Mr Justice Holman's judgment in the Andrew March haemophilia judicial review
Neutral Citation Number:  EWHC 765 (Admin)
Case No: CO/9344/09
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JUSTICE HOLMAN
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THE QUEEN (ON THE APPLICATION OF ANDREW MICHAEL MARCH) Claimant
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THE SECRETARY OF STATE FOR HEALTH Defendant
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Mr Michael Fordham QC and Ms Jessica Boyd (instructed by Michelmores) for the Claimant
Miss Philippa Whipple QC (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 25th and 26th March 2010
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Mr Justice Holman:
1. During the 1970's and 1980's several thousand patients (mostly, but not always, haemophiliacs) who were treated within the NHS with blood products became infected, due to infection in those products, with HIV and/or hepatitis C. The claimant, who is a haemophiliac, is one of them. Many have died, devastating the lives of their dependants. Others, including the claimant, have so far survived. (I was told that there are currently estimated to be about 2,700 survivors still alive.) But their lives and those of their families and dependants have been profoundly affected. Lord Winston has described it as the worst treatment disaster in the history of the NHS. At page 103 of their report to which I will later refer, the Archer Inquiry described the infection of so many patients as "a horrific human tragedy". Similar tragedies occurred in a number of other countries.
2. In England and Wales (to which I confine this judgment) it has never been established that anyone was negligent or at fault. One test case brought by a group of sufferers was compromised in the early 1990's There has never been any judicial consideration of liability or fault and never any statutory public inquiry.
3. For many years, however, successive governments have provided funds on an ex gratia basis for distribution via three special purpose mechanisms: the Macfarlane Trust, the Eileen Trust and the Skipton Fund. The Macfarlane Trust benefits haemophiliacs who have been infected with HIV through treatment with contaminated blood products, and their dependants. The Eileen Trust benefits non haemophiliacs who have been so infected, and their dependants. The Skipton Fund benefits those who have been so infected with hepatitis C, but not, in this case, their dependants.
4. The affected community and their families, friends and other supporters have long campaigned for a full public inquiry into the tragedy and its causes, and for much more generous payments to be received by sufferers and their dependants than currently are received. Successive governments have declined to establish a statutory inquiry and their decisions not to do so are not challenged by the present claim.
5. In early 2007 a former solicitor general, Lord Archer of Sandwell QC, agreed to chair an independent, non statutory, but nevertheless publicly held inquiry on the following terms of reference: "To investigate the circumstances surrounding the supply to patients of contaminated NHS blood and blood products; its consequences for the haemophilia community and others afflicted; and suggest further steps to address both their problems and needs and those of bereaved families." The resulting report was published on 23 February 2009. It is obvious that despite the considerable limitations of being non statutory and non government funded (see pages 7 and 8 of the report, now at bundle C/2 pages 33 and 34) the inquiry was a serious and responsible undertaking. Their report, conclusions and recommendations are worthy of consideration by all those, including the government, having a concern or interest in this tragic matter. The government did engage with the process of the inquiry and have given consideration to, and made a public response to, their report: see the "Government response to Lord Archer's Independent Report on NHS supplied contaminated blood and blood products" published on 20 May 2009. It is that response and certain decisions contained within it which is the direct target of this claim for judicial review (see claim form at section 3 which identifies 20 May 2009 as the date of the decision under challenge).
6. Having thus briefly described the background, I wish to refer, next, to the hearing. I was very grateful indeed to both leading counsel, and also of course Ms Jessica Boyd, for their sustained argument and sympathetic approach to this highly sensitive case. As well as the claimant personally, a considerable number of people, obviously all either sufferers or family or friends of sufferers, attended in a packed courtroom throughout the hearing. I sincerely thank every single one of them for their dignity, courtesy, close attention and, when possible during so serious a case, their good humour during the hearing.
