Volume 5: Animal Health, 1989-96
3. Introduction of the animal SBO ban
Preparation of the legislation implementing the animal SBO ban
Drafting of the Order
Consultation on the Order
Industry and local authorities are informed of the Order
Introduction of the Order

3.227 The Bovine Spongiform Encephalopathy (No. 2) Amendment Order 1990, designed to implement the ban on SBO in pet food and animal feed recommended by SEAC, was prepared in a relatively short period of time and with minimal consultation.

3.228 In a minute of 11 October 1990, Mr Maslin referred to the fact that the Order was proposed 'in haste and secrecy'. ¹

3.229 In a statement to the Inquiry, Mrs Attridge did not accept that there was any undue haste. She told us that the Animal Health Group of MAFF undertook preparation of the legislation on a contingency basis, at the specific request of Ministers:

. . . Ministers were concerned that a speedy response could be made if SEAC recommended an extension of the ban. The contingency work was therefore helpful since there was in fact political pressure to take action as quickly as possible when the SEAC Committee reported. The work was 'secret' only in the sense of being contingency planning so that normal consultations with industry were not possible. ²

3.230 The extent of this contingency planning is unclear, though it would appear that the notification of the pig experiment result on 20 August 1990 (see paragraph 3.213), and SEAC's preliminary advice of 7 September 1990 (see paragraph 3.219-paragraph 3.220) provided the impetus for the contingency work. During oral evidence, Mrs Attridge explained the circumstances as follows:

[SEAC] met on 19 September. The Order was ready for signature on 21 September. So clearly the work on the drafting of the order was put in hand on a 'contingency' basis between 20 August and having it ready, a keyed Order ready for signature on 21 September. ³

3.231 In his oral evidence to the Inquiry, Mr Meldrum also identified August 1990 as the month in which work began on preparing the necessary Order:

That is where things started to move, when there were discussions taking place within my team, when the first Order was drafted after SEAC had given its advice. ⁴

Drafting of the Order

3.232 On 28 August 1990 Miss Gillian Richmond of MAFF's Legal Department provided Mr Lawrence with two alternative draft orders for his consideration. She noted that herself and Mr Yavash, also of the Legal Department, would welcome the opportunity to meet with him once he had had the opportunity to consider the minute 'which of necessity is brief'. ⁵

3.233 She noted that she and Mr Yavash considered that the preferable approach to introducing the animal SBO ban would be to amend the existing orders, as they considered they 'had as a maxim a need to identify as little change as possible'. She noted that:

Partly with this in mind we have a preference for alternative 'B' which merely isolates the provisions of article 8 and extends them.

This simple approach may not, however, achieve your wishes. Its effect would be to extend the provisions to all animals and birds but the definitions in article 3 and for the remainder of the Order would be unaltered. We see merit in this approach as it is important not to 'cast our net' wider than is necessary since a blanket approach would need to be justified to the Joint Committee [on Statutory Instruments]. ⁶

3.234 Both versions proposed amendments to article 8 of the Bovine Spongiform Encephalopathy (No. 2) Order 1988, which had implemented the ruminant feed ban. Both versions achieved this end by amendments to various definitions within the original Order. Miss Richmond discussed the effect of changing the definitions of carcass, offal, animal, animal protein and poultry. In addition, she had included a definition of 'feedingstuffs' in both alternative drafts 'to put the coverage of pet food beyond doubt'. ⁷

3.235 Following a telephone conversation with Mr Lawrence on 31 August 1990, Miss Richmond forwarded another version of the draft order in the first week of September, which reflected instructions he had given. In her covering minute, she noted:

It is perhaps timely to 'flag' a matter in relation to enforcement of the provisions of article 8 for any of the versions - we could be criticised for including provisions which are unenforceable. ⁸

3.236 The new Version C provided by Miss Richmond dealt specifically with SBO, whereas the two earlier versions had not. Version C provided a definition of specified bovine offal as 'the brain, spinal cord, spleen, thymus, tonsils and intestines of a bovine animal'. ⁹ In contrast to the two earlier versions, the new draft incorporated additional provisions of article 8:

(2) (a) No person shall knowingly sell or supply for feeding to animals or poultry any feedingstuff in which he knows or has reason to suspect that any specified offal has been incorporated.

(b) Subject to paragraph (3) below, no person shall feed to an animal or poultry any feedingstuff in which he knows or has reason to suspect that any specified offal has been incorporated. ¹⁰

3.237 By 11 September 1990 further consideration had been given to the preparation of the Order. A handwritten note addressed to Miss Richmond recorded that Mr Meldrum and Mr Curry wished to exclude specified offal from bovines under six months of age from the proposed ban. This was to keep the Order in line with the ban on SBO in human food. ¹¹

3.238 On 17 September 1990 Mr Lawrence provided Miss Richmond with comments on a draft Order. His minute, which was copied to Mr Meldrum, Mrs Attridge and Mr Lowson, set out a number of comments of the draft order. He noted:

2. We need to include fish in Article 2A. Presumably fish will also need to be referred to in the Interpretation Article.

