Alex White (Dublin South, Labour) | Oireachtas source

The Oireachtas makes the law. The Minister does not make the law. That is the position, and that was also the case when Deputy Kelleher was on this side of the House. That is the system we have - parliamentary democracy. If any Minister is going to make regulations, he or she cannot do so willy-nilly. There must be an Act under which the Minister may make the regulations. The substantive aspect of this is in section 47(1). It is not the Minister who decides on a person's appeal. It is the HSE that decides that a person does not come within a category specified by or under the relevant section. The section as amended states: "[A]n appeal shall lie from the decision to a person (who may be an employee of the Health Service Executive) appointed or designated for that purpose by the Minister." That is the important part. We are allowing, as is absolutely proper, an individual to bring an appeal. We have to have that. It is vital that people be allowed to appeal.

The second part is the additional aspect, which is in a sense ancillary to the main part. It simply says that in respect of the appeals process, which is being dealt with substantively, the Minister may by regulations provide for the making and determination of appeals. It does not state that the Minister will be deciding on appeals or introducing anything new by the back door, because he cannot do so. There is no way any Minister could bring in a regulation that would in some way undermine or negate what is in the legislation, because it would be ultra vires. No Minister can undermine the will of the Oireachtas as set out in legislation through regulations brought in afterwards. We all know that from time immemorial. The Oireachtas makes the laws.

This has been the position in the legislation since the 1970 Act - that the Minister may, by regulation, provide for the making of determination of appeals. There is nothing particularly new here. We are neither adding nor subtracting anything from the main provision, nor are we negativing the main provision, which is to give people the right of appeal, which they should properly have. I do not think there could be any reasonable basis for an objection to a statutory power for the Minister to bring in regulations to govern such a process.

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