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Smallpox (Birmingham)

Volume 961: debated on Wednesday 24 January 1979

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Order. Before I call the Secretary of State for Social Services I have a short statement to make. I have in my hand a copy of the charges pending against Birmingham university in connection with the laboratory accident. I must rule that under our sub judice rule no reference should be made to the part of Birmingham university in this affair. There is no objection to questions in general terms about the safeguards for handling dangerous viruses or the way in which the Shooter report was released to the public.

With permission, I should like to make a statement on the report of the investigation into the tragic occurrence of smallpox in Birmingham last year.

Official publication of the report is still held up by the prosecution of Birmingham university under the Health and Safety at Work etc. Act 1974. In view of the action taken by Mr. Clive Jenkins in making copies of the report available to the press, I think that I should make it clear to the House that the copy supplied by me to Mr. Jenkins was only one of a number sent to interested parties in accordance with undertakings which I had given, and with a covering letter, which made it clear that I had been legally advised that the report could not be published while the action against Birmingham university was pending. No permission to publish was expressed or implied.

I turn now to the report itself, and I should like to express my thanks to Professor Shooter and his colleagues for a comprehensive, valuable and speedy report.

The report recommends changes in the general arrangements for ensuring safety in laboratories handling dangerous pathogens. The Government accept the substance of the report. The Health and Safety at Work etc. Act provides an effective framework for control of all activities in these laboratories, but the Government believe that the present voluntary arrangements must be substantially strengthened and given legal force to provide the fullest safeguards for those working in the laboratories and the public at large.

First, in line with the Shooter report's recommendations, we have decided that laboratories intending to hold or handle category A pathogens will be required by regulations to notify details of their proposed work and supporting information. We have asked the Health and Safety Commission to make proposals for such regulations under the Health and Safety at Work etc. Act as soon as possible after the appropriate consultations.

Second, the report recommends reconsideration of the arrangements for approval of laboratories dealing with category A pathogens. Our preliminary review of this matter suggests that we would be wise to replace the present voluntary arrangements by a licensing system embodied in regulations. Together with the Health and Safety Commission, we are starting consultations with interested parties on the details of such a licensing system.

Third, we have accepted the recommendation that category A laboratories should be reviewed annually.

Fourth, we have decided that the responsibilities and constitution of the dangerous pathogens advisory group should be reviewed, and that its membership should be broadened so as to represent those who run and work in, the laboratories and the wider public interest. We shall carry out this review as quickly as we can in consultation with interested parties and the Health and Safety Commission.

The report also recommends that work with smallpox virus should not be carried out in a densely populated area and that work previously carried on in Professor Dumbell's laboratory at St. Mary's hospital medical school, Paddington, should therefore be resited. The House will wish to know that, except for what was essential to the investigation of the Birmingham outbreak, no work has been done at St. Mary's with smallpox virus for over a year. The relevant virus material is held in the laboratory, which is secure and meets the full requirements of the World Health Organisation. The WHO is trying, in consultation with the Governments concerned, to reduce the number of laboratories in the world holding smallpox to three or four and wishes to retain Professor Dumbell's unique expertise in this context. In the meantime, no work with smallpox is being conducted at St. Mary's and the virus stock is being held securely. In addition to the important reforms in the system which I have outlined, we have taken other urgent action on the report.

The programme of reinspection and review of existing category A laboratories which the report recommends is well under way and a number of reinspections have already been carried out, in close association with inspectors of the Health and Safety Executive. In some cases it has become clear that improvements in safety procedures are necessary and immediate action has been taken.

Copies of the report have been sent to the heads of all category A laboratories and they have been asked to consider the safety aspects of the report which apply to them. They have also been asked to report any variations in the category A pathogen work previously notified by them.

The university of Birmingham has confirmed that no category A pathogens are now held there and that a written request for clearance would be made before such pathogens were acquired by the university in future.

Action has been taken, as recommended in the report, to ensure full liaison between the Government and the World Health Organisation concerning the organisation's dealings with category A laboratories in this country. We also intend to issue very shortly the Howie code of practice for clinical laboratories dealing with category B pathogens.

No system of control and no safety arrangements can be 100 per cent. fool-proof. But the tragic events in Birmingham have revealed that constant vigilance is needed to safeguard those who work in laboratories as well as the wider public. I believe that the changes I have announced today will help to prevent what happened in Birmingham happening again.