3. It has been decided to exclude specified offal from bovines under six months of age to keep it in line with the Bovine Offal (Prohibition) Regulations 1989. In addition, we want the restriction to be limited to animals slaughtered in the UK. We suggest that the best way to achieve this would be to revise the definition of specified offals as follows:

'specified bovine offal means the brain, spinal cord, spleen, thymus, tonsils and intestines of a bovine animal over six months of age which has been slaughtered in the United Kingdom.'

4. Ruminating animals is not defined, presumably because it is under the definition of animal, in the parent Order. We will need to mention fish in the heading and Article 8(2) and (3)

5. In Article 8(2) and (3) we think it would make it clearer to say

"any specified bovine offal or any feedingstuffs derived therefrom".

6. Assuming that the conclusions drawn by [SEAC] at their meeting on 19 September are in line with the views expressed at their earlier meeting, Ministers will want to make an announcement on Friday 21 September , bringing the legislation into force at the time or very shortly thereafter. We are therefore preparing a letter to go to the Joint Committee on Statutory Instruments which will go out with the submission.

¹²

3.239 Miss Richmond responded the following day, ¹³ following a further telephone conversation with Mr Lawrence. She explained that the prohibition could not be extended to cover fish under the Animal Health Act 1981, nor any other Act. She attached a revised draft setting out the changes to the previous draft. These included:

article 2(b) (v) definition of specified offal - I have extended this to incorporate the limitation to animals slaughtered in the UK.

article 2(c) Exemption - this is a new provision to exempt from the application of the Order specified bovine offal from a bovine animal not more than six months old when slaughtered. I preferred to make this a stand alone provision to keep it in line with the Bovine Offal (Prohibition) Regulations 1989.

article 2(d) article 8 substitution - as discussed with you by telephone, I have amended (2(a) and (b) to add 'or is derived from' in relation to feedingstuff caught by the specified bovine offal prohibition. In sub-paragraph (3) I have retained my previous formulations as we need to encompass not only feedingstuffs contained or derived from, specified bovine offal but also that containing animal protein. ¹⁴

Consultation on the Order

3.240 There was no external consultation on the Order. Mrs Attridge explained this during her oral evidence to the Inquiry:

The area which we were precluded from carrying out was the actual normal consultation, because of the fact that [SEAC] had not at that stage actually said which way they would go, or whether they would say this one pig does not make any difference or whether they would say yes, this does justify a ban. ¹⁵

3.241 This suggests that a decision had been taken in MAFF that the transmission of BSE to a pig would be kept confidential until SEAC's response had been determined.

3.242 According to Mr Meldrum, the information was kept confidential to enable preparation of the new legislation banning SBO in non-ruminant feed, so that its introduction could be announced simultaneously with the announcement of the discovery. ¹⁶ He explained in oral evidence why the result from the pig experiment had not been publicised earlier:

There is nothing worse than having a leak of a scientific finding when you have not decided and have not had time to consult upon the response to that scientific finding. In this case, therefore, I intentionally kept this information under wraps . . . [Mr Gummer] confirmed with me we must keep it under wraps until we have the advice from SEAC. I think that was a measured response to this new finding. ¹⁷

3.243 It was not only those outside MAFF who were not consulted about the proposed Order. For instance, Mr Keith Baker, Assistant Chief Veterinary Officer (Meat Hygiene) at the time, told the Inquiry that he was not consulted about the measure prior to its introduction. ¹⁸ Nor was there any consultation with agriculture officials in Wales, Scotland or Northern Ireland. Mr Lowson was informed on 17 September that:

As regards the question of informing the Territorial Departments, the Minister recognises that they must know of the situation in advance of the announcement. However, in order to minimise the risk of leakage, he would like them to be informed at the latest practicable moment and for this to be done at CVO level.

¹⁹

3.244 Two days later, Mr Lowson was told:

As regards the making of the relevant Order, the Minister wishes the Territorial Departments to be informed at the latest possible moment and in such a way that as few as possible people are in the picture. . . . I have also asked Mr Meldrum not to inform the Territorial CVOs of the situation until Friday [21 September]. They would be told on the understanding that the information is for their own and their Ministers' use only.

