Legal argument over whether hospitals, doctors, health boards and an insurance company are entitled to refuse to produce certain documents to the Lindsay tribunal on the grounds that they are privileged continued at the tribunal yesterday.
The debate has arisen as a result of an application to the tribunal by counsel for the Irish Haemophilia Society (IHS) which is seeking disclosure of all relevant documents.
In particular, it feels documents should be examined with a view to establishing if the State responded adequately to infected persons when it entered into the HIV recompense scheme in 1991.
Counsel for the IHS, Mr Martin Giblin SC, said on Tuesday that the right to claim "legal professional privilege" at the tribunal was waived by the Oireachtas when it drew up terms of reference for the tribunal.
One of these said that all persons employed in Departments of State and State agencies "shall" fully co-operate with the tribunal by providing it with "all" the documents and information requested of them which were in their possession.
Yesterday the tribunal chairwoman, Judge Alison Lindsay, heard submissions from counsel for the tribunal, Mr John Finlay SC, and for the Attorney General and the public interest, Ms Maureen Clarke SC.
Ms Clarke said the right to assert privilege was a constitutional right and a human right. Therefore documents could not be described as being withheld by any party who asserted a claim to privilege.
"I have instructions to vehemently oppose any attempt to minimise or deny a witness's right to rely on legal confidentiality which is akin probably to an enumerated constitutional right, and is recognised as a human right in the Convention of Human Rights," she said.
She added that the question of privilege was more than a rule of evidence. It was a fundamental condition on which the administration of justice rested. "The public must have an interest in preserving such an important right," she said.
"The parties who have been asked to furnish affidavits to this tribunal are entitled as a right, as is every party who appears before the High Court, to know that documents prepared by them or their legal advisers in contemplation of litigation or in pursuit of legal advice can never be revealed.
"This is the bulwark of freedom, an important concept in our legal system which applies to the big people and the little people. It is a right as well as a privilege."
Mr Finlay said a resolution of the Oireachtas in the form of a term of reference for the tribunal could not amend legislation. The law was the same for a person before the tribunal as before the High Court, that witnesses were entitled to claim legal professional privilege.
He added that the Oireachtas, in inserting the term of reference referred to by Mr Giblin, could not have waived the right of employees of State agencies to claim privilege. It was only employees themselves who could grant such a waiver.
Mr Finlay agreed, however, that parties before the tribunal, including the BTSB, were obliged to list in their affidavits all documents over which they claimed privilege.
He said some had not done so but, contrary to IHS claims, affidavits from Prof Ian Temperley and the Church & General Insurance company (insurer of the BTSB and the National Children's Hospital) had complied.
Judge Lindsay said she would consider all submissions before deliver her ruling this afternoon.