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From whom was the BPL rescued by its use of Crown immunity? First, of course, it was rescued from those afflicted and bereaved by the disaster. At a stroke they were denied any right to legal redress, a denial made all the more cruelly unjust by the refusals of successive Governments to hold a public inquiry. They were left with no hope of any independent assessment of where responsibility lay for their plight until the Archer inquiry was announced. Of course, the BPL itself was rescued from any danger of censure by the courts.
Crown immunity was abolished by John Major in 1991, and the afflicted and bereaved ask why, since the present Government clearly have no intention of reinstating Crown immunity, they cannot now review the claims of those from whom the BPL was rescued by that immunity.
The noble Lord, Lord Thomas of Gresford, who is much respected here and outside the House for his role in this policy area, said in a speech on 23 April that it would be possible for actions to be brought now if, dating back as necessary, the Government chose to waive Crown immunity. Thus the question today is whether the Government, opposed as they must surely be to restoring Crown immunity, have considered this possibility or will now do so.
At the very least, Ministers could review the claims, where it is still feasible to do so, of the victims of contaminated NHS blood from whom the BPL was rescued by Crown immunity. If anyone thinks there is no way now of our being able to do any more to help the afflicted and bereaved, they should look at how the Irish Government found ways of compensating victims there by more than anything even contemplated by Ministers for NHS-infected patients.
Let me first, however, make it absolutely clear that the Government of the Republic did not, as stated in this House by my noble friend Lord Warner, briefed by and speaking for the Department of Health on 25 March 2004,
- "set up their hepatitis C compensation scheme following evidence of negligence by the Irish blood transfusion service".-[Official Report, 25/3/04; col. 796].
Again, it was wrong for the Department of Health to have briefed my honourable friend Gillian Merron MP to tell the House of Commons that,
- "a judicial inquiry in Ireland found failures of responsibility by the Irish blood transfusion service",
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and that the Government of the Republic,
- "decided to make significant payments to those infected". -[Official Report, Commons, 1/7/09; col. 130WH.]
Brian O'Mahony, chief executive of the Irish Haemophilia Society, who was personally involved in the negotiations with the Department of Health and Children in Ireland in 1994 and 1995 which led to the establishment of a Hepatitis C Compensation Tribunal on a statutory basis on 16 December 1995, has written to me to say that my honourable friend's statement to the House of Commons was "misleading and erroneous".
He goes on to say that the Compensation Tribunal heard its first cases in early 1996 and that the first award for persons with haemophilia was made in March 1996. He concludes:
"Therefore the establishment of the Hepatitis C Compensation Tribunal, and significant payments by the Tribunal, pre-dated the setting up of both the Finlay Tribunal established in October 1996 and the Lindsay Tribunal of Inquiry set up in September 1999".
I also have a letter from Kay Maher of the Republic's Department of Health and Children confirming Brian O'Mahony's statement, which concludes:
"I hope this will serve to clarify the sequence of events in Ireland for Ms Merron and I trust that her department will now correct the record".
I look forward to hearing the department's response to that extremely important request.
To conclude, I want briefly to mention two further issues. The first is treatment by the Department of Health of the Archer inquiry's call for help in securing the financial future of the Haemophilia Society, faced as it is by ever increasing requests for assistance while, at the same time, trying to cope with the punitive 70 per cent cut made recently in its government grant. That the inquiry's call has not already been met appals noble Lords in all parts of the House. I am especially grateful to the noble Baroness, Lady O'Cathain, for her active support on this issue.
Finally, I want to make it clear in today's debate that sadly, as well as anguish and despair, there is evidence now also of anger in the haemophilia community about the treatment of the Archer inquiry and its report. It was five weeks ago that a then terminally ill, now deceased, haemophilia patient who gave evidence to the inquiry said to me: "While we crossed the whole of Britain to meet the Archer inquiry, Health Ministers refused even to cross the road to do so".
In the interests of creating hope in place of anger, let me assure the haemophilia community as a whole that it has in this House both a ready understanding of its despair and an unbreakable resolve that if this struggle has to go on, then go on it will until right is done. I beg to move.
