Brendan Howlin (Wexford, Labour) | Oireachtas source

As I indicated on Tuesday evening, this has been an extraordinary uphill struggle, particularly for the two whistleblowers, who are articulate, able, committed women who saw a terrible wrong and were determined to have it fully ventilated and investigated. However, achieving a commission of investigation is not an end in itself. The terms of reference are critically important, as we have learned again and again. It was for this reason I was critical on Tuesday evening of a number of things, the first of which being the way the terms of reference were dealt with. They were not circulated with the motion by the Government on Tuesday. Party leaders were in here at 2 p.m. when the motion was circulated and we had one hour, until 3 p.m., to provide amendments. This is not the way a proposal for an important investigation should be brought before the House.

I had the opportunity, when I saw the original terms of reference, to take brief legal advice and it was quite clear to me that they were not comprehensive. The Government asked Conor Dignam to consider the two reports that were in situat the time and set out proper terms of reference, which he did in very clear terms. It struck me as most odd that while most of his terms of reference were more or less cut and pasted from his report into the terms of reference before the House, the final four were not. I do not accept the view expressed already by others that these matters would inevitably have been investigated by this commission. The advice I received was that there was a definitive decision in the terms of reference to simply allow the commission to scope it out.

The changes are very welcome and I commend the Minister of State on listening to and having regard for the very clear arguments that were made. In the original terms of reference circulated on Tuesday, Part I(c) stated "make recommendations as to what further work may be warranted". This has now changed to "set out for Government the further work the Commission will undertake". That is critically different. In Part II of the revised terms of reference the phrase "an interim report on the second phase (the matters set out in Part X)" is used. This relates to the issues that were excluded, in my judgment, from the oversight of the commission in the original terms of reference and these must now be reported upon within six months from the date of the commencement of the work on the second phase. I very much welcome that. It is truly important.

The fundamental difference relates to Part X, which, in the original terms of reference set out for the House to agree, in essence only allowed for a scoping exercise and did not provide for the guarantee of a follow-though investigation. Both versions of the terms of reference refer to "[the] recommendations regarding the areas to be examined by a Commission of Investigation contained in Chapter 4 of that report". However, in the new, revised terms of reference, it is not a scoping exercise. They state quite clearly, "which the Commission will undertake" and even the word "intend", which I asked to be removed, is no longer present. I thank the Minister for doing so. The terms of reference no longer state "intend to undertake" but "will undertake", and this is now quite explicit in the revised terms of reference. The issues that were not captured, in my judgment, in the terms of reference before the House on Tuesday, namely, the care and decision-making in respect of others - that is, the other 46 people involved - now "will be" investigated by the commission. In addition, the actions of the HSE in its investigations, the protection of others and the protection of disclosures, including its treatment of whistleblowers, are now all explicitly captured in the terms of reference. These developments are most welcome.

As I said, at the heart of these matters is an extraordinary failure - again and again - to have the welfare of a most vulnerable citizen of Ireland respected and protected. We need to know why - every step of the way - that was the case and who was responsible. I am now more confident than I was on Tuesday last that we will get speedily to the heart of these important questions.

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