1 Wednesday, 6 July 2022 2 (10.00 am) 3 LORD WILLIAM ARTHUR WALDEGRAVE (continued) 4 Further questioned by MS RICHARDS 5 SIR BRIAN LANGSTAFF: Yes? 6 MS RICHARDS: Lord Waldegrave, we had reached your written 7 answer of June 1991 yesterday afternoon where the line 8 was held in terms of the existing policy. If we can 9 pick matters up next in August of 1991. 10 Lawrence, could we have DHSC0046973_035, please. 11 You'll see this is a minute date 19 August 1991. 12 It's from the Parliamentary Undersecretary's office to 13 your private office, so that would have been, I think, 14 Mr Dorrell. 15 A. Mm-hm. 16 Q. "Please find attached a submission from Mr Canavan. 17 PS(H) thinks that this is an issue on which S of S would 18 wish to take the decision." 19 Then if we look at the attached submission, it's 20 at DHSC0003641_004. 21 The submission itself from Mr Canavan is dated 22 13 August 1991, addressed to PS(H)'s office. I think we 23 need only look, for present purposes, at paragraphs 1 24 and 3, so if we can scroll down slightly, please, 25 Lawrence. 1 1 Paragraph 1 says: 2 "PS(H) may recall that Graham Ross of J Keith Park 3 & Co has written to Ministers on several occasions 4 pressing for compensation for the blood transfusion 5 recipients infected with HIV. With Ministers agreement, 6 officials have taken over the correspondence. 7 Graham Ross expressed some concern at this but has been 8 assured that Ministers will be told of any new 9 arguments. This submission considers a point of 10 particular concern to Mr Ross that preserving the 11 anonymity of blood donors could make it difficult for 12 the blood transfusion recipients to seek redress through 13 the courts." 14 I'll read the second: 15 "In the submission we are also reporting the RHA's 16 [Regional Health Authority's] willingness to take the 17 lead in negotiating a deal to settle the blood 18 transfusion issue, should Ministers wish to seek such 19 a settlement." 20 Then the recommendation in paragraph 3: 21 "We do not consider that these developments in 22 themselves warrant a change in the Government's 23 position. However, should Ministers be minded to seek 24 a way of settling the blood transfusion issue the 25 J Keith Park and RHA developments may be helpful in 2 1 reducing the risk of wider repercussions." 2 The submission then goes on to set out in more 3 detail the issue about anonymity of donors and the 4 impact that might have on the ability to litigate. 5 I'm not going to read any of that out. 6 If we just go to page 3, please. If we pick it up 7 at paragraph 9, conclusions. At the top of the page: 8 "In the view of officials, the arguments about 9 donor anonymity do not warrant a concession to the blood 10 transfusion recipients infected with HIV. However if 11 Ministers were minded to seek a way of settling the 12 issue then the arguments might be used to prevent the 13 settlement as a necessary measure to protect our 14 voluntary blood donor system. However any such argument 15 would have to be used with caution as any erosion of 16 public interest immunity principle could have serious 17 implications for all Government Departments and for 18 other public bodies. There would need to be 19 consultation with these other interests." 20 Then if we go down to the bottom of the page under 21 the heading "Decisions Required": 22 "13. We are asking PS(H) whether: 23 "i) he is content that officials should inform 24 J Keith Park that the Government's position on 25 compensation for the blood transfusion cases is 3 1 unchanged by the arguments about donor anonymity? 2 "ii) he wishes any further action taken at this 3 stage to pursue the RHAs offer?" 4 Lord Waldegrave, as we saw from the covering 5 submission, this appears to have been passed up the 6 ministerial chain to you, but the documents I think 7 don't tell us what, if any, decision you took in 8 response to this. Do you have any independent 9 recollection of it? 10 A. No, I don't. We didn't at that point change the policy, 11 but we did later. 12 Q. And I think there's then a gap in the available 13 documentation addressing this issue until we get to the 14 end of November 1991, where we see that, from documents, 15 it's clear that your view has changed. And so we'll 16 pick up the story there. 17 DHSC0002894_011, please. 18 This is from Strachan Heppell to your 19 Private Office, 28 November 1991. If we look at the 20 text of the minute, it says: 21 "Transplant etc patients with HIV 22 "I attach a draft letter to the Chief Secretary on 23 the lines we discussed. 24 "2. We shall need to bring the other Health 25 Departments into the correspondence now as we shall want 4 1 them to bear their share of the cost. 2 "3. Meeting our share will put a considerable 3 strain on our finances this year. But a settlement 4 deferred to next year would of course be a less welcome 5 offer to those concerned." 6 I'm just going to show you one further minute from 7 Mr Heppell the following day and then ask you about it. 8 So that's 28 November. 9 29 November, we have DHSC0002537_262. 10 So the heading here "Blood transfusion etc 11 patients with HIV", again it's from Mr Heppell, 12 29 November, to your Private Office: 13 "I attach a draft letter to the Chief Secretary on 14 the lines we discussed. It offers a one-third 15 contribution to the cost on the basis we might have to 16 go to one half. 17 "2. Secretary of State will want to reflect on 18 the financial and policy aspects of the letter before he 19 writes. 20 "3. On finances, the position is that we have 21 already absorbed an extra £3 million for the 22 haemophiliacs as a consequence of higher costs and 23 numbers than expected. Nevertheless we can make some 24 further contribution if that is what Secretary of State 25 judges necessary to resolve the matter. There is 5 1 inevitably some uncertainty about the final outturn this 2 year but £6 million can be guaranteed if Secretary of 3 State is prepared to accept that this will use up all 4 his personal fund." 5 Just pausing there, what's the reference to the 6 personal fund, Lord Waldegrave? 7 A. There was a sort of small central fund to deal with 8 particular issues that came up from time to time smaller 9 than these, where I thought we needed to take action. 10 I've always thought in a department it's sensible to 11 have what the officials would have referred to as 12 a "back pocket", if there was something unexpected and 13 relatively small that could be swiftly dealt with. 14 Q. In relation to allocation from that personal fund, did 15 that require Treasury agreement? 16 A. I think it depended on the scale of it. It was a very 17 small fund. It was £1 million, perhaps. For example, 18 there were regular issues surrounding the arrival of new 19 and effective drugs that were very expensive, for 20 cancer treatment for example, and sometimes they came 21 unexpectedly, and one would probably have been able to 22 clear that at official level with the Treasury, say it 23 was a million or £2 million and just deal with it 24 quickly. 25 Q. Then continuing with the minute: 6 1 "4. We must also assume that Treasury would not 2 entertain any further bids on the Reserve for additional 3 cases. 4 "5. On policy, this extension of eligibility will 5 leave us with a less secure ringfence than for 6 haemophiliacs. We believe that two groups of people, 7 those infected with hepatitis and those treated with 8 human growth hormone, are currently preparing legal 9 action against the Department. Both groups will be able 10 to argue that like the HIV cases they were entitled to 11 expect safe treatment. And the hepatitis cases will 12 also be able to point to infection through blood. So we 13 will be more vulnerable than we now are on the no-fault 14 compensation issue." 15 Then we can see if we go further down, that's the 16 end of the minute. 17 So it looks from those two documents, 18 Lord Waldegrave, that by the end of November of 1991, 19 you had taken the decision, discussed it with Mr Heppell 20 and others, that the time had come to change the 21 departmental line and extend financial support to those 22 infected with HIV through transfusion. Do you have any 23 recollection of exactly how and when that came about? 24 Because, as I say, there's a dearth of documents really 25 between August and November. 7 1 A. No, I don't have any independent recollection, I'm 2 afraid. The only comments I can make are, of course, 3 that there are two things, there's one important thing 4 not in the documents which is that I had secured a very 5 favourable overall PES settlement for the next year. 6 It's not explained in these documents, but I did, and 7 I remember The Chief Executive of the National Health 8 Service, Duncan Nichol, saying, "Well, that will keep us 9 going for several years", and that, on the finance side, 10 made me a little more generally confident, I think. 11 On the other side, in the autumn there are party 12 conferences, there's much external work where we meet 13 many -- in the summer you meet constituents and so on. 14 So I think my own ideas, which had been clearly visible 15 earlier on, will probably have been firmed up in 16 August/September. 17 Q. Then that takes us to the final version of what I think 18 was probably the draft being referred to by Mr Heppell 19 in these minutes. And it's a letter you sent to 20 Mr Mellor, the Chief Secretary to the Treasury, on 21 2 December. 22 Lawrence, it is at DHSC0002921_009. 23 I'm going to read this in full because effectively 24 it provides, I think, the clearest indication of the 25 formal change of position. So: 8 1 "Dear Chief Secretary, 2 "Blood transfusion etc patients with HIV 3 "After last Thursday's Cabinet we had a word about 4 the continuing campaign on behalf of non-haemophiliac 5 patients infected by HIV in the course of treatment - 6 blood transfusion, transplant or tissue transfer - in 7 this country. 8 "I have looked very carefully at this. While I do 9 not think the strength of the case, or indeed its public 10 support, is the same as for the haemophiliacs there is 11 no doubt that there is considerable sympathy for these 12 unfortunate people or that a concession on our part 13 would be widely welcomed. By contrast if we continue to 14 refuse any help there is a real prospect that the 15 campaign will gather pace and become a damaging and 16 running sore over the next few months. 17 "My conclusion is that we should move now to 18 resolve the matter by recognising the needs of these 19 people and their families in the same way as we have 20 recognised those of haemophiliacs. We could do this in 21 one of two ways:- 22 "First, by giving them the same as we gave to the 23 haemophiliacs and their families in the out of court 24 settlement. 25 "Second, by also giving them the earlier help 9 1 provided to haemophiliacs including if we can arrange it 2 access to the original Macfarlane Trust. This help was 3 in practice, though not formally, taken into account in 4 arriving at the out of court settlement." 5 Over the page: 6 "If we take the first approach the estimated cost 7 is £10 million. The second would cost an estimated 8 £12 million and bring forward the time when the 9 Macfarlane Trust will need topping up. But the cleanest 10 way of resolving this is to go for the second and 11 I recommend we do that. 12 "A clean resolution will also mean dealing with 13 the cases without any intrusive investigation into 14 whether the infection may have arisen in another way. 15 We did not carry out any such investigation with the 16 haemophiliacs. But we will need to carry out some 17 validation of the cases falling into new categories, 18 though only as far as practicable and sensible. 