Volume 6: Human Health, 1989-96
7. Human health developments from January 1996 to 20 March 1996
The storm breaks
The aftermath
Discussion

The aftermath

7.380 On 27 March, the European Commission announced a ban on the export of all live cattle and beef products from the UK. On 3 April, Mr Hogg announced to Parliament:

The BSE crisis has presented the Community as a whole with a challenge of major proportions. The Community's response must be prompt and effective but also soundly based and fair. The United Kingdom is making a major effort to contribute to that Community response. Arrangements will be introduced to ensure that all bovine animals over the age of 30 months at the time of slaughter will not enter the food or animal feed chains. This scheme will take the place of the compulsory deboning for which SEAC recently called. ¹

7.381 In a press briefing the following day MAFF explained:

Following the recent findings, SEAC have made recommendations about the treatment of animals over 30 months old. The Government has gone beyond this advice in introducing restrictions on the sale of meat from such animals in order to further reassure the public that any potential risk is being removed. ²

7.382 Mrs Browning told us why this change of policy came about:

Clearly there were limitations on the capacity of the industry to bone out all carcasses over 30 months of age, because it is a technique in the abattoir which has to be learned. It is a very specialised skill. Some abattoirs, a few, had this ability to do this. They had staff ready trained. There would have been a difficulty, had that been implemented in terms of timing, in order to train sufficient staff.

However, the overwhelming reason why the scheme was not put into practice and the 30 month slaughter scheme was implemented was because within 24 hours of the announcement on 20th March the retail trade, mainly the large supermarkets, made it absolutely clear that they were not going to sell meat over the age of 30 months. That was a view endorsed quite vocally for example by the leader of the NFU. It became quite apparent that in order to maintain public confidence post 20th March in British beef, that the decision by the supermarkets to say they would not sell it was instrumental in maintaining confidence in British beef.

I have to say they were absolutely right to do so. It is to their credit that they pressed for that decision. However difficult the crisis was for the farming industry post 20th March, that action and that position did help to maintain confidence in British beef and allow the market to recover, as it has now recovered. ³

7.383 Mr Hogg told us that after the announcement on 20 March he met with retailers and the National Farmers' Union (NFU):

I was absolutely delighted when the NFU and Sainsbury's, Tom Viner in particular and others, came to see me in my office after the Cabinet colleagues had rejected my policy, and pressed me to do exactly what I wanted to do. An enormous smile came across my face, and I told them how sensible and wise they were. But I do not actually remember talking to them in great length about the 30 months scheme beforehand. I think I was a bit surprised actually that they wanted me to do exactly what I wanted to do. ⁴

7.384 The attitude of the supermarkets was evidenced by an immediate change made by Sainsbury's in its product specification:

UK and Ireland Sourced Products

With immediate effect only steers and heifer beef aged less than 30 months old are acceptable in any J Sainsbury product, fresh, frozen or processed. No cow beef can be used in any product. In addition, if not already sourced from Sainsbury's 'Partnership in Livestock' farms, suppliers must change to such a source as soon as possible.

Imported beef

With immediate effect no cow beef can be used. The specification for steers and heifers remains unchanged. ⁵

7.385 In a supplementary statement Mr Carden told us:

. . . deboning, which SEAC did recommend (though there were no indications before 18 March they would do so), was quickly judged impractical. Forward planning might have pointed a way through some of the practical problems (eg the extent to which the capacity of existing deboning plants would have matched the need to debone all beef under official supervision - the capacity was plainly inadequate). But the essential point which Mr Hogg had discussed with me (in conversation, not on record) was whether official supervision of deboning operations on the scale that would be required against the background of our recent experience (1995) with SBO controls could be treated as reliable. The conclusion he drew that it could not be relied on was essentially a matter of judgement and I do not believe any amount of forward planning would have removed this difficulty. So it is unlikely that this measure, which was recommended by SEAC, would have featured in any plan produced by MAFF. ⁶

7.386 Mr Carden also stated:

. . . the OTMS did become necessary in the immediate aftermath of 20 March 1996, for a number of reasons which emerged only then. None of those reasons was connected with the scientific advice given by SEAC. ⁷

7.387 The evidence set out above indicates that the OTMS preferred by Mr Hogg was introduced for a combination of reasons:

• Deboning in licensed plants under MHS supervision was not practicable;
• Purchasers were not prepared to buy beef from cattle over 30 months old.

7.388 It may be that an additional element in the decision was the hope that this might incline Europe to be more favourably disposed to British beef. The point that we consider significant is that a major policy decision was so swiftly reversed.

