13 October 2008

"A disaster waiting to happen"

The financial crisis in which we are presently engulfed was a "disaster waiting to happen". This is the final chapter in an inevitable, but wholly avoidable disaster that involves primarily a complete breakdown in the structure of our law, and its enforcement. In short, what we are experiencing is a major regulatory failure, possibly the most serious and expensive in the history of mankind.

Yet the words in the title were uttered by myself, over ten years ago, in respect of a completely different regulatory disaster. I expressed them to Sheriff Principal Graham Cox in Motherwell Sheriff Court in April 1998. That was my expert view of the meat product manufacturing operation run by Scottish butcher John Barr in Wishaw (pictured), Lanarkshire, and its condition prior to 21 people being killed and 400 infected from an outbreak of E coli O157:H7 over December 1996 and January 1997

The reason the operation killed so many people is exactly the same reason our banks and our economy is in meltdown: bad law and dangerously poor enforcement - in this current case the one created at global level transmitted to us via EU law, the other via the Financial Services Authority, itself an EU construct.

Therefore, to understand why we are in this mess, right now, it is extremely instructive to explore what happened in that unremarkable little Central Scottish town of Wishaw all those years ago.

Bear with me on this one. This is going to be a long story and, before we embark on it, you need a little background. First of all, you might ask, who is this Richard North, a lowly blogger, to deliver such a robust opinion, and by what right does he make such an assertion?

Well, blogger I might be now – and many other things besides – but it wasn't always so. Before I walked away from a challenging and exciting profession – in disgust (for reasons I will explain later) – I was the leading food safety expert in the country.

I can say that without false modesty – false modesty itself being a form of vanity. In my (albeit very narrow) field, I was the best. (I even have an award for it, "The Foodtech Achievement Award 1999" for my "outstanding contribution to food hygiene and safety" – the only award I will ever get. I still have the engraved plaque. I'm quite proud of it.)

And that's why I was called to give expert testimony in one of the most important and controversial Fatal Accident Inquiries Scotland had had for many years.

One of my specialist areas (more accurately, sub-specialism) was enforcement standards. Having worked in law enforcement in the public sector, I had moved over to the private, as a consultant. There I had, on behalf of my clients, been on the receiving end of enforcement action all over the country. This had given me a unique overview of enforcement standards.

In my opinion, they were poor – dangerously so. Inspectors – or environmental health officers, as they chose to call themselves - simply were not doing their jobs at all well. They were neither protecting the public, nor indeed the traders, who also suffer massively from food poisoning outbreaks. Many, like John Barr, lose their businesses.

Over term, I had become increasingly voluble about what amounted to a massive regulatory failure. In the business – and this might sound odd – we needed good regulation, properly applied. The logic is unassailable. If you have an operation which is doing its bit, spending the money on maintaining "backroom" standards, and the operation down the road is not, it has an unfair competitive advantage.

My 1996, my profile on this issue was extremely high. By then, I had been working with Christopher Booker for four years, feeding his column, and we had been running a campaign through The Sunday Telegraph and The Daily Mail on the "hygiene police", and "mad officials".

Our line was based on the premise, "the sledgehammer to miss the nut". We did not oppose regulation, or officials - per se. The objects of our ire were bad law and poor, or inadequate enforcement.

Thus, when the John Barr outbreak happened, I was more than a little interested. I had just completed my PhD which, to a very great extent, dealt with enforcement and food poisoning investigation procedures. I wrote about the outbreak extensively in the national press – and elsewhere – forming the opinion that, as much as anything else, it had been a regulatory failure.

The point, which I was to make to Sheriff Cox, was that – in the main – food poisoning outbreaks are preventable. They are not Acts of God, or accidents. In commercial premises, they invariably arise from a chain of events which, from an oversight of the premises, are detectable. A skilled inspector can, from observation, identify these issues, take remedial action and thereby prevent disease.

That was the real point. That is what we, as a profession – whether public or private sector – were there for. We were there to prevent disease, to protect the public. Furthermore, that was the purpose of the regulations – a tool to help us achieve that desirable object.

In respect of John Barr, I was appointed by the lead law firm representing the bulk of the victims, working with an astute solicitor by the name of Paul Santoni. My task, at the Inquiry, was to give expert evidence which would help the Sheriff determine the cause of the deaths of 21 people.

Having seen the detailed plans of the operation and all the technical evidence of the case, the facts were clear to me. As I was subsequently quoted in the media recording my evidence:

…when the Wishaw butchers started in a small way the working layout had been adequate. But as the business grew the layout was no longer adequate and there was a very real and unavoidable risk of cross-contamination from raw meats to cooked meat products. His report was further quoted as saying, "It's nothing short of a minor miracle there had not been a food poisoning outbreak earlier."
In our book, Scared to Death, we tell the story in detail – in Chapter 6, headed "Officials can kill". I've pasted the whole excerpt, which repeats some of the detail, but it's a good read:

The most famous thing that ever happened in the drab former coal-and-steel town of Wishaw, near Motherwell in the Clyde valley, took place in late November 1996. A group of pensioners gathered in a church hall for lunch, to eat stewed steak and puff pastry supplied by the award-winning local butcher, John Barr and Sons. Afterwards many fell desperately ill, until eventually 21 died. Many more had suffered permanent damage to their health, particularly affecting their kidneys.

The cause of the infection was soon identified as E.coli O157.H7, the strain identified since 1982 as potentially lethal and now responsible for the worst E. coli outbreak the world had ever experienced. The source of the infection was tracked down to John Barr's shop.

