Volume 6: Human Health, 1989-96
3. Introduction of the ban on Specified Bovine Offal
Discussion of what was said about the reasons for the ban
The reasons for the introduction of the SBO ban
The attitude of DH
The meeting on 6 June
The meeting on 7 June
Presentation of the SBO ban internally and externally
The response of DH to MAFF's proposal
The reaction of the Prime Minister
Sheep offal

3.258 The decision to introduce an SBO ban was taken by a process which involved the meetings on 6 and 7 June. We examine below the reasons for this decision and what was said about them. It was undoubtedly the right decision. The introduction of an SBO ban represented a proper application of the common sense underlying the ALARP principle to a potential hazard posed by BSE.

3.259 The potential hazard was that BSE might be transmissible to humans through food. That potential hazard had been addressed in part by the compulsory slaughter and destruction of affected animals. If BSE was transmissible these posed the greatest threat, for research with sheep infected with scrapie had demonstrated that the highest infectivity was to be found in the brain and central nervous system of clinically affected animals.

3.260 Research had also demonstrated that some tissues of sheep infected with scrapie were infective before the animals developed clinical symptoms. In the absence of research on BSE it was logical to proceed on the basis that the same might be true of cattle infected with BSE. The research on sheep was limited, but had been subjected, together with some similar research in relation to goats, to careful analysis by Dr Kimberlin. He identified four categories of potentially infective tissue, grouped according to their infectivity titre.

3.261 The data were scanty and Dr Kimberlin's work relied to a degree on what Dr Woolfe described as 'intelligent guesswork'. ¹ Nonetheless, Dr Kimberlin's work was to form the basis of risk assessment carried out by SEAC, by the Lamming Committee and by the European Community Scientific Veterinary Committee (ScVC). The data, as interpreted by Dr Kimberlin, provided a scientific basis for decisions of risk management under the precautionary principle. Tissues in the higher two categories of infectivity posed a potential hazard that could not be dismissed as negligible. Those tissues could be removed from the human food chain with relatively minor economic consequences. Common sense required their removal.

3.262 Dr Kimberlin has a rare ability for lucid exposition of the results of complex scientific research. As a consultant he provided the benefits of his work widely and thereby assisted on many occasions in the process of decision-making. As we shall see he played a part in the decision to introduce an SBO ban. Not all, however, appreciated the scientific justification for the SBO ban. Mr MacGregor summarised the position to us as follows:

. . . a lot of us over a period gradually came to a view, sometimes from different points of the argument - some people were concerned about sub-clinical animals, I think Donald Thompson was; others were not, because Sir Richard Southwood had made clear that was not a real problem, and if you read his Joint Working Party statement, that is littered with the arguments for that. So others were more concerned about the thing I was bothered about, public presentation, or the practical implications of implementing a baby food ban which I was bothered about.

The point really I think was that when we came to our conclusions before the 7^th June meeting, several people had different perspectives on the issue, but the outcome was that we all came to the same conclusion, to have the SBO ban. So it is not true to say that MAFF's view was that it was the presence of infectivity in tissues in sub-clinically infected animals. ²

3.263 Mr Thompson almost immediately formed the view that precautions were desirable to deal with the potential hazard posed by subclinical animals entering the human food chain. The evidence clearly indicates that he was concerned about this soon after publication of the Southwood Report. His inquiry in March about the possibility of excluding cull cows from human consumption received short shrift from MAFF officials and he 'withdrew at the first hurdle'. ³ With hindsight, his suggestion does not appear to have been so disproportionate. He then raised the question of removing offal from such animals from the human food chain and continued to advocate an offal ban up to the time that the decision was taken to introduce one. He was responsible for initiating the debate in respect of this measure and is entitled to a substantial share of the credit for the final decision.

3.264 Mr Thompson had been keen to discuss the implications of the Southwood Report with the pet food industry, for which he had ministerial responsibility. MAFF officials steered him away from this, apprehensive that, if it appeared there was concern about pets eating ruminant offal, this might raise questions as to why there was not a similar concern in relation to human diet. ⁴ Members of the pet food industry had, however, been taking their own measures to address what they saw as a potential hazard to pets (see paragraphs 3.191-3.203).

