29 June 2022: Horam - B

For those who follow these things, the attendance by core participants to watch the evidence in person had dropped greatly from the previous two days of celebrity witnesses. The almost full house had reduced to less than 20 warm bodies.

A document was displayed which appears to have been influenced by the witnesses’ desire to soften the line, at least by mentioning the possibility of new information coming to light. The writers were happy to report that the “at present” insertion was batted away. Clearly, the “powers that be” felt the need to monitor the witness to make sure he sticks to the line. Written correspondence between the players emphasise the need to stress the loss to the NHS of any payments because it would come out of funds for patient care, and to raise the fear of other potential scary issues that might jump on a slippery slope of precedent-setting. None of these documents were seen by the witness until they were sent to him by the Inquiry.

As discussions about options were presented, as expected these were based on how things were done in other situations, such as HIV, and also seeking to find the “sweet spot” of paying as little as possible while doing enough to make the problem go away. At no point was there any discussion about what the money was actually for (thus requiring a financial analysis of expected equivalences). There was consideration of how to push back on any counter-arguments which might be made, for example by the Haemophilia Society. And there was a forward-looking consideration about what unwelcome consequences might arise from acting in the way of making payments of some kind. This resulted in three options being presented to the witness by officials. The way the options were appraised made it clear what the officials thought. They continued to assert their tropes that people got the best treatment available, as if this was somehow incontrovertible and not up for debate. In reporting on the options, there was also a version of “Operation Fear” by including speculation in extremis on future costs to Government.

Lord Horam though the resulting options appraisal he has requested was “overkill”. He speculated that the civil servants had misunderstood what he was looking for though this exercise. He was not looking for a re-hash of the old arguments about why compensation should not be paid and why no-fault payments should be avoided, which it came across as. Counsel summarised the hindsight perspective experience of payment systems being achieved by incremental changes, with the view that to get something out to people was better than nothing, in the shorter term, and leaving any more further sought-for victories to a subsequent period of advocacy activity.

When the final report of the Haemophilia Society study was published, the first official response was to acknowledge the difficulties people experienced, but most importantly (for them) to state that there was no negligence and no liability, therefore no requirement on the Government to pay out money. There was a sop offered of a slight possibility of considering a small scheme targeted approach to only the cirrhosis-level sufferers, in line with the John Marshall proposal. The witness continued to be euphemistically criticised, mostly indirectly, to which Lord Horam responded with an equally euphemistic commitment to “bear these things in mind”. He wanted to make sure the Inquiry understood that this certainly did not mean he agreed with “these things”. Sometimes the need to retain a gentlemanly restraint in communications is frustratingly “Yes, Minister” in its presentation. While politeness and mutual respect are usually preferable, it seems to work against those who want to do the right thing and protects those whose motivations and actions are reprehensible (see how this writer is also being compliant in his use of terminology). But sometimes the pressure cooker of unmet need and unresolved unfairness wants to burst into acerbic accusations, yet due to the paradigm of the tightly controlled use of language, it opens up anyone who cannot resist an angry or accusatory tone to be seen as an uncouth upsetter of the pleasantly trundling applecart. Vitriolic language is usually not helpful, but understated urgency is also beyond exasperating when peoples’ lives are at stake. People were dying (or living a form of slow death), and you caused it (whether negligent or not), so what are you going to do about it (because doing nothing cannot be an option despite your living in collective denial)?

As the witness tried to further explore a way forward, it seems that the other organs of Government were making plans to usurp his efforts and neutralise them. Clearly, the machine of Government has its methods of command and control as well as very effective ways of fixing problems when one part of the system goes rogue. So much for the frequently asserted motivation of elected public servants of their seeking to make a difference and represent those who otherwise have no more power than to make a lone check mark on a ballot paper every few years. It will come as no surprise to conclude that the first purpose of Government is to protect the Government. That applies to Government defined by a political party in the majority, or Government defined by the behemoth of Whitehall (also known as “the permanent government”). This self-preservation objective was highlighted as documents were acknowledging negligence under the issue of CJD arising from BSE. This point may explain the recently increased references to the BSE Inquiry as lines of questioning to Government witnesses. It is also interesting how many of the key players in the Contaminated Blood Scandal were also connected to the BSE episode. The arguments were being made internally about possible liability from the Government having knowledge of the CJD risks but not passing it on, or of having available actions to address the risk but no Government action was taken (timeously anyway). The officials sought to distinguish between any liability related to BSE/CJD, and the cases for HCV infectees. Once again, the value of the Inquiry in shining a light on information which would otherwise be left hidden is acknowledged. The previous “unknown knowns” (unknown as far as the public were concerned) are revealed to have actually been “known knowns”, albeit that knowing was restricted to those with the responsibility to protect people who were deliberately being kept in the dark. “Oh, what a tangled web we weave, When first we practise to deceive!"