The Scottish Government

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Chapter 6
Liaison with UK Departments and the European Union

KEY FINDINGS

6.1 The relationships between Defra and the Scottish Government ran smoothly especially at official level. However in light of the fact that animal health and welfare policy is devolved but budgets are not, the status quo is not sustainable. An urgent review is required into the financial arrangements with the intention of devolving appropriate resources to the Scottish Government to implement its policies on the control of exotic diseases.

6.2 The key finding is that a number of improvements can be made to ensure that misunderstandings and in turn a degree of friction between Defra and the Scottish Government are avoided. These are listed below:

• improved co-ordination for policy development with either specific formal meetings for discussion with Scottish Government and other Devolved Administrations or a more focused approach to current meetings such as those of the Animal Disease Policy Group ( ADPG);
• trust and confidence between Defra and the Scottish Government is good but can be improved further to avoid problems developing;
• clarification on participation at Civil Contingencies Committee ( CCC) by Scottish Government especially if FMD occurs in Scotland;
• Concordats for the working arrangements between Defra and Scottish Government agreed in 1999 must be updated to reflect the changed political, financial, organisational and delivery realities of 2007;
• financial arrangements for the control of FMD must be clear and should reflect the devolved policy responsibilities of the Scottish Government taking into account the state of the Defra budgets, the need for strict financial accountability on expenditure and the developing responsibility and cost sharing agenda at EU and UK level;
• better clarity on the dealings with the Commission in Brussels and in developing an agreed UK line for negotiation is needed;
• The consequences of a national movement ban should be anticipated to ensure rapid resolution of issues such as welfare problems and derogation to drivers' hours.

INTRODUCTION

6.3 This chapter considers liaison and communication between UK Government and the Devolved Administrations including the development of appropriate GB/ UK policy. Relations with the EU and international negotiation positions are also reviewed. In addition two specific issues which arose in relation to welfare slaughter schemes and drivers' hours are explored as these caused concern to the Scottish Government.

FMD POLICY DEVELOPMENT DURING 2007

Devolution and policy development

6.4 On occasions different or varying policies for the control of FMD north and south of the border were developed. On other occasions the timing for the introduction of the policies was different. As far as animal health and welfare is concerned policy responsibility is, for most purposes, devolved to the Scottish Parliament and to Scottish Ministers. It follows that decisions relating to the control and management of FMD in Scotland are within the competence of Scottish Ministers. This is the case both for domestic law and implementation of Community obligations although some general limits on the powers of the Scottish Government are set out in legislation. In particular, the Scottish Parliament and the Scottish Ministers do not have the legal competence to act in a way that is incompatible with Community law or human rights which is a uniform requirement for all EU countries.

Meetings between Defra and the Devolved Administrations

6.5 During the course of the outbreak a range of regular policy meetings were held. These included the ADPG, National Disease Control Centre ( NDCC) Birdtables and the CCC of the UK Cabinet. Scottish Government officials participated in many of the meetings either in person or via teleconference. The latter did not facilitate satisfactory involvement as the external participants could not judge the reaction of the other participants nor the most appropriate time to intervene in the discussion.

6.6 The purpose of the ADPG, which is a permanently established group, is to provide advice on disease control strategy and policy advice to Defra Ministers and the CCC. It is also a forum where a consistent GB/ UK position can be developed. The advice from the ADPG is based on scientific advice, including that of the UKNEG. The ADPG met monthly until the autumn of 2005 when avian influenza work caused it to move to a weekly (if not more frequent) format. Since the Defra re-structuring in spring 2006 it became more of an ad-hoc group and points of contact within Defra became less clear.

6.7 Once the outbreak was confirmed on 3 ^rd August the ADPG did not meet for the first time under outbreak conditions until 5 ^th August after which the meetings were held at ad-hoc intervals. Scottish Government officials felt that the meetings were not timely and were often either overly technical or discussed a large number of issues relevant to England which were of little interest to the Scottish Government. If ADPG had met more regularly during the outbreak on more focused issues it would have facilitated a more joined up approach to GB policy.