19 "Applying those criteria to existing cases would 20 give us about 75 cases which arose in the 21 United Kingdom. 22 "The criteria will also mean accepting that there 23 is likely to be a handful of cases in future years who 24 will also be eligible for payment. 25 "As to the financing of this, I have already 10 1 topped up the haemophiliacs money by £3 million because 2 numbers and costs were higher than expected. 3 Nevertheless, I am prepared to pay a third of the £12m. 4 I hope that the other Health Departments will be able to 5 make a contribution in respect of cases arising in their 6 countries and that it will be possible for the treasury 7 to meet the balance from the Reserve. 8 "I am copying this to Peter Brooke, David Hunt and 9 Ian Lang." 10 And that's Peter Brooke, Northern Ireland, 11 David Hunt, Welsh Office, Ian Lang, Scotland. 12 So you set out there clearly to the Chief 13 Secretary your decision that the policy should now 14 change. In terms of the financing of it -- 15 A. Just -- 16 Q. Yes. 17 A. My hope that the policy would change; not entirely up to 18 me. 19 Q. Because you needed the money? 20 A. And permission, yeah. 21 Q. And the permission was the permission to spend money -- 22 A. Yes. 23 Q. -- even from within the Department's own budget? 24 A. Yes. 25 Q. Now, here you say you're prepared to pay a third, but 11 1 you're asking for a Treasury contribution from 2 the Reserve. Was that, as it were, an opening gambit in 3 terms of discussion? 4 A. Yes. Now, I have no direct memory of this, but I do 5 have direct memory of what I've just said, that we had 6 secured overall a good PES settlement. So the resource 7 across the Department was -- I'm not saying in those 8 tough times was, but it was a little -- it wasn't 9 relaxed, but it was a little more -- there was a little 10 more room for manoeuvre. 11 Now, I still thought that I should get some support 12 from the Reserve, and I had a go at that, but in the 13 end, as we know, I surrendered that point. 14 Q. If we can just pick matters up with an internal Treasury 15 minute, so not one you would have seen at the time. 16 HMTR0000003_043. 17 This is 3 December 1991. It's from Mr Dickson to 18 Mr Grice in the Treasury and to the Chief Secretary to 19 the Treasury, and we can see it refers in the opening 20 paragraph to your letter to Mr Mellor. 21 I'm not going to read through the detail of it. If 22 we could just go to the third page -- 23 A. Who's handwriting do we think that is? 24 Q. I think that's Mr Mellor's handwriting. 25 A. Thank you. I think that must be right, Yes. 12 1 Q. And I'm just going to come back to what has been said 2 there, I'll double check that. 3 A. I think that must be right. 4 Q. If we go to paragraph 8 we can see the recommendation to 5 Mr Mellor is: 6 "We recommend that you try to dissuade 7 Mr Waldegrave and colleagues from offering 8 a compensation scheme. It may seem attractive to him in 9 the short-term. But in the longer term, it could cost 10 much more by leading to a no-fault compensation scheme - 11 even if one restricted to medical negligence." 12 So the suggestion is Mr Mellor tries to talk you 13 out of it, if I can put it that way. 14 If we go back to the first page and just read the 15 handwritten entry: 16 "This is a longstanding dilemma. It is not 17 comfortable to deny compensation to this group when the 18 haemophiliacs can get it. But giving compensation to 19 them [would] mean another long stride down the slippery 20 slope to no-fault compensation generally. I am afraid, 21 therefore, our advice has to be against [it]." 22 I will check whose handwriting that is. 23 A. I think you're right. 24 Q. That's the internal response from the Treasury. Can 25 I then just pick up a handful of further Department of 13 1 Health documents before asking you a little more 2 generally about it. 3 So we get to DHSC0002931_005. 4 Now, this is a minute from Mr France, so it's from 5 the permanent secretary. 6 A. Sir Christopher, I think. 7 Q. Sir Christopher France, yes, sorry. 8 2 December 1991, to your Private Office. And if we 9 go down to the text of it, it says: 10 "1. I have seen Mr Heppell's minute of 29 11 November. I very much share his misgivings on the 12 policy case for a concession here (and the finance would 13 not be easy either). 14 "2. It is never very comfortable to resist claims 15 for compensation from those who have encountered major 16 problems through no fault of their own or anyone else. 17 But unless Government is prepared to draw a line and 18 stick to it, it will end up with a de facto 19 (very expensive) no-fault compensation system. 20 "3. The ringfence around the haemophiliacs is 21 bound to be attacked, but we are unlikely ever to find 22 a better one if we abandon it. The haemophiliacs were 23 doubly disadvantaged by their existing, hereditary 24 disease which already affected their position on 25 employment, insurance and the like. They can be 14 1 separate from other victims of medical accidents, but 2 the next defensible boundary is not easy to see. 3 I advise long reflection before we move further in to 4 no-fault compensation for medical accidents. Is this 5 really the most pressing marginal case for the 6 deployment of money from the health programme?" 7 Now, you've told us you would have regular 8 meetings, the top of the office meetings, with 9 Sir Christopher and others. This is, I think, perhaps 10 the only example we have of Sir Christopher putting his 11 views on this issue in writing. Does the fact that it 12 was set out in this formal way rather than simply being 13 conveyed to you in your weekly meetings a reflection of 14 the extent to which he was opposed to your proposal? 15 A. Yes, it's a very important intervention from him, which 16 I would have taken extremely seriously, as I did take 17 extremely seriously. I thought that, as I -- I won't go 18 over what I said yesterday -- that the ring-fence around 19 those infected with HIV/AIDS by the Health Service was 20 a much clearer and more commonsensical line to defend. 21 The Permanent Secretary and the Deputy Secretary, 22 Strachan Heppell, are both advising very strongly 23 against it. "I advise long reflection" means 24 "Don't do it". 25 I would have taken that extremely seriously 15 1 because Sir Christopher was doing his duty to put, as he 2 saw it, a case against a minister embarking on a piece 3 of expenditure that he thought might be wrong. It's not 4 far from the ultimate weapon that a permanent secretary 5 has of writing to the Public Accounts Committee, as 6 happened, for example, in the case of the Pergau Dam, 7 when Douglas Hurd gave foreign aid to Malaysia. That is 8 the ultimate thing, and it goes straight to Parliament. 9 Now it's not quite that, but it's only one step 10 down, so I would have taken this very seriously, and 11 that is why, after this, I took the trouble to get on 12 paper all the opinions of my other ministers, to see 13 whether they thought I'd gone completely mad. One of 14 them did, but the others didn't. 15 Q. We'll just look briefly at that, to complete the paper 16 trail, at DHSC0002537_063. 17 It's a minute of 5 December from your Private Office 18 to the Private Offices of your three ministers: 19 "The Secretary of State has noted the Permanent 20 Secretary's minute of 2 December to me, and would 21 appreciate your Ministers' views." 22 I think the date is wrong but I don't think 23 anything turns on that. 24 You've probably anticipated my next question in 25 your last answer. This seems quite an unusual step to 16 1 be formally seeking the views -- 2 A. Yes. 3 Q. -- of your ministerial colleagues, but it reflects 4 the fact that you had your Permanent Secretary and other 5 senior civil servants opposed to the suggested change of 6 line? 7 A. Yes. 8 Q. Then, as you say, in terms of the responses, 9 DHSC0002537_062, Baroness Hooper, PS(L), on 5 December, 10 her view coincided with that of Mr Heppell and with the 11 Permanent Secretary. So she says: 12 "I think we should hold the line however difficult 13 this may be. I am not aware of a sudden pressure via 14 correspondence or otherwise." 15 But I think the Minister of State and Mr Dorrell 16 really took, as it were, your side of the line. 17 So if we see DHSC0002938_004. 18 This is on 10 December and on behalf of MS(H) so 19 Mrs Bottomley. Paragraph 2: 20 "MS(H) commented that she has always been cautious 21 in this area for the reasons outlined in 22 Permanent Secretary's minute of 2 December. However, 23 given the current circumstances she supports moves 24 seeking a further explanation." 25 So Mrs Bottomley agreed with your proposal 17 1 essentially. 2 Then if we look at Mr Dorrell's response, PS(H), 3 DHSC0002537_242. 11 December: 4 "PS(H) has seen your minute of 5 December, asking 5 for his views on Permanent Secretary's minute of 6 2 December. He has commented 'Without enthusiasm I am 7 in favour of extending the concession to Blood 8 Transfusion etc, victims. The initial concession was 9 a political fix - this would simply redefine what is 10 essentially the same fix'." 11 It might be said to be a reluctant agreement, 12 but -- 13 A. Reluctant to -- I don't want to make a speech about this 14 but perhaps rather difficult today to enter into an SA 15 defending the trade of politics, but the -- I don't 16 regard "political" as a bad word in a democracy. It 17 means at its best that you have taken into account as 18 many views as you can and come to a decision. The trade 19 of politics should be and is an honourable one, so 20 certainly Mr Dorrell is using the word as a bit of a boo 21 word there, but I would have bridled at that a bit and 22 thought, and responded I think that the job of the 23 Secretary of State was to try to take into account all 24 the arguments put externally and internally and come to 25 a conclusion and if that's politics, that's politics. 18 1 Q. If we just pick matters up in your statement, please, 2 WITN5288001, if we go to page 88, paragraph 4125, you 3 say this, and it's referring to Christopher France's 4 advice: 5 "While I do not now actively remember seeing this 6 advice, I would certainly have done so at the time. 7 This was advice coming from (respectively) the 8 Permanent Secretary [Sir Christopher France] and 9 the Deputy Secretary (Grade 2) Civil Servant 10 [Strachan Heppell] heading the policy area, both of whom 11 that put their advice in formal minutes. The Inquiry 12 asks why I 'rejected' their advice. They were right to 13 warn me in the terms they did, and I would have taken 14 very serious note of their advice. I would have been 15 well aware of the dangers of widening the policy, and 16 their advice would - appropriately - have been 17 a forceful reminder of those risks. Ultimately, 18 however, it was for ministers to judge the balance of 19 risks. Here the balance was between trying to maintain 20 a distinction between haemophiliacs and blood 21 transfusion patients both infected with HIV by 22 NHS treatment which the 'court of public opinion' 23 rejected, versus the weakening of the defences against 24 pressure for no-fault compensation which we believed to 25 be an unacceptable outcome for the reasons (agreed by 19 1 Parliament) put forward in opposition to Rosie Barnes' 2 Bill. Such difficult judgements are I think the essence 3 of democratic government. Just as my senior officials 4 were right to warn, I think that the Government was 5 right to concede and run the risk on the no-fault 6 compensation concerns. As I was later to express it to 7 the Chief Secretary, I believed that it was politically 8 and morally the correct course. I was very aware of the 9 particular stigma and fear that surrounded AIDS at the 10 time, and I did see this as a potentially distinguishing 11 feature from other cases raised in the debate on 12 no-fault compensation." 