3.265 Spillers took action in 1988 and we commend them for doing so. Pedigree Pet Foods had commissioned Dr Kimberlin to advise them, leading to the preparation of his papers on risk. Appreciating the wider implications for the safety of human food arising from his work, they drew this to the attention of MAFF and agreed that MAFF could be provided with his papers. We commend Pedigree Pet Foods for their initiative in seeking expert advice in respect of the potential dangers posed by bovine offal to pets and for sharing the fruits of this with MAFF. It seems to us that at this stage private enterprise was setting an example to Government. The assistance that they proffered proved valuable.

The reasons for the introduction of the SBO ban

3.266 Mr Meldrum had, initially, led resistance at MAFF to any suggestion that they should go beyond the Southwood recommendations. In reaction to Mr Thompson's suggestion about cull cows he had remarked: 'we can hardly now go farther than the Southwood recommendations. If we were to go further we would have to consult Southwood and this would be presentationally extremely difficult.' ⁵ This approach was reflected by the additions that he made to Mr Lawrence's submission on this topic (see paragraphs 3.154-3.155). Mr Meldrum told us that initially he accepted the Southwood Report, but later on it became clear to him that the baby food recommendation lacked logic. ⁶ It seems that a critical step in his reappraisal was the meeting that he had with Dr Kimberlin at Pedigree Pet Foods on 16 May (see paragraphs 3.198-3.201).

3.267 Mr Meldrum, accompanied by Mrs Owen, Mr Garnett, and Dr Woolfe first met Dr Kimberlin and representatives of Pedigree Pet Foods. There was a long presentation by Dr Kimberlin of his work on risk assessment which led Mrs Owen to record:

From the information presented there would appear to be more to worry about in the potential risk for the ultimate consumer particularly from MRM and spinal cord used in some meat products. My first thoughts were that it would seem prudent to do a similar risk assessment exercise for human food. This would undoubtedly involve FSc, Meat Group, Standards and Food Safety Divisions. ⁷

3.268 Mr Meldrum told us that after this discussion he had a confidential meeting with Dr Kimberlin at which he was given 'in total confidence' the papers on risk that Dr Kimberlin had prepared for Pedigree. He treated these as confidential and did not place them on the file, but retained them with his personal papers. This evidence is somewhat perplexing, for Pedigree made a set of these papers available to MAFF at the time of the meeting with Dr Kimberlin, which were placed on the file of the Food Standards Division. ⁸

3.269 Mr Meldrum told us that he already had some idea about the pathogenesis of scrapie in sheep as a result of discussions with Mr Bradley, but that Dr Kimberlin added a huge amount to his knowledge as a result of his analysis. ⁹ Mr Meldrum told us that his meeting with Dr Kimberlin left him thinking that it would be 'a good idea' to take the tissues identified by Dr Kimberlin as infective out of the food chain. It was advisable. He thought that that was the quite clear gist of the minute that he put up for Mr MacGregor. ¹⁰

3.270 Mr Meldrum's minute ¹¹ does not express clear support for an SBO ban, although it does acknowledge that a case for the ban might be made out. Nor do his colleagues seem to have become aware of a change of heart on his part after his meeting with Dr Kimberlin.

3.271 Mr Bradley informed us that he did not think that Mr Meldrum's meeting with Dr Kimberlin had any effect on the perception within MAFF of the need for the SBO ban. He thought that it was generally accepted that the SBO ban was not necessary on the basis of the Southwood Working Party's assessment. ¹²

3.272 Mr Cruickshank was not aware of Mr Meldrum attaching significance to information obtained from Dr Kimberlin. ¹³ Mr Andrews, who discussed the matter with Mr Meldrum before preparing his submission for Mr MacGregor of 26 May 1989, made no reference in it to Mr Meldrum supporting an SBO ban. He told us that he could not remember the details of his conversation with Mr Meldrum, nor when he first learned of the discussions with Dr Kimberlin. ¹⁴ Mr Lowson's understanding was that Mr Meldrum did not think that an SBO ban for humans was necessary on scientific or public health grounds. ¹⁵

3.273 Mr Meldrum told us that he believed that he had an un-minuted meeting with Mr MacGregor at which he passed on the information that he had received from Dr Kimberlin. He asked that it should not be minuted because of the confidential nature of the information. ¹⁶

3.274 Mr MacGregor told us in a statement that, although he could not be certain because of the absence of documentary evidence, his recollection was that Mr Meldrum made him aware of his discussions with Dr Kimberlin which gave a supporting scientific line of thought to the conclusions that they were beginning to reach. ¹⁷

3.275 In a written statement Mr Meldrum sought to explain at length the reasoning that led to the introduction of the SBO ban:

It would be an incorrect reflection of events to say that at that time myself and others within MAFF, including Ministers, believed that there was scientific evidence to lead us to conclude that the Southwood Working Party had been wrong in their assessment of the risk of transmission of BSE to man and that we further believed that BSE actually posed a real risk to human health. Following on from this, it would be similarly incorrect to say that it was considered necessary for MAFF to take further steps beyond advice to baby food manufacturers to protect human health . . .