6.8 Specific Defra/Devolved Administration meetings were set up during the 2 ^nd phase of disease in September and were at times found to be more useful than ADPG. These were attended by fewer people allowing for tight co-ordination between a small number of contacts and became a good forum to discuss policy. These meetings proved a good opportunity to clarify any differences in approaches and could also be used to allay concerns between the participants. In terms of stakeholder management, better co-ordination between administrations would also be useful to avoid mixed messages going out.

Scottish Government Policy Liaison Officer

6.9 The Scottish FMD Contingency Plan indicates that a policy liaison officer would be despatched to the NDCC in London on confirmation of a GB outbreak. This was based on the successful arrangements in 2001 when the presence of a Scottish liaison officer proved invaluable. Similar arrangements were in place for the avian influenza case at Cellardyke when a Defra liaison officer was based in Edinburgh. This did not occur on confirmation of FMD in August 2007 and an official was only sent to London after the outbreak confirmed on 12 ^th September.

6.10 This was an arrangement championed by CVOUK but there were others in Defra who were not as clear as to the appropriateness of the role. The experiences of the two individuals involved varied considerably but would have been more beneficial if a liaison officer had been present from the start of the first outbreak. More clarity is required on the role of the liaison officer to ensure they can meet their obligations and are seen as part of the team dealing with FMD.

Lessons learned

6.11 It is clear that different animal health policies can apply in different administrations within the UK where there is a rationale for doing so, in line with the devolution settlement. For different policies to work effectively, Defra and Scottish Government Ministers and officials must take a pragmatic approach to ensure outbreaks of notifiable diseases are controlled rapidly and without causing confusion for stakeholders on either side of the border, other Member States, international trade partners or the Commission.

6.12 During the 2007 outbreaks Defra Ministers and officials were much more familiar with operating under the devolution settlement compared with 2001. However, a further factor during the 2007 outbreak had been political - about the manner of presentation not the facts - given the Scottish Governments understandable wish to demonstrate their effective handling of the outbreak and take decisions in Scotland's best interests.

6.13 It would be more appropriate for Defra to have a specifically-tailored forum for AHW policy discussion with the Devolved Administrations in order to:

• tackle specific policy questions;
• consider outputs from the UK National Expert Group;
• ensure all were content with the direction of travel;
• discuss the policy-veterinary interface;
• work through cases of policy divergence.

6.14 During the September FMD outbreaks a Scottish Government official was embedded in the NDCC as a liaison officer. This was useful but to be fully effective the role, and skills required of the individual, should be clearly defined. The success of the arrangement will depend on trust.

Recommendation 33: The Scottish Government and Defra should review the role and arrangements for the Animal Disease Policy Group ( ADPG) and consider whether a more effective system for agreeing policy and resolving differences on a UK-wide basis should be established to ensure a UK-wide approach to disease outbreaks no matter where the disease occurred or how small the outbreak. (Medium Priority)

Recommendation 34: As indicated in the contingency plans of the Scottish Government and Defra an official from Scottish Government should be embedded at the National Disease Control Centre ( NDCC) from the outset of an outbreak. The reverse should be true if the outbreak occurs in Scotland. A detailed protocol for the role and responsibility of the liaison officer should be developed jointly by Defra and the Scottish Government. (Low Priority)

WORKING RELATIONSHIP BETWEEN DEFRA AND SCOTTISH GOVERNEMENT

Issues

6.15 On balance the relationship between Defra and the Scottish Government worked well but a few problems had an adverse impact on trust and confidence between the two administrations on animal health matters.

Communication between Scottish Government and Defra

6.16 Liaison with Defra included frequent telephone liaison at different levels and often several meetings a day. At the daily Scottish Government Disease Strategy Group ( DSG) meetings a list of meetings for the day ahead were recorded. Typically this involved CCC, NDCC Birdtable and UKNEG which were essential to the flow of information to Scottish officials and Ministers. Scottish Government officials telephoned into the Birdtables as a matter of course and while these didn't allow for detailed discussion, they often triggered offline discussion. The CVOUK held regular teleconferences with the Devolved Administrations throughout the outbreak. Where necessary, there was bilateral contact, e.g. between Defra and Scotland regarding TB testing during the outbreak and the decision to bury fallen stock. There was also contact at Ministerial level.