Is the Secretary of State aware that the whole House will wish to express deep sympathy with the relatives of those who lost their lives in this tragic accident, all the more so in that it comes at a time when smallpox is being eradicated from the face of the earth? Is he further aware that we acknowledge and recognise the seriousness of the lapses in safety procedures which have been disclosed by the Shooter report? Does he agree that the mechanisms set up to try to control such work, notably the dangerous pathogens advisory group and the World Health Organisation, failed to achieve their purpose? Does this not make the situation all the more serious?

There are two issues which arise from his statement which I would like to raise with the Secretary of State. The first, which in one sense is the less important, concerns the breach of confidence which arose, whereby the report which should not have been published for reasons to which you have adverted, Mr. Speaker—namely, the pending prosecution—was, in fact, published. Whatever may have been said by the Secretary of State in his covering letter to Mr. Clive Jenkins, is it not the case that the Secretary of State was expressly and positively told by Mr. Clive Jenk ins that if he got the report he would publish it?

Why, in those circumstances, did he go ahead and let Mr. Clive Jenkins have the report, while at the same time trying to pretend to the rest of the country that he was withholding publication?

May I turn to what must be the more important aspect, namely, the substance of the report'? Is it not the case that in recent years the Government have been warned again and again of the dangers inherent in many of our laboratories, notably by the Harrington report of 1975, and again, in respect of category B pathogens, by the Howie report of January 1978? Why have the Government waited so long to take action? Is not this tragedy a direct result of the Government's in-activity in this area?

Turning to the question of St. Mary's hospital, may I ask whether the right hon. Gentleman is now able to tell the House where this immensely important work will be carried on if it is not to be carried on at the hospital? Is the right hon. Gentleman aware of Professor Dumbell's statement that the risk at St. Mary's is vanishingly small? Where would the work be carried on more safely?

Third, coming to statutory controls, can the right hon. Gentleman confirm that no primary legislation will be required and that the Government have all the powers necessary to introduce these statutory controls? Since they are manifestly seen to be necessary, will the right hon. Gentleman introduce them as swiftly as possible?

I certainly join with the right hon. Gentleman in expressing deep sympathy with the family of Mrs. Parker, her friends and the others who were associated with this incident, which caused deep distress and concern, not just among her family but among those working in the university—and not only in this laboratory. It is right that all hon. Members should express sympathy with the families.

I do not wish to proceed further on any questions of lapses in procedure. This is quite clearly a part of the problems which are currently sub judice and with which I cannot deal across the Floor of the House. It is clear from the report and its recommendations that we need a much tighter and more effective system and that what has been up to now a voluntary system can no longer remain so. I have therefore set out in my statement the conclusions of the Government on this issue.

The right hon. Gentleman raised the question of a breach of confidence. There was no breach of confidence between myself and Mr. Clive Jenkins. Let us be clear about this. I had given undertakings to the parties directly concerned that as soon as the report was available I would make it available to them. Those parties included the Health and Safety Executive, the TUC, the World Health Organisation—all of which were present on the investigation—the university and a number of other unions as well as ASTMS. I said that I would make the report available to them and I said that it was my wish to publish the report if legal circumstances permitted. That was long before the report was published, and was made quite clear.

When the report came out I naturally fulfilled my first undertaking. There were parts of the report which it was important that these organisations and the university should see because they touched upon the safety of their staff. I am glad that I made the report available. Mr. Jenkins made it clear to me that his legal advice was different from mine and that it was to the effect that publication would not prejudice the case. I made it perfectly clear that my legal advice said that there was no question about this. This is why I again made that point absolutely clear in the letter which I sent, not only to Mr. Jenkins but to all those who received the report. I said in my letter that my legal advice was such that I could not possibly publish the report. In a free country other people can have different legal advice. The legal advice given to Mr. Jenkins has now been challenged in the courts. We shall have to wait and see what happens.

The right hon. Member for Wanstead and Woodford (Mr. Jenkin) also raised the question of St. Mary's. It is important that I should add to what I have said. No work on smallpox is currently being conducted there and we are now having talks with Professor Dumbell to see whether such work can be relocated away from London. I believe that it is most important that the work in which he is involved should continue. He recognises this as does the World Health Organisation.

I confirm that no primary legislation is required to deal with this issue. We are talking about regulations. At present we are consulting about them. I shall take the opportunity of bringing the regulations before the House.