11.46 am
Lord Archer of Sandwell: My Lords, not for the first time, I congratulate my noble friend Lord Morris, not only on securing a place for his Bill and the clarity with which he introduced it-so making possible this debate-but on his unflagging concern and support over many years for the victims of misfortune. They can have no better champion. With the campaigning skills of the strategist and the unrelenting determination of the bulldog, my noble friend well deserves his
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It is sad, as my noble friend said, that he should need to employ those qualities today. His Bill is intended to implement the recommendations of our report, which was published, as he said, nine months ago. The Government have already published their response on 20 May. If my noble friend's Bill proceeds to Committee, I hope we will be able to discuss in detail some elements of that response. We are grateful that there was a response, but it is disappointing that it came with no previous discussion on a "take it or leave it" basis. I am aware that there have subsequently been meetings between Ministers and the Macfarlane Trust, and between Ministers and a cross-party group of concerned colleagues. We had hoped that it might at least have been possible to establish a more sustained dialogue. Perhaps my noble friend on the Front Bench-who we are delighted to see with us again and to whom I pay tribute for her readiness to discuss these issues-might take back that suggestion.
Second Reading is not an ideal vehicle for discussing details, but here it is the detail which conceals either the devil or the archangel. Our first proposal was for a statutory committee to bring together clinicians, researchers, scientific assessors, social workers, officials from the Department of Health and-most importantly-patients, so that all the expertise and experience could come together and there could be an ongoing dialogue. The response is that something of that nature already exists. The Haemophilia Alliance certainly brings together doctors, the Haemophilia Society and others involved in haemophilia care. The response announces proudly that:
"We will invite the Alliance to meet with Government twice yearly".
Twice yearly. We had hoped that there might be a committee provided with a standing secretariat, which would conduct an ongoing dialogue and which could react to new discoveries and new problems on an ongoing basis, whereby those concerned would come to know one another as colleagues. There are models enough for such an arrangement in many other countries.
It brings me no joy to say this, but we did not form the impression that patients feel represented and that they have the ear of government. They feel that their concerns pass unnoticed and that their voices are not listened to. Even the Haemophilia Society does not appear to us to perceive the Department of Health as a committed partner. Indeed, as my noble friend said, the evidence from the society at the time of the inquiry was that it was so unsure of its financial future that it could not guarantee its continued existence. Happily, the Government in their response to our report commit themselves to a subvention of £100,000 per annum for the next five years, together with certain other funding from the department. But will there then be a further period when the society feels that the Government have ceased to listen?
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I do not believe that the Government are stonily unsympathetic or that that they are stronger on words than intentions. They have many things on their minds. Tragedies come and go, and good intentions are swallowed up by the next claim on their attention. Perhaps I may be permitted a quotation. The European Association for Haemophilia and Associated Disorders-abbreviated, thankfully, to EAHAD-in a recent paper had this to say:
"Clinicians and patient representatives should be part of national and/or regional haemophilia care decision making in partnership"-
- "with ministries of health and social affairs, as well as those organizations that deliver haemophilia care".
Those words now have the endorsement of the World Federation of Hemophilia and the European Haemophilia Consortium.
Of course, it would be absurd to suggest that nothing is being done. There is a network of provision for those who suffer from haemophilia and those infected with hepatitis or HIV. But the problem with a network is that some people fall through the holes, particularly where they have grown, piece by piece, over the years. They are often brought to the attention of those who can address them, if at all, only by the kind of systematic ongoing dialogue which we try to suggest.
One instance is well known, and has been referred to by my noble friend. It has never been addressed. The Skipton Fund was established in 2003. It may make payments, inter alia, to the dependants of people who have died from infection with hepatitis C, but the scheme was not made retrospective. Therefore, the dependants of those who died before 29 August 2003 are not eligible. They have slipped through the net. Then there is provided a window for dependants of those who died between that date and 5 July 2004. But dependants of those who died after the latter date are eligible only if the victim had applied to the fund before dying. Those distinctions are artificial. They do not reflect the merits or the need. For those excluded, the cause of death is the same, the tragic loss is the same and the financial needs are the same. But they are not eligible for payments.
The Government, in their response, have noted the problems of the Macfarlane Trust and the Eileen Trust. But although there is room for further discussion as to the amount of the provision proposed, the Government say:
"The Skipton Fund will continue to make payments to people infected with hepatitis C and we commit to reviewing it in 2014 when the Fund will have been in existence for ten years".
