Joe O'Toole (Independent)

I welcome the Minister to the House. I listened carefully to her speech. I will not use this legislation to articulate my views on co-location. I have done that previously and I am sure I can do it again.

I do not know whether I should support or oppose this Bill, and when in doubt, "Vote No" quickly comes to mind. On the Order of Business this morning I stated that this is the anniversary of the week of the rod licence debacle and to me this has all the sense of that, and I will explain why.

Only a month ago in this House I went to the trouble of going through the Health Act 2004. I extracted from that Act a document, which I put together myself, listing the functions of the chief executive, the responsibility of the Minister, the reporting structure in each and what each was supposed to do. I pointed out to Members, and particularly those on the Minister's side of the House, why they should not be critical of the Government in certain situations and why they should in others, which is the principle from which I work.

There are two aspects of the Minister's speech which seriously concern me. The first is her statement that there are technical drafting issues identified regarding the Medical Practitioners Act 2007. I would like to know how that came to be.

More importantly, I have spent a lifetime in this House trying to understand and get a good feel for the difference between statutory instruments, ministerial orders, secondary legislation, regulation, etc. The Minister suggests we could be in breach of Article 15.2 of the Constitution, which gives the right to legislate to the Oireachtas. How did this happen? Senator Fitzgerald said that she would like to see the Attorney General's advice. I would too, but I know there is not the remotest chance of seeing it.

Let me give the Minister the other side of the argument. I do not trust lawyers in this regard. I do not trust lawyers who tell me that we cannot do something by secondary legislation or by regulation. Neither do I trust them when they say we should not have done something by secondary legislation. I have been dealing with legislation for 20 years and like to put my hands in the wounds myself. It is right for the Minister to do what she is trying to do to ensure that matters are brought beyond doubt. She knows that and has the information to come to that conclusion, but I do not. I do not trust lawyers in that regard.

When I say I do not trust lawyers, I am not being dismissive of the profession. I feel they are used to taking one side or the other and are not much good in the middle. Their whole life is either win or lose, but the rest of us have a different role to play as we live in a grey world. I would like to hear what the advice was, to hear the opposing argument and to come to a conclusion. We are entitled to that in this situation. For example, the Minister states clearly with regard to the establishment powers and immediate needs: "The National Paediatric Hospital Development Board is also one of these bodies and, when examining the adequacy of powers of the Health Service Executive to fund the new board ... it was felt there were difficulties". I have looked at the powers of the Health Service Executive under the 2004 Act and see no difficulty whatever. It was given widespread powers to spend money and fund bodies, as long as it was doing so in the interest of improving, promoting and protecting the health and welfare of the public. I cannot imagine anything broader than that.

I recall the legislation going through and I indicated then that the HSE could take on the whole country and nobody could oppose it. I would like to see the legal advice that second guesses that. I do not believe it exists. I know the hardest thing for a Minister for Health to do. I remember saying to one of the Minister's predecessors, Deputy Michael Noonan, whom I defended in the House previously, that he should not have taken legal advice in the Mrs. McCole case. This situation is not parallel, but that was a good example of where a politician should strenuously overrule legal advice when not convinced it is necessary.

I am arguing in a vacuum because I have not seen the arguments of either side. Therefore, I cannot come to a conclusion on the issue. If the same people are advising us on this as advised the Parliamentary Counsel on the Medical Practitioners Act 2007 and the previous Act, who is to know whether they were right the first or second time? I do not feel we have clarity on the issue.

I do not have any difficulty with the Minister's argument. I listened carefully to her. Her objective is laudable and if the bases on which she came to her conclusions are correct, convincing and plausible, I would have to support them. However, I do not know that to be the case, but she is the Minister and I am not. I must make my judgment on the information available to me, but the information is not available to me and I am not convinced by legal advice.

The Minister has spent as much of her life as I have of mine looking at legal advice and being prepared to throw it in the bin if it seemed incorrect or did not fit the need at the particular time. I am not sure this is not one of those cases. The distinction between secondary legislation such as regulation, statutory instrument, order or whatever is sometimes very fine. If it goes over the line, I like to know why. If it went over the line, somebody in the Department, it is probable that whoever drew up the statutory instrument, not the Attorney General, went beyond his or her authority.

What we are doing here is enacting primary legislation to amend a regulation. Primary legislation gave the right to regulate. The regulation was written and now we are returning to primary legislation, not for new primary legislation, but to amend a regulation. I am uncomfortable with that because I do not understand how we find ourselves in that position. More importantly, how am I to know we will not find ourselves in a similar position next month or next year? Could there be other measures we need to look at on this issue?

I do not envy the Minister her job. My comments are heartfelt from the perspective of a legislator, but there are issues here that cause grave discomfort to anybody who worries about the process of legislation and regulation and their relationship with the Constitution.