The right hon. Gentleman said that the question of the disclosure is being challenged in the courts. Is he aware that the Attorney-General has given an answer to my hon. Friend the Member for Ealing, Acton (Sir G. Young) to the effect that the Attorney-General has considered all the circumstances and is satisfied that they are not such as would justify a reference to the Director of Public Prosecutions? The point is not, therefore, being challenged in the courts. Is this not an unsatisfactory state of affairs?

On 22 January the divisional court of the Queen's Bench Division of the High Court gave Birmingham university leave to take proceedings for an order of prohibition to stop Birmingham magistrates proceeding with the prosecution of the university by the Health and Safety Executive on the grounds, presumably, that a fair trial would not be possible because the report had received such wide publicity. I have to say that the issue will be coming before the High Court.

May I thank my right hon. Friend for his statement? May I ask him to make it clear that ASTMS, of which I am the president—and I was present when members of the union met my right hon. Friend—made it clear to him that if the report was sent under the cloak of confidentiality it did not want it?

Are there not three issues which follow from this state of affairs? Should we not now hold a public inquiry into laboratories which are holding stocks of dangerous pathogens? May I also welcome the fact that DPAG is no longer to be with us? Can my right hon. Friend reorganise it under the aegis of the Health and Safety Executive, possibly on the lines of GMAG, which has been so successful and which includes trade union representatives and members of the public?

My right hon. Friend has not referred to Crown immunity. Without touching on the case in question, may I ask whether it is not a fact that, if this had been a National Health Service property, the Health and Safety Executive could not have issued a prohibition notice or proceeded with the prosecution, as it has done? Does my right hon. Friend not agree that Crown immunity has to go?

Dealing first with the confidentiality point, I have said that there was a discussion, in which my hon. Friend took part, on 14 December, when I made it clear what my legal advice was. Mr. Jenkins made clear his intention. I said to him that if his legal advice was different from mine he should contact my legal advisers. I reiterated in my letter exactly what the legal advice was. I made it perfectly clear that it was for Mr. Jenkins to decide. I am sure that it would have been wrong of me to have withheld the report from these organisations, including the university, since they needed to take action on parts of the report which were extremely important from a safety view-point.

I have made it clear in my statement that we are reviewing the structure of DPAG. I agree with my hon. Friend that the current structure of the genetic manipulation advisory group is one which has some attractions. It is much broader, including representatives of the unions and wider interests, as well as scientists. I am looking carefully at this group to see whether it offers a useful pattern for our purposes. I have forgotten the last point raised by my hon. Friend.

It is true that there is Crown immunity, but that does not by any means mean that orders and recommendations made by the Health and Safety Executive are not taken seriously by the Government or any other institution to which they apply. The Act covers Government bodies. They are bound to accent the law in the same way as the public.

May I ask the Secretary of State two questions arising from happenings in my constituency, with which the Shooter report dealt, which do not deal with my constituency but which have implications for those engaged in work elsewhere? What steps does the right hon. Gentleman intend taking to ensure that persons carrying the heavy responsibility of being heads of departments dealing with work such as this are not grossly overworked? Is the right hon. Gentleman aware that the Shooter report clearly indicates that such gross overworking is a safety hazard? My second point concerns the insurance of employees engaged in this type of work. Since the report notes that indemnity for such employees would not extend where wilful negligence had been found may I ask the right hon. Gentleman to say that employees will be protected from the consequences arising as a result of a lack of proper staffing? Does that constitute wilful negligence? If it does, who is responsible?

Overwork was a factor. That is made clear in the report. That is not a matter for me to deal with, but it is a reason that led me to think that the report needed to be made known to some of the institutions concerned, as well as the staff who represent them. Insurance is one of the matters that properly should be discussed by the employers and the trade unions representing the staff. There will need to be a good deal of consideration within the universities and other institutions that handle dangerous pathogens to prevent the overwork that clearly was a factor in these circumstances.

Will the right hon. Gentleman indicate the Government's view on the report's recommendation that such work is not suitable in urban areas? Surely what is not safe in urban areas is not safe in rural areas. Many of those living in rural areas are fed up with their parts of the country being used as dumping grounds for what is not acceptable in urban communities.

That is not so. Safety is the principal concern of the Shooter report and the Government's acceptance of the basic recommendations within it. We are going to great lengths about the safety challenge. Safety aspects are equally important whether an institution is located in the country or in a city. The basic recommendations that deal with the handling of dangerous pathogens and the safety measures that should be taken will apply in all instances.