Discussion

Contingency planning at MAFF

7.389 The final stages of the story with which we are concerned present an unhappy picture. SEAC, asked to advise on additional precautionary measures, selected the policy option of deboning all beef from cattle over 30 months of age. The Government adopted this policy option. It immediately proved unviable and had to be abandoned in favour of a total ban on beef from animals of over 30 months of age, the option that Mr Hogg had originally favoured.

7.390 Europe imposed a total ban on all UK cattle, beef and beef products.

7.391 Mr Dorrell, when addressing the House in order to give reassurance about the safety of beef, found himself unable to say whether or not children were particularly at risk and thus gave cause for considerable concern on the part of parents. SEAC subsequently advised that there was no reason to believe that children were more susceptible to vCJD than adults.

7.392 We turn to consider whether, and to what extent, these events were the consequence of rushed decision-making, in the absence of adequate contingency planning.

7.393 It should have been plain to anyone who was at the SEAC meeting of 1 February, or who was adequately informed of what had taken place at that meeting, that there was a real possibility that the cases of CJD in young people had been contracted as a consequence of transmission to humans of BSE. While it was still too early to conclude that this was likely, there was clearly a real possibility that the further investigations of the CJDSU would establish the probability of a link with BSE.

7.394 It seems to us that the real possibility that a link between BSE and CJD might be established in the relatively near future should, if appreciated, have led MAFF and DH officials and Ministers to give consideration to the response that would be appropriate if this occurred.

7.395 Mr Carden's description of what he said had happened from 6 February 1996 onwards ⁸, namely the moving into a state of high alert with MAFF and DH in very close touch both at official and ministerial level, discussing and evaluating each new development intensively, is precisely what we would have expected to have occurred after 1 February. If and when SEAC advised that it was likely that BSE had been transmitted to humans, urgent questions were bound to arise:

• Were further measures necessary to protect human health?
• Were further measures necessary to retain or restore confidence on the part of the public that it was safe to eat beef?
• What steps should be taken to address the probable collapse of the beef market?
• How should the news be broken to the public?
• How should the news be broken to our European partners?

7.396 We were anxious to explore the extent to which consideration was given within and between Departments on a contingency basis as to how questions such as these might be answered. We asked witnesses for assistance on the extent to which there was contingency planning.

7.397 This led, initially, to a misunderstanding. Witnesses concluded that by 'contingency planning' we envisaged the formulation and agreement of what Mrs Browning described as 'a planned and defined response to deal with a specific event that might occur in the future'. ⁹

7.398 We had not envisaged anything as specific as this. Our concern was whether officials and Ministers should have considered and discussed what might be required should scientific advice be received that it was probable that a link existed between BSE and a disease in humans. We made this clear to witnesses before they returned to give evidence in Phase 2.

7.399 We remain of the view that 'contingency planning' is the appropriate phrase to describe the process of considering the implications of the various options for responding to a contingency. During Phase 2 Mrs Browning coined the phrase 'contingency thinking' to describe this process, and this was subsequently adopted in discussion as a useful shorthand. In this Report we have, however, reverted to the more conventional phrase of 'contingency planning'.

7.400 All MAFF witnesses were agreed that no specific contingency plan was prepared prior to March 1996. They explained why this would not have been appropriate or even possible. Mr Hogg, in a supplementary statement directed to the point, put the position as follows:

No proper justification could have been advanced before 1^st February 1996 and I doubt whether any justification could have been advanced before the end of February 1996. This is because prior to 1996 the scientific evidence as to whether BSE was transmissible to man was reassuring - there being at that time no evidence at all that BSE was transmissible to man and there had been no firm advice from SEAC to the contrary. Therefore, before the end of February 1996, there would in my view have been no justification for devising a contingency plan, when previously there had been none. There had been no change in scientific advice, and therefore there was no reason to create a contingency plan.

Preparation of a plan would have involved consultation with a range of government and other bodies. First, the plan would have had to have been discussed widely within MAFF. Subsequently and in addition the following government departments and other bodies would have had to have been involved:

a) The Treasury

b) The Department of Environment

c) The Department of Health

d) The Welsh Office

e) The Northern Ireland Office

f) The Scottish Office

g) No 10 (Downing Street)

h) The Deputy Prime Minister's Office

i) The Intervention Board

It is certain that this necessary consultation would have led to a leak that we were planning to 'break the news' that BSE was transmissible to man. This would have caused a crisis that could have destroyed the beef industry, for what would possibly turn out to be no reason.