Delay and permission
7. In his summary grounds of defence the Secretary of State for Health took the point that the claimant had not acted promptly and that the claim, being filed on 20 August 2009, had been filed on the last possible day of the three month period running from 20 May 2009. It is apparent from the observations of Ouseley J. dated 7 December 2009 that it was only because of the claimed delay point that he directed a rolled up hearing rather than granted permission to apply for judicial review. He said "I am not persuaded that this case is unarguable, although I think there is less in it than meets the eye. Rolled up hearing only so that the defendant can pursue the delay point if so minded." (my emphasis)
8. This is a claim of acute interest to several thousands of sufferers or dependants, not merely to the claimant alone. According to some evidence filed on behalf of the Secretary of State, and on one view, the sums underlyingly at issue have been "roughly costed" as of the order of £3 billion or more (see paragraph 59 of the witness statement of Mrs Deborah Webb, now at bundle D/A page 47). Further, any argument as to delay has to be set in the context of a public debate and campaign spanning many years if not, now, decades. Finally, although the challenge is to a decision published on 20 May 2009, the focus of the challenge is upon ministerial answers given later on 23 June and 1 July 2009. Having regard to the number of sufferers, the scale and gravity of the underlying issue, and the overall chronological context, I reject any argument based on delay. Consistent with the primary view of Ouseley J. that the case was arguable, and as it has now been so fully argued, I have already granted permission to the claimant to apply for judicial review and now proceed to conclude the matter substantively.
The Archer recommendation as to levels of payments
9. A similar tragedy occurred in the Republic of Ireland and at page 87 of their report (now bundle C/2 page 110) the Archer Inquiry commented, giving reasons, that "It is not surprising that comparisons are often made between the financial provision made available in the United Kingdom and that which operates in Ireland." It is common ground in these proceedings, and indeed underpins the purpose of this claim, that very much higher payments are made to sufferers and their dependants in Ireland than here.
10. The Archer Inquiry were at pains to say at internal pages 90 - 94 (bundle C/2 pages 113 - 117) that "It is not our function to decide issues of legal liability, and we do not presume to do so. But we are impressed by the arguments which have been presented to us for more generous assistance to mitigate the financial hardship endured by many victims ... The purpose of civil law is not to punish negligence or wrongdoing, but to compensate for undeserved suffering ...." After some discussion of no-fault liability, the inquiry concluded that "The very purpose of government is to protect its citizens, so far as possible, from life's vicissitudes, and to afford them the best achievable quality of life .... Where poverty is widespread, even though not universal, among a limited and readily defined category of citizens, and particularly where it is attributable to a specific misfortune, we believe that they are entitled to look to the government for redress .... Where the support embodied in private charity is not applicable, we believe that a compassionate government should provide it."
11. That view underpinned paragraph 6 of the Recommendations in chapter 12 of the report, now at bundle C/2 pages 131 - 133, namely that "Direct financial relief should be provided for those infected, and for carers who have been prevented from working. We propose that the scheme should have the following characteristics ....." Eight characteristics are then recommended, some of which have been adopted by the government. The last, at (h), is "We suggest that payments should be at least the equivalent of those payable under the scheme which applies at any time in Ireland."
The government's response
12. In their published response of 20 May 2009 the government specifically addressed many of the recommendations, in some cases adopting them; in some cases giving a reason for not doing so. In relation to recommendation 6, the government said that they recognised Lord Archer's concern about financial relief and that " We therefore intend to increase the funding available to the Macfarlane and Eileen Trusts ..." The government stated that the current average annual payment is around £6,400 and they intended that, in future, payments of £12,800 per annum would be made to each infected individual. Although this represents a doubling of the average annual payment, it is still way below the level of payments made in Ireland. Indeed the principal civil servant, Mrs Deborah Webb, in her witness statement on behalf of the Secretary of State dated 16 February 2010, now at bundle D/A page 35, states that the estimated additional annual cost this year of the proposals actually announced by the government will be £3.8 million whereas a "rough costing" of a system similar to that in Ireland was £3 - 3.5 billion. (See paragraphs 63 and 59 of the statement; but note at paragraph 61 that a system similar to the Irish system was never "fully costed".)
