Mary Harney (Dublin Mid West, Progressive Democrats)
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This debate is about the Travers report, and the Travers report is about performance and accountability. Every person who draws a salary paid by taxpayers has a responsibility to the public.

Enda Kenny (Mayo, Fine Gael)
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Hear, hear.

Mary Harney (Dublin Mid West, Progressive Democrats)
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They are the boss. We have a sophisticated system of democratic Government and accountability. Sometimes it is cumbersome, sometimes it is very procedural but it is democratic and fair. Ultimately, no one can be exempt from answering for the level of responsibilities they are given, or have sought, in public service.

I believe in political accountability and I am prepared to accept political accountability, clear, undiluted and unequivocal. I only ask of others what I ask of myself. I will answer for my decisions and for the decisions of any Government of which I am a part. I accept I can make mistakes. Governments can make mistakes. I believe there can be a tolerance for error. I do not think we should create moral and political gridlock by setting impossibly high standards for anyone in public service, elected or official.

I am required to take political responsibility by answering to the Oireachtas and I am not talking about the zero sum game of political charges across the floor of the House. I do not believe that if one comes away with a nil-all draw, one is somehow discharging one's political responsibility.

I believe in simple, straightforward accountability to the Oireachtas: an honest account of information available to a Minister, the reasons for decisions and an explanation of the substance and effect of those decisions. This is not rocket science or high political theory. It is the straightforward approach I adopt when I speak in the House, when I bring forward legislation, or when I sign off on 300 or more parliamentary questions on a particular day.

I am the political head of the Department of Health and Children and I will answer for that. As political head of the Department, I will work with everyone to learn from these events and work towards top class public sector performance. I said to each member of the departmental staff yesterday that I recognise the administrative culture of any Department is influenced by the style and leadership of its political head. I accept my responsibility in the coming months and years to lead the Department with a professional, effective and trusting relationship between officials and Ministers.

The Travers report speaks for itself about the extent of administrative and political responsibility for the handling of the charges issue. There is no fudge in his conclusions: there has been systemic administrative failure. There have also been lapses of judgment over the years by Ministers and they could have probed issues more. The main failure has been administrative.

Mr. Travers is a man of great integrity. I accept his assessment wholly and entirely as that of a highly skilled, professional, former civil servant. He knows what he is talking about on these issues.

I stand over my handling of this issue since October last. I asked for legal advice as soon as the issue was rased in the House by Deputy Kenny. There was a legal issue and I sought advice. I acted on legal advice when I received it. I stopped the charges within a day of being told they should stop. I confirmed my belief that there had been political and public support over many years for the principle that people should make some contribution towards the cost of shelter and maintenance.

I took seriously the problem of a loss of income of €10 million per month to our health services. It can be difficult enough to find an extra €1 million when needed. The health boards or the Health Service Executive could not easily do without €10 million per month.

I quickly prepared legislation for the Government. Most unfortunately, the Government's decisions on the Health (Amendment) (No. 2) Bill 2004 were based on inaccurate and incomplete information. The Attorney General's advice in advance of that decision was based in part on poor, inaccurate and incomplete information.

I do not know what we would have decided if we had had all the information in the Travers report available to us last December. It is hypothetical and I cannot speculate. I have no doubt our decision-making process would have been substantially different had we had the full facts then.

People will now say we should have waited for any consideration of the charges issue until we had the full information contained in the Travers report. That misses the point. I did ask for a full report for myself and for the Government on the issue. We were entitled to rely wholly on that information. Our system of Government would collapse if we had to ask for a second, external report every time we asked for information from the Civil Service. We would end up creating a second Civil Service. We rely on our Civil Service for very good reason because the norm is that information is accurate, relevant and complete.

I have been accused of instituting the Travers report as political cover for the Government's decision on retrospection. That is a vile charge. It shows ignorance of the facts and ignorance of how Government makes its decisions. I asked for Mr. Travers' report when it become clear to me, after the Government meeting of Tuesday, 14 December, that the information made available to the Government was incorrect in a key respect. I saw a need for a professional external evaluation to be carried out quickly and efficiently. The discovery process for the Supreme Court hearings and work on the Travers report began in parallel in January. In the course of both, my Department brought me some of the information now in the Travers report. The result was that in the Supreme Court, counsel for the State did not argue that the charges had been made in good faith. I was also obliged to correct the record of the House in respect of the statements the Taoiseach and I made that these charges had been levied in good faith and the Department believed it had a legally defensible position. I very much regret this.

The Government made its decision on retrospection in the December legislation, based on legal advice and in the context of a different understanding of what it might be required to repay if court cases were taken. I believe it is relevant that none of the main political parties insisted, either now or back in December, that the policy should be to repay all the amounts back to 1976, and that the Statute of Limitations should not be used in respect of estates.

This begs the question as to what was to be done about repayments as a legal requirement or as policy choice. That question confronted the Government from the start last December. This complex issue can only be addressed with precise information, but as I have pointed out, the information given to me and to the Government was not fit for that purpose.

I stand over what I said in the debate in the House on the Supreme Court decision. Had the Government taken any other action, the public and the people in public long-term care places would still be mired in legal uncertainty and there would be a multiplicity of legal cases for years ahead about repayments of charges.