It is also worth explaining that if we were to devise a contingency plan, it would have been essential to liaise with UKREP and the office of the European Agriculture Commissioner, Franz Fischler. It would also have been difficult to avoid consultation with the representatives of the farming, retail and abattoir industries. In view of this wide consultation (and in the absence of consultation a contingency plan could not have been formulated) a leak was certain, and as I have explained, there was a high degree of risk that such a leak would have precipitated a collapse in consumer confidence.

Further, we would have had to consult with the European Union on the shape of any contingency plan. That fact would have become widely known within the European Commission and the Council of Ministers. The fact that such a plan was being put in place might well have triggered action against British beef within the European Community.

Without Treasury approval, no effective contingency plan could be formulated, as compensation was an essential part of the ultimate plan. Whilst it is true that in the event the Treasury did make available very large sums of public money by way of compensation and other expenditure, I very much doubt that the Treasury could have been induced to do that in advance. Such provision could not have been made on a 'peace time planning' basis.

I doubt whether any useful contingency plan could have been prepared in advance. The real problem is that it would never have been possible until the end of February or the beginning of March 1996 to know precisely what it was that we were planning against. Over the years the evidence had pointed to different classes of risk. At one stage it was thought that farmers were particularly at risk; on another occasion it was felt that abattoir workers were at risk; on other occasions veal, cattle cake and indeed venison were all identified as possible sources of infection. Unless one knew the precise risk against which one was being asked to plan, it would have been extraordinarily difficult to make an effective contingency plan. Moreover, we were always going to have to respond to the recommendations of SEAC, and in the absence of knowledge as to what the SEAC recommendations were likely to be, planning on a contingency basis was likely to be all but pointless. ¹⁰

7.401 Mrs Browning, ¹¹ Mr Packer, ¹² Mr Meldrum ¹³ and Mr Carden ¹⁴ gave evidence to the same effect.

7.402 We accept that it would not have been feasible to have in place, with Treasury approval, a contingency plan ready to be launched, should the scientists advise that BSE had probably been transmitted to humans. The question remains of the extent to which the factors adumbrated by Mr Hogg and other witnesses precluded all contingency planning in the period prior to 8 March.

7.403 We accept that the extent of any consultation which formed part of contingency planning could reasonably have been circumscribed by a desire not to create the very crisis of confidence that was under consideration as a feature of the contingency. We do not, however, accept that it was impossible or impractical for officials and their Ministers, with a degree of judicious consultation of SEAC and others, to have identified the issues that would have to be urgently addressed if BSE were to have been transmitted to humans and to have explored the available options. This is what we would have expected to be taking place after SEAC's meeting of 1 February.

7.404 There are two objections raised to contingency planning that we wish to deal with in particular.

Uncertainty

7.405 Witnesses made the point that it was not possible to formulate contingency plans in the face of uncertainty as to the route of transmission. As to this, it seems to us that the Government needed to consider possible options where the probable transmissibility of BSE to humans was established, but the manner of transmissibility was not. That, indeed, is the position that ultimately confronted the Government. It was also foreseeable that if it was shown that the young CJD victims had probably been infected with BSE, consumption of beef and beef products was likely to be a prime suspect.

7.406 We believe that during February 1996 officials could usefully have explored the different pathways by which BSE might have been transmitted to young persons and discussed with their Ministers the options for increasing the precautions in place to prevent transmission between cattle and humans.

Waiting for SEAC

7.407 A point made vigorously by witnesses was that the Government would not be prepared to take a decision without first having the advice of SEAC as to what measures, if any, should be taken. They argued that contingency planning before SEAC's advice had been received would have been a waste of time.

7.408 This attitude reflects the reliance that had come to be placed upon SEAC as a source of advice on policy. Mr Packer put the position as follows in oral evidence:

In this period that we are discussing, and probably at other periods as well, but in this period, early 1996, it was certainly the expectation amongst the public, as well as within Government, that any response to a finding by SEAC would be accompanied by a recommendation from SEAC as to the appropriate response to that finding.

Q: Is this something you just assumed, that if SEAC gave advice on transmissibility they would, in the ordinary course, give you some advice about policy measures?

A: No. There is no assumption about it. That is what SEAC had consistently done over the period right back to the Southwood Report. That is what SEAC had always made, such recommendations. They expected to do so, and the Government expected them to do so. Further, SEAC contained the greatest concentration of expertise of people competent to make such recommendations. ¹⁵

. . . while I note it has been debated in front of this Committee whether SEAC should have been relied upon for policy advice to quite the extent that became the practice, the fact is that, translated into the political arena without SEAC advice, Ministers were not willing to go forward. That seems to me to be a salient point, which needs to be registered by those considering the matter. ¹⁶

7.409 'Waiting for SEAC' was not a satisfactory alternative to considering the options for action. When it was that Mr Hogg formulated his policy is a matter that we shall shortly discuss, but ultimately he did not wait for SEAC's advice. We shall consider the merits of Mr Hogg's policy in due course. At this point we simply observe that the policy decision which had to be made in March was not one that turned simply on matters falling within SEAC's areas of expertise. Wider political considerations needed to be taken into account, and these could well have been identified and discussed, on a contingency basis, in February.