13. The government's published response made no express reference to the Irish system or the level of payments made under it, and no express reference to recommendation paragraph 6 (h) of the Archer report. But it is common ground that the response may be read, by implication, as rejecting it. As to reasoning, the clearest statement of a reason within the government's published response itself is in the last paragraph on internal page 8, now bundle C/3 page 144, where the government say: "We have carefully considered Lord Archer's recommendations, and are responding in as positive a way as possible at the current time, bearing in mind the constraints on public funds." Peeling away the jargon, that is the government saying that they are proposing to pay as much as they judge, as a matter of policy and politics, they can currently afford to allocate to this particular need. But politicians and others have continued to press the government to adopt the Irish level of payments or at any rate give reasons why they will not do so.
The minister's answers and the issue
14. This claim for judicial review focuses upon two answers given orally by a Minister of State at the Department of Health, Gillian Merron. First, on 23 June 2009 a member of Parliament, Dr Brian Iddon, asked an oral question on the floor of the House of Commons: "Why has my right honourable friend rejected Lord Archer's recommendation that patients who have contracted the hepatitis C virus from contaminated blood should receive the same compensation as those who contracted HIV from contaminated blood, as in the Irish Republic and several other countries?"
15. The minister immediately orally replied:
"I deeply regret that patients have contracted serious infections as a result of NHS treatment 20 or more years ago. However, it is the different circumstances of patients that are reflected in the different financial arrangements. We will review the Skipton fund, which was set up for those infected with hepatitis C, in 2014, 10 years after its commencement. I cannot accept the comparison with Ireland, because the Irish blood transfusion service was found to be at fault, and that was not the case here. "
16. During a debate in Westminster Hall (which I treat as being the same in all material respects as a debate in the House itself) just over a week later, on 1 July 2009, Dr Iddon returned to the theme. He quoted part of the minister's previous answer and asked ".... will she admit today that the Irish paid out without liability and before any tribunal had met to discuss the position?...."
17. In two following paragraphs, now relied upon by the claimant, the minister said as follows:
"I stand by the points that I made. Furthermore, a judicial inquiry in Ireland found failures of responsibility by the Irish blood transfusion service and concluded that wrongful acts had been committed. As a result, the Government of the Republic of Ireland decided to make significant payments to those infected. As I will explain, that was not the case with the blood transfusion service here."
"I turn to the recommendations on financial relief, our responses to which have come under the closest scrutiny. In the UK, such payments are not compensation but ex gratia payments. That is an important distinction. Lord Archer made recommendations on the payments and made comparisons with Ireland. However, it is important to restate that the position in Ireland is very different. The independent inquiry in Ireland found the transfusion service to be at fault because it had not followed its own official guidelines on protecting the blood supply from contamination. That is not the case in the UK. Comparable levels of payment are therefore not appropriate.
I understand that there can always be a debate over the adequacy and fairness of payments."
18. The minister concluded her speech by saying:
"In closing, I realise that the Government's response will not satisfy everybody. We are dealing with an extremely difficult situation, which none of us would have chosen. I hope I have confirmed that there has been openness and transparency in the Government's response and that we have sought to do the best we can in this situation."
19. The thrust of the case on behalf of the claimant is that the answers given by the minister on 23 June and 1 July, when considered separately or cumulatively, reveal a material error of fact on the part of the government as to the situation in Ireland; that that error undermines the reasoning process of the government in their decision to reject recommendation 6 (h); and, accordingly, that the government should be required to reconsider their response to recommendation 6 (h). As Mr Michael Fordham QC and Ms Jessica Boyd on behalf of the claimant succinctly put it in paragraph 6 of their skeleton argument dated 15 March 2010 for this hearing: "The central question in these proceedings is whether the government's reasons for rejecting an important recommendation, articulated in public, to Parliament, in answer to a direct question on the subject, can withstand scrutiny in public law terms."
