19 July 2022: MacNiven - D

Core participant questions:

On why Ministers were not asked earlier to consider surrogate testing; he said it had been a complex matter and a judgement call on the right time to bring it to a Minister’s attention.

On the opportunity to raise the issue with Ministers even just to stick with the line and so not involve money decisions; he said it was always difficult to know when to go to the Minister. They were not deterred to involve Ministers in case he or she changed the official line.

On the possibility and criteria for going to Ministers with “difficult decisions” for their input because it was difficult; he said it might be good to ask Michael Forsyth. He admitted to once being criticised for not putting something to a Minister (Wow!), but not on these matters (Ohhh).

On his statement that he almost always made the right decision when to involve Ministers; he said that was not his assessment but was the assessment of Ministers across the course of his career.

On the group of seven policy makers controlling SNBTS not involving haemophilia centre directors; he said the group did not control SNBTS but led on policy. (That’s a bit of hair-splitting since control is maintained through policy.) There were other ways of linking to haemophilia directors. Their connections were not at a Scotland-wide level, apart from their own get-togethers, but were within the regional boards.

On the role of the CSA in overseeing the Central Legal Office (CLO) who would be aware of litigation issues being raised; he said they would know about these things. The witness initially pretended shock at the suggestion of him being made aware of these things too, but then then caved when Counsel – who had the measure of the guy – directed the possibility of litigation to be applicable to one of his babies, for example, SNBTS.

On receiving advice from John Cash as consultant adviser; he said Cash’s way of operating did not hinder him being accessed by officials when they thought he might have a helpful insight, but Cash himself was not slow at making his views known.

On being asked to be involved in some way in legal cases; he said it was during his time at the Forestry Commission, but if it was about past actions, he would have been involved.

On surrogate testing suffering from a lack of research evidence base and the expertise of, for example, Cash in being well placed to assert for funding for testing and so needing to be considered; he said of course it was a consideration, but … (then he hesitated and asked for the question to be repeated) … he agreed that it probably was too late for the research to be carried out. He had been “quite keen” to see the research done, but was wrong (yes, he said that …) wrong about how long it would take to complete. He referred again to the “back-handed” views expressed in the Lancet by the groups of experts writing therein which he flatly dismissed as wrong, and he justified “my”, or rather “the Department’s” (he corrected too late) view of not to go with testing.

On the setting of the bar too high to make sure testing could not be agreed to; he said he was not doing that (… but of course he would say that; Rice-Davies returns to rescue another official drowning in his own conceit).

On sticking to the UK view; he said he could not remember much about that being an issue. (Oh really.)

On the challenges to not testing under the new consumer liability act; he said he would not have gone to their law officers automatically, but if things might progress on consumer issues, he might have sought advice.

On what was considered beyond the Dow report to inform their no testing decision; he referred to his previous answer. (Which was an unfortunate response given the coincidence of Michael Ellis also responding to questions on the day, and it being his favourite phrase. Mr MacNiven said it was not the only document considered, but he could not recall any other documents used. (Of course.) He also re-stated how the Dow document was part of the Scottish considerations and would have been unlikely to have influenced the UK views and policy formulation process.

On the possibility of knowing the criticisms to Dow at the time, and how that knowledge might have changed things; he said it was too hypothetical to answer.

On Dr Gunson having had something to say on these issues at the time; he said he had no contact with Dr Gunson (the witness had to be told who Dr Gunson was … as if), but whether his officials may have had contact, he couldn’t say.

On the MacFarlane Trust if there had been Scottish input, would it have come to him; he said he could not remember anything about it. It might have been given to a different group altogether.

On the formation of the MacFarlane Trust having any Scottish involvement; he said it wasn’t for him to speculate.

The Chair had no questions of his own for the witness. This was a very wise move by the Chair given the track record of the witness. He had cherry-picked his way through the questions put by Counsel, then proceeded to pontificate with liberal smatterings of Classics references and inane idioms reminiscent of an idiotically comic Dickensian character.

The witness said the Inquiry should not have the impression that the SHHD was uncaring of the non-A-non-B issues, that the Inquiry should not think they were setting up blocks, and that the Inquiry should not think his department had set up bureaucratic hurdles. This inversely accurate self-assessment was consistent with the chronic arrogance of the man. Who does he think he is telling Sir Brian Langstaff, a former senior judge and Chair of the Inquiry, what to say, or rather, what not to say, in his final report? Methinks he will be disappointed in his feeble attempt at controlling his legacy and reputation. It’s too late Mr Assistant Secretary. That train left years ago and your ticket was already well and truly marked.

The Chair thanked the witness for coming down in person, despite the present difficulties with heat and travel, and the careful way he answered the questions. Sir Brian recalled the slight irritation at what might be the suggestive assertions of Counsel (… in the mind of a witness who had something to hide), but he hoped the witness appreciated the need to ask sometimes difficult questions in the course of ensuring the thoroughness of the investigations.

In conversation with Counsel for this writer’s recognised legal representatives, there was an expectation that at any moment someone from the Inquiry would come over to “discuss” the gesticulations and exaggerated head movements (mainly shaking “No”) shared between a few in the room, and which were unmissable to the witness, but no upbraiding occurred. Even they must have thought he deserved it. He did.