Part I: Defra’s actions in relation to the ban
Jump to
Key events
27. For clarity I propose to deal with the two aspects of ASU’s complaint separately.
Part I: Defra’s actions in relation to the ban
Defra’s comments in response to the complaint
28. A more detailed chronology of the relevant events is set out in Annex A. Defra have explained that this is not a complete record because, due to the national emergency conditions at the time, no record was made of a number of relevant meetings and discussions. A brief summary of the key events follows.
29. On 19 February 2001 evidence of FMD was identified at an abattoir in Essex. A swill-feeding pig farm at Heddon-on-the-Wall, Northumberland was identified subsequently as the likely source of the infected animals. Shortly afterwards Defra began to consider, as part of their consideration as to how best to contain the spread of FMD, whether swill feeding should be banned. On 22 March 2001 a draft submission on a proposed ban on swill feeding was circulated within Defra seeking comments. The Chief Veterinary Officer and the Veterinary Head of the Exotic Diseases Team both replied indicating their support for a proposal to introduce a ban. There was a discussion about whether the ban should be implemented immediately, or whether there should be public consultation prior to its implementation. In the event the Minister decided that there would be a two-week consultation period from 27 March to 10 April 2001 in order to determine whether there was appetite for the ban and, if so, what should be banned. Defra recognised that the ban on swill would impact significantly on swill users and the question of compensation was considered, but it was decided that farmers had never previously been compensated for changes in feeding regimes and that it would therefore be inappropriate to do so now.
30. On 27 March 2001 the Secretary of State, in a statement to the House of Commons, proposed a ban on swill feeding. On the same day Defra issued a public consultation document about the proposed ban (a copy of the consultation document is attached at Annex B) and a consultation letter was sent to around 650 interested organisations and individuals, including all swill processors and feeders. On 10 April 2001 the consultation period closed. On 26 April 2001 the Secretary of State said, in a Commons statement, that about 150 responses had been received, nearly all of which favoured a ban.
31. On 1 May 2001 a full submission on the ban was put to the Minister. On the question of compensation, the submission said that a number of respondents had called for compensation but that Defra ‘have not compensated farmers in the past for changes in feed material available for their livestock and do not consider it appropriate to start now. The only difference in this case is that farmers may need to scrap equipment, convert buildings and adapt to new feeding equipment if they choose to continue to keep pigs; others will stop operating. Nevertheless it is not usual to compensate farmers for making such changes required by legislation. Others will also face additional costs; food factories estimate a 40% increase in costs to send pie waste to landfill, whilst restaurants will have to pay higher disposal charges … Any business having swill production as their sole or main enterprise, might, however, have a slightly stronger case than those simply facing increased business costs if they were left with worthless, or near worthless equipment and were able to quantify their losses. If compensation were decided on state aids [EU] clearance would be needed’.
32. On 2 May 2001 a Defra Minister met ASU representatives and told them that a swill ban would be imposed from 24 May 2001 and that there would be no extension of that period or compensation paid. On 3 May 2001 the Secretary of State, in a Commons statement, said that a ban on the feeding of catering waste (which contained or had been in contact with meat) as swill to livestock would be introduced. The ban would apply from 24 May 2001, allowing a three-week phase-in period for alternative feeds to be introduced. An Order amending the relevant legislation was made that day.
33. On 30 October 2002 a Defra Minister (in answer to a written question) said that the Government did not intend to compensate pig farmers for changes to the feed material available to their livestock following the swill ban. On 7 November 2002 a Defra Minister (in answer to a written question) said that Defra had received a total of 351 replies to the consultation on the swill ban. Of those only a minority had objected to a ban.
34. On 5 September 2003 the Secretary of State wrote to one of the MPs who had been pressing the Government to reconsider the question of compensation for swill feeders (following a number of representations and meetings on this issue) saying that it was not the Government’s policy to pay compensation or make decommissioning payments in respect of changes in the law and the costs of compliance with it. Former swill feeders could continue to rear pigs (although not by feeding catering waste) and to collect and dispose of catering waste (other than by feeding it to animals). Free business advice had been offered and financial assistance to diversify might be available from the Rural Enterprise Scheme.
35. On 30 March 2004, in response to a further Parliamentary Question, a Defra Minister stated that there had been 357 responses to the consultation. This statement was corrected on 19 May 2004, when it was stated that 330 responses had been received, 208 of which (63%) had supported a ban. In this later response Defra apologised for the previous incorrect answer which was due to double counting of some responses and because of the way in which respondents had decided to comment on the range of questions asked and the options offered in the Regulatory Impact Assessment.
Defra’s comments in response to the complaint
36. In his comments on the complaint the then Permanent Secretary of Defra (the Permanent Secretary) said that it was important that Defra’s actions in relation to the ban on swill feeding were seen in the context of the prevailing conditions. The country had been in the midst of an outbreak of FMD, the index case for which was believed to be on a farm on which swill was fed, and where the farmer was later successfully prosecuted for feeding unprocessed catering waste to his pigs. The Department’s resources had been stretched to the limit, particularly on the veterinary side, in tackling the disease and – under clear direction from Ministers – Defra had been determined to take any steps necessary to bring the disease under control as rapidly as possible.
37. Turning first to the length of the consultation period, the Permanent Secretary said that, in the light of the emergency circumstances in February 2001, there had been much discussion within the Department and other parts of the Government about the origins of the disease and the actions that could be taken to tackle it. Because the index case for the outbreak was believed to have been from a farm on which catering waste was fed as swill, the discussions had included the possibility of a ban on swill feeding. The decision on the consultation period had been taken in discussion with Ministers and in the light of the need to introduce any new arrangements as quickly as possible. (The Permanent Secretary did not comment on ASU’s complaint about the adequacy of the consultation document itself.)