The legal framework
20. After discussion in court and an opportunity to reflect with their respective teams, both leading counsel agreed that the appropriate legal framework within which I should consider this case, on the facts and in the circumstances of the case, is as follows:
(i) As the government chose to make a formal response to the Archer Report and made and announced certain decisions in the light of that report, the question whether they were under any duty to react at all to the non statutory Archer Report does not arise for consideration.
(ii) As the government did so react and did make and announce decisions, their decisions and reasons are amenable to public law scrutiny and this court must examine the decisions on conventional judicial review grounds.
(iii) A public law decision may be quashed if the published reasons or reasoning of the government reveal a material error of fact in their reasoning process. But the claimant must demonstrate that (i) there is an error of fact; and (ii) it was material and that a different decision might have been made but for the error.
(iv) The court is not asked in this case to review, and therefore must not in this case review, the substance of the government's policy or political decision as to the allocation of resources.
(v) If the minister explains or elaborates upon the published reasons by answers to questions in Parliament, the court may, and in this case should, consider what the minister said as part of its examination of the government's reasoning process for their decisions. But the court must not reach conclusions on any inadequacy or lack of accuracy in the proceedings in Parliament. The role of the court is limited to examining the decision under review.
(vi) In considering what the minister said, it is appropriate to bear in mind the circumstances in which she said it - eg whether it was said in a prepared and considered written answer to a written question, or in immediate spontaneous answer to an oral question; and whether it was said during a topic specific debate for which the minister may reasonably be expected to have been briefed and prepared. The court may also take into account any relevant letter or similar document produced by an authorised official at around the time that the minister said what she said.
The alleged error
21. The claimant argues that the quoted answers by the minister (reinforced by certain other material to which I will refer in paragraphs 22 - 24 below) reveal a persistent and persisting error or misunderstanding by the government that there is a necessary distinction between payments which are made at a level required to "compensate", and lesser "ex gratia payments"; and that it is only subsequent to, and because of, judicial findings of fault in Ireland that the Irish government decided to make payments at a level of compensation. The truth, says the claimant, is that the Irish government decided before there was any finding of fault to make payments at a full, compensatory level, and that their decision to do so was (and remains) based on compassion, not fault. Accordingly, argues the claimant, the UK government should either make payments at the Irish level of compensation (as recommended by the Archer Report), or explain why they will not be so compassionate. But an explanation or reason based on the proposition that the Irish make payments at the level they do because of a finding of fault is not sound and does not withstand scrutiny.
Other material relied upon
22. The claimant's case is firmly anchored in the quoted answers by the minister in 2009. But he points to a similar statement by a minister, Lord Warner, made as long ago as December 2003 (and now conveniently quoted in the Archer Report at internal page 88, bundle C/2 page 111) when he said: "In Ireland ... compensation schemes were paid because the blood authorities were ... found to be at fault." (my emphasis) Mr Fordham suggests that that essential view was not modified or changed by the subsequent clarification by Lord Warner in March 2004 referred to on page 89 of the Archer Report (bundle page 112).
23. Much more recently, Mr Fordham relies also on a letter sent to the claimant dated 24 June 2009 (viz in the period of the minister's two answers), now at bundle C/16 page 629, from an official, Dora East, within the headquarters of the Department of Health. It is in reply to a letter from the claimant to the Secretary of State for Health himself. Dora East says that she has been asked to reply and concludes "I hope this clarifies the government's position on this matter." So Mr Fordham submits that although not a letter from any minister himself or herself, the letter may be treated as an authorised, informed and reliable statement of the government's position and reasoning. The letter says in part:
"You refer to Lord Archer's recommendation that payments should be at least the equivalent of those under the scheme which applies at any time in the Republic of Ireland. Payments made by the Republic of Ireland are a matter for that country and were introduced following a judicial inquiry which found failures of responsibility by the Irish Blood Transfusion Service and concluded that wrongful acts were committed." (my emphasis)
24. Mr Fordham submits that as a matter of chronology that letter clearly states that payments "were introduced following a judicial inquiry", and by implication that they were because of the "found failures of responsibility".
