During this important debate the Government has unfortunately continued the same line, which is not defensible and is legally inaccurate. To add insult to injury, the Minister for Health dispatched a letter today to the Select Committee on Social Affairs in which he said he was not in a position to accede to the request to give details of the litigation in question "for the cogent and fundamental reasons which have been outlined by the Chief State Solicitor in his letter of 7 May 1997 to the Select Committee". The Minister suggested in his letter that he was very busy but said "of course I am prepared to attend the committee to explain my position directly".
Fianna Fáil asked the chairman of the Select Committee on Social Affairs to organise a meeting for later tonight or first thing tomorrow morning. I was informed this evening that the meeting will not take place until 2.30 p.m. tomorrow, hours after the Dáil has been dissolved and the committee has been disbanded. Does the Government think it can treat this Parliament with such contempt and expect to get away with it? It must regard the public as an idiot if it thinks it can get away with this stunt.
This is sharp practice and risible behaviour by a Government which claims to be open, transparent and accountable. It is contemptuous treatment of an Oireachtas committee. We have an arrogant Executive which does not care for issues of major public concern and which has completely lost touch with reality. Fianna Fáil will raise this evasion of accountability in the McCole case with the Taoiseach on the Order of Business tomorrow. The Taoiseach who was the champion of Dáil reform in Opposition is prepared in Government to preside over this cynical ruse to evade a committee of the House. The Taoiseach was invisible throughout the hepatitis C scandal until last Sunday when he offered a limited apology to the victims. If they thought things were about to change at Government level in relation to hepatitis C then they did not have to wait long to find out they were wrong.
Fianna Fáil will give a commitment in its manifesto which will be published on Friday morning that if it is returned to office it will publish in full all the relevant correspondence on the McCole legal strategy and investigate the matter in full. The McCole family deserve to have question No. 5 in its letter answered. It is in the public interest that this should happen. In his pre-emptory letter to the Select Committee on Social Affairs today the Minister attempted yet again to present his legal argument on why privilege cannot be waived as incontrovertible. This is not the case, and his argument is contested not only by Fianna Fáil but by senior legal figures. During a radio interview yesterday one of those figures said there was nothing to prevent a client waiving privilege in this case.
Last night the Minister for Health treated us to another instalment of Noonan's law. He stuck to a mantra of legal inaccuracy and tried to blind everyone with his own form of science. The bottom line is that there is nothing to stop the Minister for Health and the Government from freeing the Chief State Solicitor in relation to the McCole case. The Minister has sought to argue that what we want to do is to get the advice the Chief State Solicitor gave to him. However, this is a misrepresentation of our position. What we want to establish is who authorised the legal strategy. We have been told by the Minister for the Environment that the Government was behind it. We want the Chief State Solicitor to appear before the committee so that we can question him about who gave him instructions in the case. We want to know what the Minister for Health or his predecessor told the State's legal team to do on his behalf. For example, did the State take medical advice as to the likelihood of the death of the late Brigid McCole? Did the Minister and the State make an evaluation of Mrs. McCole's state of health before proceedings began? I want answers to those questions.
I have been told that there was such an evaluation, but I am loath to believe that any Government would engage in such despicable carry on. The implications of the medical assessment are that the Government was into risk management on the McCole case. It appears the Government was trying to establish how long Mrs. McCole would live and whether a case would come to court by then. If it is true, it is the lowest moment in this tragedy. It shows that the Minister for Health not only had lost sight of his role as the defender of the public interest but was attempting to determine whether his cover would be fully blown if Mrs. McCole's case came to trial.
The late Mrs. McCole's case was the single most important event in the hepatitis C affair. It is the reason for the judicial inquiry and a statutory compensation tribunal, and why victims got aggravated damages of 20 per cent on the general award. The discovery of documents in the McCole case exposed for the first time that the report of the expert group was flawed. The discovery, which produced the dockets that showed the BTSB knew in 1976 that patient X had infective hepatitis, shattered any chance of the BTSB having a defence in the McCole case. The Minister was informed of this in March 1996 but he did not act on the information and maintained an appalling collusion with the BTSB in the cover-up. Liability was not admitted until Mrs. McCole lay on her deathbed, and the rest has now gone into the annals of how the State and a state agency got it so wrong.
Minister Noonan is still on the run in regard to this issue and is hiding behind a flawed legal argument. Last night, the Chief State Solicitor sent me a letter claiming he had addressed in his original letter the issues I raised about privilege being a matter for the client and that it could be waived by the Minister for Health. This is not correct. The Minister suggested last night that the Government was some how in the thrall of lawyers in this affair who were in an ivory tower deciding everything in relation to the Mrs. McCole action.
The Minister made the case that he was obliged to act on legal advice. A legal opinion does not have the status of law and it certainly does not prevent the client, the Minister for Health in this case, from concluding a settlement. Is the Minister seriously suggesting the lawyers were deciding policy in this case? He casts the State as putty in the hands of advisers and the whole trend of his contribution was that the State can have no input to a case. His mantra is: "We have had advice, what else could we do?" He also persists in presenting as fact that privilege cannot be waived. This is a point in contention and one that we categorically deny.
Given that the Minister has admitted the hepatitis C scandal was unprecedented, and that the McCole case was also unprecedented, does he not believe there are circumstances in which the State should disclose all the facts? Last night, the Minister said legal personnel should not be subject to scrutiny if they acted lawfully, but the McCole action was not a case that was morally defensible by the State and the BTSB. Both parties knew this for months but they maintained the cover-up in relation to the information. That was a self-protection mechanism for the Minister for Health and the Government. A Government that came to office on a platform of openness and accountability has put a blackout on all debate or questioning about the legal strategy in this case.