38. The Permanent Secretary said that, although ASU took the view that there was not overwhelming support in the responses to the consultation for a ban on the feeding of catering waste containing meat, Defra considered that there was a clear majority in favour of a ban. The responses had revealed support for the ban from associations that represented large memberships, including the National Farmers’ Union (NFU), the Tenant Farmers Association, the British Pig Association, the Royal Association of British Dairy Farmers, the National Beef Association, and qualified support from the National Pig Association. The Permanent Secretary said that the general message from those organisations had been that swill feeding was a minority activity and that the majority of farmers wanted to see it prohibited.
39. As for the consultation responses overall, in total they had received 330 responses. Because of the number of questions asked, not all responses were clearly for or against a particular option. However, Defra’s assessment was that 90 had been against and 152 in favour of a ban on the swill feeding of catering waste that contained meat or meat products. A further 56 had been against extending the ban to include non-meat waste foods and an additional 32 had expressed no particular preference. The Permanent Secretary said that he fully accepted that the Minister had given incorrect figures in an oral response to the House on 26 April 2001, when he had said that around 150 replies had been received, the majority of which favoured a ban on swill feeding. That figure had apparently been taken from an internal minute written by the head of the Transmissible Spongiform Encephalopathies (TSE) Directorate, but they had been unable to find out where the figure had originated. In any event, the submission to the Minister on 1 May 2001, outlining the results of the consultation and recommending that she sign the Order to ban swill feeding, had said that there were 87 respondents in favour of a ban on feeding catering waste containing meat, and 83 against it.
40. The Permanent Secretary said that the proposal for a ban had primarily been based on veterinary advice, as set out in the concerns raised by the Chief Veterinary Officer (CVO) and the former CVO in their minutes of 5 and 6 April 2001. That advice was effectively that, whilst properly operated swill feeding would not normally be a threat to animal health, it was felt to pose a risk during the outbreak of FMD. (This was based on the assumption that there was bound to be FMD-infected meat in the food chain from ‘pre-control February’, and therefore the risks of recycling the disease were all the more real at that time.) As for the impact in terms of the numbers of pigs and the amount of catering waste involved, the figures cited in the Regulatory Impact Assessment accorded with those given by the National Pig Association in their response to the consultation of 27 March 2001. Some respondents had expressed the view that swill feeding was a more environmentally friendly disposal route, and that disposal to landfill posed potentially greater health risks than swill feeding. Although it was recognised that that was an issue which required some further thought, Defra suspected that only a relatively small proportion of catering premises supplied swill feeders. The impact of the ban was therefore likely to be relatively small, both in terms of the cost to the industry and of the environmental impact of disposing of additional material to landfill.
41. The consultation document had indicated that, although EU rules did not ban swill feeding at that time, the EU had been considering such a ban in the context of discussions on the draft Animal By-Products Regulation. By the time the Minister was asked to sign the 2001 Order banning swill feeding, Defra had understood that six countries had already banned it. An EU-wide ban followed and came into force on 1 November 2002. Germany and Austria had subsequently negotiated a transitional measure to allow their processors until 31 October 2006 to phase out swill feeding.
42. The Permanent Secretary then turned to the question of whether there had been a lack of clarity on Defra’s part in relation to the scope of the ban. ASU had complained that Defra had incorrectly prevented the continuation of fish rendering and had given conflicting advice about the type of material that could be fed following the ban on swill feeding. In his comments the Permanent Secretary explained that before the ban on swill feeding, the Animal By-Products Order 1999 had permitted non-mammalian by-products to be rendered for the production of swill for feedings to pigs or poultry. When swill feeding was banned by the Animal By-Products (Amendment) (England) Order 2001, the rendering of non-mammalian animal by-products (including fish and crustaceans) to produce swill was prohibited. The question of whether fish and fish in batter could be fed to pigs was addressed in guidance of 25 May 2001 which was circulated to interested parties. The guidance was revised on 14 June 2001, and again once the Processed Animal Protection Regulations 2001 had been introduced. The guidance noted that:
(i) fishmeal could be fed to non-ruminant livestock (i.e. to pigs and poultry) as long as the meal had been produced in dedicated rendering premises which had been approved for that purpose under the Animal By-Products Order 1999. Once the Processed Animal Protein Regulations 2001 came into force the feeding of fishmeal to ruminants was to be prohibited; and
(ii) originally the advice noted that batter or breadcrumb material (e.g. from fish finger production) could be rendered with fish and fed to livestock, providing it had been rendered in a plant that was approved under the Animal By-Products Order 1999. However, following discussions about the impact of the Processed Animal Protein Regulations 2001 (which applied from 1 August 2001), the advice was altered to reflect the fact that the inclusion of batter or breadcrumb waste meant that the product would be compound feed (i.e. containing other feed materials in addition to fish protein). Under the Processed Animal Protein (England) Regulations 2001, which include a ban on fishmeal being used in ruminant feed, the one specific exemption is for fishmeal produced at a plant dedicated wholly to the purpose (i.e. not for producing compound feed) and fed to non ruminant livestock. This requirement for dedicated production precluded the inclusion of batter, or anything which was not ‘whole or parts of fish’ in the ingredients for producing fishmeal intended for non ruminant feed purposes.
