natural reaction of government to defer making public news of an event that is liable to cause alarm or concern until the appropriate response has been determined. Such a course is not necessarily to be decried. It has, however, its dangers. It may prevent those affected by the event from taking timely action to avoid or mitigate its consequences and it may prevent consultation that is necessary or desirable in order to be sure that the measures adopted to deal with the event are appropriate and adequate.

4.824 We do not believe that when Mr Meldrum urged that news of transmission to a pig should be kept 'under wraps' he intended that this should preclude any consultation necessary to ensure that appropriate action was taken in response to this event. No doubt the same is true of Mr Gummer. He could reasonably expect his officials to inform him if his call for confidentiality was in conflict with the demands of sound planning. With hindsight, we believe that it would have been better if MAFF had made public SEAC's advice of 7 September, stated that the voluntary ban that was already in place would be replaced by a mandatory ban, and proceeded to consult with industry and with local authorities as to what would be needed to make such a ban effective. In the event, the secrecy and haste resulted in an absence of consultation that would have proved valuable. We suspect, too, that they contributed to a failure on the part of Mr Lowson and Mr Meldrum to give the requirements of the ban the rigorous consideration that they required.

4.825 When, on 3 May 1994, Mr Eddy chaired a meeting to consider tightening up existing controls on the handling of SBO, the first thing he and his colleagues had to do was to spend 'a great deal of time clarifying in our own minds how the current arrangements work'. ²⁹ It does not seem to us that anyone devoted the necessary time and effort to considering how the arrangements would work before the animal SBO ban was introduced. The fact that a voluntary ban was already in operation was treated as satisfactory demonstration that a mandatory ban could and would work. This was not a satisfactory approach. The question that needed to be asked was whether 'self-policing' would ensure that the ban was properly implemented and, if not, what legal obligations should be imposed to enable the local authorities to carry out their enforcement responsibilities.

4.826 Had that question been asked and rigorously considered; had opinions been canvassed in the usual manner of professionals and administrators within what, in the course of 1990, became the Animal Health and Veterinary Group, we believe that it would have become apparent that all was not plain sailing. In 1994 Mr Eddy wrote:

The current arrangements are complex because they involve three policy Divisions at Tolworth and operate under the Food Safety and Animal Health Acts and therefore fall to two Divisions in Legal Department. To make matters worse the animal health aspects are implemented by County Council level local authorities and the Food Safety Act aspects by the District Council tier. ³⁰

4.827 The complexity was no less great in 1990 and its implications needed to be addressed.

4.828 We do not suggest that Mr Lowson and Mr Meldrum should have been able to resolve, without assistance from the lawyers, the difficult points of statutory interpretation that we have set out earlier in the discussion. We do believe, however, that consideration of the position as it existed in August 1990 should have led to the following conclusions:

1. The 1989 Regulations did not simply forbid the sale or use for human consumption of SBO; it coupled that prohibition with a complex series of regulations designed to enable that prohibition to be enforced and monitored.
2. It was, at the least, unclear whether the 1989 Regulations required SBO to be kept separate and identifiable at all times.
3. The 1989 Regulations imposed no obligations on knacker's yards or hunt kennels, nor on renderers, and did not require movement permits for material in transit from knacker's yards and hunt kennels.
4. If the 1990 Order was to be enforceable, it needed to couple the prohibition on feeding SBO to animals with a series of requirements covering handling of SBO that could be enforced.

4.829 Mr Lowson told us:

. . . there was a well-established system with well-established requirements for enforcement and the requirement under the 1989 legislation for SBOs to be packaged and labelled distinctly from other condemned material, as I read the 1989 Order. So you have there the basic requirement, which is that the stuff is separate at the point where it is extracted from the animal. ³¹

4.830 Mr Meldrum made these comments on the effects of the 1989 Regulations and 1990 Order:

At this time SBOs were being separated from other waste material. The 1989 Regulations in my view require that, in the way that they are marked and licensed off to a renderer.

The 1990 Animal Health SBO Order put some obligations on slaughterhouse owners as to what they may do with SBOs and what they could not do in particular. That is quite clear. They could not in fact consign SBO material for use for feeding to livestock. Therefore that means, again, you have to keep the SBO material separate in the slaughterhouse. So I do believe that separation was required. It was quite clearly required and was in fact anyway part of the voluntary arrangement in place at that time. ³²

4.831 For the reasons set out above, both these statements were incorrect. We believe, however, that they are the product of recent consideration of the Regulations by Mr Lowson and Mr Meldrum. We do not believe they reflected consideration given when the 1990 Order was being drafted. They were not conclusions which could safely be made without consulting the lawyers and such consultation did not take place. Had they done so, the lawyers would not have advised that either Order imposed a duty to separate SBO from other material in slaughterhouses.