6.17 There were a number of incidents where the Scottish Government was not informed of important developments such as when the identity and source of the virus was confirmed. It was embarrassing for Scottish Ministers to learn about important events via the media and not from directly from Defra. In other cases, in spite of requests from the Scottish Government, Defra failed to share its early developing ideas on policy. Often this was due to an oversight related to the heavy workload in dealing with the outbreak in Surrey. In other cases it appears to be related to concern in Defra about the confidentiality of the information which made judgements about sharing genuinely sensitive material more difficult. This had implications for the way in which Defra shared documents and ideas about policy development with the Scottish Government.

Lessons learned

6.18 A formal agreement is necessary between Defra and the Scottish Government to ensure a consistent approach to sharing documents and developing policy. Respect for confidentiality is a cornerstone of sustaining trust between the two organisations. There was guidance in the DefraDG Food and Farming Group asking staff to be as open as possible in their dealings with the Devolved Administrations, but to be clear as to the terms on which documents were shared. Defra Ministers made it clear that they wanted relationships to be as open as possible.

Recommendation 35: The Scottish Government and Defra should prepare a guidance paper on relationships with the Devolved Administrations in order to stress the importance of respecting confidentiality and of being as open as possible. The benefits of agreeing such a protocol with the Devolved Administrations should be emphasised in order to improve working relationships at both Ministerial and official level. (High Priority)

CONCORDATS BETWEEN DEFRA AND SCOTTISH GOVERNMENT

Concordats

6.19 The terms of the initial relationship between the Scottish Executive and Ministry of Agriculture, Fisheries and Food ( MAFF) are set out in a number of Concordats. These are administrative rather than legally binding documents. The overall Scottish Executive/ MAFF Concordat sets out the principle arrangements with regard to animal health and welfare and veterinary services. A specific Scottish Executive/ MAFF Concordat sets out arrangements with respect to the State Veterinary Service (now Animal Health) and animal disease compensation.

6.20 The main Concordats with the Devolved Administrations were developed in 1999 and had not been updated since. A review of the Concordats began in March 2003 but due to a failure to reach an agreement with regard to proposed changes by Defra to the funding regime (principally to repatriate budgets to Scotland and Wales) these were never signed off. The last discussions were in August 2006. There have been many changes since the Concordats were first agreed not only in the way in which services are delivered but also in the funding arrangements. This leads to confusion as to what is delivered by the two parties and greater expectations from the Scottish Government on what is to be funded by Defra.

Financial arrangements

6.21 The Devolution Settlement would have allowed budgets held on a GB/ UK basis to be broken down and included in the Scottish block. A decision not to do this for the animal health and welfare budgets was taken in 1999. The principle reason for this was that budgets were generally spent through GB-wide bodies such as the State Veterinary Service (now Animal Health) and to some degree MHS. There is a significant contingent liability to be associated with exotic disease outbreaks and it was considered unreasonable to expect individual Devolved Administrations to bear such liability. More significantly the arrangements acknowledged that MAFF/ Defra had a more direct route of access to the Treasury and the contingency reserve at that time.

6.22 As it stands the Concordats explicitly identify those elements for which the Scottish Government is financially liable to provide for in the context of GB disease control. Principally these relate to the costs of animal disease surveillance, TB and Brucella compensation and Warble Fly control and the cost to be associated where Scottish Government policy goes beyond what is needed to implement European Community obligations. There is an expectation that all other costs associated with implementing an agreed GB disease control policy would be met by UK Government. Given the nature of exotic disease outbreaks these are generally unfunded until the outbreak occurs.

6.23 Historically these costs have been fully supported by the contingency reserve but in the 2004 spending review Defra agreed with Treasury that the first £10 million of an outbreak would be funded from Defra's own resources. Like other aspects of the spending review the Devolved Administrations were not consulted as this was a direct matter between Treasury and Defra. There are significant areas for misunderstanding in the current arrangements where Defra would argue that it does not have a responsibility to fund the measures if:

• Scotland goes beyond what is needed to implement EU obligations;
• the implementation is not agreed GB disease control policy;
• there is no funding available as the initial costs would be funded from Defra's own resources up to a specific figure before the Treasury could be approached.