13 The balance that you identify there, the balance 14 of risks being a matter for ministers to judge, 15 presumably -- and this is a more generally question, 16 Lord Waldegrave -- the more senior the Minister, the 17 easier or perhaps the less difficult it may be for that 18 minister to consider but reject the advice of senior 19 officials? 20 A. Yes, a Secretary of State should take great care. 21 Secretaries of State come and go, the officials have the 22 corporate memory of the Department, and are an 23 essential -- when it comes to the legitimacy of 24 spending, for example, they are the guardians of public 25 good. And they have, as I say, the Public Accounts 20 1 Committee route to go down. Now, this is not that case. 2 It's a matter where I balanced the risks differently 3 from them. 4 A Secretary of State is also, remember, not just 5 the head of his or her department but a member of 6 the collectivity of the Cabinet, of the Government, and 7 has a duty to look to the wider interests of the 8 Government as well as his own or her own department. 9 Q. And you say in your statement that, looking at the 10 documents, you think the initiative to change course was 11 probably your initiative? 12 A. Well, there were campaigners out there. 13 Q. Yes. 14 A. There were the redoubtable campaigners from Liverpool, 15 but I think it was, yes. 16 Q. And in terms of within Government -- 17 A. Yes. 18 Q. -- it was your initiative as Secretary of State? 19 A. Yes. 20 Q. Then I just wanted to ask you to look at what you say 21 about your thinking in paragraph 4.119 of your 22 statement. 23 So it's page 86, please, Lawrence. 24 You say, picking it up in the fourth line: 25 "The reality was that the combined increased 21 1 pressure in Parliament, (questions, motions and 2 debates), from the media campaign and from allied 3 correspondence, led me to judge that the government's 4 position was not sustainable. We had tried the policy 5 of holding the line/protecting the ring-fence and it was 6 not convincing public opinion or Parliament. The 7 increasing unpopularity of our stance was - in one 8 sense - useful because it was a lever that I could 9 deploy with the Treasury and others to try to change the 10 policy with which I had become uncomfortable, hence my 11 warning that, '... if we continue to refuse any help 12 there is a real prospect that the campaign will gather 13 pace and becoming a damaging and running sore over the 14 next few months'." 15 Is there anything you have to add to that, or is 16 that the best explanation? 17 A. Well, I think only -- I think the papers show that as 18 far as back as April and even earlier than that I was 19 uncomfortable with it before the public campaigning had 20 got going. The issue of campaigning and so on is one of 21 the things that a minister has to judge all the time, 22 because there are hundreds of campaigns going at any one 23 time. I remember as a new MP, I can't remember now what 24 the campaign was, but my constituency secretary said, 25 "We've got a huge campaign, we've had 100 letters on 22 1 something". We had 70,000 constituents, how do you know 2 whether that really represents ... So you have to try 3 to judge. I'm by no means diminishing campaigning, it's 4 a vital part of our democracy, but you have to judge. 5 I mean, I suppose the greatest -- by far the 6 greatest and most effective single-issue campaign of my 7 lifetime was one which we'll have to wait for my 8 grandchildren to judge whether it was right or not, 9 which was the Brexit campaign. 10 So one has to try to judge these things. 11 Campaigners are a vital part of democracy, but you 12 have -- they are one element to take into account. 13 Q. Would it be right to look at it in this way, perhaps: 14 one of the reasons why, in relation to this particular 15 issue, the campaign may have provided the tipping point 16 or given you the weaponry to take to the Treasury, was 17 because you yourself were not convinced of the 18 sustainability and logic of the underlying ring-fence, 19 the underlying -- 20 A. That's exactly right. I think I mentioned yesterday 21 that it says in one of the newspaper articles that one 22 of the campaigning solicitors took the same view: let's 23 get the haemophiliac matter settled and then we'll start 24 campaigning on the other one. Perhaps -- and now 25 I can't guarantee this from memory, but maybe I thought 23 1 in somewhat the same way. 2 Q. Now we saw reference to letters being copied to the 3 Scottish Office, Welsh Office and Northern Ireland 4 Office, and again, really for the sake of completeness 5 and because it's one of the few instances where we have 6 direct evidence of their involvement, if we can just 7 look at the communications from those ministers. 8 A. I think this was a much -- I -- perhaps because there 9 was more time, but there was a much better order in all 10 this, and I think I'd got them on side as allies. 11 Q. So if we start with the Scottish Office. 12 SCGV0000237_072. 13 This is 17 December 1991 and it's Ian Lang, 14 Secretary of State for Scotland, writing to Mr Mellor, 15 copied to you. He says: 16 "I have seen a copy of William Waldegrave's letter 17 of 2 December to you about those non-haemophiliac 18 patients infected with HIV in the course of treatment 19 and I support his proposals for a settlement. I too 20 would favour the second option of linkage with the 21 Macfarlane Trust as this is the cleaner solution. 22 "There is much public sympathy in Scotland for the 23 handful of cases here and much will be made if we 24 continue to present an unsympathetic response. These 25 unfortunate people will eventually be forced into Court. 24 1 At least 2 cases in Scotland have now applied for 2 legal aid and there could be damaging publicity at each 3 stage of the legal process. 4 "While it is difficult to estimate the total 5 Scottish costs it seems on present information likely to 6 be around £900,000. Like William, I would be prepared 7 to find a third of these costs if the Treasury would 8 meet the balance from the Reserve. An early decision in 9 principle on funding would be helpful." 10 So that's Scotland. 11 In terms of the Welsh Office, DHSC0002717_014. 12 2 January 1992, from David Hunt, Secretary of 13 State for Wales. He refers to having seen copies of 14 your letter and of Ian Lang's letter, and then says 15 this: 16 "I too would support proposals for a settlement 17 through the Macfarlane Trust and would be prepared to 18 make a similar contribution in the current financial 19 year if you are able to meet the balance from 20 the Reserve. On the basis of the costs in William's 21 letter, and in line with our contribution to the earlier 22 settlement, Welsh costs are likely to be around 23 £200,000. If you are able to agree our officials can 24 discuss how contributions should be made." 25 Then to complete the geographical picture, if we 25 1 go to HMTR0000003_047. We have here from the Northern 2 Ireland office, this is addressed to you, 27 December: 3 "Thank you for sending me a copy of your letter on 4 2 December to David Mellor about financial help for 5 non-haemophiliac patients ..." 6 Et cetera. 7 "I feel there is little public understanding or 8 sympathy for the Government's position on this matter 9 and that the campaign for a settlement is likely to 10 gather momentum in the months ahead. I would therefore 11 support the proposal to recognise the needs of these 12 unfortunate people and their families by settling on the 13 same basis as for haemophiliacs. 14 "I am pleased to say that we are not aware of any 15 non-haemophiliac patients being infected in the course 16 of health service treatment in Northern Ireland and no 17 costs would fall on our budget at present. If any such 18 cases do come to light in the future we would of course 19 be prepared to pay an appropriate share of the costs." 20 So it would appear that there was a joined-up 21 approach on this issue between the four departments? 22 A. Yes, I think the Treasury would have said the Secretary 23 of State for Health has squared away his colleagues, 24 annoyingly. 25 Q. Then if we just pick it up with the Treasury response to 26 1 you. 2 HMTR0000003_051. 3 This is 13 January 1992 from Mr Mellor. It refers 4 to your letter and to the letters from Ian Lang, 5 Peter Brooke and David Hunt, and then Mr Mellor says 6 this: 7 "2. I understand why you want to provide 8 compensation for this unfortunate group and 9 I sympathise. But I also have serious reservations 10 about whether it would be possible realistically to ring 11 fence any such compensation. There are a range of other 12 groups who have also suffered as a result of treatment 13 under the NHS where there is no question of negligence. 14 By compensating those acquiring HIV from blood 15 transfusion, we will be taking a further long stride 16 towards no-fault compensation in general. 17 "3. Virginia Bottomley put forward a good defence 18 of our current position in the adjournment debate called 19 by Gavin Strang on 20 December. It would be difficult 20 to reverse our position so soon after that clear 21 statement. 22 "4. But I also have to say that all this is 23 overtaken by the extent of doctors' and dentists' 24 overpayments in the current year. You will appreciate 25 that the latest news about the further overpayments to 27 1 dentists this year has come as a very unpleasant shock. 2 Your officials have now told mine that the gross 3 overpayment to dentists this year is likely to be 4 a staggering £8,000 per dentist at the very least. That 5 comes to well over £100 million which you will be 6 looking to me to provide from the Reserve. I have also 7 learned from officials that there will be claims for 8 overpayments this year for Scotland and Wales. 9 It brings the cumulative overpayment to doctors and 10 dentists to over half a billion pounds, more than the 11 total increases many colleagues received in their 1991 12 Survey settlements. 13 "5. In these circumstances, you leave me no room 14 to help you or the other health departments by providing 15 additional access to the Reserve for the blood 16 transfusion patients. I cannot, therefore, agree to 17 what you propose." 18 A. And I think there's an important point here, because 19 we're sliding about as to whether it's just access to 20 the Reserve -- 21 Q. Yes. 22 A. -- or agreement. I think he's saying no, which is what 23 he wrote on the minute. "I cannot agree to what you 24 propose". I think that means no. 25 Q. And so on any view he's clearly saying -- 28 1 A. No to the Reserve -- 2 Q. -- no access to the Reserve. 3 A. Yes. 4 Q. You understood this as also saying no in the sense of 5 you using the Department of Health monies? 6 A. Well, again, it's not a direct recollection unaided, but 7 I would have read that, I think, or my officials would 8 have read that as saying, "No, I cannot agree to what 9 you propose". 