The publication of the McCole Report and the subsequent exchanges during the week between Mr Brian Cowen and his predecessor, Mr Michael Noonan, perhaps mark the ending of one political chapter of the hepatitis C scandal. Mr Cowen promised as part of Fianna Fail's election programme that he would publish details of the State's legal strategy in responding to the late Mrs McCole's claim for damages. When he did so, on Friday of last week, he maximised the political opportunity by adding his own narrative and interpretation to the report which had been compiled by Ms Fidelma Macken SC. His predecessor had not shown any imagination or initiative in handling Mrs McCole's case, said Mr Cowen, rejecting Mr Noonan's claim that he was legally constrained as Minister from relaying to the Blood Transfusion Service Board (BTSB) the Attorney General's advice that it was negligent in its handling of the affair. Mr Cowen also claimed that Mr Noonan had effectively acquiesced in sending Mrs McCole a legal letter threatening her with costs if she sought to pursue a case for aggravated damages.
On Tuesday Mr Noonan responded with characteristic vigour. He had not seen the letter to which Mr Cowen referred and he rejected the Minister's imputation that he had supported a cruel course of action against a dying woman. Mr Cowen took Mr Noonan's word on this point and the former Minister is entitled to be exonerated. But Mr Noonan has not succeeded in making a persuasive case for himself in respect of Mr Cowen's other principal criticism, that he did not inform the BTSB of the Attorney General's advice that it was negligent.
Mr Noonan takes refuge in a legal argument that the BTSB was a separate defendant and that as Minister he had no control over it. He was not permitted to try to influence the way it ran its case - end of story. But this is precisely the point at which Mr Noonan - and the Cabinet as a whole - failed to balance legal and humanitarian considerations. This is the point at which his ministerial judgment and his sense of proportion should have taken over. If communicating this advice to the BTSB were to constitute a breach of its prerogatives, it had legal remedies. Moreover there is no unanimous legal opinion supporting Mr Noonan's view that he was prohibited from communicating with the BTSB.
Mr Noonan approached the hepatitis C scandal with laudable motivation. He wanted to avoid a tribunal on the grand scale in which the principal winners would be the lawyers. He is to be commended for that. How ironic that in the approach he then took he allowed himself to be directed by legalisms to the point where his considerable political judgment and his undoubted personal humanity were all but asphyxiated. Established under statutory instrument, the BTSB was independent of the Minister. But it is simply not sustainable to argue that it existed in a vacuum of political accountability. If, in the circumstances of the unfolding scandal, the Minister for Health had no political role visa-vis the BTSB, then who had?
On radio during the week Mr Noonan declared passionately that this is a State which is ruled by law, not by lawyers, nor by politicians. Laudable sentiments but not relevant in this context. There are times when the law - or an interpretation of the law - is plainly the enemy of common, humanitarian sense. At that point, men and women of judgment and courage may have to push it to new limits or indeed go beyond it, facing whatever consequences or penalties must follow. One of the founding figures of Mr Noonan's own party, the late Kevin O'Higgins, was wont to quote the maxim salus populi suprema lex - the safety of the people is the supreme law. With hundreds of innocent Irish people, mainly women, vulnerable to hepatitis C through the negligence of a State agency, if ever there was a case when it should have applied, this was it.