Where have the Tánaiste and the rest of the Labour Party been throughout this scandal? Why are they so silent? Why are they not asking questions? Is it another self-protection mechanism because of the exposure of Minister Howlin's disastrous handling of the crisis at the Finlay tribunal? The Sunday Business Post reported on 6 October 1996 that the Tánaiste put the Minister for Health under pressure and urged him in the early summer of last year to get the BTSB to settle the Brigid McCole case. That story came from a Labour source and has never been denied by the Tánaiste. It implies that the Government had knowledge of what the BTSB was doing in the early summer of 1996, long before the matter came to a head in September-October 1996.
Fianna Fáil calls on the Tánaiste to confirm that he spoke to the Minister for Health at that time about the McCole legal action and the plan to make a lodgement in the case in an effort to put pressure on Mrs. McCole in relation to costs. If the Tánaiste was aware a lodgement was being made, it confirms the Government was deciding the legal strategy. The lodgement was made and this means the Tánaiste also acquiesced in the legal strategy employed, and the attempts to force Mrs. McCole to go to the compensation tribunal rather than having an admission of liability in the courts.
The leadership of Democratic Left has also been silent and we call on its members to say what they knew. A matter that would have occupied all their time when in Opposition is glossed over now by Democratic Left in Government. Its backbenchers, who claim to represent the marginalised, have treated the hepatitis C victims with contempt. Deputy Kathleen Lynch made a most insensitive speech on the issue last June which greatly angered the victims. Deputy Lynch's message to the victims was that they should accept the charity they were being given by the Government and shut up. She suggested the victims were in the grip of those who wanted to peddle fear and to see the establishment of another beef tribunal. Deputy Lynch has not apologised for those insulting remarks, and I call on her to do so before the end of this Dáil.
Despite everything that happened, the Minister for Health was still in defensive mode last night. He listed a litany of reasons he could not act, and rewrote some of the history. He suggested the BTSB only found out it had no defence in September 1996 and then immediately admitted liability. This is not so. The BTSB and the Minister knew this six months before and throughout those six months they put Mrs. McCole through the wringer in the hope she would not continue her case before the courts.
Minister Noonan suggested last night it was par for the course that the statute of limitations issue arose and that the sole reason for this was to allow Mrs. McCole's lawyers to particularise her case. This is a falsehood. The statute of limitations does not become an issue unless it is pleaded, and it was pleaded by the State as part of the "harass Mrs. McCole" policy. It is ludicrous for the Minister to say the only reason the statute came into play was that Mrs. McCole could particularise her claim.
Last night the Minister listed many of the other tactics used against Brigid McCole such as contesting her anonymity application, the challenge to the date for an early hearing, the making of a lodgement to raise the spectre of costs, the refusal to admit liability and so on. The sad reality is that each of these legal bully-boy tactics was used when the State and the BTSB knew they had no defence.
In its amendment to the motion, the Government has continued the fiction that the BTSB and the State remain as separate legal entities. The Minister tried to highlight this by saying they had separate insurance. In a response given to the Dáil on 16 October last, the Minister told the House: "Since the summer of 1996 the State has carried the insurance for the Blood Transfusion Service Board". If the State and the BTSB are separate legal entities, did the State serve notice of indemnity on the blood bank in the McCole case? This is normal in cases where there are three defendants who are completely and genuinely independent of one another and where one party claims they are not guilty. The Minister continues to ignore the fact that under paragraph 22.6 of the 1965 Statutory Instrument establishing the Blood Transfusion Service Board, there is provision for him to take over any legal action by the board, especially when he knows it has no defence.
This is the end of the 30th debate in the hepatitis C affair. Many have wondered why the issue has not gone away. It has not gone away because hepatitis C does not go away for victims. While the cover-up continues, the Government will be haunted by this controversy. I call on Deputies on the other side of the House, who have expressed concern for the victims, to vote with the motion so that the truth can finally emerge.
It is appalling that the Taoiseach today was at variance with the Minister for Health. The Taoiseach suggested there were no circumstances in which the Minister for Health could come before a parliamentary committee of this House today, yet we received a letter at 2 o'clock this afternoon from the Minister for Health stating he would come before a committee of the House but that he was busy in the plenary session of the House, as I have been. The Select Committee on Social Affairs is available immediately after Report Stage of the Bill setting up the statutory compensation tribunal, with which we have co-operated in full and to which we have tabled amendments to improve the lot of the victims; those amendments have been accepted by the Government. It is available tonight, tomorrow morning and certainly before the dissolution of this Dáil to insist upon political accountability to a parliamentary committee of this House.
Not many years ago we listened to the people who are now on the opposite side of the House lecture us about accountability and the withering of democracy. Are they so arrogant and stupid as to think this Parliament will allow itself be demeaned by a claim that a meeting will be held of a parliamentary committee in the full knowledge that this Dáil will have dissolved by then? Will anybody accept that type of nonsense from a Government that is running so scared it now resembles a deer facing into the headlights of a car careering down the road? The people will decide this issue if the Government is not prepared to face up to it before the election.
I do not seek to make the problems of a family an election issue. The way this issue has been handled and the arrogance and contempt the Government holds for a committee of this House will be the issues. That is the essence of public and political accountability. When will the Government's rhetoric meet the reality? The political hypocrisy of this Administration has been exposed for what it is in the dying hours of this Dáil. Fianna Fáil will stand up for the truth which will emerge when the next Government is formed under the leadership of Deputy Bertie Ahern. Those on the other side of the House who were responsible for that truth had better be ready for the consequences.