Brendan Howlin (Wexford, Labour) | Oireachtas source

I support the Sinn Féin amendment. It cures a deficiency that in my Second Stage contribution I had asked to be addressed. In his response to our concerns at the end of Second Stage the Tánaiste will be aware that he said our concerns, which I had set out in my Second Stage contribution, had been addressed. The Tánaiste said:

Deputies have noted the range of measures in the Bill to facilitate in an operational way the shift to the UK being a third country. Deputy Howlin made two points relating to Parts 2 and 6. I reassure the Deputy that the Bill and all its Parts has been prepared in consultation with the Office of the Attorney General and on the basis of legal advice from that office. I am sure the Minister for Finance, Deputy Donohoe, and the Minister for Health, Deputy Harris, can address the Deputy’s concerns in more detail, if necessary.

Saying that the Attorney General has looked at it is hardly a comprehensive response to the constitutional issue I raised. I would like to hear what his views were and why it is constitutional in the way it is asserted, which is obviously very important. The amendment suggested by Deputy Cullinane would cure that in as much as it would have to have the consent of the Dáil.

Labour’s concerns cannot be easily put into an amendment to cure that infirmity - I was trying to think of an amendment myself - on the legality of the section from a constitutional perspective. The relevant concern is that Labour believes there is a constitutional problem with Part 2 of the Bill. I had simply sought very clear advice to assuage those concerns.

The UK Brexit legislation has relied heavily on so-called Henry VIII clauses, which in the British system, with no written Constitution, allow ministerial orders to amend Acts of Parliament and these by-pass the legislature. I have looked at a number of other countries in this regard and new powers are being devolved to Ministers to act by decree in many jurisdictions because we do not know exactly what problems might arise. I can understand the administrative attraction of such a power that the Minister may act by decree without reference to primary legislation. We, however, have very clearly set out restrictions on the powers of Ministers to act without the consent of the Oireachtas.

Several judgments of the courts make it clear that such clauses are constitutionally prohibited, except where necessitated by EU membership, which has already been permitted by referendum of the people. In this section the Department of Health is seeking to create a Henry VIII type clause as part of our own Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019. In Part 2, the Government has proposed to give the Minister for Health power to “make such adaptations and modifications to the Health Acts 1947 to 2019 or any regulations made under those Acts as the Minister considers necessary for the purpose of bringing those Acts or regulations into conformity with this Part.” I believe this would clearly involve the Minister for Health changing primary legislation without the direct authority for that change being brought before the Dáil and provided by the Dáil. My legal advice is that this is not constitutional. The specific section where the power is described is in section 4, which proposes to insert section 75B(2)(c) into the Health Act 1970.

Under Article 15 of the Constitution, the “sole and exclusive” law-making power of the State is vested in the Oireachtas. As a result, regulations that modify primary legislation are necessarily beyond the power of any individual Minister and cannot be vested in any individual Minister. I read some of the legal judgments into the record during my Second Stage contribution so I will not revisit it here. In essence, this is a matter of substance. It is not a trivial matter. We need to have very clear assurances from the Minister that what he is doing is constitutional. We do not want a situation where the health co-operation between this jurisdiction and Northern Ireland becomes one of the most fundamental causes of concern. A person contacted me this week who was due to have a serious operation in April under the cross-Border health initiative. This person asked me if it was safe and would it go ahead. I do not want there to be any legal doubt about any authority that might vest in the Minister to make changes that could be challenged constitutionally or which could be infirm. I would welcome a very clear statement on the advice and considerations of the Attorney General on why he and the Government believe that vesting in the Minister for Health - what on the face of it is an unconstitutional power - is in fact constitutional.

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