The Irish experience, schemes, inquiries and chronology
25. This argument has, of course, resulted in an intense focus on the history and situation in Ireland. It should be noted, however, that the government have not adduced for the purpose of these proceedings any witness statement or similar evidence from officials or others in Ireland. Rather, both sides have relied upon an array of published and other material over many years from Ireland, including the Irish Hepatitis C Compensation Tribunal Act 1997 (Number 34 of 1997) and the later, 2002, Amendment Act. I was especially grateful to Miss Philippa Whipple QC for her enormously helpful document headed "Defendant's chronology - The Irish Story" which helps to pull all this material together and present it in cross-referenced, chronological sequence.
26. The essential sequence does seem to me to be clear, and although it goes to the heart of this case I propose only to summarise it.
27. In 1991 the Irish government established the first, non statutory, compensation scheme for those who had been infected with HIV. In December 1994 the Irish government committed itself to fair compensation for women infected by hepatitis C from treatment with infected Anti-D immunoglobulin. The first finding of "errors" by the Irish blood transfusion service was reported in a report from an "Expert Group" in January 1995. The expert group was established by the Minister for Health but was not a judicial inquiry. Its terms of reference were limited to "the infection of Anti-D immunoglobulin product ...". In June 1995 the Irish government announced a non-statutory compensation scheme for women recipients of Anti-D who had become infected with hepatitis C, which was extended in September 1995 to all those (not just recipients of Anti-D) who had contracted hepatitis C from blood transfusion or other blood products. In December 1995 the non statutory Hepatitis C Compensation Tribunal was established.
28. The first of two judicial inquiries was the Finlay Inquiry which was limited to considering infection resulting from contaminated Anti-D. The Honourable Mr Justice T.A. Finlay ("Finlay") reported in March 1997. Finlay himself confirms at internal page 117 (now bundle C/9 page 304) that it was in December 1994 (viz before the Expert's Report and long before his own inquiry or report) that the Irish government "committed itself to fair compensation for women infected by hepatitis C virus from Anti-D" and decided in April 1995 to establish a tribunal "which would assess compensation on an ex gratia basis ....". Finlay reported serious failures, which he characterised as "wrongful acts", by the Irish blood transfusion service in relation to the use of Anti-D.
29. In May 1997 the Irish parliament enacted the Hepatitis C Compensation Tribunal Act 1997. This essentially replaced the previous non statutory tribunal with a statutory based one. Section 4 of the Act makes plain that a claimant (or a dependant) must prove causation (i.e. that the person became infected "as a result of" receiving Anti-D or a blood transfusion or blood product within the State of Ireland.) However, evidence of negligence is not required, although if a claimant claims aggravated or exemplary damages (which he may do under the Act) he must establish a legal entitlement to them.
30. The scope of the statutory tribunal was extended to include infection with HIV by the Amendment Act of 2002 (Number 21 of 2002) enacted on 29 April 2002.
31. A second judicial inquiry, the Lindsay Inquiry, conducted by Her Honour Judge Alison Lindsay ("Lindsay"), reported in September 2002 and related to a wide range of issues concerning infection with HIV. The report found failures by the Irish blood transfusion service which, indeed, published a "sincere" and "unreserved" apology the same day.
32. By a letter to the claimant dated 30 July 2009, now at bundle C/18 page 634, an official of the Irish Department of Health and Children stated: ".... there were numerous communications between the Irish and UK governments around the time of Lord Warner's statement on the 25 March 2004 [see the reference in paragraph 22 above] and it would be impossible to supply you with all the relevant material. I attach a general brief, which would have been communicated to our UK colleagues at that time, which I hope will clarify the position for you."