I repeat: 2014 is five years from now, and we proposed a new system of payments, creating a direct link between the Government and the beneficiaries. That has not been addressed in the response. Five years of their lives are important to the victims. Many are in deteriorating health. The Government's response does not reverberate with a sense of urgency. It may be that in these lean times the department has to fight for candle ends. I fully recognise that. In the context of the national budget, of course, these are candle ends. However, the Government's proposals and our recommendations are not worlds apart. Yet to those whose hopes depend on them, they appear a chasm.
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I hope that even if our report remains largely unread on departmental shelves we have at least laid to rest one misconception. It is surely common ground that infection with hepatitis or HIV, in addition to all the other consequences for quality of life, can have a devastating effect on the financial resources of a family. That is one issue which my noble friend's Bill seeks to address.
We are discussing people, some of whom were previously capable of substantial earnings. Some of them, before infection, enjoyed comfortable living standards. Some are now unable to work. Some find their earning capacity greatly reduced. Some have no pension, other than the statutory one. Their living expenses are greater than normal, because they have increased heating bills, special diets and they need domestic help. They are living out their lives in constant struggles that are not of their making. Of course, successive Governments have made some provision for them, although it represents not a generous and spontaneous gesture, but compromises on legal claims, and falls far short of the provision made for victims in other countries-particularly in Ireland, as my noble friend pointed out.
So often the debate has focused on the question of whether the Government should provide adequate financial relief, because it was the fault of previous Governments that the victims were infected. Successive Governments have, understandably, denied that they have a responsibility because the disaster was not their fault. As my noble friend pointed out, on 25 March 2004 my noble friend Lord Warner, whose misfortune it was to have been provided with the departmental brief, sought to explain the distinction between the relatively generous financial provision in Ireland and the less fulsome provision in the United Kingdom. In Ireland, he said,
- "A judicial inquiry, the Finlay report, found that 'wrongful acts were committed'. It is important to stress that the blood services in the UK have not been found to be similarly at fault".-[Official Report, 25/3/04; col. 796.]
I direct no criticism at my noble friend Lord Warner, who had to recite the departmental mantra, but that argument is less than persuasive for two reasons. First, to argue that the distinction lay in the fact that blood services in the United Kingdom had not been found by a statutory inquiry to be at fault overlooks the fact that there has not been a statutory inquiry in the United Kingdom because successive Governments have refused to provide one. It is like arguing that dinosaurs were harmless creatures because there have been no recent reports of attacks by them.
Secondly, and more importantly, that argument addresses the wrong question. What matters is not whether any Government were at fault or whether time limits apply but the needs of those who have to live with the consequences. If my neighbour suffers from misfortunes that have not been caused by me, I can harden my heart and say that they are no business of mine, but a Government are not like a private individual-they cannot pass by on the other side. It is the responsibility of a Government to address the needs of their citizens, and it is not a response to say
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The party that I joined more than 60 years ago discussed those whose needs formed the subject of the Beveridge report, and the Government of that day introduced the National Health Service. They were not concerned only with those whose misfortunes were caused by the Government. In our report, we deliberately declined to address the question of fault liability. I emphasise that we did not say that Governments had not been at fault; we simply regarded that as irrelevant to our mandate. We attempted to survey the past in the hope that we could learn lessons for the future. However, addressing the consequent suffering is not about the past; for the victims, it is the future, and my noble friend's Bill seeks to make that future more tolerable.
12.01 pm
Lord Jenkin of Roding: My Lords, the House has had the privilege of listening to two very well informed speeches on this subject, and I found them immensely moving. No one who has had anything to do with this matter can be anything but seriously concerned about the impact that the contaminated blood disaster has had on those who have suffered its consequences.
I was the Secretary of State for Health from 1979 to 1981, at the very earliest stages of what was beginning to emerge as a serious problem. One of my predecessors, the noble Lord, Lord Owen, who also gave evidence to the inquiry of the noble and learned Lord, Lord Archer, had already identified from his knowledge as a practising doctor the need for this country to become self-sufficient in blood products. When I followed the late Lord Ennals, we were faced with the same problem; we were not self-sufficient. As I explained to the inquiry, I had on my team the late Dr Gerard Vaughan, himself a distinguished doctor, and I asked him to pay particular attention to this matter, of which he obviously had some knowledge. Sadly, he is no longer with us.
