Dáil Éireann díospóireacht -
Tuesday, 6 Feb 2001

Vol. 529 No. 4

Adjournment Debate. - Tribunals of Inquiry.

Ms McManus

I ask the Minister for Health and Children to waive privilege in respect of the documents being sought by the Irish Haemophilia Society as is required under the terms of reference of the tribunal which were agreed unanimously by the House. Term of reference No. 8 allows the tribunal to investigate the response of the State and State agencies to those who have hepatitis and HIV infections. That response was intended by the IHS during the course of negotiations at all times to include the investigation of the HIV compensation settlement in 1991.

To facilitate such an investigation, procedural term five is applicable. This term was inserted at the behest of the IHS. It states: "All persons employed in the Department of State and State agencies concerned shall give their full co-operation to the tribunal and those Departments of State and agencies shall themselves fully co-operate with the tribunal by providing it with all the documents and information requested of them that are in their possession or power." The three important words in this clause are "shall", "providing" and "all". The case submitted by the IHS to Judge Lindsay was not that a resolution of the Oireachtas amended the Tribunals of Inquiry Acts in terms of an entitlement to waive legal professional privilege. The case submitted was to the effect that the Minister for Health and Children, by virtue of signing the document, indicated that "all the documents and information requested of them that are in their possession or power" shall "be provided to the tribunal". In essence, the fact that the Minister had signed a resolution in such mandatory terms precluded him from reneging upon that commitment.

The Minister of State, Deputy Moffatt, stated at the time that "section (v) requires all persons employed by bodies under the aegis of the State who are relevant to the inquiry to co-operate fully with the tribunal, including providing it with all the documents and information it requests, if it is in their power to do so". There was no mention that legal technicalities such as legal professional privilege would be used to prevent the tribunal obtaining all documentation relevant to its investigation when the matter was brought before this House. In essence, the Minister has a right to waive privilege over documentation obtained in the privilege section of his affidavit of discovery.

It should be noted that there is no necessity even to use affidavits of discovery; it is sufficient to provide documentation for the purposes of the tribunal's investigation. The examination of such documentation should take place with a view to establishing if the State was aware of its liabilities when it entered into the HIV settlement with people with haemophilia in 1991. This is of most crucial importance with regard to the late HIV factor IX infections in 1985-86, which is now known to have been caused by BTSB factor IX concentrate.

It is of fundamental importance to ascertain whether citizens were misled by State or State agencies when those citizens were seriously ill, dying and disadvantaged, thereby losing their entitlement to fair and equitable compensation. Five of the seven people who became infected from BTSB factor IX concentrate are now deceased. One of the persons who was so infected, infected his partner. Some of these people died horrific deaths in circumstances where the compensation afforded by the State was inadequate to provide for their family needs.

There are other issues pertinent to the remaining people with haemophilia who entered into this settlement that are likely to be contained in the documentation over which the State continues to claim privilege. If the Minister wishes to maintain transparency, openness and honesty on this issue, he should do the decent thing, even though it is ten years late, and allow a comprehensive investigation to be undertaken. If the State has infected its citizens and refuses to admit responsibility, the State, on behalf of its people, has taken advantage of its most vulnerable citizens.

Mr. Martin

At the outset, I wish to outline the various strands of this matter which appear to have become intertwined.

It has been suggested that the claiming of legal privilege over documents by State parties, including my Department, is interfering with the Lindsay tribunal's ability to investigate fully the circumstances of the contamination of blood products manufactured here or imported for use by persons with haemophilia. In relation to this issue, the House should note that all documents relevant to the Lindsay tribunal's inquiries into the circumstances of the contamination with HIV and hepatitis C of persons with haemophilia were made available to the tribunal by my Department on foot of a discovery order made by the tribunal. My Department has co-operated fully with the tribunal at all times, a fact acknowledged by Judge Alison Lindsay in the course of her ruling on the matter of discovery on 1 February last.