7.410 There is a further point in relation to SEAC's position. Mr Packer correctly made the point in evidence that precautionary measures had already been put in place to cater for the possibility that BSE might be transmissible to humans. It did not follow that any additional measures would be necessary if the likelihood of transmissibility was established. ¹⁷

7.411 We can see no reason why SEAC should not have been asked to consider the various options that might be adopted to reduce risk of transmission further, and comment on their efficacy. On the contrary, we consider that this would have been a valuable piece of contingency planning. Mr Carden made the point to us that SEAC was preoccupied with trying to answer Mr Hogg's questions. We consider that it would have been better occupied considering the options should BSE prove to have been transmitted to the young victims of CJD.

7.412 In this context Dr Metters has drawn our attention to instructions that he gave to Dr Wight in August 1993 after a second dairy farmer had died of CJD:

Unwelcome though it may be to the Tyrrell Committee, I think they must be asked at their next meeting to give further thought to what they might advise the Department and MAFF if another farmer (or two) develops CJD. Or, if a butcher or abattoir worker develops the disease.

Although the Committee were given plenty of advance warning about the second farmer, they may not be so fortunate next time round. Some contingency planning on the Committee's response to a further case of CJD in a farmer seems essential. ¹⁸

7.413 Dr Metters has rightly suggested that he should have credit for seeking to initiate this piece of contingency planning in 1993. He claimed in his supplementary witness statement that the consideration that he gave to this issue proved to be very useful experience when he came to consider what plans might be required in the event that the cases of CJD in young people were causally connected to BSE. ¹⁹ We did not find it easy to follow this comment. Certainly neither Dr Metters nor anyone else asked SEAC for contingency advice in the period leading up to March 1996. The attitude of DH officials and Ministers to contingency planning is a matter that we shall consider in due course.

7.414 Although it is common ground that no detailed contingency planning was carried out before March, a number of witnesses suggested that there were informal discussions between Ministers and officials as to dealing with the contingency that the young CJD cases were shown to be linked to BSE. In particular, there was some evidence that Mr Hogg was developing his policy and discussing it with his officials in the weeks before the events in March. We have given careful consideration to this evidence.

Mr Hogg's policy

7.415 In written evidence Mr Hogg stated that before the end of February there would have been no justification for devising a contingency plan, when previously there had been none. ²⁰ He went on to say that in the days before the SEAC announcement of 16 March both he and Mr Packer had given considerable thought to what their policy should be in the event that SEAC concluded that BSE was transmissible to man. ²¹

7.416 When giving oral evidence in Phase 1, Mr Hogg told us that he had begun to formulate his policy after his informal discussion with Mr Packer on (approximately) 8 March. ²² Mr Hogg also said, 'I suspect there were discussions between the 10th and 13th in my room on a very private basis as to what happens if SEAC does say this, but I may be wrong about this. I cannot explain it . . . I am clear as to the conclusions but not quite as to the process.' ²³

7.417 We had formed the impression from this that Mr Hogg's decision to adopt a policy of banning the sale of beef and beef products from animals aged over 30 months was one which he had formulated after 8 March 1996.

7.418 When he returned to give evidence in Phase 2, however, he told us that he believed that he had developed this policy months before, and that he must have discussed it with Mr Packer and other officials:

I do not know when I concluded the main elements of that policy, but my bet is something like this, knowing myself: I had been cogitating on all of this matter for months. I was very well informed about BSE at that time. I had in my mind tested a whole number of propositions. I had doubtless tested it on my officials scores of times and I had come to preliminary views probably a long time before 16 March on a 'what if' basis. So when the balloon went up, I had in my locker, my intellectual locker, what I believed to be the solution. I am bound to say that it was the solution and still is. ²⁴

7.419 This statement was explored with him later in his evidence:

Q: Can we just see where we have reached with regard to them? Mr Packer, you think that at some stage before March you had discussed with him what to do in the worst case?

