Dáil Éireann debate -
Thursday, 17 Oct 1996

Vol. 470 No. 3

Tribunal of Inquiry into Hepatitis C Infection: Motion.

Minister for Health (Mr. Noonan,

Limerick East): I move:

That Dáil Éireann:

Bearing in mind

(1) The serious public concern about the circumstances surrounding the contamination of blood and blood products and the consequences for the health of a significant number of people.

(2) The report of the Expert Group which was published in April 1995

and

(3) The fact that further documents, testimony or other information, not available to the Expert Group, may now be available relevant to some or all of the matters following;

resolves that it is expedient that a tribunal be established, under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments, and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, to inquire urgently into and report and make such findings and recommendations as it sees fit in relation to the following definite matters of public importance:

1. The circumstances in which anti-D, manufactured by the Blood Transfusion Service Board (BTSB), was infected with what is now known as hepatitis C and the implications thereof, including the consequences for the blood supply and other blood products.

2. The circumstances in which the BTSB first became aware that anti-D, manufactured by the BTSB, had become, or might have become, infected with what is now known as hepatitis C.

3. The implications of the discovery at 2. above, the action taken by the BTSB in response to the discovery and the adequacy or otherwise of such action including the consequences for the blood supply and other blood products.

4. The response of the BTSB to a letter of 16 December 1991 from the Middlesex Hospital, London in relation to human immunoglobulin-anti-D and the adequacy of such response including the consequences for the blood supply and blood products.

5. Whether the National Drugs Advisory Board in carrying out its functions in advising on the grant of a manufacturing licence for anti-D under the Medical Preparations (Licensing of Manufacture) Regulations, 1974 and in advising on the grant of product authorisations under the European Communities (Proprietary Medical Products) Regulations, 1975 carried out its functions properly.

6. Whether supervision of the Blood Transfusion Service Board and the National Drugs Advisory Board, in respect of the matters referred to in paragraphs 1-5 above, was adequate and appropriate in the light of

(i) The functional and statutory responsibilities of the Minister for Health, the Department of Health and the boards.

(ii) Any other relevant circumstance.

7. Whether anti-D was a therapeutic substance for the purposes of the Therapeutic Substances Act, 1932 and the regulations made pursuant to it and whether the grant of a manufacturer's licence during the years 1970-1984 would have been appropriate and could have prevented the infection of human immunoglobulin-anti-D with hepatitis C.

8. The relevance to the foregoing of any further documents, testimony or information not available to the Expert Group, which became available subsequent to the completion of the group's report.

9. The questions raised by the family of Mrs. Brigid McCole, in their open letter published on 9 October, in so far as these questions relate to the terms of reference above.

And that the tribunal be asked to report on an interim basis not later than the 20th day of any oral hearings to the Minister for Health on the following matters.

The number of parties then represented before the tribunal.

The progress which has been made in the hearings and the work of the tribunal.

The likely duration (so far as that may be capable of being estimated at that point in time) of the tribunal proceedings.

Any other matters which the tribunal believes should be drawn to the attention of the Minister at that stage (including any matter relating to the terms of reference).

And that the Minister for Health should inform the person selected to conduct the inquiry that it is the desire of the House that the inquiry be completed in as economical a manner as possible and at the earliest date consistent with a fair examination of the matters referred to it.

The Government decided on 8 October to move a motion in both Houses of the Oireachtas establishing a tribunal of inquiry into the hepatitis C infection of blood and blood products manufactured and distributed by the Blood Transfusion Service Board. On 15 October I announced details of the proposed terms of reference of the tribunal determined by the Government and these are set out in the motion. Yesterday the House had an opportunity to discuss at some length all the issues which form the background to the setting up of the tribunal. In these circumstances, I do not propose to go into the level of detail which would be the norm in introducing such a motion to the House.

The establishment of a tribunal of inquiry is the ultimate mechanism available to the House to establish the full truth surrounding any matter of major public concern. It is not a power that is lightly used—this is only the sixth occasion since 1975 that this procedure has been invoked. A tribunal of inquiry established under the Act has the same powers, rights and privileges as are vested in the High Court or a judge of the High Court. These include the compelling of witnesses to attend and the production of documents before it. It is an offence to disobey a summons to appear as a witness, not to produce documents requested by it or to obstruct or hinder the tribunal in its functions. Persons found guilty of an offence under the relevant Acts are liable on conviction on indictment to a fine not exceeding £10,000 or up to two years' imprisonment or both.

The hearings of the tribunal must be in public unless the tribunal considers that it is in the public interest to refuse to allow the public or any portion of the public to be present for reasons connected with the subject matter of the inquiry or the nature of the evidence.

There has been a general welcome for the Government's decision to establish the tribunal. Despite the costs involved it would appear that, because the infection of blood and blood products is such a major scandal and because there is a need to use all available means to establish the full facts of what happened, there is an acceptance that on this occasion a tribunal is the right mechanism. The establishment of the truth is obviously of most importance to those whose health has been affected by the infection of the blood and blood products. I accept that for them this is probably the single most important expectation that they have of the Government and Members of this House. It is also of considerable importance to the well-being of the democratic system that we can be seen to address the critical issues of accountability and responsibility through the systems available to us.

I will now address the terms of reference and, in particular, draw to the attention of the House some of their special features. In drawing up the terms of reference, the Government's objectives might be summarised as follows: first, to enable the tribunal to address fully all the relevant matters of serious public concern; second, to ensure clarity in relation to the boundaries of the task to be undertaken by the tribunal; and third, to enable the tribunal to conduct its task as effectively and efficiently as possible consistent with a fair examination of all matters referred to it.

Deputies will have noted that the terms of reference are quite detailed and extensive, in contrast with shorter and more general terms which have characterised other such inquiries. This is designed to balance comprehensiveness with clarity and to assist the tribunal in containing the task to those matters which must be addressed. However, Deputies will also note that provision is being made to allow the tribunal in its interim report to draw the Minister's attention to any matter relating to the terms of reference which it considers needs to be addressed.

The inquiry will start with a considerable advantage, in so far as it will have available to it the report of the expert group, so ably chaired by Dr. Miriam Hederman-O'Brien, which was published in April 1995. It will also have full access to all the documents discovered in preparation for the recent High Court case taken by the late Mrs. McCole. This represents a significant proportion of all the work which might otherwise have to be undertaken by the tribunal. I need hardly say that it can absolutely rely on the full co-operation of my Department and all other bodies under my aegis in undertaking the further researches which its work will involve and in gathering the testimony necessary to complete its task.

There is a specific reference to the questions raised by the family in their open letter published on 9 October. Yesterday I appologised unreservedly for any upset I may have inadvertently caused to the members of the family in raising questions about the conduct of Mrs. McCole's case by her solicitors. I again assure each and every one of them of my deep regret about any hurt which my remarks caused. I hope they accept my apology in the spirit in which I have been gladly willing to make it and repeat it in this House today. I also made adverse references to the solicitors and counsel for the late Mrs. McCole in my contribution yesterday. I withdraw these unequivocally.

The tribunal is being asked to report on an interim basis not later than the 20th day of any oral hearings and the matters to be covered in that report are specified. This, coupled with the expressed wish to conduct the inquiry in as economical a manner as possible, consistent with a fair examination of the matters referred to it, reflects the Government's concern with maintaining confidence in a tribunal of inquiry as an effective and efficient means of getting to the bottom of contested matters of major public concern. These provisions are innovative but they derive directly from the experience gained in the establishment and conduct of previous inquiries.

Finally, I draw the attention of the House to the specific reference to the supervisory responsibilities of the Minister and the Department of Health. Because of the concept of the Minister as corporation sole and the reality that functions are exercised on his behalf by the officers of the Department of Health, it is considered appropriate to include both. I was particularly anxious to avoid any suggestion that I am not prepared to be fully accountable for any responsibilities I hold in relation to the matters under review.

I am pleased to inform the House that Mr. Justice Thomas A. Finlay, the former Chief Justice, has agreed to be the chairman and sole member of the tribunal. I express appreciation to him on my own behalf and that of the Government for agreeing to undertake this difficult task of major national importance. I wish him every success in his task and I again assure him of the unstinting co-operation of my Department and the other statutory agencies.

The Government has agreed to the Attorney General's recommendation to make provision for the appointment of three legal teams — the tribunal team, the State team and a public interest team. This is the first time that a team representing the public interest will be appointed. The tribunal has the power to authorise the legal representation of any person appearing to it to be interested. It may also refuse such representation. It is a matter for the tribunal alone to decide who should be represented and the 1979 Act authorises the tribunal to direct that the costs of any person appearing before it should be paid by any other person, including the State.

The work of the tribunal will get under way as soon as the necessary physical and support arrangements can be put in place. Its cost will be a charge on the Department of Health Vote and will be met by way of Supplementary Estimate in 1996 and subsequently as necessary.

I have outlined the main features of the tribunal's terms of reference and the arrangements for the conduct of its task. It is being asked to address difficult and sensitive issues surrounding one of the worst public scandals which has arisen for many years. Many groups will look to it to provide explanations as to how this happened and to draw conclusions on the systems or other failures which led to such a sad outcome for so many innocent people. I did not lightly propose its establishment to the Government, which took great care in finalising the scope of the tribunal's work. If there had been an easier way of addressing the issues, which have concerned people within and outside the House, I would have chosen it but there was not an easier way to achieve the degree of certainty that was being demanded.

It is no consolation that we are not alone in the difficulties which have arisen in the field of blood transfusion. The measures I have proposed to my colleague Ministers in the EU to enhance blood safety and self-sufficiency within the Union have met with a ready and enthusiastic response not because they are especially innovative or radical but because every Minister for Health recognises he or she cannot take for granted a continuing and adequate supply of safe blood and blood products unless there is zero tolerance of anything other than the very best practice and everything relating to the harvesting, factoring, distribution and use of blood and all its derivatives. The principles and practices necessary to achieve this are generally known and agreed. The challenge is to implement them rigorously and consistently, no matter how routine the operation may appear to the casual observer.

As we establish this inquiry into past failures we must renew our commitment to support the implementation of the many measures which have been recommended in the Hederman-O'Brien and Bain reports with regard to the improvement of the blood transfusion service and of haematology in our hospitals. The provision of resources to do this is essential but so also is the maintenance of public confidence and the reassurance of those charged with providing a high quality service that they have the support of all in this House in doing their work. I hope all Deputies will support this motion and I recommend it to the House.

Mrs. Geoghegan-Quinn

I move amendment No. a1:

In paragraph 9, to delete ", in so far as these questions relate to the terms of reference above".

My amendment No. 1 states:

After paragraph 9, to insert the following new paragraphs:

"That a Government decision be made:

(i) directing all persons employed by the Government Departments and State Agencies concerned to give their full co-operation to the Tribunal in its inquiries and

(ii) directing all Government Departments and all State Agencies concerned to fully co-operate with the Tribunal by providing all documents and information requested of them;

That the Minister for Health should inform the person selected to conduct the inquiry that it is the desire of the House that the anonymity of the victims of Hepatitis C who come before the Tribunal be preserved if they so wish;"

I also intend to propose a second amendment which states: "In paragraph 9, to delete ", in so far as these questions relate to the terms of reference above".