When Barr was told this by Graham Bryceland, the chief EHO of North Lanarkshire council – until now, he claimed, he had never heard of E. coli - he agreed to stop selling cooked meats. But Bryceland took no further action and only days later Barr supplied more than 100 guests at an 18th birthday party at a nearby bar with 300 slices of turkey, ham and other cooked meats. Again some of the guests soon fell ill. When Bryceland was informed, he summoned Barr out of a service at the local Catholic church for an angry interview at the council offices, but failed to record what was said.

A year later, when in total 200 people around Wishaw had been confirmed as suffering from E. coli poisoning, with hundreds more suspected, Barr faced trial, charged with the "culpable, wilful and reckless supply" of contaminated meat to the birthday party.

Because Bryceland had failed to keep a record of his interviews with Barr, and because there was a dispute about their earlier agreement over cooked meat, a large part of the prosecution case collapsed. Four charges were dropped, and Barr was cleared of any personal blame. On two remaining charges, relating to hygiene and the sale of contaminated meat, his company was in January 1998 found guilty and fined £2,500.

Three months later, however, a new drama began. Under Scottish law, a Fatal Accident Inquiry had to be held into the first E. coli outbreak, because 20 people had died. Its purpose was to establish the cause of death; to determine whether any precautions might have been taken to prevent the deaths; and to identify any system defects which caused or contributed to them.

In April 1998 the inquiry opened, under Sheriff Graham Cox. The Motherwell courtroom was packed with a dozen legal teams, several led by QCs. Seated behind batteries of laptops, most represented public bodies, whose prime concern was to defend their own role in the events surrounding the outbreak. Centre stage were the lawyers for Bryceland and North Lanarkshire district council.

The one exception was a local Wishaw solicitor, Paul Santoni, representing the family of one of the pensioners who died. To act as his chief expert witness, he had called in Dr Richard North, not unknown in the area since the role he had played in the Lanark Blue case three years earlier.

What had particularly caught their attention was the role played in the story by the local EHOs, who, after the tragedy occurred, seemed to have found it only too easy to identify 134 serious hygiene faults in Barr's premises and procedures, any one of which might have contributed to the fatal outbreak. But if all these faults were now so obvious, why had North Lanarkshire's health officials not spotted them before the event, during what were meant to be their regular inspections?

Certainly most of the deficiencies were so glaring that an experienced hygiene expert should have picked them up immediately. As one of the most dangerous of the bugs which can damage human health, E. coli O157 had in recent years become increasingly common in raw meat, not least because of the stress imposed on animals by the concentration of the slaughterhouse industry into fewer and larger units under the EC's "hygiene" directive, 91/497/EC.

The design of Barr's premises ensured a high risk that cooked meats might be contaminated by raw meat. No procedures were in place to ensure that they were cooked sufficiently to eliminate E. coli. Cleaning procedures were woefully deficient. The catalogue of failings was endless. Yet what came over in the courtroom was a picture of hopeless incompetence, as the various officials sent out to inspect Barr's shop from North Lanarkshire's gleaming council headquarters dominating the centre of Motherwell limply admitted that they had failed to notice any of these points.

The last full inspection of Barr's premises had been carried out 10 months before the disaster took place by a Mr Proctor, a 23-year old EHO not long out of college. Not only had he failed to identify any of these deficiencies; he had even recommended that Barr no longer need the six-monthly inspections required for "high risk premises". The state of the shop was so satisfactory, the young official had advised, that in future it would only need inspecting once a year.

As Santoni and North gradually teased this chilling story out of the increasingly discomfited EHOs, the lessons it conveyed were not lost on Sheriff Cox. When his report appeared in mid-August, they formed the central thread of his conclusions. He identified the council's incompetence as a major system failure which had played a crucial part in bringing the disaster about. He contrasted the inexperience of the young EHOs sent to inspect Barr's shop with the much more experienced inspectors sent in to investigate afterwards, asking why Bryceland had allowed such a risky operation to be inspected by people without appropriate knowledge.

But he went on to point out that, "having obtained an honours degree in environmental studies, Mr Proctor should have been capable of carrying out an inspection which would have revealed the apparent hazards in Barr's premises". Even if the shop had remained on a six-monthly inspection rota, the sheriff witheringly argued, this still probably would have made no difference, because of the unprofessional way in which inspections were being carried out.

The real significance of Cox's report was that he did not just confine his findings to underlining the failings of one team of EHOs. His criticisms went much wider, not least in emphasising on how the whole purpose of arming EHOs with such draconian powers under the Food Safety Act had been to put them in the front line, by giving them the prime responsibility for ensuring that food sold to the public was safe.

There had long been a tendency, the sheriff went on, to lay all the blame for breakdowns in hygiene just on the businesses which produced and sold the food. Certainly, he agreed, Barr should be held liable for his own part in the tragedy. But ultimately, he said, if public officials are to set themselves up as experts in hygiene, then both businesses and the public have the right to expect them to do their job properly.

If there was a major failure, as here in Lanarkshire, the inspectors must equally share the blame. Cox said he was far from impressed by the attempts the officials had made throughout the inquiry to shuffle off any responsibility and to place all the blame on an incompetent butcher, who had every right to expect competent advice from those paid to be the official "experts".
With that, I hope, you can tell where I am coming from, and my direction of travel. At Motherwell that August, we got what amounted to a landmark judgement. For the first time in recorded history, we got an official verdict which stated that the officials – the regulators – were culpable for their [in]actions.

When disaster strikes in situations where they have a statutory powers directed at preventing those disasters, they too bear some responsibility when they fail properly to exercise those powers.

  • Other posts on the financial crisis here.