Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I am disappointed by the position being adopted because I think it means it is likely that the amendment might pass. I need to put on the record of the House my concerns in this regard.

The first point is that this is the law today, so when Deputies were at the health committee meeting this morning discussing CervicalCheck, this was the law and has been the law in the Health Act since 2004, a law brought forward by Fianna Fáil when in government. It was brought forward for good reason and not just in the Health Acts but in, I think, 25 other pieces of legislation since, including the Data Protection Act, the Financial Services and Pensions Ombudsman Act, the National Shared Services Office Act, the Roads Act, the Workplace Relations Act, the Legal Services Regulation Act, the National Treasury Management Agency (Amendment) Act, the Competition and Consumer Protection Act and the Education and Training Boards Act. This is probably legislation on which most of us have voted and which most of us have supported. The rationale here is not to protect the entity before the committee, the HSE in this case; it is to protect the individual who may end up being adversely impacted, accidentally and unintentionally, in this regard. Often there is a lot of good work done in these Houses. We do not all discharge our duties as responsibly as we should all of the time. This is a protection for the individual.

The CEO, as the House will be aware, is required to present before a committee to give an account of the general administration of the HSE. The proposed amendment would remove the current law that stipulates that the CEO is not required to give an account before a committee of any matter which has been or may at a future time be the subject of proceedings before a court or tribunal. I fully appreciate exactly what Deputy O'Reilly is trying to do here, and she has articulated it very clearly. She is trying to ensure that no one can come before a committee and obfuscate and say he or she will not answer because the matter is before a court or tribunal, or may be in the future. I get what the Deputy is trying to do, but it is important to clarify that this is a provision in place today. Whatever else the health committee might say, it has not been unable to have very detailed and robust discussions, for example, on the issue of CervicalCheck, or on many other important issues. This has been part of our health laws since 2004, when the Health Act was first enacted. The provision has been used very sparingly and is designed to protect the integrity of future legal cases, or indeed past cases, where a confidentiality or personal information aspect may arise. It is fair to say that over the time the provision has been in force regarding the HSE, there have been many occasions on which the CEO or the director general has come before the committee and the provision has not arisen. It is also important to say that where the CEO is of the opinion that a matter has been or may at a future time be a subject of proceedings before a court or a tribunal, he or she needs to inform the committee of the reason and rationale for that opinion, and it is then open to the Chairman of the committee, or indeed the CEO, if he or she believes someone is hiding behind the provision, to seek recourse to our courts. As I said, this procedure has been in our Health Act since its very beginning, it was in precedents before then and it has continued to be in legislation since then. I am concerned about abandoning the precedent and I remain of the view that we need to protect the integrity of past and future court proceedings, not for the corporate entity but for the integrity of the individual before the court. This is why I would rather the amendment did not pass. I believe this provision protects the individual. As I said, the CEO must give reasons for his or her opinion and if, having heard the reasons for the CEO's opinion, the committee still feels that the CEO needs to give an account, we have recourse to the courts. Indeed, we have seen these Houses interact with our courts on occasion.

This is real and practical; it is not some abstract concept. There have already been situations in which this has happened. For example, the HSE would remind us that there was a matter before the joint committee in 2015 relating to foster care. I will not get into the specifics of the matter, but people will be aware of it as it is a matter of public record. The director general at the time was very limited in what he could comment on publicly as the matter was subject to a Garda investigation and I think this rationale was accepted by the committee. A follow-up briefing was then provided to the committee, so instead of an oral presentation there was a way of dealing with the matter that could get the committee the information.

I am not against the amendment because I wish to slow down the work of committees or stop the flow of information to them. I am just of the genuine view that this is a very long-standing precedent, not just in health law, but right across the range of our public services. It is one that this House put into the Health Act in 2004. I do not think it has caused a problem but I can see a particular problem were it not there. I would reference as an example that foster care case of 2015, where the provision was used and, I believe, accepted by the committee as seemingly reasonable. The committee did not want to cause harm. It asked for help in being provided with a briefing in another way that would enable it to get the information it needed, and that was carried out satisfactorily.

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