. . . the Southwood Working Party had considered the then available scientific evidence (from work on scrapie), had conducted a risk assessment and had concluded that any risk of transmission of BSE to humans was remote. I had no reason to question that conclusion and nor did I have responsibility to do so. Similarly, I believe that my colleagues and Ministers did not question the conclusion that the risk was remote . . .

The request by the Parliamentary Secretary (Mr Thompson) on 21^st March, 1989 ¹⁸ for advice on cull cows etc, is an indication of the awareness amongst Ministers and within MAFF generally of the issue of sub-clinically infected cattle. However, such concerns were not a reflection of doubts being expressed about the Southwood Working Party's conclusions that the risk to human health was remote. Rather in the light of the understandable concerns being expressed by the public about sub-clinically infected cattle entering the food chain, discussions were focusing on what steps, if any, MAFF could, and indeed should, take to further minimise the remote risk to human health and so reassure the public. In addition, the Southwood Working Party had recognised that if their assessment of the likelihood that cattle would prove to be a 'dead-end host' and that BSE was unlikely to have any implications for human health was incorrect, then the implications would be extremely serious (see paragraph 9.2 of the Southwood Report). ¹⁹ So another factor to be considered was what steps, if any, could be taken to protect humans against the possibility that it was later shown that BSE did pose an actual risk to human health . . .

. . . the information that I had obtained from Dr Kimberlin made it clear to me that if it was decided that MAFF would go further than had been recommended by the Southwood Working Party, there was scientific evidence on scrapie infectivity levels which could be extrapolated and used by analogy to identify tissues in which the BSE agent might be found in infected cattle, and the categorisation of those tissues according to their possible infectivity. This was not scientific evidence that "warranted" the making of a ban on specified bovine material. What it did do was provide a scientific underpinning to the selection of tissues that could be excluded from the human food chain if Ministers were to adopt a policy to further reduce the remote risk of transmission of BSE to humans. ²⁰

3.276 We have set these passages out in some detail for two reasons. First, they give what we believe was an accurate portrayal of Mr Meldrum's understanding of the reasoning underlying the SBO ban. Secondly, we believe that this reasoning reflected the application of the common sense which underlay the ALARP principle. Under that principle the test for action is not necessity. The test involves considering what measures it is reasonably practicable to take against a remote contingency. Dr Kimberlin's work illuminated data that was important in applying that test.

3.277 Mr Meldrum was asked what his understanding was of Mr MacGregor's reasons for wishing to introduce the ban. He answered:

It is difficult to be certain of the order of priority but there were a number of issues obviously in his mind. One was the concern that was being expressed both by scientists and non-scientists about what happened to brains of healthy cattle, healthy in the context of clinically healthy at slaughter. The illogicality that had emerged from the discussion about 5.3.5 in the Southwood Committee report. Yes he was, I believe, influenced in part by the discussions with Richard Kimberlin and the action that might be taken by the petfood industry on the recommendations of Richard Kimberlin. He was also concerned about public presentation because there is no point in having in place animal health and public health controls if the consumer has lost confidence in that particular product. Equally it is very much a part of the overall consideration. But above all, in all of this he was in fact concerned, as was Dr Helen Grant and others, about the possibility that sub-clinically affected cattle could be entering the human food chain, and in the latter stages of incubation that those animals might have significant levels of infectivity in the brain and spinal cord. All of these things put together. Mr MacGregor was absolutely spot on with all of this. He did understand the background. ²¹

3.278 Mr MacGregor gave detailed evidence to us as to his reasons for introducing the SBO ban. In a statement he summarised them as follows:

