Limerick East): In making this statement before the Dáil, it is right that I should at the outset show where there is common ground between the Government and Opposition. The tragic death of Mrs. Brigid McCole, leaving her 12 children without their mother, was a major personal tragedy, and the focus on this personal family tragedy has raised public attention about the hepatitis C crisis to a degree unprecedented since my predecessor, the Minister for the Environment, Deputy Howlin, brought the matter to the attention of the House in February 1994.
What is now acknowledged is that what occurred is nothing less than a public health disaster. The number of persons involved, the fact that some of the originally infected women became blood donors, leading to both men and women being subsequently infected through blood transfusions, and that a second infected donor in 1989 caused the infection of another cohort of persons, underlines the enormity of the disaster.
All these victims of hepatitis C have been seriously affected in their lives, their welfare, their health and in their future. There is common ground also in describing the events which occurred at the time as a scandal. It must also be acknowledged that the events in question occurred in an institution created under statute, and for which I, as Minister for Health, am now politically accountable to this House.
There is common ground too in our recognition that what has occurred is a source of deep distress, justifiable anger, and a requirement to know and understand what occurred. However, in making this statement, and in bringing the motion to set up the Tribunal of Inquiry before the Dáil tomorrow, I accept too that I have obligations to this House and elsewhere.
For the House, the public and the victims themselves to pass judgment, it would be helpful if I briefly reflected on the issue of parliamentary accountability and how I see my responsibilities to the House. I am accountable to the Dáil for what I do or neglect to do as Minister, and for what is done in my Department. The essence of that accountability is the giving of accurate and complete information, in so far as it is known to me or my Department at the time the information is given. The question of responsibility or blame is a different matter which must be determined on the facts of each case, usually by the courts. I am, and will continue to be, fully accountable to the Dáil, which is the primary forum in which I must discharge this obligation.
With regard to charges and criticisms which were laid against me, I will always endeavour to set out the context and the full facts as known to me. Sometimes these facts may not be palatable, in so far as they may not fit with the perception of those making the charges, but I always hope, particularly when we are dealing with matters of such public importance, that the assessment of my responsibility would be based on these facts rather than on other considerations.
In discharging this accountability I must, in common with all Ministers past and present, adhere to the separation of powers under the Constitution. I cannot usurp the functions of the Judiciary or compromise the process surrounding the discharge of its functions. Neither can I make judgments on negligence or culpability in relation to any matter that is already before, or may come before, the courts. If there is not an acceptance of this reality then we do not have a basis on which we can have a constructive debate on this or any other matter of public contention. I hope we can also establish common ground on the concept of accountability and that Deputies, especially former office holders, will agree that the position I have set out in respect of a Minister's accountability to the House is fair and accurate, and no different from what was demanded of them when they held office.
Serious charges have been laid against me. It has been claimed that the State in the conduct of its High Court case in the action taken by the late Mrs. McCole delayed and obstructed the plaintiff from beginning to end. I deny this. It is simply not true.
The State denied liability in the action. My strong legal advice was and is that the State is not liable and that no admission of liability should be made. Those who have criticised me for not admitting liability on behalf of the State pretend that the BTSB and the State are the same entity with the same case to answer. If I were to accede to the demands being made on me to admit liability on behalf of the State I would be accepting liability on behalf of all Ministers and all officers of the Department who dealt with the BTSB over the years, and in terms of impending court cases back to 1970. If I were to do so, I would, as I have said, be acting against all legal advice, and indeed against my own judgment of the State's culpability in relation to the people who have been infected as a direct or indirect result of the distribution of infected anti D product. I ask those in Opposition who criticise me for taking this stance to say what they would do if placed in the same situation. Recognising the adversarial nature of our court system and the need to be equally fair to those against whom allegations are made and to the plaintiffs, would they ignore the legal advice, their own assessment of the situation and the obligation to reasonably protect the legitimate interests of the taxpayers? I very much doubt it.
I now wish to deal with a number of particular allegations. Far from there being delays in the State entering its defence, the State delivered its defence when the plaintiff's claim was adequately particularised by her lawyers, which they had failed to do when they delivered their statement of claim on behalf of the plaintiff.
