Alan Shatter (Dublin South, Fine Gael)

I appreciate the Acting Chairman has no role in this but we are all big boys and girls here. While the Ceann Comhairle is entitled to rule matters out of order, if a considered amendment on a Bill as important as this is ruled out of order, we are entitled to know the reason. That is not an unreasonable request. I do not want to delay matters but in my experience it is customary to explain that an amendment is out of order because it may impose a financial liability on the State or otherwise. I do not understand why this amendment was ruled out of order.

Section 3 deals with the eligibility issue. It provides that, "Notwithstanding any other enactment, with effect from 2 March 2009 a person also shall have full eligibility for the services under this Part if the person attained the age of 70 years before 1 January 2009 and is ordinarily resident in the State, so long as the person's gross income does not exceed" the gross income specified in the Bill. It is futile to invite the Minister to change her view and stick to the original promise made to people that upon attaining 70 years they would have the full medical card.

My concern about this measure, linked into other measures, is the impact it will have on a number of cases. We will have the opportunity to consider a particular case later when the Minister moves an amendment to section 4 and I want to signpost it. I refer to the manner in which the legislation affects widows and widowers and the peculiarity contained in the legislation regarding who is a couple as defined in the legislation. This interacts with other parts of the legislation.

A series of anomalies arise under this legislation. A married couple qualifies as eligible for the medical card where one is over 70 and their gross income does not exceed €1,400 per week, as specified in the Bill. This Bill, as originally published would have had the effect that if, following the death of a spouse, the surviving widow or widower had an income of €1 in excess of €700 per week, immediately on the death of a spouse the surviving spouse would have had to communicate with the HSE the fact that he or she ceases to be eligible to retain the medical card.

I appreciate we will come to an amendment the Minister has tabled that will temporarily deal with this. However I find it extraordinary that any Government, having given it two months deliberation, could produce legislation that sought to target the bereaved and instantly deprive a widow or widower of an entitlement to a medical card before his or her even having the opportunity to grieve over and lay to rest his or her deceased spouse.

In the context of how this legislation works there is a series of problems. We will come to an amendment the Minister has tabled that provides if one is bereaved and over 70 one can retain the medical card for three years if one originally qualified for it under the terms of the legislation. The problem with these eligibility rules and the definition of a couple is that the definition of a couple applies not just to a married couple but to couples living together outside marriage. This is relevant to this and later sections.

I do not suggest we discriminate against people who live together outside marriage, but the Constitution does not allow us to discriminate against married individuals. We are not allowed, constitutionally, to discriminate against people because they have been married and their spouses have died. What the legislation does in this context is quite odd. It is cruel, it is unconstitutional and, in my view, it is unacceptable. It seems to create a situation — the Minister can correct me if I am wrong — in which a widower or widow can be deprived of his or her medical card but someone who has been living with his or her partner is not.

Let us take as an example a married person who has qualified for a medical card on the basis that he and his wife have a gross income of €1,400 per week or less. If his spouse dies — we will assume it is the husband who survives — and the widower's gross income is €800 per week, he will be deprived of his medical card, immediately under the initial proposal, but under the current drafting, three years after the death of his spouse. However, if a couple are living together outside marriage and thus are not recognised as having any constitutional status as a family, and their gross income is less than €1,400 per week, they will both get medical cards. Under this legislation, a single unmarried individual over 70 with an income greater than that received by a widower will retain a medical card if he or she is living with someone else, while the widower will be deprived of his medical card because his wife has died. I believe this is unconstitutional, because the widower is losing his medical card as a consequence of the State's failing to recognise that despite the death of his spouse he has retained his status as a member of a marital family.

Whereas the State is perfectly entitled to treat couples living together outside marriage in a way that is identical to couples living together within marriage or a married person similarly to the way in which it treats a single individual, it is not entitled to give preferential treatment to persons living together outside marriage as compared to a married person who has suffered a bereavement and who constitutes a constitutional family. I know this is a very complicated argument and I do not want to pretend it is simple, but it is the reality. We have certain constitutional duties. Any Government that would deprive a widow or widower of a medical card because his or her spouse has died does not deserve to be called a Government. It is an inhumane approach that would not be supported by anyone outside this House. Any Government that says to a widower that it will let him keep his medical card for three years and then when he is 74 or 75 it will take it back unless he cohabits — or lives in sin, as some people would view it — with someone else is a Government living on a different planet.

The odd thing about this Bill is that a widow or widower who has been entitled to a medical card under the gross income rules will be allowed to keep his or her medical card provided he or she finds someone else to live with as if they were husband and wife within three years of the death of his or her spouse. Not only is that unfair and inhumane, it is completely bizarre. Under the legislation and the definition as it interacts with this section, the State will apparently allow a couple to keep their medical cards if they are living together as if husband and wife and they are over 70. How is the State to establish whether elderly people are living together as husband and wife? Are we to have a special unit of the Garda Síochána sent to the homes of the elderly to check out their sleeping arrangements if a man and woman are living together in one home? Will the State have to make inquiries as to the level of intimacy of their relationship? If a widow or widower who suffers from ill-health has a companion of the opposite sex who comes to live in his or her home to help with daily needs such as keeping the house clean and cooking the food, at what point are those two people regarded as living together as if husband and wife? What inquiry will the State make of both of them? Why should any person over 70 be put through the embarrassment of such inquiry? Is this Government deliberately setting out to embarrass and cause distress to elderly people?

If an elderly widower was bereaved two and a half years ago and his sister moves in to reside with him, they will form part of a constitutional family. They are obviously sleeping in different bedrooms but they have companionship. Why should the State not consider their gross income to allow both of them to retain their medical cards? If one of them has an income of €800 gross per week and the other has an income of €400 per week, under this legislation they would apparently be allowed to have medical cards if they were intimate together but not if they were not. It takes an extraordinary political mind to produce a Bill that creates such unacceptable and bizarre dilemmas.

The other difficulty the Minister has with all of this — we will go through it again as we move through the afternoon — is that there is a taint of unconstitutionality about this legislation. It discriminates against the family based on marriage where an elderly person is bereaved by the death of his or her spouse. It discriminates against the family based on marriage where a sister and brother are living together in one home, as they are regarded as being part of one constitutional family. Article 41 of the Constitution imposes an obligation on us in this House to guard with special care the family based on marriage. I believe this legislation should be referred by the President under Article 26 of the Constitution for these issues to be examined. I am not going to pretend that anybody with any legal expertise or knowledge of our Constitution could predict with certainty the outcome of any such reference. I am simply raising the issue that there are serious constitutional questions that need to be addressed. I do not think it is appropriate or fair that any person over 70 who wants to defend his or her right to obtain or retain his or her medical card should be put through the stress and possible expense of having to take a constitutional action.

The entirety of this legislation is ill-conceived. This legislation was published last week — I cannot recall whether it was last Thursday or Friday morning. I saw it on Friday. It was produced as last-minute, emergency legislation after the Government had made five U-turns. The sixth U-turn is an attempt to amend in a very ill-considered way the position of widows and widowers. To what extent has this legislation been constitutionally proofed with the necessary consideration by the Office of the Attorney General? To what extent has this issue been addressed in the context of the manner in which it could affect families based on marriage? These are important questions and I hope the Minister will be able to respond to them.

See this speech in context