33. In the absence of any evidence to the contrary, I deduce from that letter that the attached "Brief" was in or before March 2004, and remains, an authoratitive and reliable summary (for it is only a short, summary document) of the Irish position and that it was in the hands of the UK government in, and ever since, March 2004.
34. The "Brief" begins as follows:
The Hepatitis C & HIV Compensation Tribunal in Ireland, is a no-fault compensation scheme for persons who were infected with either Hepatitis C, or HIV, or both, from the administration within the State of infected blood or blood products, including Anti-D Immunoglobulin and the products used to treat persons with haemophilia or other blood clotting disorders. The scheme of compensation for persons with haemophilia was put in place on compassionate grounds, without legal liability on the part of the State, because of the enormity of the tragedy with befell citizens of the State whilst availing themselves of State health services."
35. In relation to the original scheme for compensation of women who contracted hepatitis C from Anti-D, the brief states: ".... The purpose of the scheme was to provide compensation on an ex gratia basis, as legal advice to the government was that the State itself was not liable. The same legal advice regarding liability would also pertain to the infection of persons with Haemophilia ..."
36. Later: "... the scheme of compensation was a no-fault scheme ...."
37. Finally: "The Compensation Tribunal was extended to cover infection with HIV before the Lindsay Tribunal Report was published." (my emphasis)
38. In a section beginning at paragraph 25 of her witness statement, Mrs Webb sets out at some length her "understanding of the Irish response to contaminated blood and blood products in its supply" and says, in somewhat general terms, that her "understanding ... has been confirmed by Irish colleagues." Under a heading "Differences between UK and Ireland" she says at paragraph 42 "I set out my understanding of the differences between the UK and Ireland. The [current statutory] compensation scheme in the Republic of Ireland was set up in the light of evidence of mistakes by the Irish Blood Transfusion Supply Board and the Irish Department of Health." The words in square brackets do not appear in the statement, but it is common ground that the reference to "the compensation scheme" in paragraph 42 should be read as a reference to the current statutory scheme. Mrs Webb says in paragraph 43 that paragraph 42 (but not specifically any other paragraph of her statement) "has been expressly approved for inclusion within [the] witness statement by the Irish Department of Health."
39. Mrs Webb concludes her statement by saying: "The point about Ireland is that it has a different, and much more costly system of ex gratia payments in place. The Irish government made different political choices about the nature and level of payments to those affected because of the evidence, accrued over a number of years and by one Expert Group and two Tribunals of Inquiry, that there had been fault on the part of the Irish authorities. That was a particular situation not replicated in the UK."
Discussion as to the Irish situation
40. The background in Ireland is indeed "quite complex" as is stated in the Brief, and is complicated by serious "wrongful acts" in relation to Anti-D (see Finlay) which, so far as I am aware, did not occur here.
41. Nevertheless the following key points seem to me to emerge. First, the Irish scheme is firmly "ex gratia" (see the Brief, and also paragraph 69 of the statement of Mrs Webb) and also compensatory or "compensation". By "compensation" is meant, in this case, compensating a sufferer (or, when applicable, a dependant) in full, so far as money can, for his loss. The Irish Brief describes their scheme as "ex gratia compensation" or "compensation on an ex gratia basis" and does not draw (in this context) any distinction between payments being made "ex gratia" and having the purpose or level of "compensation". The current statutory scheme was initially established in relation to hepatitis C by the Act enacted in May 1997, after Finlay had reported. But the non statutory scheme already existed a considerable time before, whether in relation to HIV or hepatitis C, and was not limited to women infected by contaminated Anti-D (in relation to which Finlay reported). As I understand it, these earlier, non statutory schemes were also both ex gratia and compensatory, notwithstanding that the legal advice to the government was that the state itself was not liable.