43. The Permanent Secretary then went on to address the issue of the refusal of compensation. He dealt first with the question of whether swill feeders could have diversified their activities following the ban. He noted ASU’s assertions that it had not been economically viable for swill feeders to become waste operators or to switch to alternative feeds. He said that he recognised that swill feeders had only a short time to adapt to the ban, and that that might have reduced the initial opportunities for diversification. However, Defra could not agree that it was not economically viable for swill feeders to either become waste collectors or to switch to compound feeds or other permissible feeds such as brewers grain. Operators had not been prevented from collecting and disposing of catering waste. However, they were no longer permitted to feed that material to their pigs, and would have had to dispose of it by incineration or landfill (more recently approved composting or biogas plants had become permitted outlets). To that extent their costs increased to the same level as those faced by other collectors of catering waste. Operators were also able to continue to rear pigs. They were not able to feed them on catering waste, but could have changed to alternative wet feeds, such as brewers’ waste. Alternatively, they could have chosen to feed them on proprietary feed. It was possible that there might have been consequential costs resulting from the need to upgrade the pigs’ accommodation, but again their costs would have been increased to the level faced by others in the pig industry. Reports from visits carried out one year after the ban (which my officers have seen) had shown that many former swill feeders had succeeded in making this change. In mid-2002 the (92) former swill feeders were behaving in the following ways (note, it is mentioned earlier that there were 93 swill feeders in 2001; the assessment here excludes the brothers, who had their stock slaughtered because of FMD):
a) 50 were still keeping pigs (3 of those were now approved to operate rendering plants as well, with the rendering unit on separate premises);
b) 3 of those who were still keeping pigs also continued to collect waste food (although only one of these was using a legitimate disposal route);
c) 3 of those who no longer kept pigs continued to collect waste food; and
d) 1 of those who no longer kept pigs rendered fish waste.
44. They understood that 42 former swill feeders were no longer keeping pigs and most did not seem to be operating any other business (Defra said that they understood that a number had taken the opportunity to retire).
45. Although not a direct result of the short phase-in period, Defra said that they did recognise that swill feeders who were tenants might have faced limited diversification opportunities if their tenancy agreement did not permit such developments. Others might have been unable to gain the necessary planning permission for their proposed changes.
46. In response to a request from the then Parliamentary Secretary (Commons), following a meeting with ASU on 20 November 2001 (no official note of the meeting seems to have been made), Defra had arranged for the provision of free independent business advice to former swill feeders. However, because such advice was considered to be a State Aid, it had been necessary to obtain clearance from the European Commission, and resolving that and other issues had taken some time. The advice was provided by the Agricultural Development and Advisory Service (ADAS) from October 2002 and closed to new applicants on 28 February 2003. It had been made available to all former swill feeders who wished to take advantage of it. Thirty-nine former swill feeders had taken up this advice, although some of those had not been prepared to discuss their business and only wanted to know about their compensation claims.
47. Defra had not seen the detailed advice that ADAS had provided to individuals, as for commercial reasons that was confidential, but the general feedback in July 2003 had been that some businesses had evolved to generate income in other ways, while others had found alternative employment. Some of those who were still involved in pig production had needed to make changes, in particular in relation to the housing of the pigs, as many pigs had previously been kept in poorly designed housing with little or no insulation. However, those still involved in farming had in the main been experiencing financial difficulties.
48. In providing advice to the former swill feeders, ADAS had highlighted the Rural Enterprise Scheme, which was part of the England Rural Development Programme and could provide financial assistance to any farmer wishing to consider diversifying their business into non-mainstream agricultural activities or enterprises outside agriculture. (This had been available to farmers in England; other schemes operated in Scotland and Wales.) For a variety of reasons the majority had considered that it was not appropriate for them. Of those who did decide to pursue an application under the scheme, ADAS mentored them through the process of undertaking research and preparing plans. For those who spent at least 75% of their time in agriculture, free business advice was also available from the Farm Business Advisory Service (albeit on a first come, first served basis). However, many of the former swill feeders would not have been eligible as they did not spend 75% of their time in agriculture; in any case, ADAS considered that they were getting a better service through the free advice that Defra were providing specifically for the former swill feeders.
49. The Permanent Secretary said that he understood ASU’s contention to be that the business advice offered had not in reality offered practical solutions to their difficulties after the ban, and that Defra had failed to recognise that and to offer a proper system of compensation. However, in their response of 9 April 2001 to the consultation exercise, the NFU had said that swill feeders would need to alter feeding regimes and move to more expensive feeds, and that swill processors would be forced out of business. In their response, the National Pig Association had also commented that the issue of compensation had been underestimated in the consultation paper, as no allowance had been made for the scrapping of processing equipment, the associated redundancies, the adaptation to new feeding equipment and conversion of buildings on the affected farms. In consequence, in the submission to the Minister of 1 May 2001, Defra officials had noted that a number of respondents had called for compensation, considering that they would no longer be able to continue in business if they could not feed their pigs on swill. However, the submission had also noted that Defra had not in the past compensated any other farmers for changes in the feed material available, and did not consider that it would be appropriate to start with the ban on swill feeding. It was not usual to compensate farmers for making such changes if legislation required them to do so.
50. The submission had pointed out that others, such as food factories and restaurants, would also face increased costs resulting from the requirement to send their waste food to landfill, instead of to swill feeding (food factories estimated a 40% increase in costs to send pie waste to landfill). The submission had commented that it had been considered whether the European Convention on Human Rights led to any requirement to pay compensation. On balance, and taking into account legal advice, it had been felt that the case for compensation was not strong. The Minister had also been advised that the Livestock Welfare (Disposal) Scheme would not provide compensation for those farmers who wanted to leave the industry. That had been a last resort option for those farmers whose stock had been suffering poor welfare as a result of FMD movement restrictions. The Permanent Secretary said that he could not accept that the former swill feeders’ situation was analogous with that applying to fishermen or mink farmers. The change to the legislation did not prevent former swill feeders from continuing with the core elements of their business; to collect and dispose of catering waste and to rear pigs. That was in contrast to the ban on mink farming, which had removed producers’ ability to continue to farm mink under any circumstances. Similarly, the aid to the fishing industry was not compensation, but rather encouragement to adopt more sustainable fishing practices and to rationalise the industry in order to ensure its long-term survival. The package of aid was partly for retraining and rejuvenation at fishing ports, partly in grants to improve the quality and value of fish catches and the use of environmentally sensitive gear, and partly to aid the restructuring of the industry by way of decommissioning and the like.
