26 January 2023: Closing Statements, David Johnston KC (for Scottish Government)

Expectations were already lower than low in anticipation of the latest legal representative speaking “their truth” on behalf of a Government body, in this case the Scottish Government. But once again there had been a very late announcement that the time required for the Scottish Government’s closing statement was much less than originally allocated. It was just another example of the contrived collaboration between Governments which exposes their cowardly lack of genuine compassion and self-awareness.

 

David Johnston KC specified his role as representing the Scottish Government, and while the legal team he was part of may have assisted individual witnesses, he did not speak for them on this occasion. It would be a fairly short closing statement (no surprise there).

 

He began with the now obligatory apology for what happened to people and how badly they have been ”let down” (how sickeningly euphemistic). The delays have done nothing to allay these harms. He recalled the statement of the First Minister from March 2015. He repeated the apology that statement contained. The witness evidence from the infected and affected was not easy to hear and the details have been “harrowing”. The Scottish Government “now understands those difficulties and hardships at least a bit better”. This writer would suggest that this “now” understanding is disrespectful of the hard working charities and campaigners who have been pressing the case for years, and who thought there was a degree of mutual respect for the milestones achieved. But not so, apparently.

 

A brief review of the pre-devolution circumstances highlighted where the liability lay – with the UK Government. The Scottish Government was not seeking to explain, justify, or explain what bodies and individuals said or did (or didn’t say or do when they should have). It did not seek to counter arguments (although it subsequently would), but to continue to support the Inquiry in its work.

 

On the compensation framework, particularly as discussed by the Thompsons submission. It asserted the agreement of the Scottish Government to people receiving compensation. There was also recognition about the desire by most people to avoid a court-based settlement. The lead on these matters is through the Cabinet Office and the Scottish Government expects to be involved in these developments. On the matter of responsibility, it should be the UK Government to cover the compensation costs, and that each part of the UK should be treated equally. But there is an assertion to retain the Scottish Infected Blood Support Scheme (SIBSS) not least for the purposes of continuing to make regular payments. The Scottish dimension includes the self-assessment of “Stage 1” infectees and this needed to be retained.

 

In referring to the situation when the law is different between Scotland and the rest of the UK, it was noted that in many respects the law systems are comparable, but there are four points in their submission related to structural issues of divergence. These include: applicable discount rates; Scots Law not recognising aggravated damages; different interest rates applying; and differences on fatal claims. There was a specific matter of past payments with the Scottish Government saying these should be taken into account when calculating lump-sum compensation. Mr Johnston asserted that the purpose was not meanness, but an attempt to ensure fairness for all claimants. The Chair intervened to clarify what the Scottish Government would want to be taken into account, for example, if that would include social security payments. Mr Johnston tried to explain but Sir Brian was on a roll and extended the direction of questioning. Counsel had to accept the logic and Mr Johnston had to clarify that if a past payment was for support then it should not be included in the calculations, but if it was a compensation payment then that should be taken into account. Nailed it, Sir Brian.

 

The next heading for the Scottish Government concerned Mr Johnston making brief comments on the recommendations of others (i.e. Thompsons). On candour and transparency, specifically medically and whistleblowingly, he referred to the evidence of Caroline Lamb. The Scottish Government position is that health services in Scotland have already made considerable improvements on these matters (basically seeking to undermine the call for going further). Similarly, on candour for civil servants, again they wanted to remove the possibility of being subject to enforced honesty. On both these matters the Scottish Government recognised that the Inquiry may support taking things further and the Scottish Government would have to manage that if or when it happens. Another attempt was made to leave things as they are in relation to the Thompsons recommendation for Government records to be held by an independent body. No surprise there, then.

 

The next set of issues covered non-financial support. It was first recognised that many of the issues related to non-financial support were under the competence of UK law, so there would need to be collaborative Government working in taking things forwards. This would apply to matters such as insurance cover. However, it was suggested that the problems faced in the past were not so often experienced when infected people tried to get insured. The psychological support will continue for as long as it is needed. The call by Thompsons for specific physiotherapy support was accepted. On palliative care, the Scottish Government basically denied that there is a problem. It does not want a special focus on palliative care for contaminated blood infected people.

 

The single Penrose recommendation had been accepted and actioned at the time, being the call for previously unidentified people to come forward to discover if they had been infected but not diagnosed. The response to the recommendation seeking further to identify people was countered by the suggestion that there was nothing more to do. The Patient Safety Commissioner proposals were next to be mentioned. All that was said was the Bill was still going through the Scottish Parliament. Next it was the Thompsons recommendation to establish a taskforce. The Scottish Government would wait to see what the Inquiry had to say on this matter, while asserting that there were already processes in place and a new arrangement was not needed.

 

Mr Johnston concluded by restating the apology given at the start and restating how it looked forward to receiving and considering carefully the Inquiry findings. It will “reflect with great care” on the report.

 

The Chair asked about the entry in the Scottish Government’s final submission about an evidence reference related to the Scottish Government stating a need as set out by Scottish haemophilia clinicians to avoid commercial blood products before the emergence of AIDS. Mr Johnston said he would supply the reference.