Is my right hon. Friend aware that the argument of the hon. Member for Truro (Mr. Penhaligon) about rural districts and urban districts is nonsense? Even in the days when tuberculosis was rife, a tuberculosis hospital could be located anywhere as long as a cordon sanitaire was put round it. We appreciate the legal constraints under which my right hon. Friend is working, but does he agree that often legal constraints do not work in the public interest? Therefore, Mr. Clive Jenkins did a service to the public interest by making the matter public. I ask my right hon. Friend not to succumb once again to the panic that others try to develop. Will he ensure that the work continues to go ahead, as it is essential that it does so? All that the public want is for the work to go on in areas where there is the minimum risk to everyone concerned.

I am extremely glad that my hon. Friend said that the public wish the work to go on in areas where there is the minimum risk to all concerned. Fortunately, legal constraints are matters not for me but for my right hon. and learned Friend the Attorney-General. I shall not make any comment on the question whether the report should be published. My advice is clear. I agree that we should not have any panic. If we were now to move from what some felt was inadequate protection, without the backing of the law, to such a degree of protection that we were to damage the ability of institutions to carry out effective diagnosis or to undertake effective research, the loss to ourselves and to the world would be great. That is a factor that we are considering closely in respect of the work of Professor Dumbell.

Order. If we have brief questions, I shall be able to call all those hon. Members who have been rising.

To what extent has existing research been broken up and held back by these unfortunate events?

I do not think that any important research has been held up. Work has had to be held in question. There has been a careful check on safety precautions. That was one of the values of the report being made known to those who needed to know. There are some questions still to be determined—for instance, about the work of Professor Dumbell. These are matters that are under consideration.

I, too, offer my sympathy to the families of those who suffered in the tragedy. I pay tribute to the hundreds of citizens in Birmingham who co-operated with the quarantine regulations that prevented a further and more catastrophic situation than the one that arose.

Does my right hon. Friend accept that the publication of the report in the widest possible sense is far more important than a tinpot prosecution that at the end of the day might lead to a £1,000 fine? Does he agree that Clive Jenkins performed a public service by publishing the report? Will he confirm that the report was sent on 21 December to the organisations that he mentioned, for their information and use? He does not seem to be as positive on that matter as we would like.

Is it not a tragedy that we are restricted by the sub judice rule when every news-paper in Britain has published full details, when articles have appeared, for example, in the New Scientist and when television programmes have been broadcast? Lord Grade personally vetoed a major programme to appear on the ATV screens in Birmingham to point out to the citizens of Birmingham what was in the Shooter report. It is a misuse of the sub judice rule to cover up an issue of major importance that transcends the normal issues of sub judice. I should like my right hon. Friend to publish officially at the earliest possible date.

Order. I am sure that the hon. Gentleman did not mean to cast any reflection on my ruling.

Of course not, Mr. Speaker. I am complaining as an individual that you, Mr. Speaker, have to make such a ruling.

I am the servant of my masters, who are before me. It is the House itself that has decided on the sub judice rule, and it expects me to observe it.

I assure my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker) that I wanted to publish the report at the earliest possible moment. As he knows, it was only legal advice that prevented me from doing so. I still wish to publish the report officially at the earliest possible moment. I confirm that when the letter was sent, which said that the report was for information and for use, the "use" with which I was concerned was the recommendations on action which were relevant to safety provisions. That is what I had in mind. If similar events were to take place, I should still make the report available. I believe that a great deal of important work has been done by the organisations concerned since the report was circulated shortly before Christmas.

If the right hon. Gentleman had been advised that legally he could not publish the report because of dangers of prejudicing a trial or even preventing a trial taking place, and yet he wished the information to be in the hands of those to whom it is important, was he not advised to obtain an undertaking from those who should have the report not to publish it as a condition of their receiving it? Secondly, I raise a purely constituency matter. There is great concern within the urban area of Muswell Hill within my constituency that the Coppetts Wood isolation hospital, which was used for lassa fever cases, for example, may be used for experiments involving infectious fevers. Is the right hon. Gentleman able to give an assurance to my constituents that that will not happen?

Instead of merely making a statement on the Floor of the House, I shall write to the hon. Gentleman to tell him the exact situation of the Coppetts Wood hospital. The hon. Gentleman spoke about legal advice. These are matters that are best dealt with now by the court. The case is before the High Court. It would be unwise for me to make any further comment.