51. The Permanent Secretary said that Defra did not compensate people for changes that they had to make to equipment and buildings as a result of legislative changes. For instance, they had not compensated the many operators who had had to alter procedures, equipment and/or buildings to comply with the requirements of the Animal By-Products Regulation (EC) 1774/2002. As well as introducing an EU-wide ban on swill feeding, the Regulation had tightened the controls on other animal by-product operations such as rendering plants, pet food plants and hunt kennels, and introduced new controls on others such as incinerators and intermediate plants.
52. The Permanent Secretary went on to say that, prior to and following the ban on swill feeding, a number of meetings had been held with former swill feeders to discuss the implementation and enforcement of the ban as well as the possibility of compensation. However, Defra had remained of the view that it would be inappropriate to pay compensation in these circumstances.
Further comments from ASU
53. My officers met with ASU to discuss the different aspects of their complaint, and to get their response to some of the points made by Defra. Looking first at the length of the consultation period, ASU said that they felt that the two weeks that Defra had allowed for consultation about implementing a ban was too short and essentially meaningless, as it was clear that Defra had already decided to go ahead with a ban. ASU were asked if they were satisfied that all relevant parties had been included in the consultation. They said that they were not, as contrary to what Defra had claimed, the consultation letter of 27 March 2001 had been sent to every processor, but not to feeders under Article 26 of the Animal By-Products Order 1999.
54. Turning to the rationale behind the ban, ASU expressed concern that Defra officials had not properly considered, or advised Ministers on, the rationale behind the recommendation for a ban. They said that, if the Government had really believed that swill feeding was as unsafe as was claimed, it should have been banned immediately. If not, there should have been a proper consultation period, with tightened controls during the consultation. ASU said that, in their view, the consultation had been a whitewash, as most respondents had not favoured a ban; by their assessment only 31% had been in favour. ASU felt that their views had not been taken into consideration. The rationale behind the ban had not been properly explained and the questionnaire had been misleading. People who had shown no preference, or who were against the ban, had not been clear what they were responding to, and even those in favour had thought farmers should be compensated. ASU disputed the Permanent Secretary’s assertion that the assessment of the impact had been correctly presented in the Regulatory Impact Assessment. They said that it had grossly underestimated the tonnage of waste being disposed of to landfill sites and the number of swill-fed pigs, which in 2001 had been 130,000 (the Regulatory Impact Assessment had said there were around 82,000). They also disputed the Permanent Secretary’s comments (paragraph 43) that swill feeders could easily have switched to brewers grain. They said that brewers grain was not always available, but was in any event high fibre and low energy, making it only suitable for ruminants. It was not an alternative to swill.
55. ASU said that they believed that the apparent confusion regarding the reason for proposing a ban had been reflected in the consultation document. Because Defra’s rationale for proposing a ban had not been clear, consultees had been unsure what they were being asked to comment on. A particular flaw in the consultation had been the omission of any reference to the possibility of raising industry standards even higher either by introducing more regulations, or properly enforcing existing regulations. ASU went on to say that the consultation could also have considered whether there were scientific ways to improve swill feeding. My officers pointed out that the Defra papers suggested that the problem was not considered to be with the scientific standards of swill feeding, but with the enforcement of the regulations. It was considered to be almost impossible in practice to monitor compliance to ensure safe swill feeding and ensure that rogue operators were closed down. ASU commented that one illegal feeder did not represent a case for shutting down the legitimate farmers who, in their view, had been made the scapegoats for the FMD outbreak.
56. ASU next turned to the length of time given for swill feeders to comply with the ban. Views within Defra had varied as to the time that should be given for compliance, and it had settled upon three weeks. However, after notices had been sent out, some farmers had effectively had much less than three weeks, and so it had been agreed not to enforce or prosecute immediately, in order to give everyone sufficient time to comply. ASU said that Defra should not have allowed time to phase in compliance. Had the ban been enforced immediately, all of the stock would have been eligible for the Livestock (Welfare) Disposal Scheme ( paragraph 19) – a scheme which paid out for animals trapped under FMD regulations, which could be based on ability to feed animals. Because time was allowed for compliance it no longer became a welfare issue, and so ASU members had become ineligible. ASU said that the consultation, phasing in, and grace periods, rather than an immediate ban, had effectively led to the slow and painful death of their industry.
57. ASU went on to say that an appropriate phasing-in period would have been five months. That would have allowed them to empty the farms up, selling off stock at a proper market price. It was pointed out that that was an economic argument, whereas Defra had decided the phasing-in period based upon how long it would take to change the diet of a pig. ASU, however, said that in their view it was also an animal welfare issue, because if fed on other matter, the pigs’ accommodation would no longer be suitable.
58. ASU said that in recommending a ban, Defra had failed to take into account a number of relevant considerations, the result of which had been a failure to advise Ministers of the real consequences of a ban for those affected by it. Defra officials had, for example, apparently advised Ministers that swill feeders could simply switch to some other form of feed. One of the reasons for the three-week delay was said to be that it reflected how long it would take to change the diet of the pig. However, this advice failed to take into account the price of feed compared with that of swill. One member of ASU had calculated that feed cost £98-£130 per tonne compared to £12-£14 per tonne for swill. Moreover, because swill feeders were unable to afford to feed their pigs, they had to be sold off quickly at ‘fire sale’ prices. Defra had also suggested that alternative sources of food, such as vegetable waste, could have been used. Unfortunately, however, that was not correct. Vegetable waste might be appropriate for ruminants, but it contained insufficient nutrients for a growing pig and in any event was not available in sufficient quantities.
59. But in any event, even if it had been possible for swill feeders to switch to an alternative form of feed, Defra had failed to appreciate that they would still have needed to incur the significant expense of providing different forms of accommodation for their stock. Pigs fed on swill generated more body heat than those fed on other food, and so buildings needed little insulation; changing the feed would have meant having to insulate the buildings, or even build new accommodation.
