Never look into anything you don’t have to, and never set up an inquiry unless you know in advance what its findings will be. This Sir Humphrey Appleby nugget of advice to his minister must have been to the fore in Government thinking to belatedly establish an “evaluation” into how we handled Covid.
The decision to avoid a judge-led inquiry with all the costly forensic trappings is not necessarily objectionable. But the model that has been chosen, and its terms of reference, are unlikely to be sufficiently probing or robust to establish anything approximating to a reliable truth about those areas in which we may have fallen tragically short in our handling of the pandemic. The deaths of those in nursing home care are an especially troubling cause of concern. The type of evaluation chosen by Government falls significantly short of what their families were promised in the immediate aftermath of the pandemic. Put bluntly, an evaluation is not an inquiry, as promised.
The evaluation exercise just announced is proclaimed as “comprehensive”, but it is an ill-defined inquisitorial framework without powers. Announcing the details of this exercise the week before the Dáil is dissolved, when all political energy and attention is focused on the general election that is effectively under way, is especially cynical, if not entirely surprising.
A desire to learn lessons with a view to enhancing our preparedness for future pandemics or public health emergencies in preference to a protracted blame game is a laudable basis upon which to proceed. However, to achieve effective and meaningful public accountability – whether in the attribution of praise or blame – requires something much stronger and more focused than what is provided for in the terms of reference for the comprehensive evaluation exercise to be chaired by the retired professor, Anne Scott.
Even if civil servants and politicians feel they have nothing to hide, especially when comparing themselves favourably with counterparts on the neighbouring island, the delay in establishing an inquiry, and the undeniable preference for light touch or future-oriented evaluation, exudes defensiveness.
If the chair and her yet-to-be-appointed expert panel were minded to reach conclusions about the performance of identifiable individuals this would be hazardous, given the legal premium placed on the constitutional right to a good name, our peculiar defamation laws and the absence of due process guarantees. The most that can be expected is a generalised and anonymised report card with the conclusion “Ireland did well but could do better”.
A priority item for the Scott evaluation must be to identify those issues that should be hived off and dealt with by an appropriate inquiry mechanism
To be fair, there is scope within the terms of reference of the evaluation exercise to engage in comparative study of what worked well in other jurisdictions and to synthesise the literature, specialist and inter-disciplinary, on pandemic preparedness. But all of this is happening anyway in the ongoing – some would say industrialised – processes of peer-reviewed academic research, in which the struggle for impact and currency is relentless.
Perhaps, as the evaluation progresses, it will become a magnet for voluminous protected disclosures from conscientious public officials or those with axes to grind. But the process itself, as designed, will be impotent in its engagements with persons of interest who, in other settings, would be compellable or bound by legal obligations of candour and truthfulness. The exercise has no statutory underpinning and while that, in other future-oriented contexts, might be liberating, it leaves too much to the willingness of people to engage on a voluntary basis, with no mechanism for assuring the quality of their engagements.
If this exercise was carried out by an Oireachtas committee it would at least take place within the framework of a statutory process, even if it was somewhat circumscribed in its capacity to reach conclusions. There are downsides to this, of course – not least of which is the tendency of some Oireachtas members to lapse into kangaroo court mode. But there is also the advantage of transparency in the effort to attain democratic accountability in a public setting.
The Ombudsman also has a crucial role in using the soft and formal power of that office to probe issues of concern arising from the pandemic that will not be amenable to effective inquiry by the newly announced evaluation exercise. Given the proud track record of that office in exposing systemic issues of concern in the nursing home sector, there must surely be a compelling case for it to get to the bottom of what cannot be explored definitively by the Scott evaluation: how effectively did we protect the life and health of those in nursing home care during the Covid pandemic? This is a question that will not go away, and for which there must be a credible answer.
A priority item for the Scott evaluation must be to identify those issues that should be hived off and dealt with by an appropriate inquiry mechanism – perhaps a Commission of Investigation – that is fully compliant with the State’s international human rights obligations to protect life and ensure effective investigations into suspicious deaths. The important contextual and future-oriented work of the already delayed evaluation process should not be used to further postpone the overdue inquiry into what happened in nursing homes.
Donncha O’Connell is an Established Professor of Law in University of Galway
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