Bertie Ahern (Dublin Central, Fianna Fail)

In recent years there has been a growing preference for giving greater legal certainty to the underpinning of primary legislation. A number of powers have been exercised through secondary legislation and statutory instruments. The courts have given their judgment on the matter and the Attorney General has advised recently that the legislative basis for certain bodies created under the Health (Corporate Bodies) Act 1961 requires more secure grounding in primary legislation. We are bringing forward the required legislation for this purpose and it is necessary that we do so.

The legislation in question is the Health (Miscellaneous Provisions) Bill and it will deal with the legal issues in respect of the Health (Corporate Bodies) Act 1961 and amend the Medical Practitioners Act 2007. The Health (Corporate Bodies) Act 1961 provides that the Minister for Health and Children may establish bodies to perform functions regarding the provision of a health service, including any service relating to the protection, promotion or improvement of the health or welfare of people. The bodies established under the Act provide a wide range of important health and personal social services and involve substantial public expenditure. Nineteen bodies have been set up under the Acts under successive Governments since 1961.

Following long and detailed analysis, not only in this area but also in other areas given that the courts have raised the issue in respect of other areas, the Attorney General concluded that the powers conferred on the Minister for Health and Children by section 3 of that Health (Corporate Bodies) Act are so broad that there is a serious risk, in the event of a constitutional challenge to the provisions of the Act, that it would be held invalid having regard to the provision of Article 15.2 of the Constitution. The Attorney General has recommended, as a matter of urgency, that primary legislation be enacted to confirm the orders that have been made under the Act to date since 1961. That is the purpose of the proposed legislation. It is being taken at short notice and I therefore appreciate the assistance of the House in dealing with it.

See this speech in context