The UK government's answers and approach
42. Lord Warner's answer in December 2003 clearly stated that in Ireland compensation was paid "because" the blood authorities were found to be at fault. The letter from Dora East, as recently as 24 June 2009, clearly states that payments in Ireland "were introduced following a judicial inquiry [viz Finlay]." As the above chronology demonstrates, those statements, one in 2003, one in 2009, are simply wrong as a matter of chronology.
43. I do not, for my part, attach any weight or significance upon what the minister, Gillian Merron, said in oral answer on 23 June 2009, for the following reasons. First, she gave a spontaneous oral answer to an oral question of which, so far as I am aware, advance notice had not been given. Whilst I accept that accountability requires that account may be taken of what is said in Parliament in oral answers to oral questions, it is not appropriate (at any rate in this case) to subject the words to the same sort of textual analysis that may be applied to drafted written documents, or in topic specific debate (see below). Second, and in any event, close examination of Dr Iddon's question suggests that he may have been wrapping up two discrete questions in one. It is not entirely clear whether he is asking why the same level of compensation should not be paid as in Ireland; or whether he is asking why (as in Ireland) the same level of compensation (whatever level it might be) is not received by those who contracted hepatitis C as by those who contracted HIV. So when the minister said "It is the different circumstances of patients that are reflected in the different financial arrangements" she may not have been distinguishing between all patients here and all patients in Ireland; but, rather, between HIV sufferers here and hepatitis C sufferers here. She concluded "I cannot accept the comparison with Ireland, because the Irish blood transfusion service was found to be at fault, and that was not the case here." What she said is factually correct on both limbs: fault was found in Ireland, and fault has not been found here. The answer the minister gave on 23 June does not refer to chronology, or to whether there was any causal connection between the finding of fault and the payment of compensation.
44. Different considerations apply, however, to what the minister said in the debate in Westminster Hall on 1 July 2009. This was a topic specific debate on the Archer Inquiry. Miss Whipple accepted that the minister may reasonably be expected and presumed to have prepared for it and to have been briefed by officials (although I appreciate that her speech rounded up the debate and had to react to points made and, in this instance, the interjected question of Dr Iddon). On this occasion, the question of Dr Iddon is very clear: "will she admit .... that the Irish paid out" (i) "without liability, and" (ii) "before any tribunal had met...?"
45. The correct answer to the second limb has to be, yes; because the first tribunal to "meet" was Finlay, appointed in October 1996 and reporting in March 1997. The Irish were "paying out" to both HIV and hepatitis C sufferers long before either date. The correct answer to the first limb should be that (a) the Irish government have never been found to be "liable"; (b) "the legal advice to the government was that the State itself was not liable" (see the Brief); and (c) the Irish government have always "paid out" on an ex gratia basis which neither admits nor requires proof of negligence or fault; albeit that (d) findings of error, fault or wrongful acts have been made by both Finlay and Lindsay.
46. The minister was quite correct to say, in the first quoted paragraph of her answer, that a judicial inquiry (viz Finlay) found failures of responsibility ... and wrongful acts ... But she was mistaken in saying that "as a result" the government decided to make significant payments. In my view it is actually crystal clear that the Irish government had decided to make, and did make, significant payments long before the findings of Finlay.
47. In the second quoted paragraph the minister said "In the UK, such payments are not compensation but ex gratia payments. That is an important distinction." Pausing there, it is not entirely clear whether the minister was saying at that point that there is an important distinction between a payment which is an "ex gratia payment" and a payment which is "compensation", such that a payment is either the one or the other. If she was, she was in error, for (as the Irish system shows) it is perfectly possible for a payment to be made ex gratia (i.e. without admitting, or proof of, liability) and yet fully to compensate. She may alternatively have been making a distinction that in the UK the basis of the payments is ex gratia whereas in Ireland it is not ex gratia but compensation. If so, she was again in error. A payment may be both ex gratia and compensation and that is what the Irish government conceive their payments to be (see the Brief).
