Simon Coveney (Cork South Central, Fine Gael) | Oireachtas source

I would like to respond to Deputy Howlin because he did ask me the question directly, following which I sought clarity on it. I will set out my understanding as to why this is not the issue the Deputy thinks it may be, legally. The proposed new section states:

The Minister may, with the consent of the Minister for Finance and the Minister for Public Expenditure and Reform, make such order or orders as he or she considers necessary to continue in being [which is the same as they are today] or carry out any reciprocal or other arrangements in relation to health services which were in operation between the State and the United Kingdom immediately before the withdrawal of the United Kingdom from membership of the European Union.

The powers in the provision relate to continuing into being beyond Brexit or maintaining services that were in place before the UK left the European Union. The distinction that we need to make is that it is about a Minister for Health introducing orders to maintain existing services beyond Brexit, not to add new powers or extra services beyond what is in place on the day that the UK leaves, which is why I do not think there is a constitutional issue. My understanding, based on the Attorney General's advice I received when I asked about the matter after the Deputy raised it, is that the purpose is to maintain existing services and pass the orders necessary to do that in a post-Brexit environment, where there is no deal and, therefore, no arrangements to facilitate the existing services to remain intact.

That is my understanding of the basis of the Attorney General's advice and I hope it gives the Deputy some reassurance. I can understand why maintaining the status quo does not involve any precedent, such as Henry VIII clauses or whatever. We are not introducing new laws to provide new services without going through the normal procedure to pass legislation. Rather, we are giving the Minister the power to introduce orders to maintain existing services in a no-deal, chaotic Brexit situation.

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