10 Q. Just picking up on the question of when Treasury 11 agreement was required to departmental expenditure, and 12 leaving aside what you said about the extent to which 13 perhaps modest payments from the personal fund could be 14 used without Treasury agreement, was it the case that 15 any expenditure from departmental monies that had not 16 been itemised as part of the bid and the annual 17 settlement had to get Treasury approval? 18 A. Well, if it had implications, certainly if it had 19 implications. Yes in principle. De minimis, really 20 de minimis, perhaps no. But where there were 21 implications, and there were implications here of 22 contingent liabilities and so on, as we learn later on, 23 that certainly you needed permission from the Treasury, 24 yes. 25 Q. And the reference there to contingent liabilities, that 29 1 as I understand it is a reference to the fact that 2 because there was uncertainty about the possibility 3 of -- 4 A. Yes. 5 Q. -- future claimants -- 6 A. Quite. 7 Q. -- there was a possibility of future expenditure, that 8 was something that had to be notified formally to 9 Parliament -- 10 A. Yes. 11 Q. -- and that's why Treasury approval would be -- 12 A. That would be an additional reason why they were unhappy 13 about this. 14 Q. If we then, I think, pick matters up -- there's an 15 internal Treasury minute, but that's not something you'd 16 have seen at the time, so for the transcript I'll just 17 give the reference: HMTR0005118_005. It's a minute of 18 the 5 [February] 1992 suggesting that the 19 Chief Secretary might agree if it was to come entirely 20 from Departmental funds. 21 If we can then look at DHSC0002585_017. This is 22 a minute from Mr Scofield to your Private Office, 23 6 February 1992, and we can see reference in the first 24 paragraph to the fact that there had been a meeting 25 between the Prime Minister and a group of senior 30 1 conservative MPs where Mr Major agreed to consider 2 further the question of financial help for people 3 infected with HIV. 4 There's reference to a request for a progress 5 report, and we've looked at this with Sir John Major. 6 There is then detail of how the money might be 7 found departmentally. I'm not going to read through the 8 details of that. 9 If we go over the page, if we pick it up under the 10 heading "Ring fencing" at the about of the page we can 11 see it says: 12 "Both the Prime Minister and Chief Secretary have 13 emphasised the need to establish a robust position on 14 ring fencing. This is difficult as a settlement now for 15 recipients of HIV-infected blood and tissue following 16 public clamour may well encourage claims from those 17 damaged by hepatitis, CJD or other medical accidents. 18 Ministers will be seen as susceptible to public pressure 19 if only it is intense enough. Ministers will be more 20 vulnerable on the 'no fault compensation' issue. On the 21 other hand if a line has to be drawn on which to stand 22 ground, the distinction between recipients of Factor 8 23 and whole blood is proving a very weak position to 24 defend and there is little public understanding or 25 sympathy for the Department's position. Compensation 31 1 for HIV infected patients from the non-haemophiliac 2 group would at least be limited to cases where 3 HIV infection, likely to lead to fatal illness, has been 4 brought about through NHS treatment." 5 Then if we go to the next page, paragraph 8 just 6 references how officials have been working on how 7 a scheme could operate, and then 9: 8 "If the Prime Minister does intervene to break the 9 impasse with the Chief Secretary, Ministers will wish to 10 decide when and how to make an announcement. There are 11 no new factors which can be drawn on to justify a change 12 of policies. Ministers may therefore have to say that 13 they are respecting the overwhelming wishes of Members 14 of the House." 15 A. And there is the clear understanding of the Department 16 of Health, which would have been my understanding, that 17 there was an impasse with the Chief Secretary. And the 18 Prime Minister, once again, came to my rescue as he did 19 before, and I think came to the rescue of the victims 20 concerned. 21 Q. And we can then, I think, see you wrote to the 22 Prime Minister, 7 February 1992: HMTR0000003_603. 23 We've looked at this with Sir John but perhaps worth 24 looking again briefly with you. So paragraph 1 refers 25 to the meeting that Sir John had had with Conservative 32 1 Party members. It refers to a meeting you had had with 2 MPs, and you refer to the strength of feeling the issue 3 was causing across all parties. 4 Paragraph 2 refers to the proposals you put to the 5 Chief Secretary and you say: 6 "... for reasons which I well understand, he did 7 not feel able to agree. 8 "3. However, given the mounting Parliamentary and 9 public concern, I believe we should reconsider my 10 proposals." 11 Then you set out three elements. Similar monies 12 as with the haemophilia scheme. You then propose 13 a panel to handle decisions on individual cases 14 determining eligibility. And thirdly, the undertaking 15 not to pursue legal action. 16 Paragraph 5: 17 "We must recognise the risk of weakening our 18 general opposition to no fault compensation. The Chief 19 Secretary is rightly concerned about this. But we shall 20 have to make plain we are responding, as with the 21 haemophiliacs, to very special circumstances but that 22 our general policy remains firm." 23 Then top of the next page you say: 24 "6. Given the other claims on my budget, I cannot 25 meet all the cost of around £12m. I can, however, find 33 1 £3m myself in this year and next, and would want an 2 equal sum each year from the reserve. Should the cases 3 be settled at a faster rate than I anticipate I would 4 hope to be able to use some of the second year's money 5 this year. 6 "7. I am copying this minute only to the Chief 7 Secretary." 8 Now, I think the Chief Secretary line of not using 9 the Reserve was maintained. 10 A. Mm. 11 Q. But is it your understanding, your evidence, that 12 effectively the intervention of the Prime Minister 13 enabled there to be agreement that the policy would 14 change but with the Department funding -- 15 A. Exactly. 16 Q. -- scheme? 17 And I don't think we need to go to the all of the 18 further documents but, again for the transcript, you 19 wrote to Mr Mellor on 12 February, it's DHSC0002582_003, 20 in which you explained you'd look at the programme to 21 work out where you would find the money from and there's 22 some additional correspondence on that which I don't 23 think we need to look at. 24 If we then come to the announcement in Parliament, 25 to complete the chronological picture, it's at 34 1 DHSC0003625_040. It's a written answer 2 17 February 1992, and if we just go down to you are 3 response to the question, you say: 4 "Pursuant to the reply of 14 November 1991 at 5 column 656; I have decided that the special provision 6 already made for those with haemophilia and HIV is to be 7 extended to those who have been infected with HIV as 8 a result of National Health Service blood transfusion or 9 tissue transfer in the United Kingdom. The payments 10 will also apply to any of their spouses, partners and 11 children to whom their infection may have been passed 12 on. The rates of payment are shown in the table. 13 Similar help will be available throughout the UK. 14 "The Government have never accepted the argument 15 for a general scheme of no fault compensation for 16 medical accidents, as such a scheme would be unworkable 17 and unfair. That remains our position. 18 "We made special provision for those with 19 haemophilia and HIV because of their very special 20 circumstances. It has been argued that this special 21 provision should be extended to include those who have 22 become infected with HIV through blood or tissue 23 transfer within the UK. I have considered very 24 carefully all the circumstances and the arguments which 25 have been put to us. I have concluded that it would be 35 1 right to recognise that this group, who share the 2 tragedy of those with haemophilia in becoming infected 3 with HIV through medical treatment within the UK, is 4 also a very special case." 5 Then over the page: 6 "The circumstances of each infected transfusion or 7 tissue recipient will need to be considered individually 8 to establish that their treatment in the UK was the 9 source of their infection." 10 The next paragraph then deals with the 11 establishment of the panel and the work on the mechanics 12 of dealing with claims. 13 The third paragraph explains that: 14 "Parliamentary authority for making these payments 15 will be sought through Supply Estimates and the 16 confirming Appropriation Act. On the basis of the 17 reported cases the estimated cost could be £12 million. 18 However, I cannot be certain about the cost, as numbers 19 of valid claims are not known." 20 And that picks up on the issue we picked up a few 21 minutes ago -- 22 A. Yes. 23 Q. -- the contingent liability, the future uncertain 24 liability. 25 A. Yes. 36 1 Q. "I share the great sympathy which is universally felt 2 for the blood and tissue recipients who have tragically 3 become infected thorough their treatment. Money cannot 4 compensate for this but I hope that the provision we are 5 making will provide some measure of financial security 6 for those affected and their families." 7 So we can see it essentially takes to 8 February 1992 for the position to be formally and 9 particularly changed. Looking back at it now, why did 10 it take that length of time and did it take too long? 11 A. Why it took that length of time, I think, was that it 12 took that length of time to overcome the arguments of 13 precedent, which were real. And I'm sure the 14 campaigners helped. But I think I found, and I believed 15 myself, thinking about it all the time, that there 16 just -- the HIV/AIDS ring-fence, if you like, was a far 17 more logical and stronger one because that was what had 18 driven my commitment to this case in the first place, 19 from personal experience and other experience, one knew 20 the stigma and all that. I won't repeat what I said 21 yesterday. 22 Could it have been done earlier and better? I'm 23 sure that, you know, someone could have done better than 24 I could, I'm sure. But I did manage to change both 25 policies within just about a year and I think that was 37 1 not too bad in the circumstances of the time. 2 So I can't really answer more than to say I did it 3 as quickly as I thought I could. 4 Q. And if we leave to one side -- you may say it's a big 5 thing to leave to one side, but the financial issue, the 6 issue of needing to secure Treasury agreement and to 7 persuade the Treasury, and just look at it as a matter 8 of principle. Was there ever a good reason for the 9 initial ring-fence excluding those infected through 10 transfusion? 11 A. Well, the original ring-fence had derived from way back 12 from '87 -- or not way back, some years back -- the 13 ring-fence then made around the haemophiliac case, which 14 had been made strongly. But that ring-fence had its 15 defenders to the end, as we've seen. I simply thought 16 that it wasn't the best place to put the necessary 17 ring-fence, and of course officials in my department and 18 in the Treasury were against moving -- very strongly 19 against moving at all, for reasons of the dangers that 20 they saw, which I don't think were fulfilled, but that's 21 for subsequent history. 