Tim O'Malley (Limerick East, Progressive Democrats)

On Committee Stage, the Minister indicated she would consider this matter further, especially in light of the Deputy's reference to the Electoral Act. Since then, the relevant provisions in the Electoral Acts, namely sections 41 and 42 of the 1992 Act, have been examined and legal advice has been obtained.

The situation covered, however, is not identical to that in the Health Bill in matters that give rise either to disqualification for election to the Dáil or from existing Dáil membership. The Electoral Acts do not disqualify someone from Dáil membership even where he is convicted of a serious indictable offence. In terms of board membership of HIQA, however, it would not be appropriate that a person convicted of an indictable offence should remain as a member. Even in situations where such an individual was contemplating or undertaking an appeal, it would be inconsistent with his professional and personal responsibility to protect the reputation of HIQA to remain on the board.

The legal advice received from parliamentary counsel is that the statutory triggering of automatic cessation of board membership as currently set out in the section is appropriate under Irish law and does not offend the Constitution. Hence, there is no need constitutionally for a saving provision that would allow a person to continue as a member of the board pending expiration of an appeal period or the outcome of an appeal.

Eligibility to run for the Dáil and the matter of removing an existing Dáil Member go to the heart of our parliamentary democracy. In that context, we are not comparing like with like either generally or specifically in terms of general principles when we compare Dáil membership with membership of a State board. This was a point strongly made by Parliamentary Counsel. He distinguished between the right of adult citizens to stand for election to the national Legislature, which is an essential feature of a democratic state, and membership of a board appointed by a Minister. The limitations provided under section 42 of the Electoral Act 1992 are consistent with the former but unnecessary for the latter.

Provisions to the same effect as section 14(2) of the Health Bill 2006 are common in the Irish Statute Book without saving provisions staying their operation pending the expiration of an appeal period or the outcome of an appeal. Parliamentary Counsel's opinion was that for consistency throughout the statutes it would be inadvisable to provide differently here. All of the advice received confirmed the point that we are not comparing similar situations and, on balance, the current provisions, which are well established in legislation dealing with membership of State boards, are appropriate. I shall not, therefore, be accepting the amendment.

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