A: I think I probably did. I cannot remember. But the plain truth is that on 16th March I had a fully worked up policy. There is no formal meeting recorded as to how I came to that fully worked up policy. It is not impossible that I thought it all up in the bath. But it is improbable and I suspect what had happened was that over a longish time I had been ruminating about it, talking to people. It did not actually take a lot of consideration in one sense, because the options were very narrow . . . ²⁵

Q: Had you actually discussed with your officials, before March 1996, that if the worst came to the worst your view would be that no cattle over two and a half years old should be used for beef or beef products?

A: I have really given my answer, Lord Phillips. I do not remember. I think it is highly probable that I had come to that conclusion a longish time before the 16th March. But I cannot tell you when I came to that conclusion. ²⁶

7.420 Mr Packer had earlier told us of dim recollections of informal discussions with Mr Hogg:

I dimly recollect the discussions, certainly with the Minister and perhaps with one or two others, on a 'what if' basis, not on the basis of meetings directed at this point, but in the margins of the other ongoing work.

I suspect that this was reflected in the rapidity with which we decided how to proceed in March. So, I would suggest we were giving tentative, informal consideration in February, although not in any very precise way, which certainly would not have been possible on the basis of the information we had at the time. ²⁷

. . . there may well have been conversations - in fact I suggest there probably were - going backwards and forwards to Brussels on the aeroplane with the Minister, relevant discussions, which would never have been recorded before the issue became a major one. ²⁸

I suggest such discussions did occur. When Mr Hogg was before you I think he said something like he could not find an audit trail for how these ideas came into his head, but he was probably in discussion with senior advisers, notably me. He said something to that effect and I think that is right. Because the documents do not exist, it does not mean that there was not any thought being given, although it is evident that there were not the big set piece meetings of the sort to which I was referring. ²⁹

7.421 We did not find either Mr Hogg's reconstruction of what he thought he would have been thinking in 1996 or Mr Packer's dim recollections a satisfactory basis for concluding that they had debated, before March, the merits of the 30 month scheme. We are in no doubt that had Mr Hogg proposed such a scheme to Mr Packer it would have provoked vigorous discussion and that both Mr Hogg and Mr Packer would have remembered this.

7.422 A minute from Mr Strang records meetings between Mr Packer and Mr Hogg on 13 and 14 March. It says:

The Minister agreed that, before we could act, we needed clear advice from the Committee as to the facts and the steps which the Government should take. It was therefore agreed that the Minister should write to Professor Pattison, as attached, formally requesting SEAC to submit advice as soon as it was in a position to do so. ³⁰

The Minister agreed that it would be prudent to plan on the basis of the worst case scenario. He was glad to see that Ms Timms had been asked to do some preparatory work. He commented that there might be some potentially very serious consequences in the very short term. We therefore needed to move quickly to have worked up the various possible responses, with costings for each option. ³¹

7.423 This suggests that at this stage Mr Hogg had yet to formulate his policy.

7.424 We can readily accept that Mr Hogg and Mr Packer are likely to have had informal discussion about BSE when travelling together or in the margins of meetings. We do not accept, however, that there was a serious discussion on a contingency basis of the various policy options, including the 30 month scheme, that might be adopted should BSE prove to be transmissible to humans.

7.425 When Mrs Browning gave evidence in Phase 1 she said that she was sure that she discussed Mr Eddy's minute of 6 February with Mr Hogg. She said that they were concerned but that clearly there was more scientific work needed to give advice to Ministers. ³² When she returned in Phase 2 she said this of Mr Hogg's thinking:

I cannot obviously put myself in the mind of every official or every Minister as to what they were actually thinking in February. What I can tell you, because it is now a matter of record, is that the policies that were put forward by Douglas Hogg . . . clearly were not just drawn up on 19th March but had been subject to particularly his anticipation of what might be needed.

. . . the thinking that went on prior to March in Ministers' minds, particularly in the mind of the Minister Douglas Hogg, in which he was having to second guess - you I know will want to ask him this yourself. I really cannot say what was in his mind throughout February. ³³

7.426 It is clear from this that Mr Hogg did not discuss the 30 month scheme with Mrs Browning during February 1996.

7.427 As to her own approach to contingency planning, she told us:

I did not just go home every night and think I will just sit back until April and May and see what comes up. One was thinking of what the various permutations . . . and what the consequences might be. ³⁴

Clearly we were thinking about it. We were thinking about it a lot. One thought of all the various permutations. ³⁵

7.428 When asked whether she talked about these matters with her officials, she said:

We talked about it, but I do not think we talked about it in a structured form whereby we sat down and said: we must have a meeting on the 9th and draw up contingency plans looking at all possible eventualities, because we were anxious to get more detailed research from the scientists. There seemed to be so many imponderables once this information was given to us in February, that although we were thinking about it, there certainly were not structured meetings to draw up contingency plans as such, because we wanted to see exactly what the scientists recommended and what their conclusions were. ³⁶