22 Q. Now we've seen a couple of references in the materials 23 to the fear that moving the ring-fence may lead to 24 further campaigns or further claims, including for those 25 infected with hepatitis. And there were also references 38 1 to other cases, human growth hormone, and others. 2 I think it's right from the documents that during the 3 time you were at the Department of Health, neither 4 officials nor you gave any express consideration to the 5 provision of financial support for those infected in the 6 same way as the cohort we're talking about, blood 7 products or blood transfusion with hepatitis C? 8 A. No, that wasn't an issue brought to my attention. 9 Q. Can I then move rather more shortly to the question of 10 screening of blood donations for hepatitis C. I'm only 11 going to show you one document because this wasn't an 12 issue in which the documents came to your office. Just 13 to illustrate the issue, if we go to PRSE0004667, I. So 14 this is a document we've looked at in the Inquiry 15 already with other witnesses, 21 December 1990, it's 16 a submission from Mr Canavan to the Chief Medical 17 Officer and to PS(L), so Baroness Hooper. It's headed 18 "Hepatitis C antibody screening test: Advisory Committee 19 on the Virological Safety of Blood (ACVSB)". And you'll 20 see the recommendation in paragraph 2: 21 "It is recommended that screening should be 22 introduced as a public health measure. The other UK 23 Health Ministers are also being asked to improve the 24 introduction of screening in their transfusion 25 services." 39 1 So that refers again to Scotland, Wales and 2 Northern Ireland, I think. 3 Now you are aware now, I think, of, amongst other 4 things, the decision of Mr Justice Burton in a later 5 judgment. 6 A. Mm-hm. 7 Q. I'm not going to be asking you about the details of 8 that. But is it right to understand that this issue, 9 this issue about when screening for hepatitis C should 10 be introduced into the Transfusion Service, was not an 11 issue upon which you were asked to make any decision 12 during your time as Secretary of State for Health? 13 A. I certainly don't remember it, and the papers seem to 14 show that I wasn't involved. 15 Q. We can take the document down, thank you, Lawrence. 16 Other than the references we've seen to hepatitis 17 as something that can be transmitted and the potential 18 concern about the ring-fence, do you recall what your 19 state of knowledge was about the risks of hepatitis, 20 hepatitis C in particular, and its potential 21 seriousness? 22 A. I don't, I'm afraid. I do remember -- I mean it was 23 referred to there -- that there was a new strain. It 24 was because we referred to non-A, non-B for a long time, 25 there were new things being discovered, but I don't have 40 1 any direct knowledge of it, no. 2 Q. You told us in your statement, and we touched on it 3 yesterday, that in terms of the triggers for issues that 4 you might expect to come to the Secretary of State as 5 opposed to being dealt with by other ministers or 6 officials, one of those would be issues of major public 7 health concern? 8 A. Mm-hm. 9 Q. It might be said that making a blood supply safer by 10 introducing a test to prevent the transmission of 11 hepatitis C was an issue of major public health concern. 12 Does it surprise you, looking at it now, that this was 13 not an issue that was brought to your attention at the 14 time? 15 A. Well, reading the papers now, the initial decision taken 16 was an obvious one: let's get on with it, and they say 17 let's do it -- I can't remember, it'll be done by spring 18 or ... 19 Q. Something to that effect. 20 A. Then there's, I read, the issues about prototypes and 21 new kinds of tests and too many false positives and so 22 on and it doesn't arrive until September. Now, it's 23 impossible for me without really investigating that to 24 know whether all that was reasonable or whether the 25 junior minister or the officials should have raised 41 1 their hands and said there's something going wrong here. 2 I don't want to judge them without having much more 3 knowledge of that. 4 Q. And it's right to say that you have not been provided 5 with all of the copious documentation about the 6 Committee's decision making and which bits did go to 7 ministers and which did not because none of it was 8 brought to your attention at the time? 9 A. Mm. 10 Q. It's more just a general question. I'm not asking you 11 to pass judgement, because you haven't been provided 12 with the material and the Inquiry that other witnesses 13 have. It's just more the general question, and knowing 14 what you know about the Department about what were 15 matters of concern. Is the issue one that, given it's 16 importance in public health terms, should have come to 17 your attention at some stage as Secretary of State, do 18 you think? 19 A. I don't think the original easy decision to press on to 20 do it, that needn't have come to me because it was an 21 obvious decision to take on the advice given to the 22 parliamentary secretary and to the officials. If there 23 had been thought to be a serious muddle or mishap or 24 delay of some kind that needed the impetus of the 25 Secretary of State to sort out, that should have come to 42 1 me, but I don't see evidence for that in the papers. 2 I mean without -- in the papers I've seen. 3 Q. Can I then turn to a handful of broader issues. One of 4 the concerns about the establishment of precedent and 5 the impact in terms of the policy against no-fault 6 compensation was based on an assumption that there was 7 no fault involved on the part of the NHS or on 8 governments. 9 A. Mm. 10 Q. I think that's fair? 11 A. Mm-hm, yeah. 12 Q. Could the Department, the Government more generally, or 13 the NHS, know that there was nothing -- that there was 14 no fault -- leave aside legal liability -- no fault or 15 lessons to be learnt, nothing that could be done to 16 improve public health without undertaking some form of 17 investigation or inquiry? 18 A. It's a very difficult question to answer, that. The 19 press of continuing events mean that there's a limited 20 capacity to go back and review all the time previous 21 decisions, unless weighty voices had been saying that 22 there was a serious mistake earlier. If that had been 23 so, the whole approach to this would have been 24 different. But no such voices were heard by me at 25 least. 43 1 Q. And then the concept of reflective learning, it's an 2 important concept in the modern NHS, it's important for 3 healthcare professionals for NHS bodies. What about for 4 government departments, ministers and civil servants? 5 This is really a general question to you, 6 Lord Waldegrave, building upon your years in politics. 7 How can governments learn from mistakes, particularly if 8 they don't ever learn about them? 9 A. Well, if they never learn about them, they're never 10 going to learn from them, certainly. So going back to 11 my evidence to the BSE Inquiry, the necessary openness, 12 the necessary involvement of voices outside -- expert 13 voices outside as well as inside. In one sense it goes 14 right back to my first job in the Cabinet Office in the 15 central policy review staff, part of whose mission was 16 to try to take a step back and look at policy as it 17 developed and look both forwards and backwards and to 18 involve outsiders. 19 That is a very important aspect of the improvement 20 of government, I think. I wrote a minute then which 21 I found to my great alarm -- I was only 20 something -- 22 had been sent by my boss straight to the Prime Minister 23 saying "William Waldegrave has written the attached 24 minute saying we should be much more open about things 25 and give proper press conferences and publish much more 44 1 policy documentation". I found rather alarmingly that 2 Mr Heath had had this document from this very young 3 person on his desk. I don't know what he did with it. 4 But I have always believed in that. We've made 5 great steps since, and ... but I'm giving a rather poor 6 answer, I'm afraid, but the key, particularly in the 7 science heavy departments, is the involvement across the 8 board of expertise inside and outside the department, 9 which involves openness of policy analysis. Not policy 10 decisions. I'm a defender of the idea that ministers 11 and their immediate civil servants should be allowed to 12 discuss all issues in some privacy, at the time at any 13 rate. But what underlies policy in terms of factual 14 analysis and scientific analysis should be made as open 15 as possible. 16 Q. And then just picking up on that theme of openness, some 17 of the documents we've looked at might suggest a degree 18 of preoccupation with how to present decisions so as to 19 avoid criticism or fallout or adverse press comment or 20 adverse publicity. How does that fit with openness? 21 A. Well, it's difficult. We are a democracy. So all the 22 time you're in a conversation, an argument with the 23 public and with experts and with the opposition in 24 Parliament, if they're doing there job properly. So of 25 course you're looking to put your best foot forward and 45 1 to put your case in the strongest way, but you must 2 never stray over the line of suppressing things which 3 ought to be made available to make that debate a proper 4 debate. Easy to say but not always easy to judge at the 5 time. 6 Q. Governments -- I promise this is a question I drafted in 7 advance and not prompted by recent events -- governments 8 seem to find it sometimes hard to say, "We got things 9 wrong", and it could be said for example, announcing the 10 HIV transfusion decision in February 1992. A full 11 answer or full explanation, full press release could 12 have been "We drew a line here, in retrospect that was 13 a mistake, we're now rectifying that mistake". 14 Why is it that sometimes governments, departments, 15 ministers, find it so difficult to say something has 16 gone wrong, and do you have any reflections as to how 17 that could be altered for improved? 18 A. Well, in a relatively long and not always successful 19 political career, I suppose the problem is of any 20 adversarial system -- I don't know whether the same 21 exists in court, but our Parliament is a high court, 22 people say -- that if you say, "I got it wrong" the 23 other side says, "Well you're no use then, are you? You 24 just get things wrong". They very seldom say, "Well 25 done, you've admitted a fault" and it's gone to the next 46 1 argument. They simply say, "That fellow Waldegrave 2 admitted he got that wrong so he's probably getting this 3 wrong". 4 But there are times when you have to try it and the 5 greatest -- much greater politicians than I -- can do 6 it. And when it is inevitable, it must be done. 7 Because one thinks of the extreme situations in the War 8 and so forth, the British Government in the Second World 9 War on the whole admitted when things were going wrong, 10 and therefore retained the trust of the people for the 11 next stage. Those are great issues, far higher than 12 I was ever involved with, but the principle I think must 13 be the same. But it takes skill and confidence and very 14 good politicians of my time could do it. Say, "We got 15 that policy wrong but this is why we did it and this is 16 what we're going to do instead". 