Lessons learned

6.24 Concordats between administrations were essentially entered into in 1999 by politicians of the same party which raises questions about their validity since there have been changes in administrations. The current arrangement did not appear to work well for Scotland in 2007 as Defra was the budget holder. If policy responsibility is fully devolved to the Scottish Government it seems only logical that the budgets to deliver that policy should also be completely devolved to the Scottish Government including the responsibility for identifying the funds necessary to control major outbreaks of disease. The status quo is not sustainable and appropriate resources should be devolved to the Scottish Government to implement its policies.

6.25 It was clear in 2007 that when administrations in UK Government or Scottish Government change aspirations also change and as a consequence it would be appropriate for the Concordats to be reviewed and formally agreed whenever there is a change of administration.

Recommendation 36: In light of political, financial and organisational developments the Scottish Government and the UK Government must urgently review the existing Concordats to take account of these changes. They should ensure that the financial arrangements are clear and that budgets where appropriate are transferred to the Scottish Government to implement all the policies related to exotic disease control. Defra should not be required to fund any exotic disease control measures in Scotland. (High Priority)

CABINET COMMITTEES

Central Government Arrangements for Responding to an Emergency: Concept of Operations ( CONOPS)

6.26 The document entitled "Central Government Arrangements for Responding to an Emergency: Concept of Operations" ( CONOPS) published in 2005 sets out the arrangements for the response to an emergency requiring co-ordinated UK central government action. It defines the relationship between the UK Government and the Devolved Administrations. It confirms that the Devolved Administrations will play a full role in response to an emergency especially when the incident impacts on the Devolved Administration and where the activity is within the competence of that administration. The response to a serious emergency such as an outbreak of FMD involves activation of the Cabinet Office Briefing Room ( COBR) which is UK Government's crisis management facility.

6.27 As indicated in CONOPS, the Prime Minister, the Home Secretary or other senior Ministers nominated by the Prime Minister, will direct the UK Government response from COBR. In cases of doubt, the Home Secretary would at least initially, assume the chair in COBR of the CCC of the UK Cabinet. Other departments and agencies including the Devolved Administrations will be invited to attend depending on the contingency. The Cabinet Office or the Lead Government Department would chair meetings of officials in COBR.

6.28 In general the CCC meetings are attended by Ministers accompanied by appropriate officials to act as advisers. The discussion at CCC are strategic and do not involve detail which is dealt with at the CCC for officials ( CCC(O)). The CCC(O) will review information, ensure the facts are correct, prepare packages to go to Ministers and produce a digest of the information for Ministers. The chair of CCC(O) may be the lead Minister or an official. In the current circumstances it is not clear who would chair meetings if an FMD outbreak occurred in Scotland as the lead department would be the Scottish Government which is not part of the UK Cabinet. This is an important issue which needs resolution.

Situation in 2007

6.29 CCC(O) convened on the Friday evening when FMD was confirmed. The exclusion of Scottish Ministers from CCC held on the morning of Saturday 4 ^th August caused concern. The expectation was that the Civil Contingencies Unit in Scotland ( CCU Scotland) would be informed about CCC convening but they were not. Subsequently CCU Scotland was asked to become involved to ensure Scottish officials and Ministers were kept in the loop and given a place at the table. CCU Scotland made contact with Cabinet Office who initially refused to give Scottish officials or Ministers a seat which meant Scottish Government was reliant on read-outs from the Scotland Office. This was resolved and Scottish Government Ministers and Officials were invited to attend meetings from the Saturday afternoon onwards. The Prime Minister or the Secretary of State was often in attendance at meetings that had been confirmed to be at official level only. This lack of clarity between Ministerial and official level caused some difficulties as, understandably, Scottish Ministers wanted to ensure they attended meetings where other Ministers were present.