7.429 We explored with Mrs Browning at great length the extent to which different options for responding to the contingency that BSE might be shown to have transmitted to humans were identified and discussed. It was clear to us from her evidence that they were not. In particular, Mrs Browning emphasised that it would have been impossible to 'second guess' that SEAC would advise the option of boning out beef from animals over 30 months of age. ³⁷ It seems to us that, had thought been given to identifying options, boning out would have been one of them, having particular regard to the fact that this was an approach to the risk of transmission that had already been adopted by Europe.

7.430 Mr Meldrum told us that he and his team had ongoing discussion about BSE virtually all the time while he was in post and as a result he had expressed concerns about removal of spinal cord in 1995 and contamination of head meat on 11 March 1996. ³⁸ He did not, however, suggest that there were discussions on a contingency basis as to what should be done if SEAC advised that there was a link between BSE and CJD.

7.431 In his supplementary witness statement he contrasted SEAC's meeting of 1 February with that of 8 March. As to the latter, he said:

It was not until this meeting that there were clear indications of a possible connection between BSE and this new form of CJD and that SEAC was highly likely to be making recommendations for new and additional Government action.

As indicated in paragraph 6 above, as soon as senior officials in MAFF were aware of these findings they, quite correctly, took control of events. This would have taken place immediately prior to the meeting on 13th March, 1996 which was chaired by the Permanent Secretary (Mr Packer). ³⁹

7.432 This evidence does not suggest that there were discussions between MAFF officials and Ministers about contingency planning in February.

7.433 We revert to Mr Carden's evidence of the reaction of MAFF officials to Mr Eddy's minute of 6 February (see paragraphs 7.165-7.167). We consider the extent to which there were discussions within DH and also between MAFF and DH.

The approach of DH to contingency planning

7.434 Sir Kenneth Calman made it plain in his evidence that he personally was not involved in any contingency planning or discussions before March 1996. We have already referred to his evidence of his reaction to Dr Wight's minute of 6 February (see paragraphs 7.181-7.184). In evidence he added that:

After the meeting in February, clearly both the Department of Health and MAFF, particularly through Dr Rubery's Division, were and should have been looking at these issues; indeed, as MAFF were; and clearly Ministers would be informed, as they always are when things are changing. ⁴⁰

7.435 Sir Kenneth had no recollection of having any contact with MAFF officials about BSE in February. He added, however:

. . . but I just point out that, of course, contact between two Departments was done at a variety of different levels, and a lot of this would have been done at the Mr Carden, Dr Rubery type level in terms of the contact across. I would not necessarily have been involved in some of these discussions. ⁴¹

7.436 Sir Kenneth was asked whether he applied his mind to whether extra precautions would need to be put in place to protect the human food chain should there turn out to be a link between BSE and CJD. He answered:

This is the kind of issue that Dr Rubery and her Division would have been considering, and indeed with MAFF.

Q: Were you aware of Dr Rubery considering that with MAFF before 1st March?

A: I have tried to make it clear that I, over that period, was not particularly involved in the decisions at that time or some of the work going on, but my assumption was that that was going on both in MAFF and the Department of Health. ⁴²

7.437 So far as his own involvement was concerned, he told us that it was because of the March meeting of SEAC that 'we activated things within the Department'. ⁴³ He then directed Dr Rubery to produce her 'first thoughts on handling'. ⁴⁴

7.438 Dr Metters was in hospital from 12 to 20 March. ⁴⁵ He did not suggest, at this late stage, that DH carried out any contingency planning prior to March 1996. In a statement he told us:

In early February, I did not know that the surveillance of CJD, which had been underway for some years, would produce significant new findings, let alone what response might be required in the light of such findings. The nature of such a response would depend very heavily on the nature of the new findings. ⁴⁶

7.439 In a supplementary statement, however, made after he had given oral evidence in Phase 2, he stated:

I recall discussing prevention, care and treatment options with the Permanent Secretary in mid-February 1996 and also separately with Sir Kenneth Calman. Far from neglecting contingency planning it formed an integral part of DH's evolving response to SEAC's advice which was only finalised in the period 8-20 March 1996. ⁴⁷

7.440 We have not found it possible to reconcile this statement with Dr Metters's previous evidence, or with any of the other oral or written evidence. We have concluded that Dr Metters's memory must be at fault. The discussions of which he spoke must, we believe, have taken place after 8 March.