17 And sometimes they can take the public with them. 18 But it takes skill and it takes confidence to do that, 19 and you won't get any thanks from the opposition, 20 they'll say, "Well, you're just hopeless, you just get 21 everything wrong". 22 MS RICHARDS: Sir, those are the questions I was proposing 23 to ask Lord Waldegrave. If we could now take a break 24 and that can be our normal morning break, but that will 25 provide the opportunity for further lines of questions 47 1 to be suggested. 2 SIR BRIAN LANGSTAFF: Yes, certainly. 3 Let me explain. You may know already but if so, 4 forgive me for repeating it. 5 The Inquiry works because there are a number of 6 participants. Core participants are often represented 7 by legal representatives, and have a right through those 8 representatives to put questions for counsel to ask you. 9 Obviously they have to have a proper chance to do that. 10 That involves really the questions being formulated at 11 the end of what else you have had to say, because then 12 they'll know what might be missing. And to give that 13 a proper opportunity, we'll take a break. 14 If I say -- how long do you think you might need? 15 MS RICHARDS: Quite possibly only 30 minutes, but if we said 16 40 minutes I think that will undoubtedly be ample. 17 SIR BRIAN LANGSTAFF: Yes, so if we come back then, at 18 11.45 -- shall I say not before 11.45? 19 You'll be told if there's a need for more time. 20 And I can't tell you how long the session will be after 21 that. It may be short, it may be long; it depends how 22 many questions there are. 23 But that's what we'll do. So 11.45. Not 24 before 11.45. 25 (11.06 pm) 48 1 (A short break) 2 (11.54 am) 3 MS RICHARDS: Lord Waldegrave, because the questions I'm now 4 going to ask are specific questions put forward on 5 behalf of Core Participants, they won't follow 6 a particular chronological or thematic scheme, so we may 7 jump around a little from topic to topic. 8 The first question relates to the response to the 9 haemophilia settlement and the £42 million figure. And 10 I've been asked to ask you whether you were aware of 11 disquiet amongst haemophiliacs or The Haemophilia 12 Society on the level or size of the compromise? And 13 I think I can assist you to answer that question by 14 looking at a couple of documents. 15 A. I remember the press notice -- 16 Q. Yes, exactly. If we could have, please, Lawrence, 17 HSOC0012313, this is the press notice of 18 11 November 1990 issued by The Haemophilia Society: 19 "The Haemophilia Society today reacted with grave 20 disappointed to the announcement by the Government that 21 £42m is to be made available to people with Haemophilia 22 and HIV." 23 Then Mr Watters, the general secretary, is 24 recorded as observing: 25 "... 'We welcome the fact that the Government have 49 1 finally recognised a greater responsibility to people 2 with haemophilia and regret that by deferring that 3 decision for so long a great deal of [personal] anguish 4 and suffering has been caused to so many of our 5 members'." 6 And then there is recognition of the role of 7 Mr Major and you: 8 "'It is a triumph for a caring prime Minister and 9 Secretary of State for Health. John Major and 10 William Waldegrave are to be applauded for addressing 11 this problem so promptly - it is unfortunate the 12 settlement has been so low. 13 "'We are naturally very disappointed with the 14 level of the proposed settlement. It means that each of 15 the 217 claimants will receive an average payment of 16 £35,000'." 17 I'm not quite sure where that figure comes from 18 but, in any event: 19 "'This is a settlement which has been agreed 20 between both the claimants and the Government's lawyers 21 and is naturally one which we have to accept'." 22 Then it continues over the page but I'm not going 23 to read the rest of it. 24 I think it's right, that came to your attention -- 25 whether or not it was because of the press release, you 50 1 I think received a letter from Mr Watters? 2 A. Yes. 3 Q. And it essentially reflects the concern about 'would 4 have liked to have seen more money made available'. 5 I am not going to put that up on screen, it's DHSC 6 0003657_011. And you responded to that, and I think if 7 we put it up on screen and then I'll go back to the 8 question. That's DHSC0003119_006. 9 So this was your letter back to Mr Watters of 10 The Haemophilia Society, 18 February 1991, on the level 11 of the settlement you say in the second paragraph that: 12 "... the proposals put to us by the plaintiffs' 13 solicitors and which have been agreed in principle 14 provide a fair and reasonable resolution of the 15 litigation." 16 Then the fourth paragraph you say: 17 "I realise that no amount of money can ever fully 18 compensate for the tragedy that has befallen those 19 haemophiliacs with HIV, and that, as in any compromise, 20 the amounts made available may fall short of what may 21 have been hoped for. However, in total, the Government 22 has made available £76 million and ensured that 23 entitlement to social security benefits will not be 24 affected by these payments. We therefore believe we 25 have made very considerable financial provision for the 51 1 affected haemophiliacs and their families." 2 Now, I think it would follow, you were aware at 3 the time of The Haemophilia Society's view that the 4 settlement was too low? 5 A. Yes, they clearly would have hoped for more. 6 Q. And did that cause any pause for thought or reflection 7 or change of approach on the part of the Government? 8 A. Well, I think what dominated my mind at the time was 9 first of all obviously that the proposal had come from 10 the victims' lawyers, and secondly, some benchmarking 11 against what was happening in other countries, and that 12 I think led me and others to think that this was a fair 13 settlement, though clearly, as I say in the letter, not 14 compensation, but a fair and settlement which stood 15 reasonably well in comparison to other countries and to 16 what the lawyers themselves had suggested. 17 Q. If we just leave this on screen, because I'm going to 18 ask another -- 19 A. Just one other important point I think in that letter 20 and throughout. 21 Q. Yes, of course. 22 A. We do say in that letter that although this is an 23 out-of-court statement, we will however continue to keep 24 under review the amounts available to the 25 Macfarlane Trust, which is quite unusual in a settlement 52 1 of this kind. 2 Q. And that I think anticipates the next question I was 3 asked to ask you. You mentioned yesterday that there 4 was the agreement to pay the 42 million but the 5 possibility of additional money, and as I understand it, 6 that was a reference to the keeping under review the 7 monies that would be made available to the 8 Macfarlane Trust? 9 A. The Macfarlane Trust, yes. 10 Q. And then I was asked to ask you whether that was 11 announced in any form so that the plaintiffs or their 12 legal representatives would have been aware of it? This 13 is a letter to Mr Watters of the Haemophilia Society, 14 and the paragraph you've just referred to is the last 15 paragraph on this page. The last sentence where you 16 say: 17 "We will however continue" -- 18 A. I think we had made that clear, and I can't remember 19 whether -- without looking, whether it was in my written 20 answer, but it was certainly clear, I think, and 21 subsequent events showed that there were further 22 payments. 23 Q. And if we just go to your final written answer, when the 24 final terms of settlement had been agreed, that's 25 DHSC0002451_011. We can see this is the June 1991 53 1 announcement. And if we go to the right-hand column, 2 please, Lawrence. It's the fourth paragraph down, 3 I think. 4 I read this out yesterday, I think, but we see 5 there the reference to the 42 million and the reference 6 to the previous sum and then it says: 7 "We are also committed to ensuring that the 8 original Macfarlane Trust set up in March 1988 with 9 a Government grant of £10 million will continue to be 10 able to give additional help where there is special 11 need." 12 Now that's not necessarily completely clear, but 13 is that a reflection of what you'd said in the letter to 14 Mr Watters: the keeping under review payments to the 15 Macfarlane Trust? 16 A. Yes, I would certainly believe that to be so, yes. 17 Q. We can take that down. Thank you. 18 Next question picks up on the idea of corporate 19 memory. When Mrs Bottomley, Baroness Bottomley, gave 20 evidence, she referred to the turnover of ministers in 21 the Department of Health meaning there could be a lack 22 of corporate memory and I think you've referred today to 23 how the corporate memory is essentially held by 24 officials and the question I'm asked to explore with you 25 is does that mean there is a risk, or a greater risk 54 1 that officials might become entrenched in a view and not 2 be as open to considering new views? 3 A. That's a good point. Memory can be a fixed doctrine, 4 a house doctrine, if you like. I think there are two 5 sides to it. I think officials remembering past issues 6 and past arguments is a good thing, because ministers, 7 particularly, for example, in my case, come to their new 8 portfolio completely cold. But of course, you can get 9 an entrenched departmental view that it takes a strong 10 minister to change. So there's pluses and minuses. 11 I think forgetfulness is bad, but forgetfulness -- 12 but memory shouldn't merge into fixed doctrine, if you 13 like. 14 Q. In your evidence yesterday, you talked about how 15 a response to information from experts about emerging 16 public health issues could sometimes be: it's just 17 another scare, isn't it. 18 A. Mm-hm. 19 Q. And the question building on that is this: do you think 20 there was or is a tendency for politicians to hope that 21 things were not as bad as they in fact were, and then to 22 go on to hold this as an entrenched view? Or put 23 another way, is there an element of wishful thinking, of 24 hopping things will turn out all right? 25 A. I think there are different kinds of personality amongst 55 1 ministers. My children once gave me the Little Book of 2 Gloom by Eeyore for Christmas and then, forgetting they 3 had done that, they gave it to me again for next 4 Christmas, so I perhaps tend to the gloomier side. 5 There are some who are Tiggers. I think this perhaps is 6 true of the population at large. I think a certain 7 amount of Eeyore-ness is a good thing, however, I would 8 argue, because you need to try to imagine the risks that 9 there are out there, and pre-empt them if you can. But 10 one mustn't be too gloomy. 11 Q. Again, in your evidence yesterday, you referred to what 12 had happened in terms of the nature and scale of 13 infection from blood and blood products as being one of 14 the greatest catastrophes in the history of the Health 15 Service. Would that not on any view meet the threshold 16 for a public Inquiry and do you have any understanding 17 of why one was not ordered during the time you were in 18 Government? 19 A. Well, it didn't seem to arise in my time, because the 20 concentration was upon trying to find resource for the 21 victims in my time. I don't remember it being suggested 22 in my time, relatively short time, in office. I agree 23 with the implication of the question that a disaster on 24 this scale is a perfectly suitable one for a public 25 inquiry. 56 1 Q. The next question is about Government spending more 2 generally. In your experience, who really makes the key 3 spending decisions in government? Is it -- there are 4 three candidates in the question, you may have more -- 5 the Chancellor and Treasury, the civil servants with the 6 corporate memory, or the departmental ministers? 