I find it very difficult not to be emotional about this issue. We must try to put ourselves in the position of the victims of hepatitis C. It could have been any one of the women Members who are in such a position. We must try to imagine what it must be like to live every day constantly reminded that we have been poisoned by a State agency, living with the dread of death, not knowing what time, when or where it will happen. At the same time, we must look at the way in which those victims — men, women and children but mostly women — have been treated by the State agencies and by the person charged with political responsibility. There has been stonewalling all the way, both by the Minister and agencies concerned.

Many of the victims have not been brave enough to come out publicly and show their faces. All of us can understand that. I compliment those brave victims of hepatitis C whose photographs appeared in this morning's newspapers. The Minister accepts that many victims have not told their extended families, their children or employers. They must be respected and those who have gone public must be admired.

The Minister once again proved that a week is a long time in politics. Just over a week ago he told the Dáil there would not be a judicial inquiry, U-turns or an acknowledgment of a cover up. He also told us the expert group which had investigated the BTSB scandal had the full facts and there was no need to reopen the investigations. Yet one week later he did a U-turn. A judicial inquiry was to be established and, in the terms of the motion establishing the inquiry, the Government at last recognised that the expert group did not have all of the facts.

Reading the terms of reference one justifiably felt both gratified and surprised. We are gratified because at last the means had been secured to uncover the truth behind not just the medical but also the political scandal arising out of this tragedy. We are surprised, because these terms of reference were apparently proffered by a Minister who has consistently and resolutely opposed any attempt to uncover that truth.

The terms of reference are not without fault. I will deal with the difficulties associated with them later, and having read my amendments, the Minister is aware of them. However, Let us not allow him, as a consequence of his extraordinary U-turn — his first in the context of the terms of reference — to be exonerated of his disgraceful handling of this issue.

When he announced his capitulation people said that at last the Minister had seen the light and was listening to the victims of this public health tragedy; he had at last recognised that wrong had been done and that the truth had to come out. However, yesterday he showed this was the same Minister of a week ago. The leopard had not changed his spots; he had merely altered them temporarily.

In his comments yesterday the Minister emphasised that nothing has really changed in his approach to this nightmare. He has learned nothing throughout the horrible saga of hepatitis C. Despite his pretence of finally listening to the victims, the Minister is as deaf as he ever was to the calls of people who had been violated by a State agency. He has reinforced in stark terms his lack of sympathy, compassion, and understanding of the hurt, anger and frustration of the victims of the hepatitis C scandal in general and the late Mrs. McCole in particular.

The Minister made an appalling attack on the late Mrs. McCole, her family and the victims in the course of his speech to the Dáil yesterday. Despite the fact that he mentioned the questions raised by Mrs. McCole's family in terms of the judicial inquiry, he had forgotten, just one day after he had drawn up those terms, that Mrs. McCole was not in this for the money.

As the letter from her family pointed out, the reason Mrs. McCole chose to go to court was because she wanted to establish the truth. She wanted those who put the sentence of death upon her to be made accountable in public. Her name and her family's questions were deliberately included in the terms of reference of the hepatitis C judicial inquiry to make the Minister appear compassionate and to make the inquiry look honourable. Her name was added to give the tribunal respectability.

Given the attack in the Minister's speech, one must conclude this was just window dressing by the Government and that Mrs. McCole's name was attached to the terms as a personal damage limitation exercise by the Minister. Nothing had really changed except that the Minister needed to get out of a spot and the terms were honeyed with the addition of the name of the victim.

Yesterday's comments were not, as I said this morning on radio, the words of some inexperienced Minister. The Minister is no political lightweight. He is regarded as the Government's "safe pair of hands". He is a Minister whose political skills are legendary. I told the House last week that people have always described him, as I would have, as being politically skilful, somebody who would get things done, would handle difficult tasks, would be a "hands on" Minister and would fight for something that he believed in.

However, two observations can be made in respect of his comments. First, the bitterness and resentment the Minister feels for Mrs. Brigid McCole's legal team shone through and underpinned his comments. His bitterness is due to the fact that the revelations forthcoming from the discovery carried out by Mrs. McCole's legal team provided the basis for the tribunal of inquiry, which will eventually bring the Minister and the State agency to book. Second, his lack of sensitivity has been clear for some time. This is now complemented and supplemented by a most fundamental ignorance of Mrs. McCole's nature and motivation. The Minister is sadly mistaken in his belief that Mrs. McCole's motivation was money. If the Minister had spent less time stonewalling, blocking and barracking her claim and more time trying to understand her overriding concerns, he would not have made his comments in the House yesterday.

It was Mrs. McCole's living and dying wish that the truth of this scandal should be uncovered and understood by everybody. It was for this reason alone that she, and not her legal team, wished to pursue her claim through the courts. Her decision was fully vindicated when the discovery documents arising from her claim in the courts revealed evidence of, at best, negligence and, at worst, impropriety. The tribunal of inquiry would not exist if it had not been for Mrs. McCole's brave decision. For the Minister to criticise that decision in the manner in which he did yesterday displays, on the one hand, a most serious lack of understanding and, on the other, a most unattractive bitterness.

An episode of this magnitude requires a safe pair of hands, but the pair of hands dealing with this issue have not been safe for some time. Every time the Minister met the hepatitis C victims over the past two years, he warned them that they could not have or get various things. He never apologised for the terrible tragedy which has befallen these victims; instead, there was beneath the surface bile, a bare tolerance on the part of the Minister. His attitude was that they should accept the charity they were being offered by a Government which promised to treat them fairly.

This lethal cocktail in terms of attitude was always just beneath the surface and the victims knew it. Last night, the Minister could not hide it any longer. He was boiling with resentment because the victims, their legal team and Opposition spokespersons had forced him to make a U-turn. He let fly; Fine Gael's safe pair of hands lashed out. The Minister, who people say is somebody who gets things done and handles the difficult tasks, publicly dropped the ball.

The Minister has been on the offensive since by trying to present his comments as something out of character. He wants people to feel sorry for him and to explain his comments by claiming that he did not "sensitivity-proof" his speech. If an experienced Minister had come to the House without reading his script, it might have been possible to excuse him but an experienced Minister, the person regarded as the best performer in the Government, should not expect people to believe he did not read his script before he came to the House.

However, the Minister's bungling is not just about last night because for 18 months he has done his best to ensure the full truth did not emerge. This is the truth and answers that victims, such as the late Mrs. McCole, want more than anything. Positive Action has graciously accepted the Minister's apology, but the attack brought to the surface a resentment which the Minister has harboured for a long time. I hope the Minister will accept that it damaged his relationship with victims of hepatitis C. There is a danger now that people will feel the Minister says one thing in public but feels something totally different in private. Nobody should attack Mrs. McCole's memory or her motives in the manner in which they were attacked last night. It is extraordinary that the attack was launched by the person whose first duty is to protect the lives and health of people in the State. How could anybody have been so insensitive to Mrs. McCole's husband and family?

The Minister belatedly apologised for his remarks but not until they had been brought to his attention for the third time. Both myself and Deputy O'Donnell brought them to his attention but the Minister did not apologise until Deputy Tom Kitt raised them at the end of the debate. I did not see the members of Positive Action walk out of the public gallery but the Minister must have because they were in his line of vision. However, he did not flinch or apologise for almost three hours. It reflects his attitude to the controversy that he did not realise an apology was necessary.

He believes, as he has from the beginning, that this matter is all about money. This is why he made crass statements, such as comparing the position of a hepatitis C victim to somebody falling into a pothole or comparing the issue to the beef tribunal. However, as I have repeatedly said, this issue is not about beef, export credit insurance or cattle, but about 1,600 people, or more, who were infected by a deadly disease by a State agency for which the Minister ultimately has political responsibility in the House.

His belief that this matter is all about money also explains his refusal to give full answers to parliamentary questions and Minister of State, Deputy O'Shea's willing participation in that regard. Both Ministers have a blind spot. They fail to understand that this affair is about getting the truth and answers, not money. If they had acknowledged that from the beginning, they would not have allowed the type of cover-up which has been carried out by a State agency throughout.

Last night, having attacked the legal team, the Minister made a sinister remark. He stated that if Mrs. McCole had gone to the tribunal she could have received a significantly higher award. How does the Minister know? This is not the first time the Minister has made such a remark. On a previous occasion he said that as soon as the ad hoc tribunal started making large awards, the applications would start to flow in.

At the time I asked the Minister if he was expounding a Government strategy. I also asked him what contacts he had with the tribunal and how he knew it would make large awards. His replies did not allay my concern and I asked him to assure the House that he was not interfering with the compensation tribunal. The Minister gave that assurance, but he still made those remarks last night. This raises serious questions and I am concerned that eminent legal figures associated with the ad hoc tribunal are being used in this affair.

The worst remarks made by the Minister were:

Could her solicitors not, in selecting a test case from the hundreds of hepatitis C cases on their books, have selected a plaintiff in a better condition to sustain the stress of a High Court case? Was it in the interest of their client to attempt to run her case not only in the High Court, but also in the media and the Dáil simultaneously?... If we are to review the conduct of the case by the State, have not the solicitors for the plaintiff a case to answer also?

The questions posed are despicably rhetorical and a battery of people are defamed by them. Legal people, Positive Action, journalists and politicians, including myself, are impugned and tarred by them. On yesterday's Order of Business it was curious that the Taoiseach accused me of abusing the privilege of the radio. If the issues were not so serious, this would be laughable. As I reminded the Minister during the debate yesterday, it was almost like an eminent predecessor of the Taoiseach saying: "Forget about the practice, what about the theory?" As the Minister and the Taoiseach are aware, there is privilege in the House and the Minister abused it last night to make a raft of unfounded charges. If he had made them on the radio, he would have to be indemnified by the State for dozens of legal actions.

I understand that on radio last night the Minister tried to explain his speech by saying that, while he paid attention to the facts, he did not pay attention to the comment. However, his remarks were not made off the cuff or off the top of his head. They were carefully crafted and scripted. They represent about 10 per cent of the speech and contain facts and the Minister said he checked the facts. I find it very difficult to believe he did not read the speech in advance. Anybody who reads the Minister's speech is immediately struck by its tone. It is not something a Minister could have missed and I fail to see how this Minister could have missed it.

For the past 18 months we have relentlessly pursued the Minister for the truth in the hepatitis C affair. Throughout that time there has been an attempt at a complete cover-up, to the point of his claim last March that the expert group had the full facts surrounding the controversy. On 26 September last, six days after the Blood Transfusion Service Board had admitted liability and two days after the Government had been informed, the Minister withheld that information in response to a parliamentary question from Deputy Walsh on the issue. That forced many victims to go through torture to establish the truth and to pursue actions through the courts.

I have argued that the handling of the controversy, and that the Minister has done so little to ensure that the truth comes out shows his political judgment is in doubt. That argument was reinforced by last night's episode. The Minister continually makes the point that he was not in office when these events happened. We have accepted that from the beginning. The Minister has been in office for two years, however, and he admitted here yesterday evening during Question Time that he is the first Minister to have all of the facts and the full information on this. The Minister, therefore, is responsible to this House for the public interest and for protecting public health. He is responsible to the victims who have always demanded the truth, an admission of liability, an apology and a statutory compensation tribunal. The political buck stops with him.

