Thursday, 14 April 2005
I thank the Ceann Comhairle for allowing me to raise this matter this evening and the Minister of State for coming into the House to reply. I am pleased the Minister of State, Deputy Brian Lenihan, is here because this is a medico-legal issue.
In the 1960s several children participated in a trial of a vaccine without any apparent consent. The previous Minister for Health and Children, Deputy Martin, instigated a ministerial order in 2001 stating that this was the best guarantee against a cover-up or a whitewash. He added that he would do everything in his power to find out what happened.
The first problem arose when the Supreme Court told an eminent professor the Commission to Inquire into Child Abuse had not dealt fairly with him and he would not have to give evidence. In 2004 the High Court said the Minister had acted outside his powers and that his order was ultra vires and the case was thrown out. Not much has happened since then.
What is the situation now? I have asked several times on the Order of Business whether legislation will be brought forward because it seems this is the only way to solve this problem. Mr. Justice Ó Cuív said in the High Court that other forms of inquiry might be possible. The Government raised the hopes of the people concerned with this order. They want to know what happened and the matter to be completed.
What does the Government intend to do? It is a year since the courts finalised this matter and the Government is sitting on it. I have raised it here and was led to believe that the Commission to Inquire into Child Abuse (Amendment) Bill 2005, which was published recently, would deal with the issue. As of last week, however, it seems that will not be the case. I fear this issue is being pushed aside and forgotten about.
The Tánaiste and Minister for Health and Children referred this morning to the issue of the age of witnesses. The issue is wider than that because the Government acted outside its powers in bringing forward this order. The Bill will not deal with the issue. Will the Minister of State say what the Government intends to do about this, if anything? If it is going to act, what is the timeframe? The people whose lives have been on hold because of this want answers and I hope the Minister of State will provide them.
I am replying on behalf of the Tánaiste and Minister for Health and Children, Deputy Harney.
On 19 June 2001, the Government conferred additional functions on the Commission to Inquire into Child Abuse. This additional function was to inquire into three vaccine trials referred to by the Deputy which were reported on by the chief medical officer in his report on three clinical trials involving babies and children in institutional settings which took place between 1960 and 1961 and in 1970 and 1973 and was conferred by the Commission to Inquire into Child Abuse Act 2000 (Additional Functions) Order 2001. An order was made under the 2000 Act conferring this additional function on the commission.
As a result of the extension of the commission's functions, an additional commissioner was assigned to the investigation committee and a division of the investigation committee was established to conduct the vaccine trials inquiry. The commission began its investigation with the first trial which took place in 1960-61. One of the co-authors of the report of this trial was contacted to give evidence. Following discussions with the legal representatives of the witness, the commission sought to compel him by order of the High Court to attend before them. The High Court compelled the witness to attend but the judgment of the High Court was appealed to the Supreme Court and the direction to attend was quashed.
In the course of the judgment of the Supreme Court, the Supreme Court commented on the whole question of the legal validity of the statutory instrument. The issue was not expressly determined in the Supreme Court case but observations were made in the course of the judgment which cast some doubt on the legal validity of the statutory instrument. The Supreme Court judgment made clear that section 4 of the Commission to Inquire into Child Abuse Act 2000 provides for persons who are abused to recount their story to inquiry into the abuse and report on the matter. Under this section, additional powers may be conferred. However, the then Chief Justice in the course of his judgment stated that there is no indication in the report of the chief medical officer, which is recited as having led to invocation by the Government of its powers under this provision, of any abuse of children within the meaning of the Act. This comment raised the issue of a subsequent challenge.
On foot of the judgment, correspondence was received from legal representatives of another party involved in the conduct of the 1960-61 trial. This correspondence requested that the statutory instrument be revoked or appropriate legal action would be taken. A judicial review on the validity of the order was sought and the High Court found that the statutory instrument was invalid and ultra vires the conferring powers in the legislation. As a result, it is not possible to further investigate the matter using this legal route. The order will require revocation.
Procedures are being put in place to revoke the statutory instrument in line with the judgment of the courts. Under section 4(4) of the Commission to Inquire into Child Abuse Act 2000, consultation between the Government and the Commission to Inquire into Child Abuse may take place before any order is amended or revoked. Discussions have taken place with the commission and other parties who have an interest in or are affected by these trials. Some of these discussions are still ongoing, and until they have been completed, I am not in a position to outline the course of action which the Government will take.