7 A. It's a bit of all three. I think I did say yesterday 8 that one has to remember that the continuing momentum of 9 government gives rather small room for immediate 10 manoeuvre. The Secretary of State for Health, it's 11 rather odd, in some ways, that we consider the 12 traditional great offices of state as being the Home 13 Office, the Foreign Office, and so on. The Secretary of 14 State for Health is responsible for a million employees, 15 for the biggest single organisation of health care -- 16 single unified of health care perhaps anywhere in the 17 western world. It is an immense task. Now, you can't 18 shift -- you can't come in and say, "We're going to 19 shift" -- I think the budget was roughly 30 billion in 20 my day -- "We're going to switch 5 billion next year to 21 this", it would have meant chaos across hospitals and 22 GPs and the whole of the sphere. You have only got 23 a little bit of room for manoeuvre to steer the great -- 24 I think Sir John used this analogy -- to steer the great 25 supertanker in a slightly different way. 57 1 Now, that doesn't mean and never should mean that 2 you can't set priorities and change them, but you can't 3 change them overnight. 4 Now, coming back to the question, who controls 5 this? Well, history, if you like, controls a lot of it. 6 Where you start. You have the Health Service that you 7 have, doing what it's doing when you were Secretary of 8 State for Health. You can't tell those million people 9 "You're all going to be doing something different 10 tomorrow". Chaos ensues. 11 But you can steer it. 12 Now who has the responsibility for steering it? 13 A government, a strong government that comes in with 14 a mandate will help to steer it very much, because the 15 civil servants will say "You have a democratic mandate 16 to do this" and they will start preparing it and 17 shifting it. The department that you're trying to shift 18 will say, "Are you quite sure? We've been doing this 19 way before, that will mean less of this and more of 20 that. Are you recognising that it means less of this 21 when you demand more of that?" Those are legitimate and 22 important points to raise. If you're well founded in 23 your change of direction as a minister, you'll be able 24 to -- you must win it through. But you must also have 25 the support of the officials in the Treasury. The 58 1 Treasury is organised in the Chief Secretary's 2 department and the spending departments with having 3 little -- very high powered but very small shadow teams 4 that shadow each department. And if they are not 5 convinced either that the Government knows what it's 6 doing by shifting to this new priority or they think 7 it's wrong, they will try and stop you. You will then 8 have to persuade the Chief Secretary and if you can't 9 persuade him, you go to Cabinet and Chancellor and other 10 ministers would be involved. 11 So it's all three, I think. But I'm one of those 12 who is very averse to the idea that civil servants just 13 overrule ministers all the time, and when you hear 14 a minister blaming the Civil Service, it's because the 15 minister doesn't know either -- either doesn't know what 16 he or she wants, or doesn't know -- doesn't clarify it 17 enough. 18 The proof of that is that I was part of the 19 introduction of a very bad policy under the Thatcher 20 Government: the Poll Tax. I had a part in that, in the 21 design of that. It was a very bad policy, I think, but 22 it was put to the electorate, it was pursued in all 23 sorts of ways. The Government came in with a mandate to 24 do it after the election. The civil servants did it to 25 the best of their availability, though I think, to a man 59 1 or woman, they thought it was the wrong thing to do. 2 So if you know what you want to do, you can get it 3 done in government and blaming the civil servants is 4 a cop-out. 5 Q. The next question, and this goes back to the 6 HIV Litigation and the particular position of Scotland, 7 if you need me to take you back to any of the documents, 8 I will, Lord Waldegrave, but I think probably we can 9 deal with this without looking at them. Do you agree 10 that the Scottish haemophilia litigation and the 11 position of the Scottish litigants was something of an 12 afterthought in the settlement negotiation process? 13 A. I think that probably is a fair characterisation. We 14 sorted it out afterwards satisfactorily, but it hadn't 15 been considered before. I think as I said before, the 16 principal reason for that was the speed with which 17 things were moving. 18 Q. Now, you've talked about the importance you attached in 19 your thinking and your decision making to the advice 20 that you were receiving, the legal advice you were 21 receiving about the merits of the case, and of 22 respective merits of the case. I think the 23 documentation suggests that the litigation in Scotland 24 was at a less advanced stage. 25 A. Yes. 60 1 Q. Does that, combined with the way in which the 2 negotiations took place, mean ultimately that in the 3 overall settlement, no separate consideration was given 4 to the merits or potential legal merits of the Scottish 5 litigation? 6 A. I don't -- well, I have to be careful, because I haven't 7 seen many documents of the Scottish Office, but Ian Lang 8 is an extremely conscientious minister, Secretary of 9 State, and I'm sure that if serious and difficult issues 10 had arisen in Scotland, although it would have caused 11 grave difficulties if they were going to arrive at 12 a position seriously different from the overall UK 13 position which John Major and I had announced, they 14 would have been considered. So I can't really answer in 15 detail, but I would be very surprised if the Scottish 16 Office then hadn't -- wouldn't have raised them. 17 I recall from the papers, complicated issues about 18 category G people, for example. I think there was 19 consideration given carefully to these issues. 20 Q. You've explained, as a matter of fact, that the issue of 21 giving any form of financial support to those infected 22 with hepatitis C was not something which you gave any 23 particular consideration to. The question I've been 24 asked to raise with you is why that was the case. Why 25 do you think that the Department, that you were not 61 1 looking at the position of those infected with 2 hepatitis C, given that, in parallel, the Department at 3 least was aware that the issue of screening was under 4 consideration in recognition of the fact that this was 5 a serious condition? 6 A. Mm. I can't give a real answer to that, because the 7 issues just never came before me and I think if I start 8 to make up plausible arguments, I shall not give a good 9 answer. 10 Q. The next question is this: if the litigation had not 11 settled and had been fought to trial and the plaintiffs 12 had succeeded, from which pot would the damages and 13 costs have come; Department of Health, Reserve or 14 somewhere else? 15 A. A lot of ifs, but they would have probably come from 16 the -- I don't know. I'd have to think of whether -- 17 I don't honestly know. Depending how much it was and so 18 on, I imagine the Secretary of State for Health, having 19 lost that case -- if it had gone to court and we'd lost 20 and there was some very large bill, I would certainly 21 have tried to get it from the Reserve, I'm sure. But in 22 other cases, of course, smaller cases where -- because 23 there were negligence cases that were won against the 24 Health Service all the time, they normally came out of 25 the budget of the Health Service under Duncan Nichol. 62 1 But I think if there'd been a huge defeat like that, new 2 money would have had to be found from somewhere and 3 probably the Reserve. 4 Q. Is there room in Government -- this is the next 5 question, entirely unrelated question -- for some form 6 of devil's advocate to challenge and test received 7 wisdom, particularly where there is a risk of groupthink 8 and entrenched views? 9 A. Yes. And there's been a development in recent years on 10 this, it seems to me, if I understand it rightly, by the 11 establishment -- they're always referred to in the 12 newspapers as tsars, I don't know why, particularly as 13 they're mostly tsarinas. But independent -- they're 14 Civil Service offices, but they're independent 15 commissioners with a championing -- championship right. 16 My youngest daughter works with the Children's 17 Commissioner. I think those are rather good 18 developments, where they're part of Whitehall but 19 they're independent and they're meant, as I understand 20 it, to raise the issues for their area. 21 So that's one way of meeting that rather sensible 22 suggestion which has happened in recent years. There 23 may be more to be done in that way. 24 Parliament is of course supposed to do it, and 25 there are wonderful MPs, the great Frank Field in the 63 1 course of his long life has been a wonderful campaigner 2 for a whole range of issues. My late friend Tam Dalyell 3 was a one-man campaigner on all manner of issues and 4 representative of all manner of unpopular causes. So 5 there are great MPs who do this. But I think the 6 institutionalisation of it in the Commissioners is 7 probably a good step. 8 Q. The last question is this: we've explored in some detail 9 how, as a matter of fact, the decision making was taken 10 both in relation to the settlement of the HIV 11 Haemophilia Litigation and then to the extension to the 12 ring-fence so to speak to provide financial support to 13 those infected through transfusion, and you've talked 14 about response to campaigning, and a sense of a moral 15 case, there were the financial, reputational 16 considerations and so on. Were there any underlying 17 principles guiding the Department to shape decision 18 making about who might get financial support and who 19 might not? 20 A. Well, one has to remember of course that they were 21 responsible, the Department was responsible for the 22 whole of national health care and there were thousands 23 and thousands and thousands of other responsibilities 24 that they had to ensure. I gave the example of one that 25 was always coming up and causing problems and causing 64 1 huge press campaigns sometimes, which was new drugs. 2 Very expensive often, coming from America, but often 3 promising great benefits. 4 And what were the principles? Well, the 5 principles -- can I say this: I think that most of the 6 officials in the health department were there by choice. 7 They wanted to work in health care, particularly more 8 senior ones. They had some steerage over where their 9 careers go. They were interested in the issues of 10 public health and they were very knowledgeable about 11 them and they worked all hours of the day and night 12 trying to advance them. I think their principles were 13 what one would have thought: how do we do the best for 14 the public health of the country with the limited amount 15 of money we've got? 16 I don't know whether that's a very good answer, 17 but it's the nearest I can give, I think. I don't think 18 there was any separate morality. I don't believe in a 19 separate morality of government. There isn't such 20 a thing as a raison d'état, there's just morality. And 21 there was no such thing as a separate morality for the 22 Department of Health, it was trying to do its best with 23 all the always limited resources for the health of the 24 nation, which is what we called our campaign, and on the 25 whole, they did it conscientiously, I think. 