‘Commission of inquiry will not improve system’

A commission of investigation into the CervicalCheck scandal may be more trouble than it’s worth but it leaves the Government with a dilemma, writes Michael Clifford

Dr Gabriel Scally: ‘There is a danger that a prolonged investigation, while it might further elucidate the matters I have considered and correct inexactitudes in this report, would consume valuable energy and resources that would be better devoted to the implementation of recommendations and achieving progress.’ Picture: Sam Boal/RollingNews.ie

On what basis is the Government proposing to establish a commission of investigation into the CervicalCheck scandal? Is it to comfort the victims? If so, why has the same Government refused to set up a commission into the Stardust tragedy? Or is it all about taking the heat out of a political scandal and to hell with the cost, both financial and in terms of confidence in the system?

Dr Gabriel Scally has uncovered a shocking litany of failures and shortcoming in the screening system and in relation to how developments were communicated to victims of the mishaps.

He has also indicated that there is no need to establish a commission of investigation into the whole matter. This leaves the Government with a dilemma. It also raises some serious questions about the approach of successive governments to inquiries, the use of public money, and what exactly governance means these days.

Dr Scally is of the opinion that a commission of investigation might be more trouble than it is worth under the prevailing circumstances.

He writes: “There is a danger that a prolonged investigation, while it might further elucidate the matters I have considered and correct inexactitudes in this report, would consume valuable energy and resources that would be better devoted to the implementation of recommendations and achieving progress.”

His conclusion infers that if a commission were to go ahead, it is possible it would not be in the best interests of the screening service. The system, which has saved an indeterminable number of lives, is already hovering, in the public mind, just above disrepute.

Undermining further confidence in the system could precipitate more tragedies. These would occur behind closed doors, far from the centres of power or media, but would have further devastating impact on citizens and their families. Victims of the scandal, such as Vicky Phelan, have been commendably vocal in urging women to continue using the system, despite what has befallen her and her family.

Had Dr Scally decreed that deeper investigation was required, it would be absolutely vital to proceed. But he didn’t, and he is regarded as an expert in his field. His brief was wide, and he did the work in a short four months, notwithstanding some dubious delays in co-operation from elements of the HSE. Are we now at a stage where experts are not to be trusted when they come up with unexpected answers?

So what to do? Should a commission proceed against his advice? If so, why?

The commission of investigation model was introduced in 2004 against the background of the burgeoning costs of running public tribunals. It is certainly a cheaper model, conducted behind closed doors where everybody doesn’t have to be lawyered within an inch of their lives. The timeframe for the work can be expedited, although some commissions still go on for years. Overall, the model has been a success.

One fallout from the success has been that a commission is now called for at the drop of any kind of a controversy. Whenever full answers are not forthcoming, there are inevitable calls for a commission. In many instances, this is perfectly warranted. In others, it is merely a tool for acquiring political capital.

The usual approach of successive governments has been to conduct a scoping inquiry to determine whether the statutory model is required. Sometimes the scoping inquiry comes back with a recommendation to proceed. This occurred, for instance, in 2014 when a senior counsel investigated Sergeant Maurice McCabe’s complaints of malpractice in An Garda Síochána. Another example was the outcome of a scoping inquiry into the death of Gary Douch in Mountjoy Prison in 2006.

On other occasions, the result of a scoping inquiry is that there is no discernible reason to proceed. This occurred last year in relation to the Stardust fire tragedy in 1981 after claims new evidence had been uncovered. That case has been a festering sore in public life for 37 years. The bereaved families are of the opinion that there has been a failure to properly examine the case. Yet the outcome of an investigation by retired judge Pat McCartan was that nothing further would be served at this juncture by establishing a commission. Various government figures have repeatedly referenced the outcome of that scoping inquiry when explaining why there would be no commission.

On a few occasions, the government has bypassed a scoping inquiry and gone the whole hog directly. This occurred in 2014 with the setting up of the Fennelly commission into the taping of phone calls to Garda stations.

At the time, Garda scandals were consuming Leinster House. The indecent haste to set up a commission was widely perceived as an attempt to park the scandal pronto.

In that instance, the inquiry model was used, and arguably abused, for nothing more than naked political expediency.

In the current issue, the Scally inquiry served as a scoping exercise. So why would Dr Scally’s advice be ignored?

Is there a case for setting up a commission primarily to comfort those afflicted in the most grievous manner by shortcomings in the system? Is that a correct avenue to proceed down irrespective of the chances of uncovering further answers?

If that is the basis for proceeding, then others, particularly the Stardust families, would surely be entitled to a review of their case.

At the height of the CervicalCheck scandal last April and May, there were times when it looked as if the Government could actually fall. Much of that was attributable to the depth of tragedy associated with the scandal. The testimonies of victims was heartbreaking. The contributions of Ms Phelan, Stephen Teap, and others brought home to the public the human cost of what had occurred.

Minister for Health Simon Harris before talking to the media at Government Buildings after today's cabinet meeting which discussed the Scally report on the Cervical Check crisis. Photo: Leah Farrell/RollingNews.ie

However, misinformation about the scandal also spread like wildfire. This was largely down to elements in politics, the media, and others who had an interest in the matter. At the height of that maelstrom, Heath Minister Simon Harris said there would be a commission of inquiry into the matter.

Now an expert has laid out the facts. If his recommendation is not accepted, then a full explanation, weighted in reason rather than emotion, should be provided. Making such a decision based on little more than political expediency would do a disservice to everybody concerned.

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