The reasons why I decided a ban should be introduced can be summarised as follows:

a. to reassure the public I had, at the time of publication of the final report, decided that the use of ruminant offal and thymus in baby food should be banned despite the fact that it was not a recommendation by the scientists;

b. practically it was easier to legislate for and enforce a general ban rather than a ban which applied to only one area of food manufacturing;

c. it would deal with clinical animals (if any) which might slip through the net;

d. it had the merit of dealing with any risk from tissues from sub-clinical animals. ²²

3.279 In oral evidence Mr MacGregor told us that he had listed his reasons for the ban in their order of priority. He had some concern about subclinical animals:

. . . I had some concern about this. Most of the scientists were telling me that this concern was unjustified, but there was just beginning to emerge some body of scientific opinion that there may be something in it, so it had the merit of dealing with that risk, if there was a risk. ²³

3.280 Mr MacGregor was asked about his reference in his letter to Mr Clarke to a 'continuing concern (including a body of opinion in some scientific circles) which I share'. ²⁴ He said that he was probably referring to Mr Meldrum's discussions with Dr Kimberlin, but that:

. . . to be frank, it was not the most important point I was making in the letter, but it was just to try and get some further impetus behind the argument and to make him see that it was a desirable thing to do. But I would not have put that into the letter; it could not have got through unless there was some evidence. . . ²⁵

3.281 It does not seem to us that Dr Kimberlin's work was a major influence on Mr MacGregor's decision to introduce an SBO ban. Major factors were the weight of public concern about subclinical animals and Mr Thompson's recommendation that a ban should be introduced. However, Mr MacGregor was aware of Dr Kimberlin's work which, as Mr Meldrum stated, gave a scientific underpinning for the decision.

The attitude of DH

3.282 Sir Donald Acheson told us that he had no problem at all with the proposed ban. It seemed to him to be highly desirable, although his advisers, Professor Southwood and Dr Tyrrell, did not think that it was necessary. He was concerned, however, that it might cause people to stop using vaccines, so he suggested getting reassurance about the safety of vaccines first. This was still being explored at the time that the ban was proposed. ²⁶

3.283 Dr Pickles told us that as Sir Richard had advised that the scientific evidence had not changed since his report, she did not believe that it was necessary to bring in an offal ban and did not promote one. ²⁷

3.284 Dr Metters told us that his Department's line was not to go beyond the Southwood recommendations. We believe that Sir Donald Acheson's instructions to Dr Metters were to resist the introduction of the ban - at least until the position on vaccines was resolved.

The meeting on 6 June

3.285 Dr Metters told us that he favoured the introduction of an SBO ban under the precautionary principle and supported Mr MacGregor's proposal. ²⁸ After the meeting, he discovered from Dr Pickles that this was contrary to the Department's line. Despite this he supported the proposal for the ban at the meeting with Sir Richard Southwood on 7 June. Had Dr Metters definitely acted in a way that was contrary to the Department's policy without raising the matter with the CMO, this might have been a matter for criticism. We believe, however, that his recollection is at fault. Both Mrs Stagg's minute ²⁹ and his own record ³⁰ indicate that he followed instructions in attempting to persuade Mr MacGregor to delay any action until advice on vaccines ³¹ was received from the CSM. Mr MacGregor told us that Dr Metters spoke against the ban because it was going beyond Sir Richard Southwood's advice and because there was a problem with vaccines. Mrs Attridge told us that her impression was that DH was very reluctant to go along with MAFF on the SBO ban. ³²

3.286 We do not believe that Mr MacGregor explained at either meeting that Dr Kimberlin had provided a scientific underpinning for the action that he wished to take. It appeared to those present, other than Mr Meldrum, that he was taking a political decision in response to the public pressure and in order to provide reassurance. Thus Mr Cruickshank told us that it was not made clear to him at the meeting on 6 June that Mr MacGregor believed that there was any scientific merit in introducing the SBO ban. He believed that his Minister was simply reacting to intense political pressure. ³³

3.287 Mr Lowson told us that he was not sure whether Mr MacGregor was genuinely concerned that there was real need for a further human protection measure or whether he was motivated primarily by a need to respond to pressure. ³⁴

The meeting on 7 June

3.288 Mr MacGregor's first task at the meeting on 7 June was to persuade Sir Richard Southwood to agree to his decision to introduce an SBO ban. In this he was successful. Sir Richard made the point that the scientific evidence had not changed since his Report but accepted the 'political necessity for action', including the possibility of affected animals slipping through the net. ³⁵

3.289 There then followed the stage in the discussion recorded by Mrs Stagg (see paragraph 3.245). We believe that it was this record which led Dr Metters to conclude, mistakenly, that he had been supporting the SBO ban at this stage. It seems to us that this part of the discussion was not about the merits of introducing a ban but about how it should be presented. The decision was that it should be presented as the most practical way of implementing the baby food recommendation. This had the benefit of not appearing to go beyond the Southwood recommendation. We shall in future refer to this way of presenting the decision as 'the agreed presentation'.

