Contaminated blood: statutory inquiry announced

7 November 2017 by Jim Duffy

Adam Wagner acted for victims of the Blood Contamination scandal in a proposed Judicial Review of the refusal to hold an inquiry. He is not the author of this post

Amid the blizzard of news stories circling Westminster on Friday, it would have been easy to miss an announcement of considerable significance to victims of the contaminated blood scandal and their families.

In a written statement to Parliament, Damian Green confirmed that the inquiry into the scandal – announced by the Prime Minister in July – will take the form of a UK-wide, statutory inquiry.

Not only that, it will no longer be set up by the Department of Health (DoH), but by the Cabinet Office. Campaigners for the victims and their families had boycotted talks with Downing Street, arguing that the DoH would have a conflict of interest, due to the need for the inquiry to investigate the actions of health officials.

However, there was yet more disappointment and frustration over the continued failure to appoint an inquiry chair or to announce terms of reference.

Background

The story begins some four decades before Friday’s announcement. During the 1970s and 80s, around 7,500 people in the UK were infected with hepatitis C and/or HIV. Those infected – many of whom were haemophiliacs – had been treated with contaminated ‘clotting factor’ products.

At least 2,400 patients are estimated to have died as a result, and many remain terminally ill. Due to the stigma attached to Aids, some families felt the need to disguise the what was causing their loved ones to die.

Most of the infections were caused by the plasma-derived product, ‘Factor VIII’, which was imported from the United States and elsewhere. As demand sky-rocketed for what was seen as a revolutionary medicine, pharmaceutical companies paid more and more donors in order to service it.

Among those donors were prison inmates and drug users.  Tens of thousands of people donated to each individual batch of the product. If one of those donors was infected, the product and its recipients were too.

The fight for an inquiry

The announcement of a statutory inquiry has been a long time coming. It is the culmination of years of campaigning by victims and their families.

A private review was carried out between 2007 and 2009, but it had no legal powers, such as the ability to summon witnesses. The review found that many contemporaneous government papers had been destroyed.

It was followed some years later by a judge-led inquiry extending to Scotland only. It examined only five deaths. Lord Penrose’s report ultimately recommended blood that anyone in Scotland who had received a blood transfusion before 1991 and who had not been tested for Hepatitis C in the interim obtain a blood test.

Then, this summer, Theresa May announced a new, non-statutory inquiry to be led by the Department of Health. This prompted concerns about the Inquiry’s independence and a consultation attracting 800 responses.

Separately, Senior Master Fontaine recently granted a group litigation order to a group of 500 people comprising some of the surviving victims and the families of the deceased. This enabled them to press ahead with their claims against the government.

Independence

Importantly, the move from the DoH to the Cabinet Office secures the appearance of independence. The inquiry’s terms of reference will not now be set by a government department whose own actions and decision-making require examination. The same goes for the decision as to who should chair the inquiry.

In reality, however, these important decisions will still be taken by the government, which can hardly be described as independent of the DoH.

In any event, it is not unusual for an inquiry’s ‘sponsoring department’ to be in its potential line of fire; an example is where the Ministry of Defence sponsors an inquiry into allegations of wrongdoing in the armed forces.  That did not stop the Baha Mousa Inquiry from finding that an Iraqi hotel worker had died having suffered an “appalling episode of serious gratuitous violence” in a “very serious breach of discipline” by British soldiers, or from making 73 recommendations.

That is because practical independence is secured by the appointment of an independent chair – usually, but not necessarily, a retired senior judge – and by ensuring that he or she is afforded sufficiently comprehensive terms of reference within which to operate.

That is the next major challenge for the government: many victims and their families understandably want the terms of reference to cover not only the events immediately surrounding the administration of clotting products, but also allegations that the scandal was later covered up.  Narrow terms might accentuate long-festering feelings of distrust, although there is always a tension between ensuring a comprehensive inquiry and facilitating a focused one.

Similarly, in its choice of chair, the Cabinet Office will be desperate to avoid the pitfalls that have beset other inquiries such as the Grenfell Tower Inquiry and the Independent Inquiry into Child Sexual Abuse, by ensuring that whoever is placed in charge has the requisite experience and no hint of any conflict of interest or institutional bias. These political imperatives happen to mirror legal requirements found at sections 8 and 9 of the Inquiries Act 2005.

A statutory inquiry

The decision to establish the inquiry under the purview of the Act is more significant, meaning the Inquiry will follow the procedural framework set by the Act and by the Inquiry Rules 2006.

In any 2005 Act Inquiry, the chair has a power to compel witnesses to attend or documents to be produced, and criminal sanctions apply in cases of non-compliance (Sections 21 and 35). Unlike in a non-statutory inquiry like the Iraq (Chilcott) Inquiry, a 2005 Act inquiry can take evidence on oath.

It also has a statutory duty to take reasonable steps to secure public access to evidence and documents (section 18), a legal obligation that is perhaps of especial significance in the context of the Grenfell Tower disaster.

A statutory inquiry also allows designated core participants to recover reasonable legal expenses, helping them to participate meaningfully in proceedings.

Yet it is not all good news for those seeking to uncover the truth. While the presumption is that a 2005 Act Inquiry will sit in public, section 19 provides for the possibility of restriction orders or notices. These will be granted where they are required in order to comply with a legal provision, or where the responsible Minister or Chair considers a restriction necessary in the public interest or to enable the public inquiry to fulfil its terms of reference.

‘Necessary in the public interest’ is defined broadly to include the need to avoid or reduce a risk of harm or damage. ‘Harm or damage’ is itself interpreted expansively, and encompasses damage to the country’s economic interests as well as damage caused by disclosure of commercially sensitive information.

There is also an abridged 14-day time limit for judicial review applications (section 38).

Comment

The events to be examined by this inquiry are harrowing enough. What is almost as disturbing is how long it has taken successive governments to order a full inquiry in circumstances that seemed to be crying out for one. One might have thought that the sheer number of victims, the suspicions of a cover-up, and the fact the infected products were administered by the NHS ought to have been enough to offset any suggestion that the scandal was too historic to merit a comprehensive and forensic investigation.

The government it is now going to “analyse thoroughly” the consultation responses, before making a further announcement before the end of the year. Like the families of the victims of the Hillsborough disaster, the thousands affected by this scandal may be approaching the final stage of their long quest for justice.