48. The minister continued: "The independent inquiry in Ireland [viz Finlay] found the transfusion service to be at fault .... That is not the case in the United Kingdom. Comparable levels of payment are therefore not appropriate." Both leading counsel have highlighted and emphasised the last sentence and the underlined words. As Mr Fordham neatly put it, the use of the word "therefore" shows that what precedes the sentence "drives" the conclusion that comparable levels of payment are not appropriate. The first part of the same paragraph, read with the earlier paragraph and in particular the words "as a result", all indicate that in the view of the government what makes it "not appropriate" to make comparable levels of payment here is the (erroneously stated) fact that the Irish levels are made because of liability or fault.
49. The minister concluded her speech by saying that the government have "sought to do the best [they] can in this situation" which echoes the language on page 8 of their written response that they "are responding in as positive a way as possible."
50. I wish to make absolutely clear that the allocation of resources is entirely a matter for the government. They have said, in effect, that they cannot afford to pay more; and that is entirely a matter for them, as to which I neither express, nor have, any opinion or comment whatsoever.
51. They also say, in effect, that a relevant consideration in deciding the allocation of resources is the advice to them and their view as to whether or not, or to what extent, the government have been at fault or are vulnerable to a civil claim. That seems to me to be a consideration which the government are entitled, if they think fit, to take into account.
52. But they have been faced also with a specific, reasoned recommendation, which they have rejected, of comparability (or equivalence) with Ireland. When pressed by Dr Iddon (and by the claimant in his letter to which Dora East replied) as to why they have rejected comparability, they have not merely repeated: because we cannot afford it. They have given a reason which, in my view, does contain an error and does not withstand scrutiny. They continue to regard the Irish system as based on fault and to be a reaction to Finlay whereas, as the Brief clearly states, it was already based on compensation.
53. I am satisfied that the government's approach to recommendation 6 (h) has been, and remains, infected by an error. Miss Whipple argued that even if there was error, the error was not material because (i) the government have already proposed to pay the most they can afford to pay; and (ii) Mrs Webb says at paragraph 61 of her statement that "the recommendation that a system similar to the Irish system should be adopted was not considered in detail and was not fully .... investigated." However the minister did not give non-affordability as the reason for rejecting recommendation 6(h) but, rather, the supposed distinction with Ireland; and it was that supposed distinction which led the government not even to consider recommendation 6(h) "in detail" or fully to investigate it: Mrs Webb refers in the immediately preceding paragraph, paragraph 60, to "the very different situation in Ireland." In my view, the error is material because a different decision might (I stress, might) have been made if the government had correctly focussed on, and grappled with, the compassionate basis of Irish payments, when considering in particular the passage at internal pages 90 - 94 of Archer which underpins recommendation 6 (h).
54. I accordingly allow this claim for judicial review and quash the decision of the government not to accept recommendation 6 (h) made in chapter 12 of the Archer Report.
55. I have deliberately not made any reference so far to the document "Parity with Ireland. The truth. An untangling of the Government's Stance on Equality with Ireland", dated July - August 2009 and co-authored by the claimant and another. Indeed I have only given the merest glance to that document but not read it, considering that I should resolve this case by reference to the arguments actually advanced in the court room and within the proceedings. But at the conclusion of his own submissions in reply, Mr Fordham paid a warm but measured tribute to the claimant, Andrew March, "for his tenacity and balance in the asking of questions and soliciting of information, and not taking no for an answer when the reasons are not good ones." My impression is that that tribute is justified and well judged, and that the many other people interested in this cause owe gratitude to Mr March for his tenacity or persistence.
56. I wish to make very, very clear, however, that I have merely quashed the existing decision in relation to recommendation 6 (h). I have given no steer or indication whatsoever as to what the government may decide upon reconsideration, and it would be a grave abuse of my role if I were to do so. The campaign may now return to the political arena, but no one should leave this courtroom with a false optimism.