3.290 The suggestion for this approach to presentation came from Mrs Attridge (see paragraph 3.248). Mrs Attridge was at pains to emphasise in her oral evidence that her suggestion of how the measure should be presented was no 'window dressing to bamboozle the public'. The SBO ban was a way in which the concerns that had been raised by Southwood could be met efficiently. ³⁶

3.291 We accept that the SBO ban provided the answer to a number of technical problems in relation to giving legislative effect to the baby food recommendation. ³⁷ This was a benefit of the introduction of the ban. Was it more than a fringe benefit? We were concerned that the evidence in Phase 1 suggested that it had not played any significant part in Mr MacGregor's decision to introduce the ban. If we were right, the outcome of the 7 June 1989 meeting was that an inaccurate picture had been presented when this fringe benefit had been advanced as the principal reason for introducing the ban. We notified witnesses that we considered such an approach to be potentially a matter for criticism. This led some to place an emphasis in their responses on the benefit that the ban had as a means of implementing the baby food recommendation which had been absent from the evidence before. Not a hint of this factor appears in the contemporary accounts of the meeting on 6 June and it only arises in Mrs Stagg's minute of the 7 June meeting in the context of presentation.

Presentation of the SBO ban internally and externally

3.292 Dr Pickles, who was present at the meeting on 7 June, reported:

Sir Richard Southwood agrees with us that there has been no real change in the scientific position since he produced his report in February. He is content for MAFF to present this move as a convenient way of dealing with his recommendation about exclusion of bovine offal from baby food. ³⁸

3.293 Mr Cruickshank described what transpired at the meeting as follows:

I do not think anybody said there was a practical problem with applying the baby food ban in the context of the general regulations that applied to baby food. That was not quite the way the issue came up. The way the issue came up was that when the various strands of discussion came together, and I would emphasise that there were these quite distinct strands which were all bound up together, but when it emerged that it was felt that there were strong political pressures to deal with the question of offals for adults, and this linked, of course, to the question of clinical cases escaping the slaughter and compensation procedures and sub-clinicals; when these were all linked together, the point emerged that a very effective way of dealing with Southwood's point was simply to remove all these offals in the slaughterhouse; this was indeed much the best way of dealing with the problem. ³⁹

3.294 He accepted that the baby food point was a side benefit of Mr MacGregor's proposal, but not the reason for it. ⁴⁰

3.295 Mr Meldrum accepted that the presentation agreed was 'not a complete description' of his Minister's reasons for introducing the ban. The reason for the presentation was a desire not to suggest that the Government had lost confidence in the Southwood Report, when this was not the case. ⁴¹

3.296 Our conclusion is that the baby food point was no more than a fringe benefit of Mr MacGregor's decision to introduce the ban. We turn to consider how the SBO ban was presented internally and externally, and in that context we examine whether the conduct of individuals fell outside the range of reasonable responses to what was known at the time.

3.297 The agreed presentation was adopted in the joint news release made by MAFF and DH on 13 June (see paragraph 3.256). Dr Pickles, who had been opposed to a joint announcement, minuted Dr Metters about this on the following day (see paragraph 3.257).

3.298 Some six years later, in December 1995, when suggestions were being made in the media that MAFF had concealed the fact that infected animals were entering the human food chain, Mr Meldrum briefed Mr Douglas Hogg (Minister of Agriculture):

Subclinical disease MAFF made it clear in a Press Notice in June 1989 that animals incubating BSE might enter the human food chain and it was for that reason that the SBO controls were introduced later that year to prevent human consumption of tissues in which infectivity might be present in clinically healthy cattle. ⁴²

3.299 Mr Thompson, in commenting on the press release, for which he was not responsible, said that the reasons for the ban were given in the wrong order. We agree. As most cattle were slaughtered before reaching the age at which clinical symptoms would develop, it was an undoubted fact that infected but clinically normal cattle were entering the food chain. The press notice should have made this plain rather than referring to it as a mere possibility. It should also have made plain that one of the initiatives for the introduction of the SBO ban was to ensure that the potentially infective tissues of such animals were removed from the food chain for all humans, not just babies.