There has to be a question over the judgment of anybody who would deliver a speech which contained such charges and not immediately recognise their impact. The Minister's script was more the document of a defensive individual than of a person who is accountable to this House for what even he accepts at this stage is a scandal. This is the worst scandal in the history of the State and a public health tragedy.

The Minister promised to give the facts known to him, but his speech and the answers he gave during the question and answer session yesterday, although he answered many questions, fell well short of that. He is pressurising victims to go to the ad hoc compensation tribunal and he has done so throughout this saga. He did so last June when he refused to extend the application deadline for the compensation tribunal. He signals that the State will continue to obstruct trials and there are many veiled threats to victims.

The Minister said last night that when he told the other House on 20 June last that Mrs. McCole's case would not be a judicial inquiry, he did not give the full facts because he had received a letter from the legal team representing Mrs. McCole, warning him about references to her case. He could have said that in this House or he could have said it in the other House, but he chose not to. He also claims that Deputies on this side of the House have criticised him for taking measures to restore public confidence in the blood supply. He is manufacturing those attacks in an attempt to win pity. He has not been criticised, to my knowledge, by any of the Deputies on this side of the House for any measures he takes to restore public confidence in the blood supply. He has been criticised for not giving complete disclosure in this whole affair.

There are ten questions which still deserve to be answered. Who authorised the legal strategy followed in the Mrs. McCole legal action? Why has the Blood Transfusion Service Board admitted liability now? What was discovered that led to that admission of liability and how was it discovered? Why has the Minister or his Labour Party Minister of State not looked at the crucial 1976 file which was discovered during the preparatory work for the Mrs. McCole case and which the Minister has acknowledged contains a great number of documents? For an experienced person with a controversy raging for two years while he is Minister to say that he did not at any time during that controversy examine the basic file that deals with the controversy is incredible. If the Minister for Justice came into the House and said this, she would be berated from all sides of the House. If I was a Minister or if Deputy O'Rourke or Deputy O'Donnell were Ministers and a controversy was raging, no matter what the issue was and we admitted on the floor of the House that we had neither asked for the file nor read all the documentation in it, we would deservedly be berated in this House. I cannot understand why the Minister has not yet asked for the file and read it.

Were duplicates made of any of the documents in the 1976 file at any stage, and if there were, were they found during discovery and where? Why have the Minister and his Labour Party Minister of State declined to acknowledge that important new information is contained in that file? I suppose they cannot because they have not read the file. Why has the State not admitted liability in this controversy, given the unique relationship between the Department of Health, the Blood Transfusion Service Board and the National Drugs Advisory Board? In this regard I ask the Minister not to revert to constructing a Chinese wall.

Given that the Minister has acknowledged, both in the terms of reference of the judicial inquiry and in the media, that the expert group did not have the full information, why does he still insist on making the report his Bible, as he described it yesterday? Why does he not use his own source material, given that he has access to all the relevant information as Minister for Health and the expert group report has now, as he said yesterday, been undermined? He continues to use the expert group report as his source for all the facts and quoted from it extensively in the House yesterday. He has used the report as his explanation why he did not refer the files to the DPP, despite his acknowledgment that the group was not able to interview all the relevant persons and did not get all the documents.

Why is it now in the public interest to establish a judicial inquiry when it was not last March or indeed two weeks ago? What did the Minister for Health know when he accepted the resignations of the Blood Transfusion Service Board executives in 1995? Every attempt to get the truth of this affair has been frustrated. The expert group's work was frustrated and it was not given the full facts. The DPP has not been given the files and was driven to make an unusual public statement in that regard.

The Minister has all the information but even now we cannot get answers to specific questions we have asked. That is why a judicial inquiry is required. It is now clear that it is the last resort, the only way of establishing the truth and of getting the State to disclose the information that has been withheld. I welcome the Minister's U-turn on that. It is clear from the terms of reference that he has capitulated. It is obvious particularly in its reference to the expert group not having the complete information, in its acknowledgement that the political handling of this matter by the Minister has to be investigated and in its reiteration that the expert group did not have complete information, some of which, such as the 1976 file, for example, was only found after the group had reported.

In our amendments to the tribunal we demand that a Government decision be made directing all persons employed by the Government Departments and State agencies concerned to give their full co-operation to the tribunal in its inquiries. I am conscious of the Minister's statement this morning that it is an offence if persons required to give evidence before the tribunal do not come before it. It is important that the Government give a direction to all such persons. We also demand in our amendment that a Government decision be made directing all Government Departments and State agencies concerned to fully co-operate with the tribunal by providing all of the information and the documents requested of them. We want these demands to be explicitly included in the motion.

The public light has not shone into all of the areas of this affair for various reasons including a lack of co-operation by agencies and individuals in the matter. That lack of co-operation was highlighted by the Minister who has now also confirmed that the expert group did not get all of the relevant documents and that not all appropriate people went before the tribunal. He still has refused to say who was not interviewed and which documents were withheld. The truth of this has to come out. All persons, Departments and agencies must co-operate fully with the tribunal. I know that is the wish of the Minister but I would like him to consider very carefully whether he can incorporate that part of our amendment into the terms of reference.

The second element of our first amendment is to ensure that the anonymity of victims of hepatitis C is maintained, if they so wish, when they appear before the tribunal. These people have a right to maintain their privacy and it must be protected. In paragraphs 120 to 130 of the Royal Commission on Tribunals of Inquiry 1966, it is unclear if this right to anonymity exists. Paragraph 122 refers to the discretion of the presiding judge and states that anonymity exists only in cases where there is a threat to the individual.

To avoid any difficulties down the line about this issue, we believe it must be explicitly stated in the terms of reference. In this way, victims who go before the inquiry in the public interest will have the right to keep their name and address confidential if they so wish. Some may not want to avail of that but they should have the right if they so wish. The change we envisage will mean that the evidence will be heard in public but that reporting restrictions can be applied by the presiding judge to protect the anonymity of victims. Under our amendment, only the victims can avail of this privilege; no comfort will be given to those who must be accountable.

Our amendment No. a1—I apologise that it was not ready prior to this morning—involves the deletion of the words in paragraph nine in so far as these questions relate to the terms of reference. Our intention is that all of the questions of the late Mrs. McCole's family deserve to be and must be answered so that there can be no picking or choosing among the questions. Our fear is that with the current wording the Minister and the Government are attempting to limit the scope of the inquiry, not intentionally, and will try to limit answers to the burning questions raised by the McColes.

We have a number of other concerns in relation to the terms of reference which we want the Minister to address. These relate to the scheme of compensation and the State's admission of liability. Will the scheme of compensation be amended? The Minister indicated to the House that if he felt it was not operating in the interests of the victims he would consider such an amendment. Another crucial question concerns the people who take final awards. What is their position, for example, if the judicial inquiry makes a finding of full liability? Any admission of liability is specifically excluded under clause eight of the scheme of compensation. The State has not admitted liability for this affair and in the light of that, and what has happened since the compensation scheme was set up, it is important that the Minister should seriously consider amending that scheme because the goalposts have changed in relation to it.

I am happy that in the terms of reference of the tribunal the chairman will first present the Minister with a report after 20 days of oral hearings. That is important and I am glad it will be discussed in this House. There is a slight concern, however, which I am sure is shared by the Minister, that this tribunal could go on for ever and a day. We do not want that. The Minister admitted in his contribution that much of the information is already on the record, including the report, all of the work done by the legal team for Mrs. McCole and so on. I ask the Minister to indicate his concern that the tribunal should finish its work in as reasonable a time as possible while ensuring we get the full truth. That is important and it would allay a level of public concern that may exist in respect of such tribunals of inquiry.

Ms O'Donnell

At this stage we are all experiencing a statement burnout on this issue which has been before the House on more than 20 occasions. The Minister gave offence in his scripted remarks last night but we should accept that he has withdrawn those remarks and apologised for them, as was correct.

We support the terms of reference before the House today. They indicate that many of the concerns voiced by Members on this side of the House, and by the women concerned, have been addressed. The measures before the tribunal will be broad yet the terms of reference are specific as well as broad. It is essential that the political handling of this matter be incorporated into the terms of reference. That has been done and is to be welcomed.

Mr. Justice Hamilton said that had questions been adequately and comprehensively replied to in this House in the period leading up to the beef tribunal, there would not have been a need for that tribunal. Whether the scores of questions put down to the Minister on this matter were comprehensively and adequately replied to is a legitimate concern of this House if we are to learn any lessons.

It is vital that the tribunal should have a role in examining the manner in which the State conducted its defence in the Brigid McCole case. The Minister's remarks yesterday contained the same harshness that was evident in the State's defence in the Brigid McCole case. The Minister tried to defend that in his contribution yesterday. He referred to the criticisms I made that the State had tried to use the statute of limitations against Mrs. McCole. He said the fact that it used the statute of limitations would not necessarily have been reflected on the eve of trial. I do not accept that. It is well known that the use of the statute of limitations against a plaintiff is designed to intimidate the plaintiff. The plaintiff faces a 20 per cent risk that the action will be lost on that technicality of the statute. Its use does intimidate. It introduces that risk to the plaintiff from the beginning of the case. The statute is only considered if it is specifically pleaded by the defendants. It was specifically pleaded by the defendants in this case.

Throughout the handling of the State's defence there was an insistence on this woman losing her anonymity. The Minister explained yesterday that the judge made a decision on that matter, but if the State had not opposed her wish for anonymity the judge would not have had to make a finding on the matter. The State could have allowed her retain her anonymity without challenging it in the court. Questions must be answered in regard to how the State played hardball with this unfortunate woman.

Paragraph nine of the terms of reference refers only to the defence of the BTSB, as distinct from the Department of Health or the State. Will the Minister clarify that when he replies to the debate today? Will it be in the remit of the tribunal to examine the manner and conduct of the State's defence? That is important.

In the past ten days further information has come to light in relation to this matter. Listening to the radio while driving to the House this morning. I heard the current medical director of the BTSB going into great detail about the contents of the file. We have been unable to get any information from the Minister on the contents of the crucial file discovered. The medical director described the circumstances in which the file was found. I got more information on that crucial file listening to Pat Kenny's radio programme this morning than I have every received from questioning the Minister. I sometimes wonder if we are wasting our time in this House.

The Minister has been more forthcoming to the media than he has been to this House. Now the current officers of the BTSB are talking very openly about the contents of this crucial file. I find that amazing, and I reiterate that we are unable in this House to act in the public interest and extract information from the Government.

It is a measure of the official tendency to withhold information that very little of our information has come from official sources. By far the most significant revelation made to me by a constituent is that there is positive proof that the condition of the six anti-D patients was considered, as early as 1977, to be linked to their treatment with anti-D. It appears this information was passed at the time to the Blood Bank and the State agency with responsibility for infectious diseases. Many of the victims and their families have become so irritated by the bland, meaningless and self-serving statements from official quarters that they are themselves making public material from which a picture is beginning to emerge. Last week, for example, the McCole family made public the harsh, narrow and threatening terms on which settlement was offered to them on 20 September. That harsh tone was still evident last night in the Minister's speech.

