Lawyers representing thousands of haemophiliacs who unknowingly got hepatitis, HIV and Aids from blood transfusions provided by drug addicts and criminals in the United States in one of Britain’s biggest health scandals could be gagged from publicly criticising compensation payments.

A new draft contract proposed by the Infected Blood Compensation Authority (ICBA), the body set up by the government to pay out an estimated £11.8 billion by 2029 ,could take legal action for ” reputational damage” if lawyers publicly criticise the authority’s actions without their permission.

The ICBA, despite its name, is not a public body, but a private contractor to the Cabinet Office, so it intends to impose a standard contract on people who deal with it.

The draft clauses read;

15.7.1 not make any press announcement or other public statement or publicise the Contract or any part of it in any way, or make any public statement about the Scheme, without the prior written consent of the Buyer [the Cabinet Office] and must take all reasonable endeavours to ensure that Supplier Staff do not either; and

15.7.2 not (and must ensure its Subcontractors do not) embarrass the Buyer or IBCA or otherwise bring the Buyer or IBCA into disrepute or diminish trust placed in the Buyer or IBCA (“Reputational Damage”) by engaging in any act or omission which is reasonably likely to diminish the trust that the public or Scheme Applicants place in the Buyer and/or IBCA or impacts the reputation of the Buyer and/or IBCA,

This effectively amounts to a comprehensive “gagging clause”, specifically prohibiting lawyers from making “any press announcement or other public statement” about the scheme without prior Cabinet Office approval. Firms would also be required to ensure their staff comply with these restrictions. 

The ICBA is seeking requirements that could compel law firms to take specific actions or make public statements at the IBCA’s direction to mitigate perceived reputational damage, regardless of whether any breach has occurred.

One law firm said; “On any basis this variation is unacceptable to us for professional, ethical and regulatory reasons.  This firm is instructed by individual clients to provide individual, independent legal advice regarding the scheme and will continue to do so.”

The Haemophilia Society, which also supports victims, is consulting lawyers about what action it should take to counter these proposed restrictions.

The  Cabinet Office has told people that these are standard clauses in procurement processes for private companies being paid taxpayers money, but that they are in conversations with IBCA but could not confirm the outcome.

The issue follows negative publicity over problems with interim compensation payments to people which generated criticism of the IBCA.

An IBCA spokesperson said:

“We are committed to supporting the infected blood community, and are working with legal providers currently to agree contracts that will provide support for those claiming. 

“The legal providers are not restricted in the legal advice they deliver to people claiming compensation, and we provided amended terms to clarify this. 

“We welcome an open discussion with all those who are impacted by infected blood, and those who represent them.”

Years of cover ups

Given the history of the infected blood scandal which dates back to the 1970s, culminating in the recent interim report by Sir Brian Langstaff, there have been years of cover -ups. People were never informed that their relatives were infected, there were attempts to use ” commercial confidentiality” to hide the source of the contamination, and this will not add to public trust or increase transparency.

So far £1 billion has been paid out in £100,000 interim payments and the IBCA is just starting to pay full compensation to other people.

Nick Thomas-Symonds, Minister for Cabinet Office, updated Parliament with IBCA’s latest compensation figures this week.

• 113 people have been invited to start their compensation claim
• 84 people have accepted their invitations and submitted their claim
• 23 offers of compensation have been made, totalling £34.4m
• So far 14 people have accepted their offers with more than £13.3m paid in compensation

New laws will also be passed by the government extending payments to relatives of infected blood victims, which could lead to an extra 140,000 people claiming.