Michael Harty (Clare, Independent) | Oireachtas source

I thank the Acting Chairman. I acknowledge what the Minister said at the beginning of his contribution, which was that the speed of progress of this Bill has been rapid. It was introduced on First Stage last Wednesday and it is being debated on Second Stage tonight, which is lightning quick compared to what normally happens in the House. I accept that the Government has not given ample time to consider the ramifications of the Bill, much as I agree with its sentiments.

The legislation challenges accountability for the progression and the progressive realisation of health by placing a right to health in the Constitution, which is an important right that should be in the Constitution. It would be added to the right to primary education, a socioeconomic right that is already in the Constitution. There is, therefore, a precedent in the Constitution to provide a socioeconomic right. There should also be a socioeconomic right to health.

The Bill also proposes some safeguards to prevent excessive rushing to the courts regarding this constitutional right to health protection. It requires transparency from the Government in progressing a realisation of the right to health. It is a fundamental proposition of the legislation that there would be transparency. It gives the Government the opportunity to be transparent on how it will realise the progressive right to health.

Within this constitutional amendment, there is the proviso that any right to health should be within available resources and that is an attempt to prevent people rushing to the courts but it also enshrines within the Constitution the principle of "for the common good". These are all protections against a rush to the courts. It places on the courts a requirement that there should be reasonableness and a proportionality to any judicial case taken on the vindication of people's rights to health. I believe I have inserted in the constitutional amendment protections against such an excessive legal action.

A number of arguments put forward in opposition to this. The first opposing argument essentially claims the goals of the amendment are being achieved by Sláintecare. As stated previously, if the State is on track to fulfil its goals as this is laid out in the Sláintecare report and the 2019 action plan, it would satisfy this amendment's provision for progressive realisation. There is no additional burden on the State to speed up the transition from the current health system to one of universal access but only for the State to continue this endeavour within its available resources. If the Government wants to show a commitment to a universal single-tier needs-based health system, it should accept this constitutional amendment for what it is: an expression of modern Ireland's fundamental principles. Any other reaction to this Bill would be an attempt to avoid accountability and responsibility.

The progression of Sláintecare has shown that there is no strong accountable mechanism in place to ensure the timely delivery of its objectives. The Bill proposes a constitutional imperative on the Government to drive change forward. It is also important to note that Sláintecare has been thwarted by a lack of resources by this Government in not providing necessary funding to enable structural reform of the health system, as outlined in the Oireachtas report. Only €25 million has been specifically allocated to the Sláintecare implementation office to implement change. This is a fraction of what the Sláintecare report proposed to drive health reform forward.

The second opposing argument states that a constitutional and legal right to health would violate the separation of powers. There is no violation of the separation of powers on two grounds. First, separation of powers is justified in a constitutional democracy only by constitutional principles and the Constitution clearly gives the State an obligation to uphold a commitment to social justice and inclusion in its preamble. It is, therefore, more constitutional to acknowledge the role of each branch of government, including the Judiciary, in achieving the "dignity and freedom of the individual", "true social order" and "Justice and Charity" by protecting certain socioeconomic rights. This is recognised in the Constitution with Article 42.4 stating, "the State shall provide for free primary education." The case law in this regard plainly achieved the protection of this socioeconomic right within the traditional and constitutional bounds of authority endowed upon the Judiciary.

Second, the language of the amendment is deliberately designed to facilitate the restrained jurisprudence seen in right to health cases decided by the South African Supreme Court so as not to violate the separation of powers. The South African provision was drafted by a student of Trinity College Dublin and that South Africa, like Ireland, has a British constitutional legacy, being one of the only states with such a legal origin to have a constitutionally enforceable right to health. South Africa's landmark cases enabled the courts there to judge the reasonableness and proportionality of its government's health policies without forcing the rearrangement of government resources. Only when its government failed to address South Africa's HIV crisis, visible to the public and the international community, did the court as the last institution of appeal, mandate that treatment be made available when it was well within the government's resources, and where its refusal to make this treatment available was clearly unreasonable.

It is not within the realm of the courts to interfere in the political process of resource allocation, but it is very much a power and duty of the courts to make sure as to whether a person's rights are being protected or violated. Opponents of this Bill on the grounds of separation of powers have not shown how this amendment would result in anything other than the acceptable jurisprudence found in South Africa, or in the long-established judicial attitudes of Ireland's rights to education cases, or in the creative remedies put forward by recent cases such as the NVH v. the Minister for Justice and Equality, or PC v. the Minister for Social Protection.

I see no valid reason to reject this Bill. Public opinion on health policy is not what it once was. It is no longer the case that a universal, no-means-test health service represents the "socialisation of medicine"; it represents the shared vision of all parties of the Oireachtas for the future of health protection.

The views and vested interests that led to the downfall of the then Minister for Health, Dr. Noel Browne, and the mother and child scheme in the early 1950s no longer hold the same sway. This era of almost 600,000 people on waiting lists and record-breaking numbers on trolleys vindicates this Bill. Noel Browne's Bill fell because the medical profession and the religious institutions opposed the socialisation of healthcare. The Minister of State, Deputy McGrath, will very much understand that point coming as he does from that background.

Sláintecare aims to do much more than provide free public health services for mothers and under-16s as proposed by Noel Browne. This legislation does not undermine Sláintecare; it strengthens it. If the State truly intends to reform our national health system into one based on need rather than the ability to pay, there is nothing to fear from a constitutional call to accountability, nor from putting the question to the people of a constitutional mandate to protect their right to health.

I thank the various speakers who supported this Bill, including Members of Sinn Féin, the Labour Party, Deputy Healy, Deputy Maureen O'Sullivan on behalf of the Independents 4 Change, the Green Party, the Social Democrats and Deputies Mattie McGrath and Carol Nolan. I understand, however, that Fianna Fáil will not support it and that the Government is putting forward a reasoned amendment.

I am willing to accept the reasoned amendment rather than see this Bill be defeated on the floor of the Dáil, on condition that this constitutional amendment is discussed as part of the Government's constitutional convention on economic and social rights and that it would report back to the Joint Committee on Health within six months. I understand that six months may be the remaining length of this Government. Who knows what will happen? I sincerely hope that a report will be produced within six months that will take into account the genuinely held conviction that I have that there should be a constitutional right to health. By accepting its amendment, I fully expect that the Government will fulfil its commitment to produce a report in six months which will take into account the principles that I have proposed in the Bill. Rather than let it die, I am willing to accept that reasoned amendment.

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