60. Defra had also failed to appreciate the lack of alternative uses for swill processing equipment. Defra officials had advised Ministers in their comprehensive submission that the equipment used in processing had some alternative use, and so some of the losses swill users would otherwise incur could be offset. However, Defra had never said what that alternative use was, and ASU did not believe that there was one. This had been demonstrated by the fact that that equipment was still, more than four years later, sitting around unused. The only possible way of getting any return on the amounts invested in equipment was by selling it as scrap.
61. ASU went on to say that Defra officials had similarly failed to appreciate the lack of alternative uses for the swill farmers’ land. The swill industry had had two distinct elements: the first was processing waste and the second was pig farming. To change the farm to a purely waste processing function would have constituted a material change in the use of land and as such would have required planning permission. In view of the fact that most swill processing units were small and near centres of population, so as to be near sources of waste food, it was unlikely that such permission would have been given. Similarly, the small size meant that it was generally impractical to change the land to purely agricultural use; few, if any, agricultural operations would be viable on such small acreages. The terms of standard agricultural tenancies also caused further difficulties. If the land was held under an Agricultural Holdings Act tenancy, diversification out of agriculture might constitute a breach justifying termination. Finally, any diversification would require a degree of financial investment, and banks were not willing to lend to an industry that found itself in the position of the swill processors.
62. ASU again contended that if swill had been dangerous on 23 February 2001, then it should not have been allowed to have been fed to pigs for another three months. They pointed out that it was anomalous that it had not been thought dangerous the previous year, during the outbreak of Classical Swine Fever. The failure to adopt an immediate ban suggested that they did not really consider the matter as a serious public health concern. ASU said that they believed that this supported their view that there had been no real rationale for the ban other than political expediency. They believed that the ban had been a direct result of pressure from the Prime Minister’s Office on Defra to take action to give the impression that the Government was actively dealing with the FMD epidemic. They said that the evidence in support of this was a minute from the Prime Minister’s Office to Defra which, they said, improperly pressured Defra into imposing a ban.
63. Turning to the refusal to pay compensation, ASU said that they understood that the advice given to Defra Ministers was that it was not appropriate to compensate for changes in legislation on animal feed. However, the change was more fundamental than a change in feed, it was actually a change in the entire mode of production. This was evidenced by the fact that very few former swill feeders were still in business. ASU did not accept Defra’s statement that 50 people were still keeping pigs; they had only 8 members in that position, and they were mainly doing so to comply with planning permission requirements. In any event it was simply not correct to say that Defra did not pay compensation following a ban on feed. Following the ban on Meat and Bone Meal being used as feed, in the light of representations made to the Prime Minister and others, the Government had successfully obtained the consent of the EU to pay compensation in the form of the Pig Outgoers and Ongoers Scheme. It was ASU’s view that Defra were concerned that any payment might appear to be an admission of responsibility for FMD on Defra’s part.
64. ASU members also felt there had been a lack of clarity from Defra about the real scope of the ban, and a reluctance to put anything in writing. They said that they had received conflicting advice from SVS vets. For example, one member had received three copies of the Statutory Instrument banning swill feeding, two of which gave advice on disposal of untreated swill by stationary spreading, the third of which did not. When they had contacted Defra, they had been unable to clarify which advice was correct. Another ASU member related how he had been advised by a vet to use his equipment to get waste ready for deep burial, but then the same vet wrote to say that that equipment was still part of the farm, even though kept separate, and if he was to use it for that purpose, the vet would advise the landlord and local authority of a change in land use.
65. Finally, ASU felt that the business advice that Defra had provided had essentially been useless. By the time the advice had been available in November 2002 too much damage had been done to the swill feeders’ businesses, some were out of business already, and closure was inevitable for most others. If the business advice was intended to compensate swill processors and feeders for the loss of their industry, it should have been part of the package available at the time the ban was implemented.
Findings
66. I shall consider the different aspects of ASU’s complaint under the headings set out in paragraph 1 of this report.
a) The consultation was flawed, both in terms of the adequacy of the consultation document itself and the period allowed for consultation
67. I agree with the Permanent Secretary (paragraph 36) that it is very important, when assessing the reasonableness of Defra’s actions which are under scrutiny here, to keep in mind the prevailing conditions at the time of these events and the need for Defra to act as quickly as possible to do what they could to bring FMD under control. As a result it was, perhaps, inevitable that everything would not have been carried out as well as it might have been. The essential issue, however, is whether any flaws that I might identify were such that they rendered the consultation process so flawed as to constitute maladministration. For reasons which I shall go on to explain, I do not see that as being the case here.
68. First, I do not agree with ASU that the consultation document was so unclear that consultees did not understand what they were being asked to comment on. The document seems to me to set out Defra’s views on the reasons for and against banning swill feeding clearly, if succinctly. My officers have examined the responses, and saw nothing in them to indicate that respondees were particularly confused by the questions. Further, if they were, I note that the document gave contact details for any queries people might have. In the light of that, if respondees were confused by the consultation, but did not use that opportunity to clarify matters for themselves, I do not see how that could be Defra’s fault. As I have already said, it is true that the document was succinct, and it might not have included all the issues that ASU considered should have been specifically covered, such as whether, if there was a ban, former swill feeders should be compensated in some way. But I do not see that that was necessarily an appropriate question for this consultation, which was specifically about the terms of the proposed Animal By Products (Amendment) (England) Order 2001. In any event, respondees were invited to, and indeed some did, make any other comments they thought were particularly relevant.