3.300 The press release was originally drafted by Mr Lawrence, but was substantially amended before its release. It is not clear on the evidence who was responsible for the final version, or who saw this before it was issued. Thus, while we criticise its form, we are unable to identify who was responsible for this, save that it was a natural consequence of Mr MacGregor's decision on presentation.

3.301 In the event, while some newspapers reproduced the press release verbatim, most of the media correctly suggested that the ban was being introduced in response to the widespread pressure for measures to address the risk from subclinical animals. This is not to say that it had no adverse consequences. The agreed presentation was to be frequently repeated in circumstances where it was desirable that it should have been clearly appreciated that the SBO ban was a precautionary measure, underpinned by science, that had been introduced because of a potential hazard posed not merely to babies, but to all humans.

3.302 The agreed presentation was included in the briefing that Mr Lowson prepared for incoming Ministers on 25 July 1989. ⁴³

3.303 Mr Lowson told us that he understood that the ban was introduced in response to public pressure and not because the science justified introducing this precautionary measure. Accepting this, we remain concerned that he gave Ministers the agreed presentation rather than a more accurate description of his understanding of the circumstances that led Mr MacGregor to decide to introduce the ban.

3.304 Mr Gummer, Mr Maclean and Mr Andrews all told us that background briefs for incoming Ministers were not documents to which great significance or reliance was attached. Ministers would flick through them as a kind of prospectus or sketch map as information on any subject could be quickly augmented by greater and more reliable detail. ⁴⁴ In these circumstances and given the limited time available for preparation of briefs of this kind, we do not think it would be right to criticise.

3.305 At a meeting with the UK Agricultural Supply Trade Association (UKASTA) on 2 October 1989 it was recorded that:

The Minister emphasised that when the announcement is made about the final shape of the Regulations it will be made clear that it goes well beyond Southwood and rather than "condemning" this material it represents a practical means of dealing with the Working Party's suggestion in relation to baby food. ⁴⁵

3.306 The agreed presentation was repeated in the submission prepared by Mr Lawrence for Mr Gummer which sought his agreement to the final terms of the SBO ban. This document was widely circulated within MAFF, the 'Territorial departments' (as they were then known) and DH. ⁴⁶

3.307 When Mr Gummer, Mr Maclean and Mr Curry came to give evidence we explored with them their understanding of the reasons for the introduction of the SBO ban. Mr Maclean summarised his understanding as follows:

I felt when I came to MAFF and read the background briefing and then had other papers it was my job to implement, with Mr Gummer and Mr Curry, the decision that had been taken. That decision as I understood it was largely based on some of the practicalities and the difficulties of trying to carry out the Southwood suggestion, not even a recommendation, the suggestion to avoid the use of these materials in baby food, and for practical purposes the best way was to have the SBO ban. ⁴⁷

3.308 The evidence of Mr Gummer and Mr Curry was to the same effect. ⁴⁸

3.309 When Mr Gummer gave evidence to the Agriculture Committee in May 1990 he advanced the agreed presentation when explaining the reason for introducing the SBO ban in an opening statement. He elaborated:

The Southwood recommendation was that we should not allow into baby food particular offals. We could not find a safe way of ensuring that never happens without removing all the offals. In other words, we could not do what Southwood asked us to do by a partial ban, we could only do it effectively by the full ban. Now I believe that was perfectly proper. We said: 'We accept your advice. We do not actually go further than your advice because we want to go further', we merely say that in practical terms in order to do what you want us to do we have to have a full-scale offal ban because we cannot do what you want by anything less. ⁴⁹

3.310 Mr Lowson told us that he believed that Mr Gummer was aware that there were issues in play which went beyond the question of how to implement the baby food recommendation. On taking office Mr Gummer had asked how far the proposed SBO ban exceeded what Southwood had recommended and Mr Lowson had referred him to Mrs Stagg's minute recording the meeting at which the decision was taken. ⁵⁰ It does not seem to us that Mr Gummer can have appreciated the full import of this minute, nor would we necessarily expect him to have done so.