6.30 The understanding in Scotland was that the initial exclusion from CCC was a political decision although other evidence suggests it was an oversight by the Cabinet Office rather than a deliberate action. It was immediately a significant issue for Scottish Government until officials and Ministers began to get access to these meetings. The Scotland Office has traditionally been used as a go-between but since the May 2007 election in Scotland the relationship has changed and it cannot be taken for granted that it will represent Scotland in the way it previously did.

6.31 In technical terms the attendance of the Devolved Administrations at CCC in 2001 was usually via video link. This had advantages for both those in the room and those participating off-site. This was not the case in 2007 when the Scottish Government officials had to use a teleconference facility to participate in the meeting. The use of the video link is preferable as it enables the participants to see the reaction of those in the meeting room and to judge the most appropriate time to intervene in a discussion.

Lessons learned

6.32 CONOPS gives the impression that Scotland will automatically get a seat at CCC if the emergency has an impact on Scotland. It must be recognised that CONOPS was published in 2005 and since the elections in May 2007 is not a formal agreement between the UK Government and the Scottish Government. Whenever there is a change of administration it would seem sensible for CONOPS to be reviewed and agreed between the UK Government and the Devolved Administration concerned.

6.33 The failure to invite Scottish Ministers to participate in CCC appears to contravene the procedures laid down in CONOPS. FMD is a serious problem with a GB-wide impact and it would seem essential that Scottish Government Ministers and officials should be invited to participate in the appropriate CCC. On the other hand it must be recognised by the Scottish Government that CCC is a Cabinet Committee and as the Devolved Administrations are technically and constitutionally not part of the UK Government they are only in attendance by invitation and not as of right. In view of this it is important to re-evaluate the procedures which would be adopted by the UK Government in relation to COBR and the CCC if an outbreak of FMD occurred in Scotland when the lead department would be the Scottish Government.

6.34 It is essential to improve the communication links between COBR and the external participants in CCC. Effective video links should be developed between the Cabinet Office and the Scottish Government. Training of staff on the use of the equipment will also be necessary.

Recommendation 37: Scottish Government should consult with the Cabinet Office to review existing arrangements to take account of the lessons learned in 2007 and to agree formally the protocol for involvement by Scottish Government Ministers and officials in Civil Contingencies Committee ( CCC) when Cabinet Office Briefing Room ( COBR) is activated during an FMD outbreak. (High Priority)

INTERNATIONAL NEGOTIATION AND RELATIONS WITH THE EU

Issues

6.35 During the second series of outbreaks in September a problem arose when Defra refused to consider the case for regionalising Scotland if the Commission would not relax the ban on the export of meat. Concern was also expressed that Defra would not permit the CVO Scotland to attend a meeting of SCoFCAH when he had been requested to do so by the Cabinet Secretary. In addition, communications from the Commission to Defra as the UK representative did not always appear to reach the Scottish Government.

6.36 The Commission considers the UK as a single entity, and would not change this view unless regionalisation of the UK was enshrined in EU policy in some way. The agreed devolution settlement makes clear that in dealings with the Commission the UK acts as a single Member State and that Defra represents the UK Government and the Devolved Administrations in international and EU relations with regard to animal health and welfare.

Attendance at meetings

6.37 The CVOUK is the formal UK representative to the SCoFCAH meetings. Defra came under pressure from both the Northern Irish and the Scottish Government for them to be part of the formal UK delegation to attend SCoFCAH. The Northern Irish were particularly concerned at the very start of the outbreak to ensure GB was considered as the epidemiological unit, rather than the UK. The pressure from Scotland to attend came later in the outbreak due to the possible departure from a unified GB position and approach over specific issues.

6.38 Although desirable it was not logistically possible for representatives from each of the Devolved Administrations to be part of the formal UK delegation attending EU meetings. It is appropriate for a Devolved Administration representative to attend meetings when issues of very specific interest to that administration were being considered. It should be possible to institute an arrangement that formal attendance at meetings should be restricted to only one Devolved Administration per meeting. Where SCoFCAH was discussing a GB-wide issue, it would be incumbent upon Devolved Administrations to decide amongst themselves who to put forward as a representative.