69. As for the amount of time that people were given to respond, whilst I fully accept that Cabinet Office guidance (paragraph 20) indicates that 12 weeks would normally be the appropriate period for consultation, these were clearly exceptional and extreme circumstances where normal rules simply did not apply. Further, Defra did seek and obtain Ministerial consent to the considerably shorter consultation period. I do accept that the two-week period was extremely brief, and was, in reality, less than two weeks because the earliest the document could have been received was on 28 March 2001 (the day after posting), so recipients would have had less than two weeks in which to respond. Nevertheless, there is clear evidence that Defra did consider all responses, including those returned after the end of the two week period, and I believe they were correct to do so. It is, of course, impossible to say if anyone was deterred from replying because they felt they could not meet the deadline, but I have seen no evidence to suggest that that was so, or that the brevity of the consultation period impacted in any other way on respondents’ ability to put forward their views. I do not therefore consider that Defra were maladministrative in restricting the consultation period in this way.
70. One possible failing I have identified, however, was that it would appear from ASU’s account that not everyone whom Defra intended to receive a copy of the consultation document – specifically swill feeders as opposed to swill processors – did so. If that is indeed the case, then it is clear that some of them would thereby have lost an opportunity to contribute individually, which would have been unfortunate. However, it seems likely to me that most of them were aware of the consultation, and that they therefore could, if they had wished to contribute personally, have obtained a copy. As I understand it, however, from the note of the meeting that representatives from ASU had with a Minister on 2 May 2001, the swill users as a group had understood that the National Pig Association was effectively representing their interests in this matter and responding to the consultation on their behalf. At that meeting, however, they had expressed their concern that that Association had not properly represented their views, and they explained why that was. I note that that meeting was the day before the Government announced their decision in relation to the ban. Clearly, therefore, the Government were aware of the full details of ASU’s views on the issues before they made a firm announcement. In the light of that I do not see that any specific injustice would have flowed from the fact that not every swill feeder might have received a personal invitation to contribute, or indeed, if a few additional swill feeders had commented individually, that it is possible to argue that that would have been likely to have significantly impacted on what happened subsequently.
71. That does not, however, mean that I in any way accept, as ASU have contended, that the consultation was meaningless. Whilst I acknowledge that the Government had already announced their intention to introduce a ban, the point of the consultation was primarily to canvass views on the scope of the proposed ban (how wide the ban should go and whether it should be permanent/temporary) to inform Ministers’ consideration of these matters. It follows that I am not persuaded that the consultation was significantly flawed, as ASU have contended.
b) The results of the ban were misrepresented to Ministers, and by Ministers to Parliament
72. It is clear that Defra and ASU formed very different views on what the responses to the consultation as a whole showed. Those responses were made available to the public at the time, and my staff have seen a number of different views put forward, in the papers they have examined, on how the responses might best be interpreted, including an analysis of the responses put forward for consideration by ASU. In point of fact, the way the consultation was framed, and the way people responded, meant that it was quite difficult to say in simple numerical terms what the precise outcome was in the sense of whether people were for or against a ban. Further, for my part, I can see some legitimacy in Defra’s view (paragraph 38) that comments from larger associations would have carried greater weight; in which case, the question as to how many of the actual responses were for or against a ban was not a determining factor. All that apart, however, I see little point in revisiting those responses after the event and seeking to establish a definitive analysis of the responses. Consultations are not democratic votes, nor are Ministers in any way bound by the results. Given the context, even if the vast majority of the responses had been against a ban, Ministers could have still quite legitimately, and against the then prevailing background not unreasonably in my view, have proposed a ban. I am, however, satisfied that the submission to the Minister did not misrepresent the broad overall position, which seems to me to be the key point here.
73. As for how Ministers described the outcome of the consultation to Parliament, I note that Defra accepted that the response to a Parliamentary Question given on 26 April 2001 had been inaccurate. I agree that that was unfortunate, but again, I do not see that it is possible to argue that, had the correct figures been given on that day, it would necessarily have had any impact on the steps the Government took subsequently. Nor is there anything in the papers to suggest that that error was anything other than unintentional. Indeed, given that the Government had committed from the outset to making the responses public, I do not see that there would have been anything to be gained from intentionally misrepresenting the outcome. As for the other alleged ‘misrepresentations’ that ASU contend were made to Parliament, I note that those all happened much later. Again, I do not see, therefore, that those could be said to have influenced events in any way either. The most significant issue, as I have already indicated, was that Ministers, when reaching their decision on a ban, had a proper understanding of the overall views being expressed in the responses.
c) The inadequate rationale behind the ban, meaning that the decision was unsound
74. Defra have said that, whilst the feeding of properly processed swill to livestock was safe, the feeding of unprocessed swill was known to be high risk and could easily cause the outbreak of diseases, such as FMD. It was therefore their view that, as only a very small percentage of the nation’s pigs were swill-fed, so the risk of infection far outweighed any benefits gained from swill feeding. Furthermore, after the FMD outbreak, the risks from swill feeding had greatly increased. This was because, whilst previously the key risk had been from imported infected meat products, for some time to come after the FMD outbreak there would be a greater risk of infection from domestic meat used as swill. According to Defra, their rationale for a ban was accordingly based primarily on the professional veterinary advice they received to the above effect.
75. It is evident from the papers that the concern raised by Defra’s professional veterinary advisers, which was shared by Ministers, that a failure to ban swill feeding would allow FMD to be passed on through the food chain and recur, was seen as the most pressing issue, and was a strong influence on Ministers’ decisions. It is clear that within Defra a ban on swill feeding was being actively discussed by a number of different officials. That said, I do find it surprising that there is not more evidence of that professional advice, or indeed discussion of it, in the Defra papers. Whilst I accept that the FMD emergency put great pressure on Defra staff and they might well not have had time to make detailed written records of discussions, I do find it a matter of concern that there is no written record of any official veterinary opinion before the draft proposal of 22 March 2001, and only the two short opinions afterwards from the Veterinary Head, Exotic Disease and the Chief Veterinary Officer; the latter effectively being a simple repeat of the views of his predecessor. It seems to me that, despite the emergency circumstances, whilst not everything might be fully documented, departments should have clear records of key advice supporting changes in legislation.
