Mary Harney (Dublin Mid West, Progressive Democrats)

Yes, I believe it is on the way. That it took so long is deeply regrettable. That we have a definitive resolution now is highly welcome.

Deputies will be in a position now to study the Supreme Court ruling in detail but I would like to summarise key elements of its decision. They are as follows. The provisions of the Health (Amendment) (No. 2) Bill 2004 that provide for prospective charging of inpatients are constitutional. There is no constitutional prohibition on implementing a charge in the future for inpatient services. The Bill was not contrary to Article 15(5) of the Constitution in that it was not within the prohibition of retrospective legislation in that Article. This is because that Article is confined to rendering something unlawful that was at the time of its commission not unlawful. The Bill is unconstitutional in regard to the property rights of citizens. While taking away a property right without compensation can be justified under the Constitution, it can only be justified to avoid an extreme financial crisis or a fundamental disequilibrium in public finances. The Supreme Court did not consider the exposure of the State or the sums involved — in the order of €500 million — to meet that criterion.

The Government has acted responsibly and reasonably since the Attorney General provided legal advice to me on this matter last November. We brought forward the Health (Amendment) (No. 2) Bill to put the charges on a sound legal footing. We knew that whichever way we addressed the issue of retrospective payments, other than by the course of action we took in the Bill, it was likely that many individual legal challenges would be taken. Older people in long-term care and their families would have been put through the stress of months of legal argument.

I do not believe that the Government could have acted faster or better to achieve the clarity we have today. Had we decided to make payments back for one year, claims would have been made for payments for two years or more. Had we decided to make payments back for two years, claims would have been made for three. Even if the Government had decided to make repayments within the timeframe of the Statute of Limitations, that would in all likelihood have been tested also. The way the Bill has now been tested has been the fastest, most cost effective and least burdensome on families and people in long-term care.

That is why the Government welcomed the President's decision to refer the Bill to the Supreme Court. As the Taoiseach said in the House this morning, he and I gave advice to this effect to the President at the Council of State meeting, fully respecting her absolute discretion in this matter.

There was simply no easy way to deal with the long-standing legal problem the Attorney General advised us about in November. At that time, there was considerable uncertainty about the extent of legal advice given since the Supreme Court judgment of 1976. That is one of the reasons I appointed Mr. John Travers, the former chief executive officer of Forfás, to carry out a thorough investigation into the way this issue was handled over the years in the Department of Health.

Had we waited to legislate until we knew everything, we, and especially people in long-term care, would not have been in any better position than we are now. We would now, on 16 February 2005, still be many months away from legal clarity on the matter. Litigation or challenges would have been inevitable whenever we acted. This source of funding available to our health services would also have been in continuing doubt. The situation today would have remained very unsatisfactory.

No Member in the House last December suggested an easy way forward. Few seemed to remember that the policy of charging for shelter and maintenance was supported and implemented by 11 Governments and many health boards, of which many Deputies were members. No political party, to my knowledge, ever took a stance or sought a mandate since 1976 to remove these charges. If political parties wish to assign political blame, it must surely be on an inclusive basis since 1976.

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