Since then the family of another victim have told me of their experiences and shown me certain documentation in the case which became available at various times right up to their recent appearances before the compensation tribunal. I have read the transcript of the evidence before the compensation tribunal. It was compelling reading because it outlined the individual tragedy not only of the woman, who has had the most significant symptoms since receiving anti-D in 1977, but of her entire family who have been damaged by that contamination. She has been sick since the birth of her third child and this continues right up to the present. She has had the most significant symptoms which have literally, as was said to the compensation tribunal, deprived her of her life plan.

It is only when one reads individual cases that one sees the enormity of the scandal. The difficulty right from the beginning has been that they were treated as a group, and the horror of the individual tragedy never really captured the public imagination until Mrs. McCole died, when her individual tragedy was brought home to the people. By reading the transcript of the compensation tribunal's proceedings I was allowed, in a most intimate way, to read the detail of this woman's illness over the years, the terrible symptoms she had from the very beginning—nausea, ulcerated eyes, phenomenal fatigue, itch all over her body, total lack of energy; she could not lift her new baby to feed him but had to send him away to her family to be looked after. She suffered headaches and was never able to take her family on a holiday. She developed a defect in her immune system and a myeloma which is a form of cancer.

Her husband's evidence was harrowing. His life changed completely. He said: "My wife got tired after the baby was born, everything stopped overnight, my life changed like that." Her eldest son had difficulty relating to his mother. She said: "My son grew away from me. He resented me." He resented her persistent illness. One can imagine what it would be like for three children whose mother is constantly in bed, unable to do anything, chronically fatigued.

This woman is one of six women who was diagnosed as having hepatitis, who showed chronic symptoms of hepatitis, having received anti-D in 1977. I have seen letters which were put forward to the tribunal which indicate that her own GP linked her hepatitis with anti-D, immediately followed it up and sent her to a consultant. That consultant determined the link and passed the information on to the BTSB. Another consultant to whom she was referred by her obstetrician when she went back for her six week check independently confirmed that her hepatitis was linked to anti-D. The note from that consultant to the woman's obstetrician stated: "Just a note to confirm our conversation. I think this is serum hepatitis, probably associated with the anti-D serum which she had. Its six week incubation period would fit and the function test would indicate a hepatitis cellular type of jaundice. I am sure this is the explanation". At that point in 1977 senior consultants were in contact with the BTSB informing it of their concern that anti-D was linked to this woman's illness.

One question I asked the Minister when we were being briefed and which he has not answered is whether the transcripts of all the cases which have come before the compensation tribunal will be available to the new tribunal of inquiry, because there is cogent and compelling evidence of early knowledge of the link between anti-D and the jaundice of six women who developed it having had anti-D. It is important that they are available.

From this it emerges quite clearly that when this woman's symptoms began within months of being administered anti-D her GP immediately connected it with that occurrence. The doctor said: "I was quite sure that she had acquired something from anti-D initially. What it was I was not certain". Still in the calendar year 1977 the GP referred her for specialist investigation, specifically raising the question as to whether her symptoms could be due to the anti-D injection. The GP continued to express his concern. On 4 October 1977 he was told in writing that a named consultant had been in touch with a named doctor in the Blood Bank stating: "we are following up your suggestion concerning the anti-D." This is a letter from a separate consultant making the link with anti-D.

We have, of course, no idea of what precisely was done by the BTSB or any other agencies in the course of this follow-up of this woman. What is clear is that there exists irrefutable documentary evidence for the proposition that the symptoms of jaundice accompanied by crippling fatigue and other conditions had been specifically linked to anti-D at an extremely early stage. Despite this persons were still being infected 17 or 18 years later.

These facts cry out for explanation. That is why we are having a tribunal of inquiry. The facts also underline the vital link between the events at the beginning of the saga in the mid and late 1970s and much more recent events in the mid 1990s. That is why I am glad that the inquiry covers the period up to the present. It must do so if its work is to be convincing.

In the case to which I referred, which was passed to me by my constituent, the symptoms have tragically continued right up to the present time. They were also persistent throughout the period between 1977 and the present day. This gives the lie to the suggestion that the first batch of women who developed jaundice recovered and became symptom free, which is the line advanced to the Hederman-O'Brien expert group. At paragraph 3.15 on page 23 the expert group referred to this woman who was one of the six as follows:

In 1977, the BTSB was notified of six women who had developed clinical jaundice some weeks after receiving Anti-D immunoglobulin. We were told that these cases were fully investigated at the time, and that the women and the implicated batches of Anti-D tested negative for Hepatitis B Virus. Hepatitis C Virus had not yet been identified as a separate virus (this did not occur until 1989) and the jaundice in these women was, according to the BTSB, attributed to environmental factors.

That is completely at variance with the medical correspondence I have seen. Those cases were not fully investigated. Nobody contacted that woman after she went to her two consultants. She has been receiving treatment since 1977. Nobody from the Blood Transfusion Service Board contacted that woman until 1994. In paragraph 3.43 the Blood Transfusion Service Board explains why it took no action on the Middlesex letter: "No immediate action was taken as the index cases were originally reported as having fully recovered...". They could never have been reported as having fully recovered. This woman has been sick since 1977. Paragraph 3.49 of the report states: "We could find no written evidence regarding the BTSB's conclusion that the six cases were attributable to environmental factors... ". Five of the patients live in a localised geographical zone on the northside of Dublin city but there appears to be no written evidence from that time that the BTSB attributed the cases to environmental factors.

The transcripts from the tribunal will have to be available to the inquiry because there are so many inconsistencies in the expert group report, which is available to the inquiry, and the evidence I have seen in one case — one of those women who are referred to as the index cases — that it would not get the full story otherwise. It is true that in the period upto 1989 hepatitis C had not been scientifically described. Its full description in that year has made possible various associations with other symptoms and conditions which will, no doubt, eventually lead to a fuller understanding of the otology of the condition.

It would be impossible and unreasonable to expect the present state of knowledge to have been available in 1977 or for many years after. None of this takes from the seriousness of the fact that a connection was established 19 years ago, not simply between anti-D administration and the symptoms which arose shortly after it but between specific administrations of anti-D from ascertainable batches and those symptoms in specific identified patients. It is the failure to act on this connection which provides the gravest cause for concern. In this failure lie the seeds of the enormous tragedy for many persons subsequently infected.

There can be no question of the Minister being able to restore confidence in the Blood Transfusion Service Board until all these questions, and many others raised by the same facts, are fully and comprehensively answered. The facts which allowed the GP, to whom I have referred, to make the connection with the anti-D treatment 19 years ago, were communicated both to the blood bank and the State agency responsible for infectious diseases.

It is of great importance that the subsequent actions of all State agencies involved are fully disclosed. It is not helpful to the obvious concerns raised that hepatitis C was not fully described until more than a decade afterwards, nor is it an answer to say that the jaundice which was the first symptom in most or all of these cases cleared or abated. There was ample evidence of a pattern of symptoms which included what went far beyond jaundice. That case raises in a uniquely tragic way the obligation of the State and all its agencies to make proper disclosure about their own doings. An article in a Sunday newspaper recently remarked that we live in a Civil Service culture of minimum blame and minimum disclosure. That is absolutely true.

There has been a complete reluctance and a resistance to be open with information on this matter from the beginning. I hope the tribunal will be able to discover not only the medical facts but will be able to look into the cover-up of the medical facts which is at the heart of the scandal.

It is vital that the public interest is represented separately. This was an issue which arose in the beef tribunal and it was a matter of some concern that there was no separate representation in the public interest. I am glad that the Minister informed the House that the public interest will be represented. The public interest will ensure that all the facts come out and establish what went wrong, who was responsible and how a similar situation can be avoided. There would be a clear conflict if the public interest was not separately represented. The State has so many questions to answer that the Attorney General could not represent the public interest. It will then be open to the team representing the public interest to challenge evidence that is put forward or rubbished by the other side. That is what will happen in the tribunal. If one side puts up some evidence the job of the other side in the adversarial system is to rubbish it or discredit it. Because the public interest will be separately represented it will be able to make comments and ensure that at all times it comes to the fore and is represented. I support the motion and the amendments put down by Deputy Geoghegan-Quinn. It is vital that anonymity is preserved, and I look forward to the Minister's response.

Minister of State at the Department of the Environment (Ms McManus)

Yesterday the Minister for Health set out in detail his position on the hepatitis C scandal. He spoke about the deep distress and justifiable anger it had caused and the need to know and understand. He outlined in detail his views on the legal and political issues and his responsibility in relation to them. In doing so, at one point in his speech he was grossly insensitive to the feelings of hepatitis C victims. He is not the first man in this House to wound the feelings of women and, in the nature of human discourse between women and men, it is unlikely that he will be the last. He did wrong in what he said and he did right in apologising so swiftly and unreservedly. Ultimately, a man must be judged on his actions. In this regard the Minister, Deputy Noonan, has shown energy, commitment and intelligence in dealing fairly with what from the victims' point of view is a profoundly unfair and destructive force in their lives. He has responded to their needs for treatment and compensation and is setting about establishing the tribunal to meet their need for truth.

Nothing he does can rewrite history for the victims. Nothing he does can undo the tragedy and the terrible affliction the women are suffering. Nothing he does can undo the deep sense of betrayal felt by women who put their trust in an institution, the Blood Transfusion Service Board, which ended up destroying their health and well-being.

He has inherited a complex and as yet not fully told saga of damage and neglect. It extends back over 20 years and over the stewardship of many Ministers for Health. None of these Ministers can be held responsible for the tragedy. In meeting the needs of those so terribly affected the Minister has shown himself not just to be a good Minister but also a good man. The tribunal which he is establishing is mandated to elicit the answers to some very specific queries and to address clearly defined issues.

I do not believe the hepatitis C affair, a medical and human tragedy spanning two decades, should ever be used as a party political football. It appears that no Minister for Health from 1976 to 1994 was aware of what was happening in the Blood Transfusion Service Board. That lack of accountability is at the centre of this issue and one of the results of the tribunal must be to prevent a recurrence, either in the health service or in any other area of administration. As politicians and legislators we all bear responsibility for the proper functioning of the State and its institutions. It is clear that the Blood Transfusion Service Board did not function properly for many years. Rather than acting in the interests of public health, the negligence displayed by the board militated against the health of women.

Medical science is a fallible discipline and is constantly changing. No medical practitioner in any field would act in any given situation today precisely as he would have acted 20 or even ten years ago. The changing and developing nature of medical knowledge is only one of the matters which will have to be taken account of not only by the tribunal but by all of us in trying to make sense of this tragedy.

I do not know what conclusions the tribunal of inquiry will reach but we must ensure that they are heeded and that any recommendations are fully implemented without delay. We owe it to the women affected to discover not only what happened — we know that only too well — but why it happened. We owe it to future generations to ensure that the errors made during the past two decades are never repeated. If at the end of its inquiries the tribunal finds that anyone acted in a way which was criminally negligent or reckless then we must ensure that appropriate action is taken by the Director of Public Prosecutions. We owe it to the women concerned and society at large to ensure that there is no hint of official or judicial tolerance of the events surrounding the hepatitis C affair.

Miss M. Wallace

Ireland has never known a health scandal to match the one being presided over by the Minister for Health. The health of citizens is of the utmost concern to society and while it is a scandal when the Government fails to provide adequate services for those who are sick it defies description when the incompetence of its agencies endangers the lives of people who are otherwise perfectly healthy.

