3 October 2022: Expert Group on Public Health and Administration - A

The Expert Group (EG) on Public Health and Administration had been dubbed the “Expert Group on Cover-ups”; including by some in the Inquiry. People had high hopes for the outputs of this Group in the context of the Chair’s promise that the Inquiry will not be a cover-up of a cover-up. The expectations included this group providing:

• a forensic analysis of the whole quagmire that is missing medical records and the obvious centralised edict to coordinate this filleting exercise;

• the alleged accidental destruction of official files;

• contrivances to not tell patients what was being done to them or what had been done;

• collusion between big pharma, influential clinician-researchers and Government Departments (including the MoD) the mis-use of various “gagging orders” and security non-disclosures; and

• the activities of the State to monitor and interfere in the lives of key campaigners.

The EG members were asked to give a brief overview of their experience. These included: lawyer, local government, Central Government,  Permanent Secretary, University teaching and administration, establishing the Institute for Government and the National Audit Office, clinical and academia-based psychologist, senior civil servant, and many more worthy and impressive CV entries.

Counsel briefly went over what the EG was not asked to do. This included not doing the work of the Chair in determining errors or deficiencies specific to the Contaminated Blood Scandal.

The progress over the last 25 years was briefly reviewed. Previously expected standards of behaviour of officials and Ministers did exist and were well established but needed to be formalised into collated codes and sets of principles. For example, there had not previously been a formal body to establish and monitor adherence to standards.

The Ministerial Code came out of a report commissioned by John Major from 1992, “Questions of Procedures for Ministers”. A much earlier version of a code was informally issued by Clement Atlee in 1945 (which itself was based on earlier documents). It covered procedures, gifts, collective responsibility, etc. It only became known as the “Ministerial Code” in 1997. There are different versions in Scotland, Wales, and Northern Ireland. It has no statutory backing; except in Northern Ireland since 2006 which was done to help manage the “enforced coalition” there. In other areas of the UK there was “no great enthusiasm” for a statutory footing for these tools, rather than any actual resistance to formalise these instruments in the other nations.

The current Ministerial Code was displayed (signed by Boris Johnson, who apparently was a former Prime Minister), and which set out the high standards which Government Ministers had to adhere to (oh, the irony). From that, Counsel reviewed with the Group the concept of “collective responsibility”. It applies not just to Ministers but also to civil servants. This is a key issue given the role of “lines to take” being maintained across Governments in relation to the Contaminated Blood Scandal. The decision to sack someone, if they do not resign, falls to the Prime Minister, but this protocol does not always operate in the same way, even in comparable situations. The example was given of the accusation of bullying by a recent Home Secretary which was upheld by the independent adviser, but not the Prime Minister. So, instead of the Home Secretary resigning, the independent adviser resigned. This may be a rather extreme example based on recent previous personalities in key posts, and was at odds with what would normally happened previously. For example, in 1954 there was a case of a Minister resigning over a matter he knew nothing at all about, but because it happened on his watch, he felt he had to go. It was suggested that the duty of collective responsibility might clash with the need for being as open as possible (as included in the Ministerial Code), for example, when a privately-held view or piece of knowledge was at odds with the collective view.

On the matter of the access a new Minister might have to the advice or decision-making process available to the previous Minister, such transferability was seen as too difficult, especially if the change of Minister was due to a change of Government (i.e. political ideology). Deliberate efforts are made not to disclose previous discussions involving preceding Ministers in case it was used to make political capital or to undermine a civil servant. At the most senior level there needs to be a degree of privacy in the very open conversations between officials and Ministers. The frankness is necessary but can only work if kept between those involved. The role of the civil servants is to be totally neutral. They are to do all they can to deliver on the manifesto of the Government of the day, even of that is very different from the preceding Government’s agenda. All this has to be in line with the Civil Service Code.

The next general topic was the Nolan Committee principles for Standards in Public Life. The original report was displayed. It included the need for greater openness to public scrutiny. The seven principles were first put together in Nolan; even though they did certainly exist as long-standing conventions, but it was felt these had to be formalised. They relate to anyone in public life, distinct from the Civil Service Code and the Ministerial Code. Counsel reviewed the Seven Principles. (This writer could not help thinking about recent activities of Government as these were read out, not least in respect of the handling of the Covid-19 situation being a demonstration of just how, even with the principles being codified, they could be twisted to suit a particular agenda. There were clear parallels with the Contaminated Blood Scandal, much of which occurred when these principles existed but not in a single printed document.

The main responder from the EG during the opening exchanges with Counsel was Lord Bichard who spoke with great authority and obvious gravitas. The appearance of his hands being covered in PPE gloves was a distraction. He was, in fact, not wearing gloves but the look was unusual. There was also an impression of grandeur, infallibility, and maybe even a hint of a professional apologist for the civil service, which worried this writer who genuinely hoped it would prove to be an inaccurate characterisation.

Discussions shifted to the Civil Service Code, including reference to various documents which had existed and informed what would become the core of the Code. Ministers normally take the lead responsibility when things go wrong, as opposed to a civil servant having to resign. Recent events were noted to have seen a reverse to this convention. The integrity, honesty, objectivity, and impartiality (“the eternal verities”) of the civil service are seen as key pillars of the UK system of Government. It allows for continuity even when there is a political shift as might arise from a change of Government. Competence and merit were used for appointing people, then the four verities are laid on top of that. The “impartiality” element is the main distinctive feature when compared with the Nolan Principles.

This discussion was clearly a matter of great significance to those concentrating on the legal aspects of the Inquiry investigation. This writer had never seen so much note taking by the recognised legal representatives and other lawyers in attendance.

From the Civil Service Code, Counsel highlighted a breakdown of the aspects of honesty and impartiality which clearly were paving the way for reflecting on the now notorious lines to take as related to the Contaminated Blood Scandal when some of these were obviously not honestly held or impartial applied, especially in regard to the potential for misleading Ministers. Lord Bichard seemed to recognise where this was going and appeared (to this writer, at least) to be preparing a defence or justification should Counsel go there in the future.

On quick reflection, the meaty cover-up issues were far from being encountered. Thus far the focus was on understanding how Government and public life generally was supposed to work effectively and in the interests of good governance. It was hoped that this was simply groundwork for weightier matters to come.