76. Furthermore, whilst both the above-mentioned veterinarian opinions supported a ban, neither referred in any detail to the likely impact that the ban would have on swill farmers, or indeed on the wider environment. ASU’s argument that the decision was unsound largely rests on the fact that they contend that all the implications had not been properly researched and included in the submissions on the proposed ban for Ministers to consider, and such information as was gathered was inaccurate. They point in particular to the figures in the Regulatory Impact Assessment for the increased tonnage of catering waste going to landfill, and the numbers of pigs involved, which they contend grossly misrepresent the reality of the situation (see paragraph 53). I do not see that it would be possible now to establish with any level of certainty which of those sets of figures was most likely to be correct. On the one hand, I agree with the Permanent Secretary that the figures used by Defra in the Assessment appear to accord with those cited by the British Pig Association in their response to the consultation, which would seem to give them some credence. On the other hand, ASU should have been in a better position than Defra accurately to assess the scale of their members’ activities. The key question, however, is whether, had ASU’s figures been contained within the submission to Ministers, it would have significantly changed Ministers’ views. In the light of the Minister’s comments on 26 March 2001 questioning whether there was a need for a consultation on a ban, given that the arguments for one were so strong, I very much doubt it.
77. But in any event, regardless of the information provided to Ministers in the relevant submissions, it seems to me that it would be very difficult successfully to argue that the decision to ban swill feeding was so fundamentally irrational as to be maladministrative, when the EU subsequently decided that there was a need for an EU-wide ban beginning the following year. Further, whilst I have no grounds to disagree with ASU’s assertion that it was the actions of one swill feeder alone that caused the situation that Defra were responding to, I do not see that that automatically renders Defra’s recommendations to ban all swill feeding as irrational, as ASU contend. On the contrary, the FMD outbreak would appear to show the devastating and widespread impact that just one swill farmer acting illegally could have. That in turn reinforces the difficulty – if not impossibility – of being able to monitor sufficiently closely all swill feeders’ compliance with the Regulations, to be able to provide any guarantee that future risk would be reduced to an acceptable level.
78. There is one further matter raised by ASU that I should address here. In their evidence to my Office ASU have strongly contended (paragraph 62) that the ban on swill feeding was imposed as a result of direct pressure from the Prime Minister’s Office on Defra. They claim that the ban was nothing more than a political expedient in a general election year to give the impression that the Government was actively dealing with the FMD epidemic. In support of this, ASU have referred to a minute which they say went from the Prime Minister’s Office to Defra, and which improperly pressurised Defra into arbitrarily imposing a ban. In the light of those contentions, I think it is important for me to make very clear that my staff have found no such minute or reference to such a minute, or indeed any written communication between the Prime Minister’s Office and Defra, relating to the ban. Indeed, the only reference to any contact about the matter was the Head of the Animal Health & Environment Directorate’s minute of 23 March 2001, referring to telephone calls from the Prime Minister’s Press Office. I should add that Defra do not dispute that throughout the epidemic they did have regular contact with the Prime Minister’s Office. However, given the scale of the emergency it seems to me that it would have been surprising, and indeed inappropriate, had that not been the case.
d) Defra’s lack of clarity about the scope of the ban and its application to individual establishments
79. I note the Permanent Secretary’s comments (paragraph 43) that the guidance on the scope of the ban did change as discussions progressed after the new legislation had been put in place. Again, given the context of a national emergency, and the speed with which the changes had to be introduced, I do not find it at all surprising that emerging advice should change, or that officials might have occasionally had to revisit advice that they had given whilst out in the field. I therefore see no reason to doubt ASU’s evidence (paragraph 64) that there was conflicting advice given to some farmers in the period after the introduction of the new provisions. However, whilst that must have been difficult and frustrating for them, I do not see this as indicative of a serious, general lack of clarity as to the meaning of the ban. I do not therefore consider it to be maladministrative. Nor do I see that it would have led to a continuing injustice to those farmers affected by it.
e) The limited time given to swill farmers for compliance with the ban
80. It is very evident from the papers that the three-week phasing-in period allowed for compliance was solely based on the advice received from the Chief Veterinary Officer on the time needed to wean pigs on to alternative foods. I note ASU’s points (paragraphs 54 and 62) that if there was a real public health risk here then it would have been more logical to make the ban immediate, and in the absence of that immediate public health risk, the phasing-in period should have allowed sufficient time for farmers to make necessary changes to pig accommodation or scale down their activities over several months, to enable them to get the best possible prices for their animals. However the problem, as I understand it, was not that there was a public health risk, but rather a risk to animal health. The chief concern (paragraph 40) was that there was bound to be FMD-infected meat already in the food chain, and therefore the risks of recycling the disease were very real at that time. It seems to me that, whilst in times of normal national conditions, the options suggested above by ASU were those that might have most reasonably been considered by Defra, I can well understand why the situation at the time made neither of those options practicable or desirable. What Defra were doing here was trying to balance a lead-in time (on animal welfare grounds) and which did not add to the huge problems already caused by the FMD outbreak (in the sense of the need to slaughter and dispose of the remains of millions of animals), against a wish to bring the ban in as quickly as possible to avoid a risk of perpetuating the animal health risk. Again, given the prevailing circumstances, I do not see that the decision that they reached was so unreasonable as to be maladministrative.