Recommendation 38: The Scottish Government should work with Defra and the other Devolved Administrations to develop a clear protocol for formal representation at routine and emergency meetings of the Standing Committee on the Food Chain and Animal Health ( SCoFCAH) when appropriate. This could be expanded to include representation by Devolved Administrations at other EU Council and Commission meetings. (High Priority)

Feedback from meetings

6.39 During the FMD outbreak prompt and useful read-outs were received from the Scottish Government EU Office who either sat in on the meetings as an observer or obtained the information from UKRep ( UK Permanent Representation to the EU). Mechanisms were in place for the outcomes from meetings to be rapidly relayed to Devolved Administrations as appropriate. Where there was a need to ensure critical points from a meeting with the Commission were relayed quickly to the Devolved Administrations, arrangements should be put in place for immediate teleconferences in addition to the standard 24-hour report system. This should be a standing instruction.

6.40 It was noted that Defra was the only department to adopt the 24-hour report system, at least partly because most other Government departments relied on UKRep to lead their negotiation. It did not help if there was not a quick record of meetings and their outcomes to inform all those with an interest. Consideration must be given by the Scottish Government to producing a report detailing any discussions they have with the Commission and the outcomes to demonstrate transparency and ensure coherence in the approach by the UK.

Recommendation 39: Defra should review the procedures for reporting the outcome of critical EU meetings to ensure that the Scottish Government and other Devolved Administrations receive the details as rapidly as possible. (Low Priority)

Agreed negotiating position

6.41 The Concordats indicate that the UK negotiation line will be agreed in advance of meetings. Representation in Brussels seemed to work well, however it is important that Defra recognised their role when conducting negotiations. There is a responsibility on Defra to understand UK-wide issues and a responsibility on Devolved Administrations to present issues in a clear and well framed manner. When representing the UK, Defra must take into account the wider agricultural interests throughout the UK and must consult with the Devolved Administrations over decisions which affect other parts of the UK with the Devolved Administrations reciprocating.

6.42 The best way to achieve satisfactory outcomes is for a joined up approach which ensures the UK is speaking with one unified voice. There was an impression in Scotland that Defra did not pursue Scottish interests as they did not really understand the different considerations in Scotland and in particular the situation in the Highlands and Islands. It would be the responsibility of the Scottish Government to ensure that these factors were understood and to get agreement on the Scottish position. It would be the responsibility of Defra to then take this into account when making EU representations.

Recommendation 40: The Scottish Government and Defra should establish a procedure or arbitration process to resolve issues which arise when an agreed UK-line for negotiations in Brussels cannot be established to the satisfaction of all parties. (High Priority)

Visits to Brussels by Scottish Government

6.43 There was an apparent refusal by Defra to consider regionalisation of Scotland as a fall back position when negotiating with the Commission. As a consequence a delegation led by the Cabinet Secretary visited the Commission on 26 ^th September to discuss regionalisation and state aid issues. UKRep attended and this series of meetings which went well, resulted in state aid approval for the Sheep Welfare Scheme and received good feedback. The opportunity for Scottish Government to make direct representations was also valued by stakeholders. It is important for Scotland to have the opportunity to explain its position and perspective to the Commission. This was underlined by the CVO Scotland's successful presentation to the EU Commission Directorate General for Health and Consumer Protection ( DGSANCO) during the visit using the information on risk assessment provided by EPIC. His presentation was circulated by the Commission to other Member States and placed on the Commission website. Overall his presentation bolstered the case for GB as a whole.

6.44 It is important for a Devolved Administration planning an independent visit to the Commission in Brussels to involve UKRep as their presence can be helpful. UKRep should always be invited to attend any representations that Scotland makes in Brussels in order to promote transparency. It was clear that there is benefit in Devolved Administrations making representations where this will enhance the GB case.

6.45 Personal contacts with officials in Brussels at all times are also important to generate an atmosphere of understanding and trust. It is equally important for the representatives of the Scottish Government to visit Brussels on a regular basis to gather information and to explain the situation in Scotland and the issues which are faced. Provided this is done in liaison with the UK Government and with UKRep this will be to the benefit of all.

