James Reilly (Dublin North, Fine Gael)

It would have been much easier for us on this side had the Minister made available to us the legal opinion. I read the Attorney General's note to the Minister which stated it was privileged and should not be released. That does not mean it could not have been released; it could have been released at the Minister's discretion. If the Minister was truly interested in a bipartisan approach to this matter, that is precisely what she would have done. In that case, she would not have had to defend herself across the Chamber at this time.

I am disappointed at the manner in which the Bill has come before the House and I am concerned about it. In the short time I have had to consider the Bill, I understand its main purpose is to put beyond doubt the vires of 19 bodies established under the Health (Corporate Bodies) Act 1961. If that were the pure purpose of this Bill we would not have a debate, it would go through unopposed and the Minister would have got co-operation, if the legal opinion had been made available to us and it stated that clearly.

What I do have reason to question are the other elements of the Bill and the other things that have been attempted. This is complex legislation. It is coming before the House in the dying hours of this Dáil session. It will be rushed through. In its remit it seeks to address issues caused by the rushing through of the Medical Practitioners Act 2007 and seeks to correct the Health Act 2004 and deficiencies therein.

I have a major concern that we are again rushing through legislation with which, down the road, we may have issues. Nonetheless, I have been advised by the Minister and her officials that the legislation is before us because of the Attorney General's advice and I have already asked why we were not informed until last week. I do not really believe the Minister's explanation that she wanted to have the legislation ready first.

According to the Minister, the Attorney General has concluded there is a serious risk, in the event of a constitutional challenge being brought, that the provisions of the 1961 Act would be held to be invalid, having regard to the provisions of Article 15.2 of the Constitution. Article 15.2 states:

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State. . . . Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.

I understand the Attorney General recommended that as a matter of urgency primary legislation should be enacted to confirm the orders which have been made to date under the 1961 Act. Last Thursday, I asked the Minister to provide me with the legal advice which prompted this legislation. All I received from her was a copy of a letter from the Attorney General confirming that he has given "unequivocal advice. . . that it was legally and constitutionally necessary to introduce primary legislation to confirm the bodies". However, it did not confirm the co-location of hospitals to redress issues raised by the last legislation rushed through under the Minister's guidance earlier this year, it did not address the issues of the HSE and it certainly did not insert the term "HSE" for "Minister" in a host of circumstances which devolve responsibility for these institutions and bodies further from the Minister.

If the Minster is genuine about getting Opposition co-operation for the passage of emergency legislation over these two days, it is advisable that she would allow the Opposition adequate time to consider the legislation and that all information, including the legal opinion on the issue, which can be released at the Government's discretion, is made available for consideration within good time. The last-minute publication of this Bill, days before the Dáil recess, is further evidence that the Minister's governance of health is nothing more than reactive, disjointed and chaotic at best. It also makes one suspicious as to her true agenda.

If the scope of the statutory instruments establishing these various bodies is beyond that which is provided in the principal Act, it is understandable and appropriate that this is rectified so that all orders and acts under the Health (Corporate Bodies) Act 1961 are placed on a sound legal footing. We do not have an issue with this. Given that the Minister, and her departmental officials, are satisfied that there is no litigation pending or threatened, it is difficult to understand why the Minister deliberately withheld this important legislation from the House and why she feels it necessary to guillotine it days before the Dáil recess. Fine Gael is willing to co-operate with Government on underpinning these important boards and their functions. However, we do not support the guillotining of this important legislation without proper consideration and debate, or its use to facilitate the introduction of the unrelated, controversial co-location of hospitals.

As well as underpinning 19 agencies, the Bill also addresses the legal capacity of St. James's Hospital and Beaumont Hospital to sign deals with private developers to build private hospitals on their grounds. To date, I have been given no compelling reason that the provisions relating to co-location have to be included in this legislation. It is just handy, or a case of "we will do it while we are at it". That might be fine if we had sufficient time to debate the Bill in an orderly fashion but it is not acceptable when the Bill is rushed and brought in under the umbrella of the Attorney General's advice to underpin the vires of 19 important State bodies and institutions, which, as the Minister accepts, are responsible for €900 million of taxpayers' money.