Given the extent of the scandal being discussed today, it is amazing and insulting in equal measure that the Minister should have shown such insensitivity in the House last night. The Minister has apologised and Positive Action has accepted his apology, but his insensitivity has hurt all women. A number of steps can be taken to rectify this and to restore confidence. I support the points made by Deputy Geoghegan-Quinn about the insensitivity shown by the Minister and the Government. Now that the Minister has apologised we should be able to move forward and adopt a more sensitive approach to a number of issues.

It was bad enough for the McCole family to lose their mother but it was worse to know that the State was responsible and that her death could have been avoided. These women expect the State to do everything possible to help them and their families and do not expect insensitive comments. I am not referring only to the Minister's comments last night but also to the insensitivity shown by the Government earlier in the week when it compared the tribunal with the beef tribunal. I plead with the Government and the Minister to adopt a more sensitive approach to this matter. It is important to remember that we are dealing with women whose health has been affected as a result of the actions of State agencies. Deputies have referred to some of the difficulties experienced by these women. Every time we refer to this matter we should remember that these women are listening to what is being said and that the matter needs to be dealt with in a sensitive way.

Yesterday I spoke to women who will undergo the interferon treatment which has been described not as a cure but as a slowing down process. These women know that the treatment will be difficult, yet they are prepared to undergo it in the hope that it will help them so that they and their families can live some kind of normal life. Given the lack of confidence in the Department of Health, the BTSB and the NDAB, it is important for the Government to reassure these women and to recognise the real human concerns being expressed by Positive Action and the people it represents. The Government must ensure that the last offensive comment, which only serves to deepen the hurt felt by the victims, has been made. It must also remember that it is dealing with women who have been made ill as a result of factors outside their control, women who expected to leave hospital as healthy as when they entered but who instead were very badly treated. It is important that these women are dealt with in a sensitive manner in the future.

On the question of anonymity, the Minister and his advisers must have been aware of the use of fictitious names in cases involving members of the Irish Haemophilia Society. It is wrong to continue to fight these people and I hope the Minister's apology signals the end of the Government's insensitive approach. These people must be treated for what they are, that is victims of the State, people who should have had their health protected by the Department of Health but who were made ill by State agencies.

The Government further displayed its insensitivity on 17 June by trying to force the women to go to the compensation tribunal. It now has an opportunity to show good faith with these women by telling them it will look again at those cases which are due to be dealt with within the next few months. I join with Deputy Geoghegan-Quinn in calling on the Government to deal with this matter immediately. It is unfortunate that those women whose cases will be heard in the coming months should be faced with the dilemma of withdrawing from the compensation tribunal and taking their case to court.

Last night the Minister referred to the areas with which the tribunal will deal. However, the results of the inquiry could have a major bearing on cases taken to court. If a decision is not taken by the Government immediately, there will be numerous requests for adjournments at the compensation tribunal. For example, a person whose case is due to come before the compensation tribunal next week will regard it as worthwhile to wait for the results of the tribunal of inquiry and request an adjournment. It must be obvious to the Minister and his advisers that this is what will happen and that a huge number of adjournments will be requested in the coming months until such time as the tribunal of inquiry has reported. The date by which an award must be accepted or rejected should, therefore, be extended to one month after the tribunal has reported. If the Government does not allow that, the compensation tribunal will grind to a halt.

Deputy Geoghegan-Quinn referred to those who have already accepted awards. Those cases will have to be reconsidered. Under the new umbrella of apologies and promises to do better the next time, is it possible to extend the period for rejection or acceptance of awards already made until one month after the inquiry reports?

I noted the Minister's expression last night when asked about a deadline for the inquiry submitting a report. Under the circumstances he may not wish to set an early date in that regard, but he must indicate a final date. He stated the matter will be examined after the 20th day, but if he sets a final date for reporting and the tribunal is unable to meet it, at least we would have a report giving the reasons for that. The dilemma of these women increases when they do not know when the inquiry will report. Following yesterday's events, the Minister would show good faith by taking this line of action.

Many of the women concerned receive assistance through the under-funded home help scheme, but this assistance will cease when their cases are finalised. They will want to continue to receive assistance through the home help scheme from the personnel who took care of their children up to now. That scheme should be considered in a separate context in terms of hepatitis C victims.

Positive Action has made a great input to this issue. Will the Minister provide adequate funding to enable it retain its office, co-ordinator and free telephone line? The more coverage the issue gets, the more women will need to contact Positive Action. Will he also ensure a proper comprehensive counselling service is provided?

Mr. Shatter

As I have spoken on this issue on a number of previous occasions. I will try not to repeat what I have already said. I will direct my remarks solely to the tribunal of inquiry whose establishment I welcome. It is important that the former Chief Justice Finlay, who will sit on the tribunal, has the necessary terms of reference to allow all matters which are currently of public concern, and about which there is a great deal of confusion and conflicting allegations, to be resolved. It is also important that the concept of accountability and responsibility over all the years of this tragedy is fully addressed. In setting out the tribunal's terms of reference we should not divorce from its consideration the manner in which the State conducted itself in defending cases in the courts brought by victims of contaminated blood products who have contracted hepatitis C.

As a lawyer I hold a view that may surprise some Members. On occasion people take lawyers and their advice far too seriously and do not question whether implementation of the advice given to say, a Government body, Department, a Minister or State agency, such as the BTSB, should result in the action proposed by lawyers whose job it is to defend the interests of the body concerned. When lawyers advise the State or State agencies on proceedings, policy decisions should be made on whether the advice given will result in action which is justified and in the public interest or if the advice and the natural reaction to it will result in action that is not justified or in the public interest. There should not be an unquestioning acceptance of legal advice given on the tactics to be deployed in defending court cases. This should be a matter of concern for Government, Government agencies and private individuals. In doing their best to defend the position of clients, some lawyers may adopt tactics which are not appropriate to the circumstances to which they relate. In the context of the special characteristics of the proceedings brought by the late Brigid McCole and others who have contracted hepatitis C, in particular the proceedings brought against the BTSB, greater consideration should have been given to the impact on victims of the legal tactics deployed in court cases. That matter should fall within the terms of reference of the tribunal. Lawyers acting for the State must be accountable for their actions, as must those who instruct them to act in a particular way. I hate the connection between this and the background to the proceedings in this House which resulted in an inquiry into the behaviour of successive Attorneys General.

Some of the issues raised by the McCole family fall outside the remit of the tribunal. Deputy Geoghegan-Quinn drew our attention to this today in the context of paragraph nine of the terms of reference. The words "In so far as these questions relate to the terms of reference above" may seem unduly obscure, but I understand — I would like the Minister to clarify this — they exclude from the remit of the tribunal the fifth question raised by the McCole family. In their letter of 20 September 1996 they state that the Blood Transfusion Service Board admitted liability and apologised, but only in the context of a threat that were Brigid McCole to proceed with a case of aggravated or exemplary damages and not succeed it would pursue her for costs. The McCole family asked about the justification for that. The only justification for it was to put pressure on Brigid McCole not to pursue the issue of aggravated damages because it might have been to her financial detriment.

The policy issue which resulted in the BTSB issuing that threat should be considered by the tribunal. We are entitled to ask if it was justified or in the public interest to make such a threat in the context of the background to the awful tragedy which has befallen those who have contracted hepatitis C. I do not believe we can regard it as lawyers operating in some sort of legal vacuum using legal mystique in their language and that none of this is relevant. It is relevant for a particular reason. Not only does that approach add a very serious financial threat to the other distress facing those proceeding through the courts, it fails to recognise that it is in the public interest to establish whether those seeking aggravated damages here are entitled to them.

In all sorts of cases where defendants have lost over the years the courts have granted costs in their favour where the issues pursued have been in the public interest. There have been cases where people who have lost in court have not only not had to pick up the bill for the State's lawyers, but the State has had to pick up the bill for their lawyers. The most recent case that comes to mind in that context is that brought by the former Senator, Des Hanafin, in which he contested the validity of the outcome of the divorce referendum and appealed his case to the Supreme Court and lost. However, the Supreme Court did not order that he pay the State's cost of the Supreme Court hearing, instead it required the State to pay his costs on the basis that it was a public interest issue. If the issue of aggravated damages must end up being resolved by litigation in the courts, as it is one of relevance to so many people it is one in which there is a genuine public interest to have resolved and that type of threat in relation to costs should not be left hanging in the air.

There are a few other questions relating to the conduct of proceedings, one of which was referred to by a number of speakers and, in fairness to the Minister, dealt with by him yesterday, the reasons the late Bríd McCole was not granted anonymity. It was not granted because it became an issue for the court to determine and the judge who determined it held that under the Constitution she was not entitled to anonymity. I wish to refer to two issues in that context. As a lawyer it has been my experience over the years that in a court case in the civil area in which there may be some particularly personalised matter about which the courts are concerned that on occasions the lawyers for the plaintiff and the defendant will jointly ask the judge to request the media not to publish the name of the person processing proceedings and that he or she be granted anonymity. That is not about the court making a judicial decision in a contested situation to grant anonymity, it is where both sides agree that the media should be asked to give a person anonymity and in my experience the media have always done so when they have been asked. That could have been done here, but it was not. That is a policy issue. The lawyers could properly advise that based on our current law Bríd McCole was not entitled to anonymity as a right. That was totally correct legal advice and proved to be so in the context of the court decision on that issue, but as a matter of policy it could have been agreed between the lawyers on both sides that the judge be asked to request the media to give her anonymity and that neither her name nor address be reported in the newspapers. From my experience that would have happened in practice. The policy behind the manner in which the cases have been dealt, particularly this case, in regard to the anonymity rule should be a matter for the tribunal.

There is also another issue. It has been rightly said that Article 34 of the Constitution requires justice to be administered in public, but Article 34.1 of the Constitution states that "save in such special and limited cases as may be prescribed by law..." If parties cannot agree on it and if the courts will not do it, this House has the capacity to pass simple legislation which would provide that any of those who issue or are involved in the proceedings seeking damages as a result of this awful tragedy in the civil courts shall be granted anonymity or that the extent of which the case is open to the public shall be limited. There are old provisions dating back to the Censorship of Publications Act, 1929, in relation to family law proceedings and section 14 of that Act allows for reporting of general matters in court cases while keeping certain aspects of them out of the public domain. That could have been done by agreement in relation to Bríd McCole. The courts could not do it where there was a contest, but it could be done in this House by way of legislation. It should have been done and should now be done. I assume I am right in the assumption that Members on this side of the House will not oppose one of the amendments proposed by Deputy Geoghegan-Quinn which requests that the Minister should inform Chief Justice Finlay that it would be the desire of this House that the victims be granted anonymity. They should be granted anonymity. Is it not extraordinarily inconsistent that those who come before the tribunal of inquiry and the compensation tribunal should be granted anonymity, but that it should continue to be denied to those who come before our courts to resolve the issue of aggravated damages? That issue should be dealt with. The policy issue as to what led to the making of those decisions should be dealt with by the tribunal.

I have great difficulty in adopting an approach which would oppose any of the amendments tabled by Deputy Geoghegan-Quinn on this motion. They all express sentiments with which everyone in this House should agree. The Minister's extensive remit given to the tribunal covers nine-tenths of what must be dealt with and he deserves praise for that. The House, in performing a legislative function, has an entitlement to add minor amendments to the terms of reference. I hope we will agree to the amendments proposed.

