28 June 2022: Bottomley - C

At the lunch-break announcement, the Hearing Room quickly emptied. This writer remained at his post until he had posted. While doing so he caught the eye of the Chairman (or was it the other way around?) A mutually respectful nod and minimal wave were exchanged as Sir Brian exited to his Covid-protected lunch space. It was a small but nevertheless pleasant affirmation of a shared human experience.

The re-realisation of the Establishment having its hand over all these matters came to the fore when the witness fondly recognised William Waldegrave as a former All Souls pupil and so he would automatically bring a certain style and capacity to the role. Similarly, there had already been a reference to the number of Old Etonians in the Cabinet.

Counsel shifted the HIV line of questioning to those who were infected by transfusion. Baroness Bottomley said there had to be a ring-fence somewhere and keeping the provision of support to haemophiliacs was considered the best and most readily defended line for the Government to take, because a line had to be drawn somewhere. One response of Governments when faced with issues where there is a need to respond and learn lessons is the tendency to seek to discover what other countries were doing in response. It seems to give a baseline or starting point, and somewhere to refer to if pressed. Regardless of their defensive efforts, it did not take long for the pressure to build on the matter of non-haemophiliacs being excluded for support. Counsel suggested that the line was being re-drawn rather than erased, and this was accepted by the witness. So the assumed strongest defence ring-fence was in reality built on nothing but loose sand.

The defence of “it was the best advice at the time” was explored by Counsel in relation to how close actions or inactions could come to being negligence. The witness did not really engage with the nuances of what counted as “the best”, not only in actual treatment but also how services were delivered. On the issue of the lengthy timescales to act, several justifications were given, including the need to get support from the Charity Commission to set up the payment administration body. This writer has heard similar nonsense from other Government officials since he has personal experience of working with civil servants to establish new chariable bodies from scratch within two weeks. Time and time again the Governments and its officials seem to get away with inaction and delay based on dishonest explanations which rely on the majority of people not knowing the reality. Some of the politicians seem to actually believe these excuses; either that, or they have become gullible and non-discriminating receivers of others’ statements, or have become increasingly accomplished actors, (or should that be they have become increasingly barefaced liars?)

The topic shifted to Hepatitis infection. In response to the introduction of the subject through a displayed document, the Baroness turned into an expert witness on how Government worked and a professional assessor of others’ competence to have used or not used authoritative underpinning relevant evidence before expressing views. It was done with a wry smile on her face – what could that mean? Basically, the Government response to the potential of having to set up another scheme was to batten down with the same reasoning used to resist supporting HIV pay-outs. Communications from the time illustrate the high level of opposition to going down the route of making payments. Suggestions were made that a strong case could be put for a distinction to justify treating HIV infectees as different from HCV infectees. This writer does not need to go far back to recall the apparently ready justification for separating haemophiliacs and non-haemophiliacs when it came to HIV patients. That didn’t last long. Maybe due to having lost that first battle to maintain the ring-fence, they feared that to allow HCV infectees payments, it would open the “slippery slope” to all kinds of claims for ex gratia arrangements. And that was simply intolerable to contemplate.

It became increasingly obvious that many of these matters were going as far up the political hierarchy as the Prime Minister’s Office. So, the idea of just blaming a few nasty civil servants in the DH for blocking any support for payments, inquiries, recognition, etc. cannot be sustained in isolation. The most senior politicians in the country had their hands on this; Health Ministers, Treasury Ministers, Prime Ministers. How can that be denied? And this being so, is their culpability derived from a lack of attention being given due to other pressing matters (eg. making a hard decision on London hospitals in the case of this witness), or is it explained by a straightforward cold-blooded refusal to risk an avalanche of claims regardless of the merits of the case.

This period of reflective questioning is causing the witness to run back into dark corners and throw out excuses, the usual excuses: they were doing the best they could; they were following the expert advice; they were trying to protect the money for other groups of patients; they were being kept busy with other pressing priorities; they were facing financial constraints (when was it not thus?); blah, blah, blah. She feels she needs to back herself up for what she did at the time, yet to not acknowledge the possibility that things could have been handled better would make her look either stupid or arrogant or both. She has not been averse to politely chucking others under the bus to save her own buttocks from harm. She was ready with all the justifications should they be required; and they were. The witness had mentioned the classic rule-of-thumb approach of ensuring that their Ministers faced “No Surprises”. This was usually achieved by good quality pre-emptive briefing. But today, the Baroness has fallen foul of questioning which has gone beyond the risk of being doorstepped. She has been boxed in by a forensic closing off of escape routes; she fears being hoisted by her own petard (yes, another Shakespeare/Hamlet reference).