7.441 Our conclusion is that neither Sir Kenneth Calman nor Dr Metters was involved in contingency planning or discussions in the period prior to March 1996. Nor was Mr Dorrell, their Secretary of State, given any notice of the storm clouds that were gathering. Sir Kenneth told us in oral evidence that the matters raised by Dr Wight in her minute of 6 February were discussed with Ministers at a top of the office (TOTO) meeting on 7 February. ⁴⁸ When we investigated this, we found that only the recommendations made by SEAC about research were discussed at this meeting. Dr Metters wrote to Dr Wight after this meeting in relation to a comment made by Mr Horam, who had recently been appointed Parliamentary Under-Secretary:

After TOTO PS(H) told me that he was content for officials to take this forward without his direct involvement, but he wished to be kept informed of progress by copy minutes etc. He also commented that he was surprised about the extent to which DH had hitherto avoided the political limelight on BSE/CJD. He would like us to do what is necessary to keep things that way! ⁴⁹

7.442 This does not suggest to us that anyone had conveyed to Mr Horam the possibility that SEAC might be about to advise that there was a probable link between BSE and CJD. We deal with Mr Horam's own thoughts later in this chapter.

7.443 Mr Carden referred in his witness statement to MAFF and DH being 'in very close touch both at official and ministerial level at all key stages'. ⁵⁰ This is not a description which is apt to describe interdepartmental liaison in February 1996.

7.444 We have already referred to the fact that Sir Kenneth Calman had no contact with MAFF during this period. Dr Metters's evidence was that there was no requirement for action before March. ⁵¹ Mr Hogg told us that he could not remember whether he had discussions with Mr Dorrell 'in the margins', but added that:

. . . of course the implications so far as animal safety was concerned were mine. He was concerned with the requirements for human health which required DH intervention.

7.445 So far as Mr Hogg was concerned, DH was not involved until shortly before 18 March. Asked whether he should not have discussed the 30 month scheme with Mr Dorrell, Mr Hogg replied:

No, forgive me, the 30 month rule was down to me; that was my policy, it was not the Department of Health's policy; it was something for which MAFF was answerable. ⁵²

7.446 In some additional comments supplied to the Inquiry, Mrs Browning said that she did not discuss her 'contingency thoughts' with her opposite number at DH after she had read Mr Eddy's minute. She did not think there would have been any benefit in doing so. Until they had firm contingency plans to put to other Departments, there was little, if anything, that they could have contributed.

7.447 In oral evidence Mrs Browning expressed the view that action which she had contemplated that she might have to take under the Food Safety Act would not have required discussion with her opposite number in DH:

I would not have needed to consult with Mr Malone. For example, if, having invoked the Food Safety Act in order to withdraw say milk or dairy products, it would not really have been a matter for Mr Malone. The consequences of invoking the Food Safety Act to withdraw say milk and dairy products, the next step would have been to say: how do we ensure the public is now supplied with safe, fresh supplies of such product? That would not have been a matter I would have discussed with the Health Minister. It would not have been appropriate for him to have been involved. That would have been a practical problem for us at MAFF, had we had to invoke that Act for that purpose. ⁵³

7.448 Mr Packer's evidence was to the effect that the division of responsibilities between the Departments meant that there was no necessity for joint discussions before the end of March.

Q: . . . there is a more general point. Here in February there is something which potentially had really pretty horrific consequences for your Department and for the Department of Health. And it seems to us that a month went by without any discussion between the two Departments about this cloud looming over the horizon. Again you may say to me it will not be recorded, but I can assure you there were such discussions. If so, we would like to know.

A: I may have spoken to the Permanent Secretary in the margins of the Permanent Secretaries' meetings. It would be exactly the sort of thing that one would have done. But I cannot assert that I did, because I cannot recall, so I am not going to. But it is exactly the sort of thing that I might have done. I think, perhaps - I feel this impasse must be based on some sort of misunderstanding of Departmental responsibilities. It is correct that if BSE were found to be transmissible there would be horrendous consequences for MAFF and conceivably for the Department of Health, but they are of a different nature. The horrendous consequences for MAFF are, once we have discovered it, immediate. The market collapses, measures may or may not, depending on the view taken, need to be taken immediately on the ground.

For Health they would obviously have a long-term concern and they would need to circulate information. But there is not the same element of crisis as we would see and did see all too clearly in respect of our own concerns, and with those concerns the Department of Health would not be able to help us, because we would have to deal with them.