I hope the message will go out from all sides of this House without political contention that we want relevant issues examined and resolved to the fullest possible extent by the tribunal so that when it reports no one will be able to say that the full background and full truth is not in the public. domain.

Dr. Moffatt

This has been a bad week in politics for the Government. The handling of the hepatitis C issue has raised the questions whether this is a caring Government and if it realises the sensitivities of the issue. A grave injustice has been done to women. It is bad enough to have erred in the medical field, but to compound that issue with a wrong in the political handling of the issue in a very insensitive manner leads one to believe that this Government has become too smug, too confident in itself, untouchable and does not know what is happening in the greater world, especially in relation to the hepatitis C issue. Perhaps the Government came into office at a good time when there was plenty of money which had been secured from the EU by the outgoing Fianna Fáil Government.

It was a bad week for women and their husbands and families. The issue has been compounded by the handling of the farming issue by the Minister for Agriculture, Food and Forestry. He has single-handedly divided the country North and South in his handling of the Russian beef deal. This shows that the problem of insensitivity and the lack of ability to deal with issues in the manner in which they should be dealt is infectious. I could give other examples, including the handling by the Minister for Transport, Energy and Communications, Deputy Lowry, of the transport section which has divided management and workers. There was no proper consultation and perhaps this is the issue here also. If there had been proper consultation with the women involved, this issue could have been solved long ago. As if it was not bad enough that Ministers are in conflict with the people, backbenchers are also confused. Deputy Crawford is trying to defend the Minister for Agriculture, Food and Forestry in Monaghan and Deputy Ring does not know which side of the House he is on in regard to the deflector system. He recently said one thing in Mayo in defence of that system and asked the Taoiseach to comply with what he stated in Cork——

Acting Chairman (Ms F. Fitzgerald)

The Deputy should confine his remarks to the tribunal of inquiry into hepatitis C infection.

Dr. Moffatt

I am making the point that the Government and its backbenchers do not know where they stand on issues concerning the people. The Government is insensitive to the needs of the people, as has been demonstrated by its reaction to the hepatitis C problem. The problems have existed since 1970. When a donor and recipients became jaundiced the bells should have rung and all the anti-D product should have been discarded. A thorough analysis of the procedures should have been undertaken, but unfortunately that was not done. In the 1990s a Middlesex hospital sent out another signal, but that was not answered. Between 1991 and 1993 improved tests came on-stream and at last the conclusion was arrived at that there was a real problem. Yet again, however, the Blood Transfusion Service Board was slow in informing donors and recipients of what was going on.

Liability should have been admitted earlier. It is now admitted case by case. The women involved will be asked serious questions on the issue and each case will be dealt with separately in the courts. The cases of those who have gone through the other system are not being heard swiftly enough. There are many problems that have not been addressed. The Minister has now done a U-turn and accepted responsibility in this matter. As Deputy Geoghegan-Quinn said, a Chinese wall has been put up between the Blood Transfusion Service Board, the medicines board and the Department of Health, but in the last analysis responsibility lies with the Minister for Health who must deal with the issues. Unfortunately they have not been dealt with compassionately up to now. Let us hope the judicial inquiry will discover what went wrong.

Procedures must be implemented to ensure the Blood Transfusion Service Board is reliable so that the same thing does not happen again. It will not be sufficient to have self-regulation. There should be international observers to ensure the Blood Transfusion Service Board is up to international standards. A meeting of EU members took place in Adare to discuss blood transfusions and blood product, and I hope some of the proposals discussed there will be implemented. I welcome the judicial inquiry and the 20 day report, which will give us an opportunity to examine what has been going on. I hope the inquiry will not continue ad infinitum but will be concluded swiftly. The women involved want an acknowledgement that mistakes have been made. Compensation is not the primary factor in this whole saga.

Mrs. T. Ahearn

I wish to share my time with Deputy Dukes.

Acting Chairman

Is that agreed? Agreed.

Mrs. T. Ahearn

I welcome the establishment of the tribunal of inquiry. I would prefer to forget many of the events leading up to today's decision. With the setting up of the tribunal of inquiry to determine the facts, the deep wish of all the victims is being met.

The unreserved apology by the Minister for Health, Deputy Noonan, last night to Positive Action and the McCole family for any hurt caused by his comments was accepted by Positive Action. It is a pity the Opposition parties cannot show the graciousness and understanding shown by Positive Action. By accepting the apology it has proven that its primary purpose is to find out the truth, and I hope that will be done.

We must not forget that during the coming months victims will have to endure deteriorating health because of this scandal. We must not allow our minds to divert from the victims and their families. On behalf of Positive Action and the applicants concerned I request the Minister to extend for one month beyond the report of the tribunal of inquiry, the time limit whereby those who have had their cases heard in the tribunal can decide whether they will accept their award. At present they have one month within which to consider the award offered, but in view of the establishment of the tribunal of inquiry the time limit should be extended. I am delighted the Minister is taking my request seriously and I expect a positive response from him.

It is important that victims continue to be looked after. Sufficient funding should be made available by the Department of Health to health boards to provide a comprehensive home help service to those who are suffering. Standards of payment should be realistic. It would be unfair to provide inadequate pay to those who help victims of hepatitis C with their domestic duties. The existing rigid system of means testing in assessment for home help services should be modified to accommodate the special needs of hepatitis C sufferers.

Facilities, resources and funding should continue to be made available to Positive Action which has done an excellent job to maintain its office and co-ordinator, to provide a free telephone line and to establish and develop a comprehensive counselling service for women infected with hepatitis C. I believe the Minister will respond positively and generously to these requests.

The victims want to know the truth. The terms of reference of the tribunal of inquiry allow sufficient scope to obtain the information they need. We look forward to receiving its report.

Mr. Dukes

I share the anger and outrage of a great many people that so many people have suffered for reasons beyond their control. I also share the concern that we ensure that those who have been so injured are properly dealt with by the State and that this type of thing does not happen again.

Not alone must justice be done it must be seen to be done. For that reason I fully support the proposal by Deputy Geoghegan-Quinn that the Government should give a clear and explicit direction to people involved in State agencies and other relevant bodies to co-operate fully with the tribunal in its work. This is implicit in its terms of reference but, not alone must justice be done it must be seen to be done. Given the enormous emotional hurt people feel, apart from the dreadful physical damage being caused, making sure justice is seen to be done is as important now as making sure it is done.

I listened carefully yesterday and today to Dr. Joan Power of the Blood Transfusion Service Board and this morning to its medical director. It is a great pity what they said was not brought out much sooner. It illustrated one unfortunate aspect of this matter, that political considerations have often been allowed to obscure problems and the need for remedies.

Deputy Geoghegan-Quinn made a consummate political speech this morning in which she portrayed the Minister in the worst possible light and left hanging a series of questions which, quintessentially, the tribunal has been established to address. As a politician I have to admire her forensic skills but she did not add anything to her concern about the issue. This is not in any sense to run down her very real concern about the issue.

Having listened to Dr. Joan Power of the Blood Transfusion Service Board and its medical director this morning, it seems that part of the hurt people feel in this catastrophe derives from something which is part of the psyche of medical practice here — our medical practitioners need to think about this in common humanity. For far too long medical practitioners and those connected with medical practice seem to have taken the view that they should tell people as little as possible about what is affecting them, apparently, in the expectation that they will not be able to deal with the information. That attitude has proven to be one of the most emotionally damaging things in the whole case. Medical practice should finally catch up with the fact that when people are dealing with serious illness they need to be given the fullest possible information at the earliest possible moment. In cases such as this, where any doubt arises the potential damage and emotional upset that may be caused to a patient by expressing a doubt early without being able to put a name on it is far less severe than the damage that may be caused by waiting for a long period and then telling people that it is much more serious than expected.

I fully support the proposal in the amendment that the anonymity of victims should be protected in the course of the work of the tribunal. I understand this would present legal difficulties in the context of a tribunal but we should not leave it at that. If there are legal difficulties it is our job to overcome them. Deputy Shatter suggested ways in which this can be done. We are faced on the one hand perhaps with a legal difficulty and on the other with a deep human need which has to win out over the legal difficulty.

Mr. Lenihan

I welcome the Government's decision to establish a tribunal of inquiry and wish the former Chief Justice, Tom Finlay, all the best in conducting it. I am glad the Government has decided to take certain steps to ensure a limitation on the cost to the taxpayer.

I said some months ago that the victims of this dreadful condition want a degree of open government, the kind of open government provided in the Constitution by the proceedings and procedures of the High Court in which there is an exchange of pleadings, full discovery of written documentation and an oral hearing in a contested action in which the facts at issue can be established. For some reason the Minister decided this option should not be made available to plaintiffs.

From the start the Minister, as a named defendant in various claims, was in a position to expedite the hearing of a particular claim and allow the victims of this condition make an informed decision on the best legal option open to them, but he was not prepared to take that route. Instead, an attempt was made to coerce claimants into accepting the scheme devised by the Minister.

I do not want to criticise that scheme in great detail as it has many fine features but I object to the Minister's attitude which was to virtually compel victims to take this route. This created a bad climate of opinion among the victims of this condition.

That is the approach the Minister took and it culminated yesterday in his extraordinary decision to condemn the legal advisers of the victims group. I welcome the Minister's apology for that. At the end of the day the people concerned feel isolated and are still not fully aware of the circumstances which led to this condition. The Minister was purporting to give them legal advice on the best course of action for them to take and at the same time was a defendant in the claims being prosecuted on their behalf. That is a contradictory position. I am glad the Minister resiled from that contradiction and I welcome the fact that he has apologised to the House for his behaviour to date. If Deputy Dukes was still in the House he would say I am engaging in political muck raking, but I am not. This has a direct bearing on the terms of reference of the tribunal of inquiry.

Our spokesperson, Deputy Geoghegan-Quinn, has tabled an amendment to delete the words "in so far as these questions relate to the terms of reference above" in paragraph 9. This may seem an arcane amendment but, as Deputy Shatter pointed out, it is material to the Minister's responsibility in this matter. Paragraph 9 is an attempt to let the Minister out of the loop as far as this inquiry is concerned. The phrase, "in so far as these questions relate to the terms of reference above", means that the various issues in relation to the conduct of the State defence to the legal proceedings, which are issued on behalf of the hepatitis C victims, will not be examined by this tribunal.

I question the involvement of a third legal team at this tribunal. The issue of whether the Attorney General's role should be divided between his role as legal adviser to the Government and guardian of the public interest was discussed in the report of the constitutional review group. I understand the Taoiseach said that the volume of work the Attorney General must perform in his function as guardian of the public interest was so limited it did not justify the establishment of a separate office. Yet, a separate office is being established for the purposes of this tribunal of inquiry. It is not clear who will retain these guardians of the public interest. Perhaps the Minister could clarify who will appoint, retain and instruct these lawyers. If they are guarding the public interest, they cannot march into the tribunal and seek an interview with the population of Ireland as their clients. They must take instructions from some person or body as regards the conduct of their business before the tribunal. I seek clarification from the Minister about what these guardians of the public interest will do at the tribunal. Who appoints, pays and retains them and who tells them what to do?

