Ceisteanna–Questions. Priority Questions. - Lindsay Tribunal.

Gay Mitchell

Question:

1 Mr. G. Mitchell asked the Minister for Health and Children if he will set up a separate inquiry into the role of US-based pharmaceutical companies regarding the infection of persons with haemophilia with HIV and hepatitis C. [25804/01]

As the House will be aware, the Irish Haemophilia Society wrote to me on 6 September seeking an extension to the Lindsay Tribunal's terms of reference to enable the tribunal to investigate the actions of certain multinational pharmaceutical companies. Section 1 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998, provides that terms of reference can only be amended where the tribunal has consented to the proposed amendment, following consultation with the Attorney General on behalf of the relevant Minister, or where the tribunal itself has requested the amendment. Accordingly, I wrote to the Attorney General on 10 October asking him to seek the consent of Judge Lindsay to an extension of her terms of reference to facilitate: (i) a request for voluntary discovery from the pharmaceutical companies; (ii) an order for discovery against the pharmaceutical companies; (iii) procurement of documentation under US freedom of information legislation; and (iv) an application for access to the document depository in Pensacola, Florida.

On 16 October the chairperson furnished a detailed response to the Attorney General in which she stated that she did not believe that it would be correct for her to consent to the suggested amendment of the terms of reference of the tribunal. A copy of the chairperson's response has been placed in the Library.

Originally it was believed that the possible closure of the document depository in Pensacola might affect the achievement of a full investigation of the pharmaceutical companies. I would like to bring the House up to date on this matter. The depository was created to ensure that all American HIV-infected haemophiliac plaintiffs had access to similar quality and volume of discovered documentation in respect of their litigation against pharmaceutical companies. It had been suggested that the depository would close with effect from 1 January 2002 and that any further applications for access would have to be made by 1 November 2001. However, solicitors for the IHS have contacted the lead counsel for the depository, and have now informed me, by letter yesterday, that an application would need to be made as soon as practicable, but that 1 November is not a strict deadline. Assurances have been furnished that, while the documents may be moved to a different site or sites, they will not be destroyed. This has been confirmed by a US firm retained by the Attorney General's office. Lead counsel has also given an assurance to the IHS solicitors that, should the pharmaceutical companies seek the return of their documents, this will be opposed.

I am very conscious of the concerns of people with haemophilia in Ireland, as well as the wider public, in this matter. Notwithstanding the complex legal difficulties associated with an Irish tribunal seeking to investigate entities in other jurisdictions, I am presently consulting with the Attorney General on the options available, and I will revert to the House again as soon as possible.

I do not know whether that answer was "yes" or "no", but the people who have suffered from haemophilia and who have been exposed to HIV and hepatitis, and their families, deserve a clearer answer than that. Therefore, I ask the Minister to come off the fence and say, even if he cannot do it now, that he will give a commitment. The Irish Haemophilia Society would accept even a commitment that he will do it in the future. That is all I am asking. Will he answer the question I asked?

Is the Minister aware that in Canada, where they could not compel witnesses to attend, the pharmaceutical companies did not attend but the judge read the documents and made a judgment. Is it possible for that to happen here? What is the problem with proceeding in that way?

I am not so sure the Irish Haemophilia Society would be satisfied with that. The situation, as the Deputy will be aware, goes back to even 1998, before the establishment of the present tribunal, where legal advice was obtained regarding the difficulties of moving into another jurisdiction to pursue this issue. However, I am committed to having a complete and thorough examination of that to see how best we can not only retain and keep open the Pensacola depository but proceed in terms of getting at not just those documents but other issues that have been raised with me.

Yesterday I received an 11 page letter from the IHS outlining a range of other possible options ranging from the Hague Convention and the utilisation of British legislation in respect of any companies which may have operated from a British base to how one would make an application under the US Judicial Assistance Act. That Act would be the key statute in the United States which a Government would seek to use to pursue issues under a particular tribunal.

The fundamental issue, which arose in 1998 and still arises, is the degree to which a tribunal of inquiry is, in itself, a judicative body, that is, that its conclusions are binding on people afterwards in terms of either prosecution or other actions. That said, the Attorney General and I are looking at both those options which have been put before us by the IHS and other options in terms of moving forward in a way in which the "i"s are dotted and the "t"s crossed. We will be meeting the IHS next week to put forward our proposals on the matter. I am not ruling anything in or out at this stage. What I am saying is that the original deadline, 1 November, which was reported at the time and which we were led to believe was in place, necessitated an initial response in terms of the tribunal and we sought an extension of its terms of reference to try to seek access to the Pensacola depository in the first instance. However, it seems that it may not stop at that.

The Minister, as a former Lord Mayor of Cork as I am of Dublin, will be aware of the traditions which go with that office. I recall visiting Harcourt Street Hospital on Christmas Day and meeting an old friend whose child was dying from infection. Those people deserve all the support of the Government to go after these US pharmaceutical companies. How was it possible to extend the terms of reference of the Laffoy commission to give it work which I did not want it to do—

We must proceed to Question No. 2.

—when he cannot extend the terms of reference of the Lindsay inquiry? Why has it not been possible to do that?

The extension of the terms of reference of the Laffoy commission referred to actions within this State in the industrial schools and it was on foot of a report we received on the vaccination trials which took place in particular industrial schools. The legislation which set up the Lindsay tribunal in 1998 obliged a Minister or, indeed, the Oireachtas to get the consent of the chairperson of the tribunal before even attempting to seek the extension of the tribunal's terms of reference. In other words, there is a legal obligation. Basically, the chairperson had the authority to decide whether an extension should take place. That was the issue there.