Mr. Simon McGarr:

The golden share model has been created to deal with the specific circumstances of this deal. It was not in the original Mulvey plan and is one of the methods by which the State side has attempted to alleviate the concerns which were clear at the time the Mulvey report came out, when it was to be owned by the nuns. It was through the holding company, but the nuns were the ultimate owners of the building and hospital. The golden share was created to deal with that problem. I do not see that problem arising in many other sets of circumstances. I would be surprised if the same kind of solution was proposed for other HSE hospitals, for example. The golden share is intended to be able to tell the directors to provide for legally permissible services. That is what it says in section 5.3:

The Minister... hold[s] a share referred to as the Golden Share... provide[s] legal protection to the inviolability of the Reserved Powers in the manner provided for in this Constitution, to ensure... the obligations of the Directors as contained in [the] Constitution are complied with and to ensure that any maternity, gynaecological, obstetrics and/or neonatal services which are lawfully available in the State shall be available in the New NMH.

The Minister probably read out the same phrase yesterday. It is a strong phrase to underpin the delivery of lawfully permitted services. It is not qualified by saying "lawfully permitted and clinically appropriate". It is unqualified. Unfortunately, it is only in relation to the reserve powers and only goes so far as those powers are able to go. The reserve powers are subject to that clinically appropriate and lawfully permissible test. I am not advancing a particular interpretation as being accurate. I am advancing the position, which I think has been self-evident over the past week, that it is ambiguous. There are a number of interpretations that could be placed on it, depending on one's point of view. That is in respect of now and of people with a shared set of life experiences and does not account for what might happen in ten, 15, 20 or 100 years' time.

The suggestion by the Minister that it would be defined is good and important if it is to be left in but, at the moment, a good reason to leave it in has not been advanced. It is clear from the golden share that the Minister's intention is to deliver all lawfully available services. He is not looking to have these things clinically appropriate and lawfully available. The HSE is the source of its imposition in the deal but it is within the gift of the State to decide not to go ahead with it. Rather than creating a problem by including a list of definitions which are non-exclusive and asking everybody whether this and that is okay, surely the correct response would be to remove the controversial clause, for which there is not the need that there is for the other definitions. The reason given is that it is needed to ensure only maternity hospital services are provided but the permitted use clause at the top of the constitution says it is for legally permissible healthcare services by a maternity, gynaecological, obstetrics and neonatal hospital. If the purpose of "clinically permissible" is to say it is for national maternity hospital usage, it is a redundancy and is saying the same thing twice. If it is a redundancy that puts the future interpretation of all the protections in the agreement at risk, the correct response is to take it out, as the preference, and, only as second best, to attempt to define it.