The facts in relation to the tribunal's ruling on claims for privilege are as follows. On 30 January 2001, senior counsel for the Irish Haemophilia Society made an application to the Lindsay tribunal of inquiry in relation to the claims of privilege made by parties represented before the tribunal. The application was directed not against the parties themselves but at the tribunal's acceptance of the claims without challenge.

The primary basis upon which the society challenged the tribunal on this matter was the inclusion in the tribunal's terms of reference of the following paragraph: "All persons employed in the Departments of State and State agencies concerned shall give their full co-operation to the tribunal and those Departments of State and agencies shall themselves fully co-operate with the tribunal by providing it with all the documents and information requested of them that are in their possession or power." The society contended that this paragraph effectively precluded the parties identified therein from raising claims to privilege over any documents in their power or possession.

Having listened to legal argument from all relevant parties, Judge Lindsay ruled on the society's application on 1 February. She ruled that the right to claim legal privilege is fundamental to our common law system, to practice and procedure in the courts and to the proper running of tribunals. The right is enshrined in statute and is one that cannot, in her view, be taken away.

Judge Lindsay said, from a normal reading of the said paragraph, it was to be interpreted as resolving that all persons employed by the State or State agencies would co-operate with the tribunal and she stated that, at this stage, all those persons who have been requested to co-operate have done so. She ruled that the argument made by the society, to interpret the said paragraph as impliedly waiving the right to privilege of Departments of State and State agencies, was not viable, legal or proper. The resolution of the Dáil and Seanad, by which the tribunal was established and which sets out the tribunal's terms of reference, could not change the law which confers the right to claim privilege. Furthermore, the right to claim legal privilege is vested in individual persons or bodies and the State does not have the power to waive that right.

Nowhere in her ruling did Judge Lindsay say or imply that the tribunal's efforts to establish the full truth as to the circumstances of the contamination of blood supplies given to those with haemophilia had been hindered in any way.

During the tribunal's hearing of the application, it was suggested by senior counsel for the society that it had been its understanding during the consultations on the tribunal's terms of reference that the State parties would not be claiming privilege over any documents in relation to the tribunal's inquiries. I personally was not involved in any of those consultations but I understand the matter of privilege was not discussed. That is an issue that can be resolved later. I was not there at the time. The paragraph in the terms of reference which was cited by the society as containing an implied waiver of privilege had been included in the terms of reference for the Finlay tribunal of inquiry and was included in the Lindsay inquiry's terms of reference as a matter of course.

The rules of privilege applied in the case of the Finlay tribunal into the Blood Transfusion Service Board and I do not think there is any question but that the Finlay tribunal was able to ascertain the full facts in relation to its investigations.

The documents over which my Department has claimed privilege have been categorised and enumerated in the second part of the first schedule of the Department's affidavit of discovery in full compliance with the directions in relation to claiming privilege, a fact which was also acknowledged by Judge Lindsay in her ruling. The documents comprise documents brought into existence for the purpose of seeking legal advice or for the purpose of litigation, both well established bases for claiming privilege.

The Irish Haemophilia Society has suggested that the documents over which my Department has claimed privilege could throw new light on what the State knew about the contamination of blood products in 1991, when the compensation package between the State and HIV infected haemophiliacs was agreed. The files relating to the 1991 settlement, excluding those documents over which a claim for privilege has been made, have already been disclosed to the Lindsay tribunal. I am currently discussing the question of privilege with my legal advisers. Considerable attention has been given in recent days to the 1991 settlement of £8 million agreed between legal advisers acting for the Irish Haemophilia Society and legal advisers acting for the State. The Government has already agreed that HIV-infected haemophiliacs should receive adequate and equitable compensation and detailed discussions are ongoing between legal advisers acting for the Irish Haemophilia Society and legal advisers for the State. Subject to a satisfactory outcome to these discussions, I intend to amend the Hepatitis C Compensation Tribunal Act to allow HIV-infected haemophiliacs to receive compensation on the same basis as those infected with hepatitis C through the administration of blood products, including women who received infected anti-D. I will keep the Deputy and the House informed of developments.

The Dáil adjourned at 9.15 p.m. until 10.30 a.m. on Wednesday, 7 February 2001.