²⁰

3.245 On 21 September 1990 a submission was sent to Mr Gummer seeking his approval and signing of the Bovine Spongiform Encephalopathy (No. 2) Amendment Order 1990. The submission stated that the Order's purpose was to 'prohibit the sale, supply or feeding of specified bovine offal or animal protein feedingstuffs derived from it, to all mammals, non-mammals, birds and poultry'. It also confirmed that, as desired by Ministers, the Order would come into force immediately, despite the fact that such Orders normally came into force 21 days after they were made. A draft letter to the Joint Committee on Statutory Instruments, attached to the submission, explained that in light of the pig experiment result and SEAC's advice that SBO should not be used in animal feed, 'the Government considered that it would be prudent to introduce these measures immediately'. ²¹

3.246 In relation to the enforcement of the Order, the submission stated:

Enforcement is the responsibility of the Local Authorities. They are already monitoring and enforcing the Bovine Offal (Prohibition) Regulations 1989. In practice, the specified offal is being separated from other material at the abattoir. It is collected and processed separately by renderers. As with the existing ruminant feed prohibition, the ban on its sale, supply and feeding will, to a large extent, be self-policing. In these circumstances there would be little or no resource implications for Local Authorities. ²²

3.247 Under the heading 'Consultation with Industry', the submission noted:

In the time available none has been possible. However, the farmers' unions, abattoir owners, renderers, compounders and other interested organisations will be advised on Monday, 24 September. A briefing for consumer groups will be held on 25 September. ²³

3.248 The Order, accompanied by an identical submission, was also sent to Lord Strathclyde, the Scottish Office Minister of State, on 21 September 1990 for signing on behalf of Scotland. ²⁴ A similar submission was prepared for Mr David Hunt, the Secretary of State for Wales, requesting his agreement to the Order. ²⁵ A manuscript note on behalf of Mr Hunt recorded that whilst the Order was duly signed by him and returned to MAFF, it had only been provided to him 'late on Friday'. ²⁶

Industry and local authorities are informed of the Order

3.249 A meeting was called on 24 September 1990, chaired by Mr Meldrum and attended by Mr Bradley and Dr Kimberlin, to advise the feed industry, farmers and renderers of the developments in advance of a press notice announcing the ban on SBO in animal feed. Mr Meldrum explained that BSE had been transmitted by direct inoculation to a pig and that Ministers intended, with immediate effect, to act in accordance with SEAC's advice and to extend the ban on the use of SBOs in human foodstuffs to all animal feedstuffs and pet foods. He also stated that Ministers had considered the issue of disposal of unwanted SBO, and had decided that the Government would provide no assistance - it would be left to the industry to dispose of the material safely, with market forces deciding costs. It was appreciated that this would be 'very hard on knackers'. UKASTA 'noted that the voluntary action taken by the industry had now been confirmed by the Government's decision to introduce appropriate statutory powers'. ²⁷

3.250 As envisaged at the meeting, that afternoon MAFF made a press announcement about its intentions to introduce a ban. It recorded:

. . . as a further animal health precaution [SEAC] has advised the Government to make statutory the present voluntary ban by animal feed compounders and pet food manufacturers on the use of the specified offals already prohibited from food for human consumption. The Government is today making a Statutory Instrument prohibiting the use of the specified offals in all animal feed (including pet food). ²⁸

3.251 The News Release also incorporated SEAC's advice issued on 20 September (see paragraph 3.224). This announcement was made two weeks after SEAC's emergency meeting to consider the test results.

3.252 Whilst it was contemplated that local authorities would be responsible for enforcing the Bovine Spongiform Encephalopathy (No. 2) Amendment Order 1990, they were not consulted about the ban prior to its introduction. Mr Meldrum acknowledged in his oral evidence to the Inquiry that there was limited time in which to alert local authorities to the terms of the Order. ²⁹

3.253 On 24 September 1990 Mr Maslin wrote to local authorities to inform them of the Order, which, it was noted 'comes into effect from midnight tonight'. Mr Maslin acknowledged in the letter that the lack of consultation with local authorities was regrettable:

I realise that bringing in this measure with immediate effect and without prior consultation causes difficulties for enforcement authorities. Ministers decided however that it was necessary to act on the Committee's advice without any delay. ³⁰

Introduction of the Order

3.254 On 25 September 1990 the Bovine Spongiform Encephalopathy (No. 2) Amendment Order 1990 came into force, which banned the sale, supply and use of SBOs, feedstuffs containing SBOs or animal protein derived from SBOs for feeding to animals and poultry. In addition, the Order banned the export to other Member States of feedstuffs containing SBOs or animal protein derived from SBOs. ³¹

3.255 The lack of consultation and the haste with which it was prepared appears to have contributed to a number of shortcomings in the Order. These will be considered in detail in the next chapter, which examines the operation of the Order. The Order came into effect the day after MAFF announced the measure. By way of comparison, whilst the Government announced its intention to introduce a human SBO ban in June 1989, the Bovine Offal (Prohibition) Regulations 1989 did not come into force until some five months later.