Recommendation 41: Relationships between Scottish Government officials and European Commission officials should be developed and improved with regular meetings and visits to Brussels. When arranging such visits the Scottish Government should liaise closely with UKRep. A procedure for information on agendas and minutes of meetings and discussions in Brussels to be passed to Edinburgh for information should be developed with UKRep. (Low Priority)

SHEEP WELFARE SCHEME

Welfare situation in 2007

6.46 The period September to October is critically important for the Scottish sheep industry as sheep move from the hills and Islands to markets and lower ground. From the markets the lambs would either move direct for slaughter for export or for over wintering on lowland farms. The light lambs left on the hills during FMD had a low value and it was important to move them off the hills as there would be no feed during the autumn. In theory they could have been licensed to move to abattoirs and markets but there was no domestic market for them and the export ban was in place. With no outlets the consequent build up of lambs had the potential to develop into a serious welfare problem. As a result there was increasing pressure on the Scottish Government to introduce a scheme on welfare grounds to purchase surplus sheep for slaughter and destruction.

6.47 Following the 2001 outbreak the UK Government decided there should be no compensation payments to farmers where animals were slaughtered for reasons other than disease control. The industry was aware of the line on compensation for the welfare schemes but did not expect it to hold in the event of an outbreak. In February 2005 Devolved Ministers in Scotland and Wales had agreed a no compensation policy in relation to welfare disposal. It should be recognised that the current Scottish administration had not signed up to this agreement. As early as 15 ^th August 2007 Defra made it clear that no UK Government funding would be available for such a scheme although Scottish Government officials had indicated they were considering the introduction of a welfare disposal scheme. The lifting of the controls on 23 ^rd August meant that further discussion stopped until after the confirmation of the September outbreak.

6.48 During September the particular problems associated with sheep farming in the upland areas of Scotland and Wales were recognised by Defra but were seen as a consequential loss to the industry which should bear the costs. Defra's view was that in England, problems could be addressed by licensing movements with appropriate controls, so a welfare disposal scheme was not necessary, whereas Scotland had decided in September that a welfare scheme would be necessary in their particular circumstances. The light lamb situation in England was a smaller issue because large volumes were not produced for the light lamb market. Farmers were suffering significant hardship, but Defra had hoped to get markets going to alleviate these problems. This caused considerable concern in Scotland where it was considered that the UK Government should pay for a disposal scheme.

6.49 On 20 ^th September, the Cabinet Secretary for Rural Affairs and the Environment, Scotland met Defra's Secretary of State and the Rural Affairs Minister for Wales. During this meeting, the Secretary of State had been clear that, while he understood the acute position in Scotland, he didn't consider a welfare disposal scheme appropriate in England. Defra would keep this under review but at this stage it would not be appropriate to work with Scotland to scope out a scheme since England was not intending to introduce such a scheme. It was not clear that Scotland had taken this message since a week later Defra was sent a copy of Scotland's consultation paper on the scheme they had devised proposing that, if other GB Ministers were content, this should be adopted as a GB scheme. The Scottish Government decided after obtaining agreement from the Commission on state aid to introduce a welfare slaughter scheme funded from within the Scottish Government budget.

Lessons learned

6.50 Had Defra agreed with Scotland on the need for a welfare disposal scheme, there would have been a question as to whether to approach Treasury for funding. Since Defra's policy did not include welfare disposal, this question did not arise. As a rough guide, Treasury would not consider drawing down from the Contingency Fund for anything below £100 million. However the cumulative impact of small disease outbreaks on Defra's budget had introduced considerable instability into Defra's budget position. This is turn made the Department a less predictable partner in GB-funded policies. There were also significant difference between the situation in 2001 and 2007 as shown below.

Table 11
Sheep welfare scheme- differences between 2001 and 2007

6.51 The assumption by the Scottish Government that Defra would fund a scheme in Scotland was understandable based on the funding arrangements for a livestock welfare disposal scheme in the 2001 outbreak. However the circumstances were quite different with Defra adopting a policy on non-compensation. Clearly it was not for Defra to fund such schemes but there needs to be greater clarity on the role of the UK Government in funding. The Concordats, although not specific on this type of situation, imply that if Scotland wished to develop its own policies it should either pay for them itself or approach Treasury for funding. This is an important area which needs to be clarified and resolved. Further devolution of budgets would enable more stable relations between Defra and the Scottish Government.

