Alan Shatter (Dublin South, Fine Gael)

I wish to share time with Deputies Olivia Mitchell and Andrew Doyle.

It is appropriate, if not ironic, that on this, the second last day of the Dáil session before Christmas, we are confronted with this Bill. It is a measure to tidy up some of the mess created by the Government in its former guise prior to the last election, as well as to tidy up a mess in terms of an issue for which the Minister cannot be held responsible but with which she has dealt with her characteristic, if I could put it straightforwardly, ineptness.

This Bill apparently has three or four objectives. The first is to deal with the problems created by the 1961 Act about which the Minister was told on 26 October 2007 by the Attorney General. The Opposition who first had sight of this measure last Thursday evening — it was not officially published until Friday — have been told that we should simply pass it because the Attorney General's advice is that we should do so. The odd and fortuitous feature of this country is that we are still democracy. This Parliament is not ruled by the Attorney General but governed by Deputies who are fortunate enough to be elected to it to represent the people.

I have a simple view on this. The Attorney General is the law officer to the Government and gives it advice. If the Government is the client, the advice is privileged if the Government wants to exercise privilege over that advice. However, if this House is confronted with a Bill first officially published on a Friday and told it must pass it by the following Tuesday because the Attorney General advises it should be passed, Members are being treated with nothing short of contempt to be told also that the Government cannot give them the Attorney General's opinion for their consideration. It is the wrong way to deal with an issue that is alleged to be important. I do not like rushed legislation. Some of what the Bill seeks to do is to correct errors made in the Medical Practitioners Act, which was rushed with unseemly haste through this House, despite being in planning for five or six years prior to the last election.

We are back here engaged in rushed legislation and told that we are trying to legislatively copperfasten the status of a variety of bodies, all of which perform important functions, because there is a constitutional doubt about the manner in which they were created under the 1961 Act. That constitutional doubt, which has not been fully set out, is that the provisions contained in that Act were so broad as to confer not only on the Minister but also on her predecessors from different parties a power that was essentially a delegation by the Oireachtas of the legislative function to a Minister. The argument, I presume, in the Attorney General's opinion is that the power was too broad; the Minister and her predecessors by creating different bodies were performing a legislative function, not an administrative or limited one, and a Minister cannot perform legislative functions under the Constitution.

If there is a constitutional doubt about that legislation, I record that I have constitutional doubts about this legislation. It tries, in a different format, to do the same thing. Section 5(1) states "Subject to subsection (6), every order under section 3 of the Act of 1961 made before the passing of this Act shall have statutory effect as if it were an Act of the Oireachtas." What we are doing is retrospectively providing that Ministers could perform functions as if they were the Houses of the Oireachtas. I believe that provision in this Act is open to constitutional challenge and Members should be entitled to see the Attorney General's opinion on which that is based. That provision in this Act should be referred by the President, under Article 26 of the Constitution, to the Supreme Court and in those circumstances the entire Bill should be referred by the President, under that article, to the Supreme Court for its consideration because there are grave constitutional doubts about the efficacy of that section.

This legislation is representative of what I regard as the organisational and financial shambles that is the Department of Health and Children and its prodigy, the HSE. We have in the HSE an unacceptable, bureaucratic, overgrown quango proven to be incapable of performing the statutory functions given to it. A major objection to this Bill is that it continues the devolving of powers from the Minister to the HSE, a body that is not accountable directly to this House, and relieves the Minister of further accountability to this House for the shambles that is currently the health service.

We have great people working in our health service. The shambles is created by an organisational deficit, an organisation that cannot get its finances in order and that is completely and utterly incapable of organising the services it provides in a coherent way. Some 53% of the population have private health insurance; ten years ago the figure was 35%. The reason is that the majority of people have no confidence in the public health system. It is an indictment of 11 years of Fianna Fáil and Progressive Democrats, now joined by the Greens, in Government that we find ourselves in that position.

On principle it is right to vote against this legislation as a protest at the ineptitude of the Minister who heads up the Department of Health and Children and of the HSE's complete incapacity to provide our people with the type of health service to which they are entitled.

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