Anyone who has had responsibility in this field must feel not only some sense of responsibility but also some sense of shame that this matter has dragged on for so long. I add my tributes to the noble Lord, Lord Morris of Manchester, and the noble and learned Lord, Lord Archer of Sandwell, for the enormous amount of effort that they have made-the noble Lord, Lord Morris, for a long time and the noble and learned Lord, Lord Archer, with his outstanding inquiry-to try to get to the bottom of the problem and identify a possible solution.
Another group of people also need to be thanked: the private donors who helped to fund the inquiry. As has been spelt out-I do not need to repeat the figures-the expenses were very modest but they involved some tens of thousands of pounds. That sum was found from voluntary contributions because, as has been pointed out, successive Governments have refused to institute a public inquiry financed from the public purse. Despite the handicaps in conducting the inquiry faced by the noble and learned Lord, Lord Archer, and his colleagues, who must also be thanked, they received a tremendous amount of evidence from a
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My evidence to the inquiry surrounded the fact that I had been invited by one of the haemophiliac sufferers to exercise my right as a former Cabinet Minister to go back and look through the files which would or might have passed across my desk during my period in office. However, as the whole of Chapter 8 of the report discloses, neither the noble Lord, Lord Owen, nor I could find any files in existence. They had all been destroyed. As the noble Lord, Lord Warner, whose name has been mentioned several times already in the debate, admitted in correspondence to me, this was apparently inadvertent. I find that extraordinary. It is very difficult to understand how such a major issue could somehow have been expunged from the records by someone at a low level of responsibility and with no senior accountability and certainly no ministerial accountability.
In those circumstances, it is not in the least surprising that there are those who have harboured suspicions. I have harboured them myself following discussions with senior officials-it is all in the evidence-including the noble Lord, Lord Crisp, who was two or three years ago the Permanent Secretary to the Department of Health. Somewhere along the line, the department had recognised this matter as being most serious. The report notes that it was,
I can well understand that the Department of Health has always been very anxious to put this matter behind it. It has, as the noble and learned Lord, Lord Archer, has just said, a huge raft of concerns, some new and some continuing, and it may not wish to dwell too much on this one. However, it remains a problem for the very reason that the noble Lord and the noble and learned Lord have already set out: there are still sufferers out there who have never felt that they have been either properly represented or properly compensated for what they experienced.
It is a pity that the noble Lord, Lord Morris of Manchester, has had to resort to a Private Member's Bill in order to have a full debate on this subject. He deserves tremendous credit for the work that he carried out during the recess in time to turn the report into legislative form, because that is indeed what he has done. It gives us the opportunity to raise some of the issues surrounding this problem, as has already been done by the two previous speakers, but, above all, it gives the Minister an opportunity to reply. Having been in the same position myself, although not on this subject, I express some sympathy with the position in which she finds herself. Nevertheless, I believe that the Department of Health owes a better explanation of, and a greater commitment to dealing with, this problem. We have not had that so far. As the noble and learned Lord, Lord Archer, said, the response published in May was in many respects inadequate, and we are still waiting.
I do not know whether anybody else has been approached, but an inquiry has now been set up in Scotland by the Scottish Minister for Health, chaired by a distinguished judge, Lord Penrose. I know about
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When I met the noble Lord, Lord Crisp, then Sir Nigel Crisp, he explained to me that, following a long process of negotiation, the HIV sufferers had been compensated, and that it was as a result of that being put behind them that the files had been destroyed. I said, "But surely they must have known that there were Hepatitis C patients and variant Creutzfeldt-Jakob disease sufferers out there? How could that conceivably have justified the destruction of all the files?". To that I have never had an answer. The noble and learned Lord, Lord Archer, looked at the matter extremely carefully and said there was no evidence of any malicious intent in that because he had no evidence about it at all. However, it makes the problem a great deal more difficult and one can understand that it lies at the heart of much of the pain and anguish suffered by the haemophilia community. Therefore, I am sure that I am not alone in looking forward to hearing the Minister's response. I congratulate the noble Lord, Lord Morris of Manchester, on giving us the opportunity to discuss this issue once again.
12.13 pm
Lord Low of Dalston: My Lords, I add my voice in support of the Bill. However, I shall try to be brief. For a start, it is Friday morning, but, more importantly, others are much better versed in the subject matter, and are better able to deploy the case in detail, than I am. We have heard from three speakers already and more are to come.
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