Simon Harris (Wicklow, Fine Gael) | Oireachtas source

It could be an obstacle if a situation were to arise while the House was in recess and, to take Deputy Donnelly's example, it took a number of days for it to reconvene. In that way it could be an unintentional obstacle. The purpose of the provisions is to enable the Minister of the day to facilitate the continued provision of the services already in place on a reciprocal basis. It is no more and no less than that.

I refer specifically to the amendments in the name of Deputy Donnelly, namely, amendments Nos. 5, 9, 20 which is consequential and 21. Section 75 will enable the Minister for Health, with the consent of the Ministers for Finance and Public Expenditure and Reform, to make the order or orders necessary to continue in being the reciprocal or other healthcare arrangements in place with the United Kingdom prior to its withdrawal from the European Union. Such an order or orders may specify the categories of persons and the health services to which they should apply. The current wording of the section reflects the exercise of discretion involved in the making of such orders by the Minister and will allow the Minister to make such orders, as required. I took to the Office of the Parliamentary Counsel specifically the point made by Deputy Donnelly about this construct. As constructed, the section refers specifically to the consent required from the Ministers for Finance and Public Expenditure and Reform and was drafted on foot of the advice of the Office of the Parliamentary Counsel which informed me that this was the conventional and established approach. The advice of the Office of the Parliamentary Counsel confirms that the appropriate legislative approach required to ensure there will be a comprehensive governance framework to underpin the regulations making power of the Minister for Health is in place. The office further advises me and I advise the House that adopting the approach proposed in the amendment would have the unintended potential to dilute the robust consent arrangements currently in place in this section of the Bill. In addition, the consequences of adopting the proposed approach outlined in amendments Nos. 5, 9 and 20 are unknown. It may impose unintended obligations on the Department of Health and possibly the Government generally in the general legislative process.

The Bill provides that the healthcare arrangements currently in place will be maintained to the greatest extent possible following the exit of the United Kingdom from the European Union. As the Bill seeks to maintain the existing reimbursement arrangements, it is not considered that additional expenditure implications arise. Accordingly, the policy decision has been taken that the making of the orders will require the consent of the Ministers for Finance and Public Expenditure and Reform.

In keeping with the constructive approach everybody is taking to the Bill I sought legal guidance on Deputy Donnelly's amendments and the view I received from the Office of the Parliamentary Counsel was that the current wording was the conventional constructed wording and to do anything else would dilute it. That is the advice I wish to convey to Deputy Donnelly.

The consequence of adopting the approach outlined in amendments Nos. 8 and 21 would be to impose an additional obligation on the Minister for Health to lay such orders before the Dáil having already received that consent. Such an approach would introduce an additional layer of complexity to the legislative process which is not considered necessary or to be required considering what we are trying to do, which is just to maintain the status quo. In addition, the requirement for a positive resolution of the Dáil in the manner proposed would have the potential to act as a barrier and a delaying mechanism to the timely approval of the necessary legislation, for example, during times when the Oireachtas might not be sitting.

For the reasons I have outlined and taking into account the urgent and emergency nature of the legislation and the extremely limited timeframe for its enactment, I must decline to accept the amendments in this group owing to the legal advice available to me.

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