Jan O'Sullivan (Limerick East, Labour)

Like Fine Gael, the Labour Party has serious concerns about this legislation. We appreciate the fact that it is urgently required, as the Minister has assured us and therefore we will not stop it from proceeding through the Houses of the Oireachtas. We do so with reluctance, however. As the Minister has acknowledged, we have had very little time in which to obtain any legal advice on the legislation. We were only told about it at lunchtime today and were briefed this afternoon at 2.30 p.m. We are now seeking to respond to it as comprehensively as we can. In addition, we are doing our duty as legislators to protect the public interest and, particularly, to protect vulnerable people. Clearly those concerned in this matter are vulnerable; they are detained against their will in psychiatric institutions and there is a duty to ensure that they are protected in whatever way possible. It is therefore in that spirit that we raise issues concerning the legislation, although we do not seek to obstruct it. We have serious concerns nonetheless.

At our briefing with the Minister, I specifically asked her about the constitutionality of the legislation and whether she had been assured that it complied with the Constitution. She assured me that she had obtained the advice of the Attorney General and that further legal advice had been obtained from another source. Obviously, we must take the Minister's word and assurances on this matter, although we did get our own legal advice, which suggested that there may well be constitutional issues concerning the legislation. There are serious concerns in this regard. Sections 3, 4 and 5 are all predicated on the Minister's conclusion that the retrospective aspect of this legislation will be constitutionally sound. While the Bill deals primarily with the current procedure under which people are detained, the renewal of that procedure within five working days, as proposed in the Bill, will also assume that they are not invalidly detained in the first place. The validity of this legislation is important therefore in terms of future detentions as well, at least as I understand it. Perhaps the Minister will respond to that point.

The other issue I want to raise concerns the fact that the case was considered in the High Court on 15 and 16 October and it was clearly stated that judgment was reserved. That judgment could well have been made before now, even though it has not been. I still do not understand why the Minister's Department was only made aware of this ten days ago, as the Minister told us, which is three days after the case ended. As I understand it, following the C case, Mr. Eddie Sullivan — who also did the report today — did the report on the procedures that were to be put in place in the Attorney General's office when there was any case that might have constitutional implications. Under that new consultation procedure, all legal papers in such cases were to be copied to senior civil servants in the potentially affected Departments. In her reply, will the Minister explain why her Department was not given earlier notice of this matter?

I accept what was explained to us earlier today, that the case turned out in fact to be more significant in constitutional terms than was originally expected. Nevertheless, I would have thought that under the procedures that were put in place in the Attorney General's office, the Department of Health and Children should have been forewarned earlier. We should all have had more time to deal with this urgent legislation.

The Attorney General was a notice party in this case, so his office should have been aware all along of the permutations that were happening in the case. I wonder why this procedure has not been working in this particular case.

The Human Rights Commission was also a notice party. In the brief time available this afternoon, I made a telephone call to the commission, which does not appear to have been asked to give any judgment concerning this case. I would have thought the commission should have been consulted. Under the Human Rights Commission Act 2000, one of its functions is to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights. The people involved in this case clearly need their human rights to be protected. I accept the Minister's point that she is bringing forward this legislation in order to protect them, but nevertheless there are other issues of human rights protection on which I would have thought the Human Rights Commission would have been consulted.

Although the Minister did not say so in the briefing, I think she said subsequently that 99% of the cases were not altered in the clinical review. Will she explain why the figure is 99% and not 100%? Does that 1% refer to somebody in whose case it was in some way decided that the detention was not appropriate? We in the Opposition all have serious concerns about being asked to deal with this legislation in such a short period of time without sufficient time to consult and without sufficient time to consider drafting amendments. I have a draft amendment here which was considered but I will not table it because the whole Bill is predicated on the Attorney General's advice being correct, that this is not unconstitutional. There is little point in putting forward an amendment that would suggest that all other parts of the Act are deemed to be effective if it is found to be unconstitutional in certain parts. The whole Act is tied and is predicated upon it being constitutional. I hope the Minister's advice is correct and that we are not doing something we should not be doing. Normally we would put a timeframe on this kind of legislation and we would insist there would be a time beyond which this legislation would no longer be valid and would have to be reintroduced. However, because it has its own timeframe written into it, we are not going to do this because as I understand, the timeframe is that within five working days, there will be a new order and the Bill will fall and will no longer be valid. I ask the Minister to reassure me on that point in her reply. Those are the main concerns.

I refer to the short notice given to the House. While the case was proceeding and while the focus of the case was turning to something which has now required this urgent legislation, why was there no procedure in place for the Attorney General's office to alert the Minister and her Department to the situation?

I refer to a reply given by the former Taoiseach to the leader of the Labour Party, on 21 November 2007, when he stated, "As Deputy Gilmore is aware, 19 measures were adopted from the Sullivan report to minimise the risk of a recurrence of that serious event". The serious event referred to was the fact that the Attorney General's office was not aware of serious events taking place in a court case. It is important we use the opportunity today to signal that while there was a great deal of publicity at the time that the Attorney General's office was going to reorganise itself and would alert the political system if issues of concern arose in court cases, this does not appear to have been put into effect in this case. For that reason, the House is in the position of rushing through legislation which I hope will be constitutional but I have no guarantee of that. We do not have time to seek proper legal advice and therefore with reluctance the Labour Party will not oppose the legislation.

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