I associate myself with the remarks of my hon. Friend the Member for Birmingham, Perry Barr (Mr. Rooker). My right hon. Friend mentioned the possibility of a licensing system to control laboratories dealing with category A disease experimentation. Will he say more about that? Many of us regard that as a minimum safeguard to ensure that the types of laboratory that we are dealing with are properly monitored, in the hope that such an appalling tragedy will not arise again.

As I said in my statement, these are matters on which we are now in consultation. The Health and Safety Executive has started consultations with the interested parties on the details of the licensing system, which will be brought before the House. The matter will then be open for debate. If hon. Members wish to submit their views, I can assure my hon. Friend that they will be considered carefully as part of the consultation.

Is the right hon. Gentleman aware that there is a close interest in the subject at the Microbiological Research Establishment at Porton, which he was good enough to visit a few weeks ago? Does he appreciate that the scientists at Porton do not regard the handling of the smallpox virus with much anxiety because there is a certain protection against it, whereas many of the viruses that they handle, of equally deadly diseases, do not have such protection?

At the same time, is the right hon. Gentleman aware that there is inevitably a certain local concern, as also experienced by my hon. Friend the Member for Hornsey (Mr. Rossi)? Will the right hon. Gentleman also write to me? Will he come to a conclusion quickly, before speculation mounts, as to the future site for research in this field?

As the hon. Gentleman said, I recently visited Porton Down and spent some hours at the Microbiological Research Establishment. He is right to point out that Porton has the highest standards not only of research but of safety. I mentioned earlier that since the Shooter report a number of inspections have been carried out of establishments with category A pathogens. Porton was one of them. It had an absolutely clean bill of health, as it should have.

Can the right hon. Gentleman tell us what is the position of such laboratories in Scotland? Has he sought an assurance from the Secretary of State for Scotland that laboratories there will conform in every way with the standards set out in his statement?

Will my right hon. Friend confirm that inspections are currently taking place in conjunction with the Health and Safety Executive? Will he also confirm that the regulations will be under the Health and Safety at Work etc. Act? Will he accept that the Act already provides statutory responsibility? Is not my right hon. Friend concerned that that statutory responsibility appears not to have been exercised by the inspectorate before this difficulty arose? Finally, will my right hon. Friend confirm that he is satisfied that once the regulations are passed—and, indeed, that this will be the position now—there will be sufficient personnel in the Health and Safety Executive to man these inspections and retain future standards, because they are the people with the statutory responsibility?

That last question by my hon. Friend is really one for my right hon. Friend the Secretary of State for Employment, who has the main responsibility for the Health and Safety Executive, but I can confirm that the inspections which have been carried out very recently have been carried out together with the executive, which has a crucially important role to play. I can also confirm that the regulations will be made under the Health and Safety at Work etc. Act.

Does the right hon. Gentleman agree that while the Government can introduce more stringent regulations for the physical containment of these dangerous pathogens, a much more difficult challenge is to try to restrict the element of human failure involved in this experimentation? I welcome his proposals and the Shooter report's recommendations on approval, notification and licensing, and also on the widening of the dangerous pathogens advisory group, but has the right hon. Gentleman any proposal to try to improve the responsibility of the individuals who will be dealing with these pathogens and experimenting in between the periods of supervision and inspection by the Health and Safety Executive or any other group?

I have great sympathy for the point made by the hon. Gentleman. I read with interest an article in Nature on 11 January about biosafety research and education, and the proposal for such a unit. Certainly, these are matters which we need to look at very carefully. It is clear that people working in these circumstances can be working under the greatest possible pressures. I think that we need to look very carefully at what more can be done in terms of human support for those who carry this heavy responsibility.

Will the right hon. Gentleman admit that he deliberately defied or got round the legal advice that he had been given when he gave the report to someone he knew did not regard himself as bound by its confidentiality? Will he accept that his action has directly caused expensive and difficult litigation in the divisional court, all paid for by public bodies, and has delayed the trial of criminal proceedings? Will he discuss the matter with the Law Officers and undertake that he will not in future issue confidential documents that he is advised might prejudice legal proceedings to people who will not be bound by the confidence, and certainly cease to give confidential documents to Mr. Clive Jenkins in particular?

I deny absolutely what the hon. Gentleman has said. I assure him that I will continue both to consult and to take the advice of the Law Officers in these cases. I did so in every aspect of my handling of this situation.