65 1 Q. Would it, having regard to the material we've looked at, 2 be right to understand, then, that obviously there were 3 cases where there might be negligence and legal 4 liability and so compensation might follow in those 5 cases, there was the policy against no-fault 6 compensation. 7 A. Mm-hm. 8 Q. Then, in terms of the circumstances in which the 9 Department might provide financial assistance of some 10 form to those who didn't fall into the category of 11 establishment of legal liability, that there were no -- 12 there was no established policy or principle guiding -- 13 A. I see what you mean. 14 Q. -- how those decisions would be taken. It was 15 a response, on a somewhat ad hoc basis, to -- 16 A. I think so, because there were quite different kinds of 17 considerations which merged. For example, there had 18 been the vaccine-damaged children case, where there was 19 the overriding importance of maintaining the confidence 20 of people in the vaccine programme, and that if 21 confidence waned, there would be measurable deaths, and 22 the risk -- it was an easier risk calculation in a way. 23 And that's brought home to me by, when I was Secretary 24 of State for Health, we had the first year ever, 25 I think, when no child died of measles. That is no 66 1 longer so because of disgraceful attacks on the 2 MMR vaccine. So -- and so what I'm saying, in an 3 elaborate way, is I think they were right to deal with 4 the vaccine-damaged children. But it was a different 5 kind of issue than -- so rather difficult to predict. 6 I think you couldn't make a sort of paradigm which 7 would fit every case. It's back to what I tried to say 8 yesterday, that I think that's the job of the Secretary 9 of State, to look at the cases and say: this is one 10 where you've got to do something special. 11 Q. And then, sorry, this is, I think, the final question, 12 it's one I omitted to ask a few minutes ago and meant 13 to, it just goes back to the nature and timing of the 14 announcement that was made by John Major and by you on 15 11 December 1990. Did you understand when the 16 announcement was made that it would be taking place in 17 circumstances which would lead to many of the individual 18 plaintiffs learning for the first time of the proposals 19 from the media? 20 A. Um, I knew that the proposals had come from the 21 plaintiffs' counsel and lawyers, and that there'd been 22 interaction with the steering committee. So that 23 I knew -- we all knew, I think -- that not every victim 24 had been informed of what the lawyers for the plaintiffs 25 were recommending. If that's an answer to that 67 1 slightly -- slightly roundabout answer to that question. 2 But I suppose it's inevitable that they would, in the 3 speed with which we moved, have heard about it in many 4 cases from the media, yes. 5 Q. Having regard to that, and what might have been 6 the impact upon individuals finding out about 7 the proposals only in that way, almost, as it were, 8 a deal done behind their backs, it might be seen by 9 some, do you think, looking back, that the Government 10 may have jumped the gun in making the announcement when 11 they did? 12 A. No. I would go back to what I said yesterday, 13 that I believed that there was a moment in time where 14 a deal was doable, which was, in the terms of the time, 15 a fair deal, and that if we missing that opportunity, 16 we'd be back in a situation -- the awful situation of 17 just proceeding on to litigation and nightmare. 18 MS RICHARDS: Sir, those are the questions I am proposing to 19 ask from those put forward by Core Participants. 20 I just want to check -- Ms Grey has no questions 21 of her own. 22 Questions from SIR BRIAN LANGSTAFF 23 SIR BRIAN LANGSTAFF: I just have one area to ask you about 24 and it really arises out of your reflective comments at 25 the very end of the questioning before we had the break 68 1 this morning, coupled with your description of 2 yourselves as an Eeyore more than a Tigger, and it's 3 this: does part of your idea that there should be 4 openness and policy analysis by Government extend to 5 what might colloquially be put as "the Government being 6 straight with people" in the information it gives? 7 A. Of course, yes. I think that the loss of confidence in 8 Government, if people question the data -- they may 9 question the policy analysis built on it but if they 10 think the Government is, to use a straightforward word, 11 lying to them about the data, then that is a very 12 serious matter in a democracy. 13 SIR BRIAN LANGSTAFF: Accepting that, there may be matters 14 short of lying. Let me give you one example which may 15 yet come to me for final decision. There is material 16 before me in relation to this Inquiry which means or 17 might mean, it's evidence to the effect that, by 18 March 1982 it was known that there was a possible risk, 19 a possible cause of AIDS was transmission by blood. 20 By the middle of 1982 it was regarded as 21 a substantial possibility to the extent that it might 22 well be thought to be the likeliest cause. By the end 23 of 1982 the general consensus seems to have been, on the 24 evidence as so far before me, and reflected in the 25 medical press at the time, that it was perhaps indeed 69 1 the likeliest cause, and that went on strengthening. It 2 was the view we were being told by Dr Walford of the 3 Department. 4 When ministers referred to the risk of getting or 5 the possibility of transmission by AIDS, what was said 6 was, and no more than, there was no conclusive proof 7 that blood transmitted the cause of AIDS. 8 It may be submitted to me at the end of the 9 Inquiry -- the Core Participants have a chance to make 10 submissions -- that that was a deliberate obfuscation of 11 the truth -- they may go that far. It might be said by 12 the other side that it was deliberately chosen words so 13 as not to be technically untruthful, because 14 "conclusive" is a strong word, no conclusive proof. But 15 to avoid panicking the public. What would your reaction 16 be to that? 17 A. My first reaction is that I'm glad, Sir Brian, 18 that I don't have to make the judgment. I would again 19 have to immerse myself. I want to be careful not to 20 appear, on the basis of really no firsthand 21 investigation, to condemn anybody. But it's a very 22 difficult judgment ever to say in science that something 23 is certain. And it's that difficulty which I think 24 affects quite a lot of -- I remember my colleague 25 John Gummer being much criticised at the beginning of 70 1 the BSE crisis for having been filmed giving his child 2 a hamburger. I thought the criticism in a sense was 3 unfair. He was saying this is certain as far as we 4 know, and it's certain to the extent that I am behaving 5 with my own family as if it is certain. I know no one 6 wants to involve one's children's within politics, but 7 he was tying to make the point that it was reasonable 8 within certainly the bounds of action. 9 But I think those judgments around probability and 10 certainty of science are one of the most difficult areas 11 any minister has to face, and I'm not sure I can give 12 you a better answer than that without myself spending 13 the energy to look back at what they were -- what the 14 situation was then. 15 SIR BRIAN LANGSTAFF: But the principle which I should 16 apply, as you would see it, would be that a government 17 should be open, as far as its analysis is concerned, and 18 shouldn't hide any facts from the public. 19 A. Yes. What you can't do, what you shouldn't ever do, 20 I think, is hide the scientific analysis that is coming 21 to you. Because they will be -- the government has very 22 good scientists working for it, but sometimes scientists 23 outside will say -- will want to say, "You've got the 24 balance wrong", or, "You've made a mistake", or, "There 25 are other considerations here". You've got to protect 71 1 yourself against that. And it goes a little bit back to 2 what we were talking about earlier, about being willing 3 to make mistakes. In this area of factual analysis, 4 you've got to follow the great saying of Maynard Keynes: 5 "When the facts change, I change my mind." 6 SIR BRIAN LANGSTAFF: Thank you very much. 7 MS RICHARDS: Lord Waldegrave, was there anything that you 8 wished to add? 9 THE WITNESS: Yes, briefly. 10 I'm grateful and impressed by the questions coming 11 from the Core Participants. Perhaps I could say a few 12 words which are really directed to them as much as to 13 anybody else, which is to say this: that in the 14 18 months or so that I was Secretary of State for 15 Health, I did not find anybody, in my judgment, either 16 of those I agreed with or those who very vehemently 17 disagreed with me, who did not act in good faith. We 18 were wrestling with difficult problems and I believe 19 that the decisions we took, whether right or wrong, were 20 taken in good faith. 21 Second, we did change the policy, in the teeth 22 of -- to pay what was then seen -- and I certainly take 23 the question that was put to me as whether this is 24 adequate, but was -- then seemed a fair settlement at -- 25 in the terms of the time. I'm glad that the door 72 1 remained open for further support, and I'm very glad 2 that this Inquiry may be able to do a great deal more. 3 But I think we were right in what we did then, and I am 4 also pretty sure that it wouldn't have happened without 5 a kick or two from me. 6 Finally, and this goes, Sir Brian, to what you've 7 been saying, I think, that the confidence which we all 8 need to maintain in our Health Service is best served, 9 in the light of tragedies like this, by openness about 10 the causes of them. Because only if we take the steps 11 to reassure people that we've learnt the lessons will 12 that vital confidence be maintained. 13 Could I finally say, Sir Brian, on a completely 14 different note, that I'd like to have on record thanks 15 for the efficiency and courtesy of the staff of the 16 Inquiry, and, if I may name one person, of Laura. 17 MS RICHARDS: Thank you, Lord Waldegrave. 18 Sir Brian? 19 SIR BRIAN LANGSTAFF: I can simply say, first, that Laura 20 fully deserves what you've said publicly about her, and 21 I simply recognise that now she may be listening and 22 blushing. If so, it's appropriate. 23 But can I in particular thank you for your 24 evidence. You've given us, I think, a fascinating 25 insight into how policy can be made by one person having 73 1 an idea as to what is right and what is not, and how 2 that idea can be progressed through to a conclusion and 3 the various different pressures that lie upon it, to the 4 turning of the supertanker or the adjustment of the 5 steering wheel, as you've described it. So thank you 6 very much for that fascinating insight. 7 MS RICHARDS: Sir, tomorrow we have a presentation on the 8 role of the Chief Medical Officers, particularly in the 9 1980s. 10 SIR BRIAN LANGSTAFF: So tomorrow, ten o'clock. 11 (12.35 pm) 12 (The hearing adjourned until 10.00 am the following day) 13 14 15 16 17 18 19 20 21 22 23 24 25 74 1 I N D E X 2 LORD WILLIAM ARTHUR WALDEGRAVE .......................1 3 (continued) 4 Further questioned by MS RICHARDS .............1 5 Questions from SIR BRIAN LANGSTAFF ...........68 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 75