Dáil Éireann díospóireacht -
Tuesday, 3 Mar 1998

Vol. 488 No. 1

Adjournment Debate. - Finlay Tribunal of Inquiry.

Ms McManus

I welcome the opportunity to raise this urgent matter tonight. Yesterday a legal case was taken by a Dublin consultant to challenge the findings of the Finlay tribunal of inquiry. The case was not contested by the State, despite assurances given to Positive Action to the contrary and despite the resolution passed by Dáil Éireann on 20 March 1997 that "The Government will not seek to resile from or repudiate any of the findings of fact of the tribunal report in any proceedings in court". Refusal to act in accordance with this commitment has serious implications for the Finlay tribunal and for all tribunals. The State did not contest the case made by the consultant, Dr. Kirrane, which undermines the report. The State so far has refused to reconvene the Finlay tribunal to deal with the point of contention in a fair way and a way that ensures the integrity of the report. Because of a technicality Dr. Kirrane won his case and no one questions his right to have recourse to the law. Equally, the State has a duty to protect the public interest and in this case it has singularly failed to do so.

The tribunal was established to investigate the single biggest health scandal in the history of the State. The report deals with the scandal that led to the suffering of many victims who bravely and tenaciously sought the truth. The report is now being excised to the point where it is damaged unless Government action is taken. Only a reconvening of the tribunal will elicit the full truth in accordance with the law. That is the action the Minister for Health and Children should have taken in preparation for this court case, but instead he did nothing and the State came out with its hands up and surrendered without a fight. The State has argued that its role precludes it from taking an active role in the court case, yet it is the State that is revising and reprinting the report and paying the legal costs. The State, therefore, has a role but it argues it has no role.

I would use the phrase the Minister used in Opposition when he spoke about Chinese walls being erected to prevent access to the truth. Surely he is guilty of obscuring his authority and his responsibility by erecting Chinese walls. He has made no statement on the issue and clearly has no intention of doing so, given that he is not here to reply to this Adjournment debate. It is regrettable that yet again on an important health issue the Minister is not in the House.

As late as last Friday the Chief State Solicitor informed Positive Action in writing: "We have been instructed to inform you that the tribunal/Justice Finlay are not attempting to do anything to excise or squash part of the report of the tribunal". It is no wonder members of Positive Action were horrified that the court case went ahead without the tribunal, Judge Finlay or the State putting up a defence or providing an alternative strategy. How can Positive Action maintain a relationship of trust with the Government when it is given such misleading information?

The failure of the Minister for Health and Children to secure the integrity of the Finlay tribunal report in court is more shocking in view of the decision made today by the Cabinet to ask the Oireachtas to change the legislation to secure the working of the Flood tribunal. While the Cabinet is making unprecedented efforts to support one tribunal, the Minister for Health and Children is washing his hands of another tribunal, one which dealt literally with a matter of life and death. Surely the Minister must be aware of the message sent out by this inconsistency, that rezoning of land is more important than people's health, that human suffering caused by neglect, ignorance and negligence is of lesser consequence than the possible grubby connection between land speculation in north Dublin and some politicians.

The Minister for Health and Children must answer the following questions. Why did the State not undertake to reconvene the Finlay tribunal as requested by Positive Action? Why did the State not contest the case taken in court by the Dublin consultant? How does the Minister intend to deal with the unresolved issue that has been excised from the report and which will, unless addressed, undermine the status of the report? The victims who have fought long and hard for the truth to be revealed have a right to full and comprehensive answers to those questions.

Minister of State at the Department of Health and Children (Dr. Moffatt)

I thank the Deputy for raising this important issue on the Adjournment. I apologise for the unavoidable absence of my colleague, the Minister for Health and Children. I wish to confirm to the House that the High Court yesterday made an order quashing so much of the report of the tribunal of inquiry into the Blood Transfusion Service Board which concluded that Dr. James Kirrane bore some responsibility for the contamination of blood products by failing to insist on a greater investigation of the reaction of patients to the anti-D blood product. The order also declared such parts of the report to be void and of no effect. The judge also directed the registrar of the court to inform the Medical Council of the terms of the order. It has been agreed that appropriate notices will be placed in the national newspapers and that a correction will be prepared for insertion in copies of the report.

The background to the matter lies in an application for judicial review initiated by Dr. Kirrane last summer. Dr. Kirrane claimed that his constitutional right to basic fairness of procedure and/or the rules of natural justice had been violated by the tribunal on a number of grounds. In particular he claimed that he had not been afforded notice that allegations or criticisms had been levelled against him; he had not been afforded formal right of representation and was not given the right to cross-examine witnesses giving evidence adverse to him; he was not furnished with transcripts of evidence relevant to his interests; he was not afforded an opportunity to make submissions in respect of the evidence and he was never informed that any allegation had been made against him or that the tribunal might come to an adverse conclusion in respect of his conduct. Consequently he was not in a position to place evidence or argue against such an adverse conclusion.