3.311 When Mr Gummer and Mr Maclean returned to give evidence in Phase 2 they emphasised that their understanding of the reason for the introduction of the SBO ban did not affect the importance that they attached to its implementation. They told us that it was a measure that was considered very important by some, and it enabled those people to be reassured. It was considered important as one of the basket of measures to make sure the public were protected. ⁵¹

3.312 The evidence does not suggest that the understanding of Mr Gummer and his fellow Ministers did affect their attitude to the implementation and enforcement of the SBO ban. Repetition of the agreed presentation was, however, likely to diminish the importance that others attached to it. The message given by the agreed presentation was that there was no scientific justification for the SBO ban but that it was a convenient way of introducing an extreme precaution to protect babies. Mr Bradley gave the same message to the House of Commons Agriculture Committee:

The recommendation from Professor Southwood in this regard in his report, taking all the evidence - and it has not altered since - is that this was an unnecessary procedure. The only suggestion that he made was that babies should be protected from exposure to these offals via baby foods. Therefore, legislation was initiated to take care of this particular point. However, it transpired that the methodology in the legal system of doing this meant it was not a possibility to do it so specifically for baby foods, and it had to be done in a general way. That is how we have come to have the offals banned at all. It would not have arisen if it had been a simple job of just removing things from baby foods. So from that point of view there was no perceived risk to Man, even from these offals, that required any action. ⁵²

3.313 If measures imposed under the precautionary principle are to be properly implemented, it is vital that those responsible for their implementation and enforcement believe that they are important safety measures. The evidence that we received led us to conclude that there were many who did not believe that the SBO ban was an important public health safety measure.

3.314 Mr Graham Jukes, Director of Professional Services of the Chartered Institute of Environmental Health told us, when speaking of enforcement of the SBO ban:

At that time, again what comes over from the files is that we were looking at an animal health issue, not necessarily a public health issue. That, I think, again, indicates the sorts of attitudes that might have been around at that time, that people were not really concerned specifically about the public health concerns of this particular material, they were concerned about whether or not they were complying with regulations, which was in a sense window dressing. ⁵³

3.315 Representatives of the Federation of Fresh Meat Wholesalers told us that so far as the human SBO ban was concerned there was a general feeling that it was very unlikely that there was a risk to human health anyway. BSE was an animal disease. ⁵⁴

3.316 Mr Richard Lodge, the Head of Food Health and Safety at Birmingham City Council, said that the SBO ban was felt, by Meat Inspectors on the ground, as something that was not really done to protect public health. ⁵⁵

3.317 We do not suggest that this evidence represented the attitude of all to the SBO ban. We believe, however, that it must represent the attitude of many slaughterhouse operatives, Meat Inspectors, Environmental Health Officers and Veterinary Inspectors.

3.318 There was no scientific basis that demonstrated that, if tissues of clinically affected animals posed a potential hazard to humans, the same was not true of some of the tissues of a subclinical animal. Any conclusion to this effect was a value judgement based on flimsy evidence. There was no way that the Government could reassure the many who were concerned about subclinical animals other than by the SBO ban. It was an appropriate response in these circumstances to go further than Southwood and introduce the SBO ban. It is regrettable that the introduction of the ban was coupled with a presentation that suggested that, so far as children, other than babies, and adults were concerned, it was an unnecessary precaution.

3.319 Sir Donald Thompson accepted that there was a danger in such circumstances that the public presentation might become received wisdom at MAFF and that that seemed to have occurred with his successors. ⁵⁶ Invariably, those who received the agreed presentation were likely to repeat it. It is not possible to say to what extent the agreed presentation may have fostered a belief on the part of some that the SBO ban was an unnecessary public health precaution. We believe that it must have tended to produce that result.

3.320 Mr MacGregor, together with Mr Thompson, are to be commended for introducing the ban despite the reservations of some of their officials about the dangers of departing from the advice of the Southwood Working Party. Those reservations were legitimate matters to raise and not ground for criticism. It is to the Ministers' credit that they did not prevail. We consider, however, that Mr MacGregor should not have acceded to Mrs Attridge's suggestion to adopt a public presentation that did not reveal the fact that Ministers thought it desirable to take precautions that went beyond Southwood. He should have ensured that the public were given a candid account of current Government concerns. It was important that all concerned - both within and outside Government - should know that Ministers wished to ensure that SBOs from subclinical animals were banned from all human food, and that there was a scientific underpinning for this ban.