Ms F. Fitzgerald

The terms of reference for the judicial tribunal will lead to the facts without delay. Positive Action, a group which has represented the women who have been infected with hepatitis C, has been committed to presenting its case and to getting the truth, which is what it wants more than anything else. Nothing will compensate the women, their families or children for this appalling illness they have contracted but it is extremely important to find out the reasons this happened.

This is another scandal in a series of scandals related to women's health. Women have fought to have their voices heard in the IUD scandal and the Diethylstilbestrol scandal in recent years. It seems we still have a long way to go before an equitable partnership is developed between consumers and the health service, including the Department of Health. There is a lot to be learned from this case about how partnerships can be developed and consumers' voices heard. It does not just apply to people receiving blood products.

It is disturbing that a tribunal has been required. In many ways it reflects a lack of progress in the health sector in general to recognise and respond positively to demands from citizens that it should be able to know everything about their medical situation. People have changed but the system changes slowly, particularly when it must admit mistakes. The health sector has found it difficult to accept the concept of making mistakes, which have terrible consequences. There was a time when the patient accepted that the power lay with the medical professions or institutions. However, ignorance, whether of our rights or our bodies, is a thing of the past. Now we expect a respectful relationship which treats the individual as part of the decision-making process.

This scandal will mark a watershed in relationships between the consumer and the State and between the consumer and the medical profession and the health service. However, we have a long way to go before we have all the facts at our disposal. There has been a drip feed of information which appears to be the way our procedures work, despite the best wishes of the Minister or the Department. The problem lies in the interaction between politics and the legal system. Yesterday the Minister was accused of insensitivity for which he apologised. I have asked many questions about the insensitivity of the legal system. Women's experience of the legal system must be examined in this regard. Many of the same issues have come up in cases of sexual assault or rape. We should analyse this problem more than we have done to date.

The legal system has huge power in this country. We are lucky to have a democracy and a strong Constitution, but we should look at how legalities determine issues. For those of us outside the legal system it can be extremely difficult to fathom why certain decisions are taken. We should try to change it. Positive Action is frustrated at the legal system and this causes difficulties in the health sector when people try to respond to these problems. The interaction between politics and the legal system is also complex.

If the Minister receives strong legal advice that patients cannot have anonymity at this tribunal, then we should question it. From where has this tradition evolved and can it be changed? If we can protect anonymity in cases of child abuse, why not in a tribunal of inquiry? The first two amendments about compelling people to attend and seeking documentation make a lot of sense. Although nothing will compensate these people for what they have suffered, we should learn from this case.

It may have been common practice in the past to decide what was good for the patient and to determine whether they should be informed and how much information they should be given. However, expectations have changed. It is interesting to note how little detailed discussion there has been about the health services for those affected. What are their families' needs and how will the health boards respond to them? We should ensure the health boards have the information they need to help these women and their families.

I support Deputy Theresa Ahearn's call for a month's extension to allow these women to decide if they will accept what is being offered to them by the compensation tribunal. We should also support Positive Action. The relationship between any lobby group and a Department will always be uneasy. We should do the best we can to ensure an open approach to Positive Action's needs so that it can continue the work it has done so professionally.

Let us also recognise that the actions taken and the health care services put in place by the Minister have been strong and pro-active, and probably mean that this country leads the way in Europe in dealing with people infected with hepatitis C. We should not lose sight of the fact that in setting up a compensation tribunal, providing health care and doing research to understand hepatitis C, Deputy Noonan has been more pro-active than any other Minister for Health in Europe. We should acknowledge that, while also stating that further progress must be made in creating a greater partnership in the health service between consumers, doctors, Departments, NGOs and voluntary groups. The Department of Social Welfare has worked on a plan to analyse the roles and responsibilities of voluntary groups and Departments alike. If citizenship and democracy are to mean what they should mean as we move towards the year 2000, we must address issues of gender democracy and the relationship between the citizen and the State. This saga is a watershed in that regard.

Miss Flaherty

I am glad of the opportunity to speak on this matter, to which we will return in the future after receiving the findings of the tribunal we are establishing to inquire into what has rightly been described as one of the major medical, social and human tragedies and scandals ever to happen as a result of actions of organs of the State, which affects such a large number of our citizens. I welcome the establishment of the tribunal and hope there will be a further meeting of minds on the amendments which have been moved.

The last occasion when this subject was discussed at length was when the Select Committee on Social Affairs considered earlier legislation. The issues still outstanding were thrashed out between the committee, the Minister and Positive Action and that legislation was passed. When a decision was made on whether to have a statutory tribunal, the committee knew this issue would return when the first court case was heard and information became available. Sadly, that information has come piecemeal and as a result of the death of one victim who had taken a case.

In July, when the early information came about the nature of the documents now available and the new light they were throwing on the issue, the Select Committee on Social Affairs sought a meeting with the chairperson of the expert group to consider these issues. I have sympathy with the Minister in that the reassurance we received in correspondence — which I presume the Minister received also — would have led one to believe that the advice and understanding which had informed all his actions to date were sound. This would have been supported by the expert group, which categorically stated that there were no new issues of concern in a detailed letter which was issued publicity at the time. It was therefore a major shock when the case came to court and liability was established in the announcement by the BTSB.

As I said, the committee knew the issue would return but it hoped a tribunal of this kind would not be necessary because the issues and facts would be resolved. However, it is now clear that this is the only way to answer all the questions to the satisfaction of those most directly affected and all political parties. While some people have suggested the Minister had all the information available to him, given the climate created by the issues no one in the House would have been satisfied with anything other than a tribunal. There would always have been more questions and this tribunal is the best and most appropriate means of finding the answers. I welcome the fact that its terms of reference are broad, covering the full period of concern about which there might be questions.

In common with the Minister and everyone else, I regret the accidental or unintended offence caused by some remarks last night, which added a new and unnecessary twist to what is already an upsetting political tale. The fundamental work we are doing today, the establishment of this tribunal of inquiry, continues the process the Minister undertook of responding to the issues as they unfolded. This was one of the most major tasks to face a Minister for Health in the history of the State. In due course and, we hope, as quickly as possible, this tribunal will answer the most important questions about this matter, which arose when we debated this before. Perhaps the critical central issue is why the question of culpability was not more soundly argued out and answered. The core facts are not yet clear, that is, who knew what when, and how and why they did not act more effectively to protect more people, particularly in the later period when there was clear evidence of the dangers of the practices.

No one is glad to be involved in this debate but everyone who has contributed has participated genuinely and wholeheartedly. Today's work is sad but necessary. I am glad the tribunal is being established and being given wide-ranging terms of reference. We look forward to hearing its findings and, arising from them, taking whatever actions are appropriate.

Minister for Health (Mr. Noonan,

(Limerick East): I thank all Deputies who contributed to this debate. We have had a number of discussions on the matter but what we are doing today is a major step — we are establishing a judicial tribunal to see whether it can establish the full facts of the matter before us. Deputies have asked many questions and I will try to deal with some of them in the time available.

I will first deal with the amendments in the name of Deputy Geoghegan-Quinn. Her amendment No. 1 would provide that a Government decision be made directing all employees of the State and State agencies and the institutions themselves to co-operate. The decision by the Government to set up the tribunal, like any other Government decision, in effect directs civil servants to co-operate in carrying it out. There is also power similar to the power of the High Court, to call witnesses and procure documents under penalty. The penalties are, on indictment, a maximum fine of £10,000 and/or two years imprisonment.

However, I will take on board the spirit of what Deputy Geoghegan-Quinn has suggested but it will have to be slightly recast. I presume we can do that. I have already indicated my intent to the Bills Office, but it may be possible to proceed here.

Amendment No. 1 reads: "That a Government decision be made...". This entails the Dáil directing the Government to make a specific decision which runs into old constitutional difficulties. I suggest that the wording of the amendment could be cast in the following manner:

That it is the wish of Dáil Éireann that all persons employed by the Government Departments and the State agencies concerned should give their full co-operation to the Tribunal in its inquiries and that the Departments and agencies themselves should fully co-operate with the Tribunal by providing all documents and information requested of them...

This would mean that if Dáil Éireann considered it was being thwarted in this matter at any time it could impose sanctions by way of debate in the Dáil or by calling somebody before a committee of the Dáil.

This meets the intent of the amendment. I also suggest moving it so that instead of being inserted after paragraph 9 as paragraph 10 it would be inserted after the miscellaneous section at the end. My advice is that it would fit more easily here. I have asked that my proposals be circulated.

On the question of anonymity, section 2 of the Tribunal of Inquiry Act, 1921, allows evidence to be taken in private. The manner in which the tribunal conducts its affairs is a matter for the most experienced judge in the country whom we now appoint to the tribunal. I have been advised that I could accept this amendment provided the following words are added: "so far as may be possible". The most experienced judge in the country, the former Chief Justice, would like to take into account the views of the Dáil, but rather than put it as it is, if the words "so far as may be possible" were added, it would again take the full intent of the amendment in the name of Deputy Geoghegan-Quinn.

With regard to the terms of reference, on which we are in agreement, the tribunal will report back to the House after 20 oral hearing days. Part of that report will be on the adequacy of the terms of reference. If we were to put this forward and it proved subsequently that it was not possible, the judge might report to us that he needed a slightly different term of reference to ensure that it was possible.

On the other proposed amendment, my advice is that even though it refers to only one item, it would lead to constitutional difficulties. All of the McCole letter, with the exception of the issue of the specific legal letter which caused controversy, comes within the terms of the tribunal and this would be included. According to my advice, the separation of powers is in danger of being infringed if Parliament seeks to pressurise by inquiry as to how any party conducts its litigation in the courts. Parties are free provided they stay within the law and within the rules of court — there is no suggestion to the contrary in this case — to defend their cases as they see fit and in accordance with their legal advice and not to have that legal advice the subject of scrutiny by the Dáil and the Seanad.

It comes back to the difficulty arising from the separation of powers. My strong advice is that, even though the request from Deputy Geoghegan-Quinn appears to be moderate and in line with what many people require here, I must reluctantly refuse the proposed amendment because it would give rise to constitutional difficulties if we accepted it.

Perhaps Deputy Geoghegan-Quinn could indicate agreement on the formulations I have outlined. I know it is difficult in this kind of debate, when there is not a set formula in the Dáil for circulating amendments at this point. However, I have indicated what I can accept. I can provide the text of my formulations to the Deputy. I have been working on them since I left the House and we are trying to get them into the format that would be the norm for the Dáil.

Mrs. Geoghegan-Quinn

Will it be possible to respond to the Minister?

Acting Chairman (Mr. T. Foxe)

The Minister's reply ends the debate. However, according to the new rules of the House you may intervene if the Minister gives way.

Mr. Noonan

(Limerick East): I will give way if the Deputy wishes to intervene. Deputy Lenihan raised the question of the public interest team. It will be appointed by the Attorney General. However, because the Chief State Solicitor has been involved in controversy in the course of the debate and in the manner in which the trial was conducted, it is the intention that a private sector solicitor will be appointed to back up the public interest legal team. It is a new role and concept and it would not be possible for me to fully prescribe the function we envisage for the public interest team.

I listened carefully to Deputy Mary Wallace. She made a number of suggestions which I will try to take into account. I know it is her intention, as Chairman of the Oireachtas Joint Committee on Women's Rights, to formally put her requests to me when I will have them considered.