He further claimed that the criticisms of him contained in the report were not factually sustainable and were irrational and unreasonable in law. He claimed that his professional and personal good name and reputation had been gravely prejudiced and impugned by the report. Among the reliefs he sought were orders quashing those parts of the report which contained criticisms of him and declaring such parts of the report to be void and of no effect, a declaration that he was not in any way responsible for or contributed to the contamination of blood products and damages against Ireland and the Attorney General for breach of constitutional rights to fair procedures and to good name.

The proceedings were taken against Mr. Justice Finlay, in his capacity as sole member of the tribunal of inquiry, and against Ireland and the Attorney General. In accordance with normal procedures, the Chief State Solicitor's Office sought counsel's opinion on behalf of Ireland and the Attorney General. Counsel's advice was that it would not be appropriate for the Attorney General to take a view one way or the other on the question of whether the proceedings before the tribunal, in so far as the applicant was concerned, were or were not conducted in accordance with the rules of natural justice; that was seen to be a matter for the tribunal itself. I might add that this position was accepted by the judge in the High Court yesterday.

As far as Mr. Justice Finlay is concerned, I understand that, having considered the statement of claim and taken legal advice, he indicated in his notice of opposition that he did not oppose the making of the order sought in relation to the quashing of the relevant parts of the report and a declaration that such parts were void and of no effect. When the matter came before the court yesterday, I understand that counsel for Dr. Kirrane indicated that, having regard to the position that had been adopted by Mr. Justice Finlay, his client would not proceed with his claim for damages or his claim for a declaration of non-cul-pability.

The Deputy refers to the resolution passed by the House on 20 March last in relation to the tribunal's report which included a paragraph noting that the Government will not seek to "resile from or repudiate any of the findings of fact in the tribunal report in any proceedings either in court or before the compensation tribunal."

An Leas-Cheann Comhairle

The Minister's time is up. If the House is agreeable we will allow him to continue. Is that agreed? Agreed.

Dr. Moffatt

The Deputy asks how this can be reconciled with what happened in the High Court yesterday. I wish to make a number of points. It is fair to say that when the House passed that resolution it was not to the fore of our minds that an action such as that taken by Dr. Kirrane was likely to happen. What was intended by the paragraph in question was that the State would not resile from or repudiate the tribunal's findings in the context of any claims for damages or compensation being taken by persons affected by the contamination of blood products, whether such claims were being pursued in the courts or before the compensation tribunal. This undertaking, initially given by the previous Administration, has been honoured in full by the Government and this will continue to be the case. What happened in the High Court yesterday will not affect the State's approach to claims for compensation set out in the report of the Minister for Health and Children on the legal strategy in the McCole case which was published last August.

The Deputy has attempted to criticise the Government for its alleged failure to contest the case taken by Dr. Kirrane. This is to misunderstand the nature of the relationship between the Government and the tribunal. The tribunal was not a creature of the Government; it was a creation of the Houses of the Oireachtas. I am sure the Deputy will agree that it would have been totally inappropriate for the Government to try to exert influence on the tribunal in regard to how it conducted its investigation or on the findings, conclusions or recommendations which it formed. In the same way, it would be improper for the Government to seek to influence the response of the tribunal to these proceedings. The fact is that the tribunal chairman felt that he could not oppose the claims made by Dr. Kirrane on the criticism of him in the report. Having regard to the separation of powers, the State did not regard itself as being a proper party to oppose the claims. I gather it was clear from what was said by the presiding judge that he agreed with this position. In those circumstances, it is difficult to see what other attitude the State could have taken in respect of those matters. Either the State has or has not a role in such matters. If it has not got a role, then it cannot legitimately interfere in those aspects of the proceedings between an applicant and the tribunal. To suggest that it does have a role would be to suggest that the State itself could have interfered legitimately in what was to happen to the report.

The order was not made on consent but by the judge himself taking into account, of course, the fact that the tribunal chairman had indicated that he did not oppose same. However, it remains the case that the judge was satisfied that it was appropriate to make the order concerned in the light both of the facts set out in the grounding affidavit and the fact that the tribunal, whose order was sought to be quashed, did not consider it appropriate to oppose.

With regard to the suggestion that the State should have sought to reconvene the Finlay tribunal, I wish to make the following observations. First, I understand that Mr. Justice Finlay is of the view that he is functus officio, that is, he has completed his task and it is not open to him to reopen the tribunal. Second, it is not in the power of the Minister for Health and Children, or indeed the Government, to refer a matter back to the tribunal. Third, the court's jurisdiction in this case did not extend to requiring that the tribunal be reconvened or to ordering that a new tribunal be established to deal with this matter.

An Leas-Cheann Comhairle

Deputy Ring was selected for the Adjournment but has been unavoidably detained. He has sent his apologies to the House and to the Ceann Comhairle's Office.