21 September 2022: Scottish Govt Decision Making 1970s to 1990s (Presentation) - D

Counsel continued the presentation as it related to the topic of the HIV Litigation in Scotland, in particular how the non-inclusion of Scotland in the efforts to reach a settlement created a knotty problem since the situation in England and Wales was grounded in different rules. Michael Forsyth pre-emptively gave William Waldegrave the assurances he sought that the Scottish settlement would match the size and categories as those for England and Wales. His assurance seems like a mix of the classic cases of the cart coming before the horse, and then it being ridden roughshod over the rights of the Scottish claimants before Justice had had a chance to take its course. The Scottish solicitors had not yet undertaken the necessary investigative work in order to advise their clients, and that mostly depended on the availability of Legal Aid. The politicians and officials probably thought they were being generous by offering three months for the work to be carried out. But since they had already intended to stitch-up the outcome, it was simply tokenism at the expense of the public purse, just so they could be seen to be doing what was right (in the opinion of this writer, that is).

In the background there was toing and froing between officials and lawyers, much of which was about the dreaded waiver; what it covered or didn’t cover, what it’s iterations meant, for whom, excluding whom, from when, and perhaps most importantly, the consequences of not signing up to the thing. If there was ever a devil in disguise in the detail, it was the waiver. Step forward the arch de-constructor of detail, Sir Brian of Langstaff. While the Chair obviously wants to see the end result, he also insists on seeing the workings.

The Macfarlane Trust was the mechanism for making waiver-waxed payments. The MFT had to be metamorphosed through changes to its governing documents to allow the new types of strings-attached  payments to happen. The comparison between versions of the waiver and version of the Trust undertakings, including the date-stamped milestones placed side-by-side, were highly indicative of the thinking of those involved.

Fundamentally, the apparent inconvenience of Scotland having a different legal system forced a situation where a disparity was required. It appeared that more Scottish folks became eligible for payments than their comparable cousins in the rest of the UK. Not allowing the different treatment would have been unjust for the Scots. But allowing the difference was unjust for the excluded UK cohorts. A crocodile paradox of irreconcilability.

Finally for the presentation, in respect of HIV transfusion infectees, Michael Forsyth had previously disclosed to the Inquiry his not being convinced by the stated position that saying haemophiliacs were a special case was enough to exclude anyone else from support. However, the official SHHD line remained UK-aligned. Internally, Mr Forsyth continued to express his concerns over what he saw as a weak justification and even sought to get the UK position changed. Given what was presented at the beginning of the session in relation to the then Minister, the image of Michael Forsyth as a peoples’ champion created a cognitive dissonance with the perceived persona of him being hawkishly non-namby-pamby; an impression which he himself appeared to endorse at the time (or so many people thought, at least). And on that bombshell …

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