On the question as to whether the State delayed the discovery of documents, dates for completion of discovery were set by the court and adhered to by all parties, including the State. The State sought and was granted two working days' extension of time for filing its affidavit of discovery — Monday, 1 April 1996 instead of Thursday, 28 March 1996. Some 5,000 documents were discovered, and made immediately available by the State parties, of which a small number became the subject of dispute which was resolved between lawyers of the respective parties without ultimate recourse to the court.
I now wish to reflect on the manner in which issues were prepared for court in the adversarial system with which we are all familiar. Pleadings are the means by which the issues to be tried by the court are both netted down and clarified so that not only the parties, but also the court, which otherwise knows nothing about the matters in controversy, can know what matters need to be adjudicated upon and the evidence which will be required to establish or refute those matters. What may appear to be convoluted or tortuous descriptions of highly charged allegations are sometimes recited, and must be denied in detail, otherwise they are deemed to be admitted.
In Mrs. McCole's case, assuming the alias Brigid M. Roe, her lawyers made a large variety of allegations of wrongdoing on the part not only of the BTSB but also the State parties and the NDAB. The State rightly called for matters to be properly established. The means of establishing these questions was a matter for her lawyers. They could either provide documentary evidence of the matters as the case proceeded or prove them by evidence in court. Exchanges of correspondence and documents between parties, with other interlocutory proceedings such as discovery, and interrogatories which in fact occurred in the McCole case, even further net down matters at issue. It should never be assumed, therefore, that a position quite rightly taken by a party at the very earliest state of proceedings will necessarily reflect the attitude of that party on the eve of the trial.
With regard to the question as to whether the State invoked the statute of limitations, I have said already what every lawyer knows, positions taken at the earliest stage of proceedings will not necessarily reflect the attitude of that party on the eve of the trial. In respect of the statute of limitations one should look at the defence delivered by the State parties to understand what precisely was pleaded: "In so far as the date of acquisition of the plaintiff's condition alleged in the statement of claim in or before 1980 and not the date of knowledge as defined in the Statute of Limitations is pleaded, such claim herein, if any, is barred by the provisions of the said statute." A plaintiff is required to give reasonably specific details of the occasions on which important events are said to have occurred and this detail was missing from Mrs. McCole's statement of claim. In pleading this, and in the notice of particulars, the State required her lawyers to specify the occasion on which they alleged she contracted hepatitis C or the occasion on which she became aware of having contracted such a serious condition.
Why did the State contest anonymity? A number of plaintiffs represented by the same firm of solicitors issued writs against the BTSB, the NDAB and the State using aliases and giving their solicitors' offices as their addresses. On 7 September 1995, the solicitors notified the defendants of the true identities and addresses of the plaintiffs. However, in the one case they chose to progress ahead of the others, they declined to say who she was until 27 September 1995. This was Mrs. McCole's case.
On 22 September 1995, Mrs. McCole's counsel was told that, while the confidentiality of her medical condition and other intimate matters would be maintained by the State parties, as a matter of constitutional law the client could not proceed under an assumed identity. This was confirmed in subsequent correspondence. Her counsel and solicitors took a different view and ultimately she brought a motion before the High Court seeking a ruling on the point. Their application in this regard was decided on 14 February 1996 by Miss Justice Laffoy, who dismissed it. The court in its judgment stated it had no jurisdiction to allow the plaintiff to prosecute her proceedings using a fictitious name and to do so would contravene Article 34.1 of the Constitution which requires justice to be administered in public. The judgment is available to anybody who wishes to read it.
The Attorney General is, like everyone else, bound by the provisions of the Constitution. It is not open to him to ignore the explicit provisions of the Constitution, irrespective of whether he likes them. Some Deputies opposite need to realise that under this Government, the State is governed by laws and not by lawyers.
Mrs. McCole's initial application for an early hearing was withdrawn by her lawyers and when it was ultimately re-entered on 26 April 1996 it was pointed out that the case would not be ready for trial in June as her lawyers requested. The President of the High Court adjudged it should proceed on 8 October 1996.