3.321 We do not consider that Mrs Attridge should be blamed for her suggestion as to how the decision should be presented. She reasonably understood that her Minister was reacting to political pressure by taking a measure that had no intrinsic merit other than the fact that the ban neatly implemented the baby food recommendation. Mr Cruickshank had the same understanding and cannot be criticised for not challenging Mrs Attridge's suggestion. Mr Meldrum did not. He believed that the SBO ban would cure illogicality in the Southwood recommendations but shared the desire to do nothing that cast doubt on the Southwood Report as a whole. It would, however, have been difficult for him to urge a franker approach to presentation inasmuch as he knew that his Minister's agenda was to secure Sir Richard Southwood's agreement to the SBO ban. We think it would be harsh to criticise him for his failure to do so and we do not criticise him in this regard.

3.322 Dr Metters and Dr Pickles were opposed to the ban, Dr Metters in compliance with his brief from the CMO and Dr Pickles for the additional reason that she thought it without merit. Neither of them could have been expected to object to the presentational approach that was agreed upon.

The response of DH to MAFF's proposal

3.323 The re-draft of the reply to Mr MacGregor's letter requested by Sir Donald Acheson and his warm reaction to the proposed ban, describing it as 'prudent and appropriate' (see paragraph 3.253) is not easy to reconcile with his earlier commendation of the Southwood Report, which recommended no such precautionary measures. It also contrasts with what we have concluded was his original reaction on learning of the proposed ban. He was asked the reason for his change of attitude. He replied that he had just returned from a foreign visit with Mr Clarke and:

Having been away for two or three weeks, your mind clears a bit of the immediate issues and perhaps you see things more freshly. ⁵⁷

3.324 He also told us that once it was clear that MAFF were determined to go ahead with out waiting for the position of vaccines to be resolved, he had no other objections to the ban. ⁵⁸

3.325 It may be that Sir Donald had belatedly come to appreciate the merit under the precautionary principle of the proposed measure. His support for it was commendable.

3.326 When Mr Clarke received Mr MacGregor's letter proposing the SBO ban he concluded that the measure was motivated by a desire to restore and maintain consumer confidence rather than by any scientific consideration. ⁵⁹

3.327 He assumed that the reference to 'a body of opinion in some scientific circles' had been inserted to add weight to the proposal when the reality was that 'we had no scientific advice which was strong enough to justify doing this'. ⁶⁰ We consider that this was a not unreasonable assumption to make - indeed so far as Mr MacGregor's reason for the reference is concerned, it was not far short of the mark. In these circumstances we have no criticism to make of Mr Clarke's support of MAFF's proposal without seeking particulars of the scientific opinion to which the letter had referred.

The reaction of the Prime Minister

3.328 A copy of Mr MacGregor's letter was sent to Mrs Thatcher and to members of MISC138. By noting the proposal without dissent Mrs Thatcher gave it her tacit approval. In a statement to the Inquiry she commented that she did not believe that she would have accepted the need for the ban solely for public reassurance and pointed out that the Minister had noted the view of some scientists that further action was now required. ⁶¹

3.329 The Prime Minister's approval was the last step in the process of taking a measure which provided an important safeguard of human health and which those responsible can cite in support of the proposition that the crucial measures that the emergence of BSE required were put in place.

Sheep offal

3.330 The Southwood Report's baby food recommendation applied to offal from sheep and other ruminants as well as cattle. Mr Meldrum's minute of 26 May 1989 to Mr MacGregor contrasted sheep and cattle. ⁶² In the case of cattle one was dealing with a new condition and could not be certain that the agent could not jump the species barrier to affect man. To go further and extend a ban to sheep 'would re-open the whole of the scrapie issue'. ⁶³

3.331 Mr Meldrum's concerns were heeded and the SBO ban applied only to cattle. The result was that the Southwood Report's recommendation about baby foods, to the extent that it applied to ruminants other than cattle, was not given legislative effect. If this was a matter of concern to the members of the Southwood Working Party, they did not raise it with Government. There was, we think, a valid distinction between BSE, a disease which had been only recently observed, and scrapie in sheep. In the case of scrapie, long experience had failed to demonstrate any risk to humans. Thus in 1989 it was reasonable to take action only in relation to cattle. It was to become apparent the following year that BSE could be transmitted experimentally to sheep by oral ingestion. We deal with this in Chapter 4.