6.52 It was also apparent from discussions with stakeholders that the timing of any announcement for such a scheme must be carefully balanced to ensure that farmers are not panicked into selling their animals in advance of the scheme being launched nor do they just rely on the scheme and take no action to resolve their own problems.

Recommendation 42: The Scottish Government must recognise that if FMD occurs at certain critical times of year it may be necessary to introduce a welfare scheme. The trigger points for this should be set out in the Scottish Government's FMD Contingency Plan. (Medium Priority)

DRIVERS' HOURS

Relaxation of drivers' hours

6.53 A relaxation of the drivers' hours regulations can be introduced as a derogation to EU legislation by the UK Government for a period of 30 days after which Commission approval is required for any further extension to the relaxation. The decision to introduce a derogation has to be notified to the Commission by the UK Government. The Commission may then decide to investigate and to avoid any criticism of the UK at a later stage there must be clear justification for the relaxation. The possibility of relaxing driver's hours was discussed in the early stages of the outbreak. Despite repeated requests, the Scottish Government could not persuade Department for Transport (DfT) to relax the hours in spite of the considerable problems being caused in Scotland.

Drivers' hours in 2007

6.54 The livestock transport industry provides a vital link in the food chain between the farmer and the meat processor relying on highly specialist equipment and the skills of the driver in handling the animals and the vehicle. It is an industry which is contracting primarily due to the problem in recruiting livestock drivers. The recent animal disease outbreaks have revealed how finely balanced and in short supply these skills are.

6.55 The gradual reduction in the national movement ban and the opening up of transport to slaughter imposed increasing demands on drivers' hours. The long distances traveled in Scotland, the single pickup journeys, the need to arrive at the slaughterhouse first thing in the morning and the time to wash vehicles all exacerbated the problem. Inadequate cleaning and disinfection facilities at the abattoirs along with the long queues made worse by farmers washing heavily soiled farm vehicles all added to the hauliers turnaround time at abattoirs.

6.56 There was some surprise that other parts of GB did not also push for a relaxation to drivers' hours as it was very clear that it was needed in Scotland. During the outbreak, Scottish Government officials liaised closely with DfT to try to make this happen, with the Scotland Office also becoming involved to help with the process. Support for a derogation which would have allowed drivers' hours to be increased did not seem to the Scottish Government to be viewed as a high priority by DfT who requested further information on a number of occasions. On the other hand DfT required detailed information and analysis from the Scottish Government to justify the relaxation and to be able to respond to the Commission if there was a subsequent investigation. It is a difficult issue to resolve as a derogation might increase the risk of road accidents.

6.57 A 30 day derogation for drivers in GB who transported cattle, pigs, sheep and lambs was eventually secured on 4 ^th October. It increased the driving hours available by a third over a fortnight. This came at the point of markets re-opening in England. At the end of October, Scottish Government made a case for a 2 week extension which was granted and was sufficient to deal with the problem.

Lessons learned

6.58 During FMD restrictions it is important to have a resolution to drivers' hours quickly so that stock can start moving in tandem with the first movement licences coming into effect. It is important to consider what can be done in terms of relaxing drivers' hours for future outbreaks. An appropriate policy should be included in the Contingency Plan . A four pronged approach is needed:

• to reduce the time wasted by hauliers by having adequate facilities at abattoirs or alternative arrangements to clean and disinfect vehicles;
• to identify the trigger points for requesting a relaxation of drivers' hours;
• to identify clearly the information and analysis required to enable DfT to consider and issue derogations;
• to establish systems to provide the necessary information in order to obtain the derogation.

Recommendation 43: The Scottish Government should work with Defra and the Department for Transport (DfT) to identify trigger points for requesting relaxations in drivers' hours rules in the light of national movement ban requirements and licensing arrangements, to catalogue the information and analysis required from the Scottish Government for a successful application to ensure a derogation is justified and available when needed. (Medium Priority)

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