And clearly when we come later to proposals for action, both Departments and indeed the whole Cabinet have to be confident, but the uncertainty between 1 February and 8 March is such that I do find it very difficult to see that any such formal contacts could have led to anything very useful that was not very rapidly established after 8 March in any event, so that the practical consequences of what you are referring to as a lack of contact are zero, thereby justifying the approach we took at the time, notwithstanding it looks off when viewed from outside Government. ⁵⁴

7.449 Mr Meldrum told us that:

Soon after Dr Calman was appointed we had a meeting at his request where we established the guidelines for our working relationship and Dr Calman stated that he would be happy to meet with me whenever there was a need to do so. I took him up on this invitation on a number of occasions. I tried to give Dr Calman as much warning as possible of any new findings even though they may have been extremely preliminary and were not subsequently confirmed. ⁵⁵

7.450 Mr Meldrum also helpfully provided us with a copy of his official appointments diary for the period from the beginning of 1995 through to March 1996. It is notable that no meeting is recorded with the CMO or any official of DH between 28 November 1995 and 13 March 1996. This does not, of course, preclude the possibility of informal and unrecorded meetings between the CMO and the CVO, but on the evidence that we have received we think it unlikely that any such meeting took place.

7.451 We have summarised this evidence at some length because it demonstrates that the 'very close touch' between the Departments spoken of by Mr Carden did not occur in the run-up to 8 March 1996. When Mr Carden came to give oral evidence we explored with him the extent to which the situation had been discussed between MAFF and DH after SEAC's meeting of 1 February:

Q: You have told us that you were on a state of high alert . . . Was the Department of Health on a state of high alert?

A: I think the Department of Health would have to tell you, Chairman. You have talked to them.

Q: I find it a bit surprising that you do not know the answer to that question, ie that there does not seem to have been any discussion at that point with Health.

A: I cannot recall discussion on this specific point in the immediate aftermath of 6th February.

Q: Is that not a little surprising?

A. I think both Departments will have been looking to SEAC to bring forward a firmer scientific view. When I said that this was a point that put us into high alert, I do recall that my view was, if this turns out to be firm evidence that BSE has been transmitted this will be a major change in the picture we have; but the signs that I had and was getting for the first time here at the beginning of February were tentative.

We had had signs that pointed to transmissibility of a different kind, for example in the group of farmers, that were, if anything, firmer, firmer in the weight that SEAC seemed to be attaching to them, that set of signs in the autumn of 1995. I think what I am saying is that I had here some tentative signs and a report that more work would be needed before conclusions could be drawn, and looking down the track I was forming the view that at the end of that track could be something momentous, but that we would have to wait while the scientific view matured.

Q: Was that the view of your colleagues in MAFF?

A: Yes, I believe it was. ⁵⁶

7.452 There is one significant conflict of evidence to which we should refer. When giving oral evidence in Phase 1 of the Inquiry, Dr Rubery spoke of a conversation which she had had with Mr Carden:

I did say to him, 'It looks to me as if it is conceivable that if another case turns up of CJD in a teenager, then it is going to be difficult for SEAC to continue to say there is no link; should we meet to develop a plan and see how we should take things forward in the longer term?', but he was adamant we could not do that. He felt if anybody discovered that we were meeting, if the press got wind of this, that this would cause problems and also it would be difficult to get information from the relevant people they needed on the MAFF side to plan the consequences. So I did not do anything more on that side. ⁵⁷

7.453 This conversation had not been mentioned in Dr Rubery's witness statement. In a supplementary statement she explained:

I did not refer to this conversation in my [original] statement because I have no record of it or the date at which it occurred. I am afraid I have no recollection of anything further relating to that conversation. ⁵⁸

7.454 Mr Carden told us that he had no recollection of this conversation and that he believed that Dr Rubery's recollection was inaccurate. He set out a number of cogent reasons for his doubts about the accuracy of her account. He accepted that he had had reservations about the value of contingency planning and suggested that Dr Rubery may have been influenced by possessing more information about the emerging data of CJD in young people than was available to Mr Carden:

If Dr Rubery did indeed have a fuller picture than I had about the gathering strength of evidence and concern in medical circles, relating to the cases of CJD in young people, it might account for an impression on her part that I was less receptive to her side of the discussion than perhaps she might have expected. ⁵⁹

7.455 We are perplexed by this conflict of evidence, which, we have concluded, is likely to reflect a misunderstanding arising out of a conversation between Dr Rubery and Mr Carden. If contingency planning was raised, we think it quite probable that Mr Carden would have questioned its value. It does not, however, seem credible that he would have refused to meet Dr Rubery because of concerns as to the implications that the media might draw from such a meeting.