Legislative and administrative background
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Relevant provisions relating to swill processors and feeders
15. At the time of the outbreak of FMD in February 2001 the production of swill as animal feed was controlled by the Animal By-Products Order 1999. Under this Order operators approved by Defra were permitted to (i) process catering waste and (ii) render non-mammalian waste for feeding to pigs as swill. Approval (which took the form of a licence) could only be granted if the premises complied with the relevant structural and operational requirements of the Order. Not all farmers who fed swill to their animals had the equipment to process, and the Order allowed Defra to licence those farmers to consign (transfer) swill from the premises of a licensed processor to their own farm and feed it to animals there. In 2001, 74 premises in the UK were licensed to process swill and 93 (including all the 74 licensed processors) were licensed to feed it.
16. Article 21(2) of the Animal By-Products Order 1999 made it an offence to bring unprocessed catering waste onto any premises where ruminant animals, pigs or poultry were kept. (Pigs were kept on the premises at Burnside Farm.) Article 21(1)(c) required any person collecting or transporting unprocessed catering waste intended for feeding to pigs or poultry to take it without undue delay to approved premises.
17. SVS instructions said that operators who processed catering waste into swill had to be inspected four times a year (once by an SVS vet and three times by a technical officer). Operators who did not process catering waste, but who collected fully processed catering waste (swill) for feeding to their pigs, had to be inspected twice a year (by a SVS vet), in order to ensure that they were keeping to the conditions set out in their licences. As mentioned earlier (paragraph 12) there was no specific guidance to SVS staff as to how they were to carry out such inspections.
18. The Animal By-Products Order 1999 was amended by the enactment of the Animal By-Products (Amendment) (England) Order 2001 on 24 May 2001. This banned the feeding as swill to livestock of catering waste which contained, or had been in contact with, or originated from any premises where any animal carcases, parts of animal carcases (including blood) or products of animal origin were handled, or where foodstuffs containing, or coming into contact with any of the same, were prepared or produced. In addition it maintained the ban on the feeding to any livestock of any catering waste imported into Great Britain and originally intended for consumption on the means of transport in which it was imported, or any feeding stuffs that might have been in contact with it. In practice the provisions of this Order excluded virtually all waste produced by food outlets from being used as swill, and made it virtually impossible for farmers who had previously fed swill to continue to do so.
19. When the Animal By-Products (Amendment) (England) Order 2001 came into force on 24 May 2001, licences issued under the Animal By-Products Order 1999 were no longer valid. An Emergency Instruction was therefore issued to the SVS on 11 May 2001 with a pro forma revocation notice which was to be completed by the Divisional Veterinary Manager and sent to each licensed swill feeder, consignor and processor. An Action Note (2001/29) issued to SVS field staff on 23 May 2001 provided further advice on the extent of the ban and on the options available to former swill feeders. It noted that an Emergency Instruction (which had required the SVS to visit all swill premises to inspect all FMD-susceptible livestock on the premises at fortnightly intervals) would lapse as soon as the ban on swill feeding came into force and asked Divisional Veterinary Managers to ensure that those visits were replaced by a series of follow-up visits. The visits should be unannounced and undertaken in conjunction with the local authority (as the enforcement body – see paragraph 13 above) wherever possible. The visits were to check whether there was any evidence of swill processing or feeding and to assess the health of the pigs by clinical inspection. A programme of visits was established, and a report form provided. Advice on action to be taken in the event of non-compliance, and on the availability of the Livestock (Welfare) Disposal Scheme for swill-fed pigs, was also provided. (That advice said that that Scheme was only available to those farmers whose stock were suffering poor welfare as a result of the movement restraints imposed as a result of FMD.)
20. The code of practice on written consultation1 published by the Cabinet Office in December 2000 said that 12 weeks should be the standard minimum period for a consultation, although there would sometimes be circumstances which unavoidably required a consultation period of less than 12 weeks. The code said ‘The nature of the problem dealt with may also occasionally mean that urgency is in the public interest’. The Government document ‘Guidance on Implementation Periods’2 also says that guidance on new legislation should be issued at least 12 weeks before it comes into force. This document says that departure from the 12-week period will require the consent of Ministers and will only be allowed in exceptional circumstances. It then specifies those circumstances, which include ‘legislation required to deal with emergency situations e.g. risks to health’.
The Pig Industry Restructuring Scheme 2000
21. The Pig Industry Restructuring Scheme (launched in November 2000) was a Government-funded scheme designed to offer short-term assistance to pig producers, and was developed by Defra in consultation with the pig industry. The Outgoers element of the scheme (the Pig Outgoers Scheme) aimed to reduce pig breeding capacity in the UK by 16% from that of June 1998. Aid was provided to successful applicants who could prove they were engaged in pig breeding in June 1998 and were prepared to end their involvement in all pig production for a period of ten years. Applicants were invited to submit a sealed tender for the amount of aid required to compensate for the loss of value of assets following the decommissioning or rendering unusable of all pig breeding facilities on the holding(s), owned by or under the control of the applicant(s). Successful bids were those judged by Defra to represent best value for money in terms of cost per sow place. Aid payable to the successful applicants was 60% of the tendered amount. By applying to the scheme applicants agreed to inspections being carried out to confirm that the terms and conditions were adhered to. There were two Outgoers schemes. The first (pre FMD) closed to applications on 3 March 2001. The second (post the outbreak of FMD) closed to applications on 20 April 2001.
1 Code of practice on written consultations. Published by Cabinet Office, December 2000, Edition: 01.
2 Guidance on Implementation Periods: Timing of the Issue of Guidance to Business on Compliance with New Legislation. Small Business Service, Department of Trade and Industry. 27 November 2000.