4.832 Any reliance on the 1989 Regulations as an answer to the practical problems of the animal SBO ban would have been misplaced for two reasons. In the first place, the requirement to ensure that SBO was at all stages separately treated from other material did not arise under the 1989 Regulations. Whatever the position in slaughterhouses, these Regulations simply had no impact on knacker's yards, hunt kennels and renderers, nor did they control transit from knacker's yards and hunt kennels to renderers. In the second place, the 1989 Regulations had given rise to very considerable problems, as itemised by Mr Corbally. These included 'impractical and unenforceable' requirements in relation to storage and removal of SBO (see paragraph 4.689 above). It is not clear whether knowledge of these had got beyond Mr Baker and the Meat Hygiene Veterinary Section. It would not have been right to make assumptions about the smooth operation of those Regulations without checking with veterinarians responsible for meat hygiene. But we do not think either Mr Lowson or Mr Meldrum reached this stage.

4.833 Had rigorous consideration been given by Mr Lowson and Mr Meldrum to the requirements of an effective animal SBO ban, they could not have concluded that the simple amendment that was made to the ruminant feed ban would be satisfactory. The problem was not an easy one. It merited discussion and consultation with those who would be affected by the ban and those who would have the duty to enforce it. This was sacrificed to speed and secrecy.

4.834 We consider that both Mr Meldrum and Mr Lowson should have identified and drawn attention to the problems. In saying this, we bear in mind that Mr Lowson was absent on leave from August 23 to September 2. He has not suggested that this inhibited him from giving the matter proper attention. Nor should it have done. He had primary administrative responsibility for the Order and had been asked by Mr Maclean to give consideration to it in July.

4.835 We sought information from the lawyers involved as to the instructions that they were given in relation to the drafting of the Order and the circumstances in which it was drawn up. After such a lengthy period of time they were unable to add any significant details to those to be gleaned from the contemporary documentation. This is scanty, for it seems that the lawyers were initially instructed by telephone. We note, however, that in a manuscript minute to Mr Lawrence, Miss Richmond 'flagged-up' a warning that officials might be criticised for including provisions which were unenforceable. ³³ We do not consider that the lawyers are to be criticised for the form of the Regulations. It was primarily for those instructing them to consider how they would operate in practice.

Reliance on the voluntary SBO ban

4.836 It seems to us that the principal factor that fostered a belief that the animal SBO ban would work effectively was the existence of the voluntary SBO ban. This is no doubt what Mr Maslin had in mind when he included in his submission to the Minister the statement that 'as with the existing ruminant feed prohibition, the ban on its sale, supply and feeding will, to a large extent, be self-policing' (see Chapter 3 paragraph 3.246). Deliberate breach of the ruminant feed ban was unlikely, for renderers had an alternative market for ruminant protein and feed compounders had no commercial motive for disregarding the ban. The same was not true of either the voluntary or the statutory animal SBO ban. Mr Lowson's statement to us that 'we knew there was a strong commercial incentive on each stage in the production chain, particularly the compounders, to ensure that keeping SBO material out of animal feed was in fact adhered to' was nonsensical. ³⁴ Both slaughterhouses and renderers had a strong commercial incentive to pass off SBO as material fit for feeding to animals.

4.837 The voluntary SBO ban did not, in fact, demonstrate that 'self-policing' was satisfactory.

4.838 We have already pointed out that the voluntary SBO ban was not applied by all feed manufacturers and that a market existed for MBM that contained SBO (see paragraph 4.624 above). The market was shrinking and by August 1990 MAFF had been told that MBM made from SBO was 'largely unsaleable'. ³⁵ We do not think it was reasonable to assume that all slaughterhouses and renderers were complying strictly with the requirements of the voluntary ban, having regard to the financial consequences that the ban involved.

4.839 We explored with witnesses from the rendering industry the extent to which it was possible in practice to rely on slaughterhouses and renderers to comply with the voluntary ban. Mr Foxcroft told us that Prosper De Mulder did its best to check that material received was SBO-free, but that this 'could be very difficult. You were very reliant on co-operation from the abattoirs.' ³⁶

4.840 Mr Rogers explained the position:

UKASTA imposed their unilateral voluntary ban on the inclusion of SBOs on 9 November 1989. And UKRA met with UKASTA on the 21st, at which UKASTA accepted that it was impractical, impracticable for either the rendering or the meat industries to give cast iron guarantees that offals used would exclude SBOs. That was on the basis that their exclusion from rendering material was voluntary at the abattoir . . . UKASTA would however agree to buy meat and bone meal on the basis of substantially free on a best efforts basis, and that we did. In accordance with that undertaking UKRA advised all its members that they were now strongly recommended to totally exclude this material and to insist upon its separation at source at the abattoirs, and UKRA members were requested to sign to that effect. I have a copy of the document here called the 1990 UKRA Code of Conduct dated 26^th February, and all of them did. ³⁷

4.841 Mr Rogers added that the onus was on the abattoir to ensure separation:

Where it was evident that separation was not complete, then attempts were made to rectify the situation at the abattoirs, but with extreme difficulty because of the lack of legislation. It was entirely voluntary. As I said just now, in complying with what we were requesting them to do they were in fact costing themselves considerable sums of money. ³⁸

4.842 Mr Lowson said that he had good reason for believing that the industry was taking seriously the voluntary animal SBO ban, on the basis of what he had been told by Mr Lawrence and Mr Maslin. ³⁹ But that did not mean that there was full compliance with that ban, nor that there would be full compliance with a statutory ban. On the evidence that we have received, there were no reasonable grounds for concluding that there was or would be satisfactory compliance with the animal SBO ban on a 'self-policing' basis.