According to the departmental briefing note, this legislation is being introduced "to put beyond doubt the legal capacity of Beaumont and St James's Hospital to enter into co-location agreements". In Schedule 1, with regard to Beaumont and St. James's hospitals, it states "The Board may, with the consent of the Health Service Executive, enter into an agreement with one or more persons for the provision by any person on land vested in the Board, of the hospital services that are not paid for primarily out of public monies." It continues specifically to include provision for the construction of buildings and facilities by private undertakings, and allows the board to enter into such other agreements with private undertakings of such services it considers appropriate. It is obvious that this legislation goes much further than putting "beyond doubt the legal capacity" of Beaumont Hospital and St James's Hospital to enter into co-location agreements. It appears that this provision established the legal capacity for these hospitals to enter into co-location agreements, which is very different from what the Minister suggests.

The letter received from the Attorney General states that he has given unequivocal advice that it was legally and constitutionally necessary to introduce primary legislation to confirm the bodies. The Attorney General does not refer to co-location or the need to include co-location in this legislation. Can the Minister confirm whether the Attorney General's advice refers to co-location or any concerns he may have had regarding the legal capacity of Beaumont Hospital and St. James's Hospital to enter into co-location agreements? Considering that the Attorney General's advice is based on concerns regarding bodies established under the 1961 Act, why has the Minister decided to incorporate the unrelated issue of co-location on the hind legs of this legislation?

At the meeting with Opposition spokespersons last Thursday, the Minister and her departmental officials categorically stated that no litigation is pending or threatened so why is it necessary to guillotine this legislation in the final hours of the Dáil session? Given the Minister's assertion that the boards of Beaumont and St James's hospitals are quite happy about the soundness of their legal standing, I fail to see the need to rush this aspect of the legislation through the Dáil. If the Minister is genuine about getting Opposition co-operation in these two days, she must produce evidence to support the inclusion of the co-location aspect, which she has not done.

I am very concerned, without having sight of the legal opinion, that rushing legislation through again will lead to yet more problems down the line and further questions about the competence of the Minister. Furthermore, this legislation, in attempting retrospection, may be unconstitutional. Clearly, what is now required is a considered debate to ensure that the detail will be correct on this occasion. The Minister in her contribution stated "given the immediate need for certainty as to the status and powers of bodies established under the Act, the wide range of crucial and fundamental health services provided by the bodies and the very substantial public expenditure involved in their operation, it was decided to prioritise matters for the present Bill", but that further Bills would be required. While there is a need to underpin the vires of these 19 bodies, they are being used as a conduit through which to introduce all this other activity.

With regard to co-location, I refer the Minister to a question asked of her by her Cabinet colleague, the Minister, Deputy Gormley, on 27 September 2006. Deputy Gormley stated:

I thank the Minister for her reply. She has correctly identified the company in question as Triad, one of the bidders for six co-located hospitals and which is also managing the Beacon Hospital. This company is a subsidiary of an American corporation that pleaded guilty to criminal fraud. This hospital chain, Columbia/HCA, paid a total of €1.7 billion to settle US Government fraud charges. Triad is currently under contract to its parent company for services that include patient accounting, which was the nub of the fraud case taken by the US Government against it. Does this information set off alarm bells for the Minister?

In light of this information, does the Minister believe that providing massive inducements in the form of giving public land to such American companies is the right way forward? Instead of cutting costs, could they increase inordinately if the same pattern occurs here? Hence, while I am aware the Minister believes us to be closer to Boston than Berlin, do we really wish to Americanise our health system so health becomes a commodity to be traded in the market place? The Minister must realise that health is much more than that. It concerns people's well-being and using the market model may be ill-advised.

That was the position of the Minister, Deputy Gormley, just over one year ago. How things have changed. I see the Minister is wearing green, although the Minister, Deputy Gormley, is not in the House.

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