Mr. Barry McGreal:

I thank the Deputy for the question. The policy responsibility transfers on foot of the transfer orders which are to be signed. This section does not impact on that. The whole transfer of functions will move disability policy responsibility, lock, stock and barrel, from the Minister for Health to the Minister for Children, Equality, Disability, Integration and Youth. This legislation goes alongside those statutory instruments. The Ministers and Secretaries Acts provide for the transfer of functions. A transfer of functions order will be signed which will transfer the functions. This legislation provides for accountability to go along with those functions because it would not be appropriate to transfer over €2.3 billion worth of expenditure and all of the significant responsibilities the Minister carries without giving him or her all of these powers. That will happen.

It is not my decision to make the transfer but my understanding is that there is no intent to avoid holding people to account. From legal advice, my understanding is that this section and section 63 are included to guard against such instances as something happening on the day of the transfer, the Minister writing to HIQA to ask for this terrible thing that occurred in this centre to be investigated but that letter being null and void because the Minister did not have the power to make such a request, the transfer having happened that morning. In legal terms, this is called a saver section. It means that something the Minister does is deemed to be lawful provided he believed he had the powers to do it when he did it. There is no intention to somehow allow the Minister for Health to continuing carrying out his functions subsequently because section 65 provides that all of the powers being transferred cease the minute the transfer happens. This is not some sort of back door to allow the Minister for Health to somehow retain these powers. They will cease. If the Minister for Children, Equality, Disability, Integration and Youth decided to write a letter directing that something be done before the actual transfer had not been signed - perhaps it was to be signed a few a hours later - he would not have had the power to do so at that moment. Our legal advice tells us that the inclusion of these sections protects and safeguards against that.

I do not believe the sections will ever be used. I think we would be okay if they were not included. They are just included out of an abundance of caution. It provides a particular safeguard. What the Deputy has talked about will happen as a result of the transfer more generally. As she has said, if the committee wishes to call in a Minister or an official to ask some questions, it will be the Minister or officials of the relevant policy Department who are called in. Once the transfer happens, that will be a different Department. However, it is not these particular sections that achieve that but the transfer itself.