Could remedial measures have been included in the 1990 Order?

4.843 We now turn to consider whether it would, in practice, have been possible to remedy the deficiencies that we have identified in the regulatory scheme before the MHS had taken over the enforcement duties of the local authorities in slaughterhouses. There were suggestions that it would not be right to criticise individuals for deficiencies that could not have been remedied.

4.844 The intense consideration given by MAFF officials in 1994 to shortcomings in the operation of the animal SBO ban led to the introduction, in 1995, of a package of remedial measures. They were able to capitalise on the transfer of enforcement functions from local authorities to central government, so that the MHS became responsible for enforcement of the statutory regulations applicable in slaughterhouses. This step was effected by an amendment to the 1989 Bovine Offal (Prohibition) Regulations. At the same time, the staining requirements in those Regulations were amended to provide for staining of SBO with a distinctive Patent Blue stain (see paragraphs 4.426-4.427 above).

4.845 This was followed in July by the Specified Bovine Offal Order 1995, which consolidated and extended the Regulations that made provision for both the human and the animal SBO bans. Thus the Order replaced the existing BSE legislation that had been introduced under both the Food Act 1984, the Food Safety Act 1990 and the Animal Health Act 1981. The Order was made pursuant to the powers conferred upon the Minister under the Animal Health Act 1981, rather than the Food Safety Act 1990. ⁴⁰

4.846 Under article 25 of the Specified Bovine Offal Order 1995, enforcement of the Order in slaughterhouses remained with the Minister, to be performed by the MHS. Elsewhere enforcement fell to the local authorities, ie, the County Councils.

4.847 Both Mr Meldrum and Mrs Attridge submitted to us that the statutory improvements that were made to the scheme of the animal SBO ban in 1995 were dependent upon the replacement of the District Councils by the MHS as the enforcement authority in slaughterhouses. This enabled consolidation of the Regulations under one Act, the Animal Health Act 1981. Had this been done before 1995, the County Councils would have been made responsible for enforcement in the slaughterhouses, an environment that had always been the province of the District Council.

4.848 This is all rationalisation after the event. We do not believe that adequate consideration was given in 1990 to the need for enforceable statutory requirements to keep SBO separate from other material at the point of origin, in transit to renderers and at the renderers. Had the need for this been appreciated, it could have been achieved by including in the 1990 Order the specific requirements as to separation subsequently embodied in articles 6(3), 15(4), 17(4) and 23(1) of the 1995 Order. These could have been coupled with the obligation to stain SBO with a distinctive stain.

4.849 We are thus satisfied that it would have been possible, in 1990, to impose on slaughterhouse operators, knacker's yards, hunt kennels and renderers the duties as to separation, staining and handling of SBO that were imposed in 1995.

4.850 So far as the slaughterhouse is concerned, whatever changes were made, enforcement was in practice going to depend on the diligence of the officials employed by the District Councils. In these circumstances, both Mr Meldrum and Mrs Attridge made the point that alteration of the requirements in slaughterhouses would not have had any practical benefit. In practice, the slaughterhouses were already purporting to separate SBO from other material. They were under a duty to stain SBO black. If the District Council officials were not enforcing the separation and staining, what difference would it make if further requirements were made? Mrs Attridge suggested that, if there was a failure to comply with the obligation to supply a single stain, the introduction of a requirement to have separate stains for SBO and for other unfit material would have been likely to compound the situation.

4.851 We think that there is some force in these points. The factors that we have identified as responsible for poor enforcement by the District Councils of the existing Regulations would adversely have affected enforcement of the Regulations imposed in 1995. We do not, however, go the whole way with Mr Meldrum and Mrs Attridge on this point. A statutory requirement to keep SBO separate at all times from all other material would have focused attention on the importance of this measure and could only have had a beneficial effect on the degree to which such separation was observed in slaughterhouses. The requirement for a separate stain for SBO would have had a similar effect.

4.852 So far as knacker's yards, hunt kennels, collection centres, transit to renderers and renderers were concerned, there is no doubt that it would have been possible to impose clear and simple statutory obligations to keep SBO separate from other material. The County Councils would have been responsible for enforcing these. We are in no doubt that this would have resulted in significantly more effective enforcement and monitoring of the animal SBO ban.

4.853 We do not say that individuals ought to have decided in 1990 on the precise solutions that were adopted later. We conclude, however, that there is no merit in the suggestion that practical difficulties in 1990 were such that nothing more could usefully have been done.