A number of Deputies asked if I could assess the impact of this tribunal on the compensation tribunal. The inquiry tribunal will establish the facts and there will be no immediate consequences for the compensation tribunal that I can foresee at present. However, if there are consequences I will be prepared to amend the terms of reference. It is an informal system and I can amend them. In the meantime, I will take into account what Deputies have said regarding some intermediate steps if the fears they have about the progress of the compensation tribunal were to be substantiated.

An Leas-Cheann Comhairle

Under the new regulations, the Minister will give way to Deputy Geoghegan-Quinn who may make a 30 second intervention.

Mrs. Geoghegan-Quinn

With regard to the first part of amendment No. 1, it should be possible to accept the amendment as worded because a Government decision directing persons, civil servants, officers and State agencies is far stronger than any wish of this House. I appreciate that the Minister is trying to come some of the distance with me.

With regard to anonymity, am I to take it that the Minister is giving a commitment to the House that he will inform Mr. Justice Finlay that it is the wish of the House that anybody who wishes may maintain anonymity in the tribunal and that he expects him to agree to that wish?

Mr. Noonan

(Limerick East): I accept the Deputy's amendment with the addition of the words “so far as that may be possible”. Her amendment will form part of the terms of reference. However, if the eminent judge has any difficulty in carrying out the intent of the House it will be open to him to report back under the 20 day oral hearing interim report procedure. This, together with the other proposed amendment we have discussed and which I find in general terms acceptable, will be included at the end of the terms of reference by way of amendment to the miscellaneous section rather than the enumerated section.

Mrs. Geoghegan-Quinn

I wish to press my amendment because a Government decision, giving a direction to Departments and State agencies, is stronger than a wish of the Dáil which may be expressed.

An Leas-Cheann Comhairle

Does the Deputy wish to press amendment No. a1?

Mr. Shatter

May I ask the Minister a question?

An Leas-Cheann Comhairle

There is not time, Deputy.

Mr. Shatter

Will the Chair allow me to ask the question?

An Leas-Cheann Comhairle

The Deputy may not intervene because there is not time. By order of the House, the business is finished.

Mr. Shatter

I wish to know if the Minister's alternative amendment to Deputy Geoghegan-Quinn's amendment will be put.

An Leas-Cheann Comhairle

We are passed the time of the order for today's business but given that we are in an extraordinary situation I will ask the Minister to respond.

Mr. Noonan

(Limerick East): It is an important issue. I ask the Leas-Cheann Comhairle to close his eyes to the order for a moment.

Dr. Woods

The Minister is trying to get out of legalities.

Mr. Noonan

(Limerick East): Regarding the issue raised by Deputy Geoghegan-Quinn, once the Government makes a decision to set up the tribunal along the lines suggested, it means, in effect, there is a Government instruction in place to public servants to co-operate. This is the effect of any Government decision. The Deputy, as a former office holder, is aware that it is circulated throughout the system and there is a mandate to carry out the instructions of the Government.

Arising from the Deputy's comments, I am offering to add the expressed wish of the Dáil, along the lines I suggested. This is in addition to the Government decision which was already circulated. Even if Deputy Geoghegan-Quinn presses her amendment, I will amend the provision along the lines of my amendment, which is close to what the Deputy wants.

Mrs. Geoghegan-Quinn

I wish to press my amendment.

Ms O'Donnell

May I make an intervention?

An Leas-Cheann Comhairle

I apologise to the Deputy but we are some minutes passed the time stipulated by the order of the House.

Ms O'Donnell

The Minister did not reply to two questions I put to him.

An Leas-Cheann Comhairle

The first amendment is amendment No. a1, which Deputy Geoghegan-Quinn wishes to press.

Question put: "That the words proposed to be deleted stand."

The Dáil divided: Tá, 67; Níl, 50.

Tá

• Ahearn, Theresa.
• Barry, Peter.
• Bell, Michael.
• Bhamjee, Moosajee.
• Boylan, Andrew.
• Bradford, Paul.
• Bree, Declan.
• Broughan, Tommy.
• Browne, John (Carlow-Kilkenny).
• Bruton, John.
• Burke, Liam.
• Burton, Joan.
• Byrne, Eric.
• Carey, Donal.
• Connaughton, Paul.
• Connor, John.
• Costello, Joe.
• Crawford, Seymour.
• Creed, Michael.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• Dukes, Alan M.
• Ferris, Michael.
• Finucane, Michael.
• Fitzgerald, Brian.
• Fitzgerald, Frances.
• Flaherty, Mary.
• Flanagan, Charles.
• Foxe, Tom.
• Gallagher, Pat (Laoighis-Offaly).
• Gilmore, Eamon.
• Harte, Paddy.
• Higgins, Jim.
• Hogan, Philip.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Enda.
• Kenny, Seán.
• Lowry, Michael.
• McDowell, Derek.
• McGahon, Brendan.
• McGrath, Paul.
• McManus, Liz.
• Mitchell, Jim.
• Mulvihill, John.
• Nealon, Ted.
• Noonan, Michael (Limerick East).
• O'Keeffe, Jim.
• O'Shea, Brian.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Penrose, William.
• Quinn, Ruairí.
• Ring, Michael.
• Ryan, John.
• Ryan, Seán.
• Shatter, Alan.
• Sheehan, P.J.
• Shortall, Róisín.
• Stagg, Emmet.
• Taylor, Mervyn.
• Timmins, Godfrey.
• Upton, Pat.
• Walsh, Eamon.
• Yates, Ivan.

Níl

• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Ahern, Noel.
• Andrews, David.
• Aylward, Liam.
• Brennan, Matt.
• Brennan, Séamus.
• Briscoe, Ben.
• Browne, John (Wexford).
• Byrne, Hugh.
• Calley, Ivor.
• Cowen, Brian.
• Cullen, Martin.
• de Valera, Síle.
• Fitzgerald, Liam.
• Flood, Chris.
• Foley, Denis.
• Fox, Mildred.
• Geoghegan-Quinn, Máire.
• Gregory, Tony.
• Hilliard, Colm M.
• Hughes, Séamus.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kenneally, Brendan.
• Keogh, Helen.
• Killeen, Tony.
• Kirk, Séamus.
• Lenihan, Brian.
• McCreevy, Charlie.
• McDaid, James.
• Moffatt, Tom.
• Molloy, Robert.
• Morley, P.J.
• Nolan, M.J.
• O'Donnell, Liz.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Leary, John.
• O'Rourke, Mary.
• Power, Seán.
• Quill, Máirín.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Woods, Michael.

Tellers: Tá, Deputies J. Higgins and B. Fitzgerald; Níl, Deputies D. Ahern and Callely.

Question declared carried.

Amendment declared lost.

An Ceann Comhairle

We now come to amendment No. 1 in the name of Deputy Geoghegan-Quinn.

Mrs. Geoghegan-Quinn

I move amendment No. 1:

After paragraph 9, to insert the following new paragraphs:

"That a Government decision be made:

(i) directing all persons employed by the Government Departments and State Agencies concerned to give their full co-operation to the Tribunal in its inquiries and

(ii) directing all Government Departments and all State Agencies concerned to fully co-operate with the Tribunal by providing all documents and information requested of them;

That the Minister for Health should inform the person selected to conduct the inquiry that it is the desire of the House that the anonymity of the victims of hepatitis C who come before the Tribunal be preserved if they so wish;".

Amendment put.

The Dáil divided: Tá, 51; Níl, 65.

Tá

• Ahern, Bertie.
• Ahern, Dermot.
• Ahern, Michael.
• Ahern, Noel.
• Andrews, David.
• Aylward, Liam.
• Brennan, Matt.
• Brennan, Séamus.
• Briscoe, Ben.
• Browne, John (Wexford).
• Byrne, Hugh.
• Callely, Ivor.
• Cowen, Brian.
• Cullen, Martin.
• de Valera, Síle.
• Fitzgerald, Liam.
• Flood, Chris.
• Foley, Denis.
• Fox, Mildred.
• Foxe, Tom.
• Geoghegan-Quinn, Máire.
• Gregory, Tony.
• Hilliard, Colm M.
• Hughes, Séamus.
• Jacob, Joe.
• Keaveney, Cecilia.
• Kenneally, Brendan.
• Keogh, Helen.
• Killeen, Tony.
• Kirk, Séamus.
• Lenihan, Brian.
• McCreevy, Charlie.
• McDaid, James.
• Moffatt, Tom.
• Molloy, Robert.
• Morley, P.J.
• Nolan, M.J.
• O'Donnell, Liz.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Leary, John.
• O'Rourke, Mary.
• Power, Seán.
• Quill, Máirín.
• Smith, Brendan.
• Smith, Michael.
• Treacy, Noel.
• Wallace, Dan.
• Wallace, Mary.
• Walsh, Joe.
• Woods, Michael.

Níl

• Barry, Peter.
• Bell, Michael.
• Bhamjee, Moosajee.
• Boylan, Andrew.
• Bradford, Paul.
• Bree, Declan.
• Broughan, Tommy.
• Browne, John (Carlow-Kilkenny).
• Bruton, John.
• Burke, Liam.
• Burton, Joan.
• Byrne, Eric.
• Carey, Donal.
• Connaughton, Paul.
• Connor, John.
• Costello, Joe.
• Crawford, Seymour.
• Creed, Michael.
• Currie, Austin.
• Deasy, Austin.
• Deenihan, Jimmy.
• Dukes, Alan M.
• Ferris, Michael.
• Finucane, Michael.
• Fitzgerald, Brian.
• Fitzgerald, Frances.
• Quinn, Ruairí.
• Ring, Michael.
• Ryan, John.
• Ryan, Seán.
• Shatter, Alan.
• Sheehan, P.J.
• Shortall, Róisín.
• Flaherty, Mary.
• Flanagan, Charles.
• Gallagher, Pat (Laoighis-Offaly).
• Gilmore, Eamon.
• Harte, Paddy.
• Higgins, Jim.
• Hogan, Philip.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Enda.
• Kenny, Seán.
• Lowry, Michael.
• McDowell, Derek.
• McGahon, Brendan.
• McGrath, Paul.
• McManus, Liz.
• Mitchell, Jim.
• Mulvihill, John.
• Nealon, Ted.
• Noonan, Michael (Limerick East).
• O'Keeffe, Jim.
• O'Shea, Brian.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Penrose, William.
• Stagg, Emmet.
• Taylor, Mervyn.
• Timmins, Godfrey.
• Upton, Pat.
• Walsh, Eamon.
• Yates, Ivan.

Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies J. Higgins and B. Fitzgerald.

Amendment declared lost.

Mr. Noonan

(Limerick East): I move amendment No. 2:

At the end of the Terms of Reference, to insert the following new paragraph:

"And it is the wish of Dáil Éireann that all persons employed by the Government Departments and the State Agencies concerned shall give their full co-operation to the Tribunal in its inquiries, and that the Departments and Agencies themselves shall fully co-operate with the Tribunal by providing all documents and information requested of them.

The Minister for Health shall inform the person selected to conduct the inquiry that it is the desire of the House that the anonymity of the victims of Hepatitis C who come before the Tribunal be preserved if they so wish, in so far as that may be possible.".

Amendment agreed to.

Motion, as amended, agreed to.