81. That said, I do consider that Defra should have realised that it was unrealistic, and therefore potentially unreasonable, to start the three-week phase-in period on the day that the relevant legislation was signed. I do not, however, find that that specific decision, of itself, led to an injustice to the farmers affected. That is because the effects of that decision were mitigated by the approach subsequently adopted by the Defra officials responsible for enforcing the ban. It is quite clear (see Annex A entries for 22 and 23 May 2001) that when the shortened lead-in time was recognised, Defra officials adopted a sensible and fair approach, and did not take enforcement action where farmers legitimately needed extra time to be able to comply fully with the new legislation.
f) Defra’s failure to recognise the true impact of the ban on swill farmers and their consequent refusal to award compensation to former swill feeders
82. I turn now to what I regard as the crux of ASU’s complaint regarding the decision to ban swill feeding, that is, the failure to pay compensation to the swill users for the significant impact that the ban had on their livelihoods. I agree with ASU’s comments that at the time of the FMD outbreak, Defra officials did not seem to realise the full implications for swill feeders when considering whether compensation should be paid to them following the ban. Whilst the Defra papers indicate that officials did at least recognise that this was not necessarily a straightforward matter, and that there was more to it than simply changing the pigs’ feed (see Annex A entry: 1/05/01), it does seem to me that when considering these issues immediately following the FMD outbreak, there was a tendency to oversimplify matters. I am satisfied, contrary to ASU’s assertions (paragraph 63), that the question of whether compensation had been paid to others in comparable circumstances was fully explored; and I have seen no evidence to suggest that Defra were incorrect in telling Ministers that there were no other cases which set a precedent for this set of circumstances. Otherwise, however, officials simply appeared to regard it as a business decision that swill users had to make for themselves. Defra officials certainly did not appear, in their internal exchanges, or in the early submissions to Ministers, to understand the full impact of the sorts of difficulties that ASU described in paragraphs 58 to 61 above. Yet it should have been obvious to them, from the evidence I have seen, and from some of the comments in the responses to the consultation, that there would clearly be circumstances, as ASU claimed, where factors such as tenancy agreements, planning legislation or availability of investment funds, and even the immediate extra costs involved, meant that many swill processors and feeders would simply have been unable, within the time period given, or indeed in some cases at all, to find alternative uses for the relevant processing machinery, or to alter their feeding regime and animal husbandry arrangements to enable the continued keeping of pigs in accordance with the new regulations. In other words, it would be hard to imagine that the proposed ban heralded anything other than the end of the swill feeding industry in its then current form.
83. I note that there is also clear evidence from the records of the visits that the Defra officials made a year or so after the FMD outbreak (which my staff have seen) that a significant number of the swill farmers either went out of business immediately or shortly after the ban, or drastically scaled down their businesses. The ban therefore had an immediate, clearly demonstrable and very significant impact on them and on their ability to maintain their livelihoods. I note also that although, following the subsequent EU Directive, a ban on swill feeding was clearly inevitable at some point, the fact that other European countries found it relatively easy to negotiate lengthy transition periods (I understand, for example, that Germany and Italy were given a four-year derogation) strongly suggests that there was wider recognition that this was not a straightforward process if farmers wanted to continue in farming or to diversify.
84. In the light of the above, I am satisfied that Ministers were not made fully aware of the implications for swill users of the ban on swill feeding, when they were considering the introduction and timing of the ban and the question of compensation for those affected. Accordingly, I find that that discretionary decision was not taken on the basis of all the relevant facts, and that it was therefore maladministrative.
Summary of findings
85. I have not found that the consultation document or process were so flawed as to constitute maladministration. Whilst I found that incorrect information about the outcome of the consultation had, unintentionally, been given in response to a Parliamentary Question, the submission to Ministers had not misrepresented the position, and I was satisfied that the error identified in the response given to Parliament had not influenced events.
86. Whilst I found it a matter of concern that, despite the emergency conditions, there were not fuller records of the professional veterinary advice on which Defra had based their recommendation for a ban, I did not find that that meant that there was inadequate rationale behind the ban. I also found that, whilst Defra’s guidance on the scope of the ban had undoubtedly changed after the new legislation had come into force, I saw that as evidence of developing thinking in a national emergency situation, rather than a more fundamental lack of clarity about the scope of the ban.
87. Given the prevailing circumstances and concerns, I did not find the decision to limit the time given to swill feeders for compliance with the ban to three weeks to be so unreasonable as to be maladministrative. I did consider the decision to start that phase-in period on the day the legislation was signed to be unrealistic and therefore potentially unreasonable, but that its effects had been mitigated by the sensible approach subsequently taken to enforcement of the new legislation.
88. I have, however, found the decision on compensation made by Ministers when considering the introduction of a ban in May 2001 not to have been taken in the full light of all the facts, and therefore to have been maladministrative.
Injustice
89. I am satisfied that the fact that Ministers, when making their decision on whether to award compensation, were not made fully aware of the devastating impact that the ban was likely to have on the livelihoods of those involved in the swill feeding industry caused injustice to those affected. However, as I explained in paragraph 6, my powers in respect of discretionary decisions are limited. What I would normally do in such circumstances is to recommend that the decision on compensation should be revisited in the light of all facts. That is because it would not be appropriate for me to seek to substitute my own view of what that decision should have been. Further, it would not be possible for me to establish with any level of certainty what that decision might have been at the time, had the Ministers had all the facts to hand. That could only be a matter for speculation on my part. In this instance, however, it seems to me that that speculation has been clarified by the subsequent events, as set out in the chronology, and that there would be little point in referring the matter back to Defra for the compensation question to be reconsidered. That is because, in response to ASU’s continued representations in support of compensation, Defra Ministers have revisited their decision more than once, and have still declined to change their view on the matter. Further they have done so not only on the basis of all the facts, but also in the light of clear evidence of the reality of the harsh and devastating impact of the ban on many of the swill processors and feeders, and in the light of forceful representations made by ASU. I do not, therefore, see that it is possible to conclude that those subsequent decisions have been reached in ignorance of the full facts and therefore maladministratively. For that reason I cannot find that there is any continuing unremedied injustice arising from the maladministration in the original decision making that I have identified. I have no grounds, therefore, on which I might legitimately ask Defra to reconsider their decision not to pay any form of compensation to the swill processors and feeders, however harsh that decision might seem.