I return to the main point. Approximately 315,000 people were illegally charged during 28 years and this was entirely wrong. As vulnerable people they were especially entitled to the protection of the law and to legal certainty about their situation. The charges should never have been made illegally, even though the principle of charging for shelter and maintenance had broad public and political acceptance. This is a society ruled by law; no person and no organisation can dispense with or alter a law. I will meet my political accountability under the law for my ministerial role, for Government decisions and for the legislation I bring to this House.

Micheál Martin (Cork South Central, Fianna Fail)
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I welcome this debate as an opportunity for the House to consider what is an extremely detailed and comprehensive report. It is an opportunity for the House to consider what is actually in the report rather than the Opposition's spin on what it contains. The report examines all the elements of how a charge ruled illegal by the Supreme Court in 1976 was kept in place for 28 years. Why the decision was made at that time to maintain the charge without making any attempt to regularise it and why it was not dealt with until now is complex and reveals a substantial systems failure over 28 years. By presenting such an extensive treatment of the facts the report allows us to understand this failure.

I will comment primarily on those parts of the report which relate to the last period it examines. Just like 160 other Deputies, I was not a Member of the House in 1976 or for some time after that. I will not pretend to have detailed knowledge of events of that time, or for most of the subsequent period, but if we are to understand this issue we have to look at what happened during this time because the past few years fit fundamentally into a pattern established 28 years ago. It must be noted that for several months we have heard an ongoing cycle of spin and misrepresentation. Many people in this House have repeatedly tried to pre-empt and prejudge this report. Now that it has been published, the same people are choosing to ignore facts that do not suit their arguments. Faced with a choice between trying to examine and understand a major failure stretching across three decades or simply playing politics, they have chosen the latter. The culture of playing the man and not the ball and foundation-rocking is now so all pervasive for the Opposition that they have no interest in serious debate.

Deputies:

That is rubbish.

Finian McGrath (Dublin North Central, Independent)
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What about accountability and responsibility?

Seymour Crawford (Cavan-Monaghan, Fine Gael)
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What about the 300,000——

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please.

Micheál Martin (Cork South Central, Fianna Fail)
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I have listened for quite a long time and I would appreciate the opportunity to put my contribution on the record of the House.

Séamus Pattison (Carlow-Kilkenny, Labour)
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Order, please. The Minister should be allowed to speak.

Micheál Martin (Cork South Central, Fianna Fail)
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Deputies Twomey and Kenny, for example, earlier this week issued a list of questions they said had to be answered by the report, even though they knew the report had been completed. What makes this even more breathtakingly cynical is that Mr. Travers asked Fine Gael, just like other Opposition parties, if it wished to make a submission. Fine Gael did not even respond to him. One of the biggest misrepresentations has been the attempt to confuse discussions on eligibility with discussions on the illegal charge enforced in 1976.

The House should be aware that eligibility criteria under health schemes are at the very heart of almost all discussions on health policy. Discussions on eligibility take place all the time and will have played a significant role in the work of every Minister since 1976. The fact of the illegal charge and its imposition since 1976 is an entirely different issue and the report is absolutely clear in stating that the discussion of one does not imply a discussion of the other. If the Opposition parties are credibly suggesting that all eligibility discussions must, of necessity, have involved a discussion of the illegal charge, they must now explain why they are trying to apply a different standard to the past two years to the standard that applied when they were in Government.

The root of this issue is to be found squarely in what the report calls the, "foundation decision" of the Regulation 7/76 signed by the Labour Party Minister for Health and Fine Gael Minister for Finance in 1976 and sent to the health boards. This regulation and the accompanying letter sent to the health boards ignored the High Court's decision in the McInerney case and instructed the boards that they were entitled to charge long-stay patients irrespective of whether they had full eligibility. From the point of this "foundation decision" the issue surfaced at different times and in different ways over 28 years and this is illustrated in Mr. Travers' report.

I will cite some examples from the report. In 1979 the Department's legal adviser reiterated concerns about the 1976 regulations. In January 1982 a specific review of the regulations stated they had no legal basis. In 1987 a legislative change was proposed but not proceeded with. In 1992 a review of long-stay charges was completed and legislative change advocated. In 1994 the health strategy stated that the legislative basis for charges was inadequate and promised legislative change.

In inquiring into the period during which I was Minister, Mr. Travers had full access to every document and every person involved in the issue.

Dinny McGinley (Donegal South West, Fine Gael)
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What about the missing files?

Micheál Martin (Cork South Central, Fianna Fail)
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He examined all aspects of how the issue was raised or failed to be raised. In respect of the extension of medical card cover to the over-70s by means of the Health (Miscellaneous Provisions) Act 2001, the report shows that no submission was made to me that existing charges were illegal and that they should be regularised through the legislation. The report shows, however, that the Act ultimately forced clarification of the issues. There is no doubt that the receipt of a legal opinion prepared for the South Eastern Health Board in March 2003 should have led to rapid action.

The report confirms that the first action taken involved it being referred to a joint meeting of the Department's management committee and the chief executive officers of the health boards. This meeting was held on 16 December 2003. Of the many elements dealt with in the report this is the one where the difference between the facts and the political attacks is most significant. The issue was listed on an agenda with 13 other items under the title, Long Stay Charges — Over 70s and was explicitly stated as being for "brief mention only". The major topic for the meeting was intended to be, and was, the health reform programme, including the future position of the chief executive officers and the staff of health boards in the new health structures. Mr. Travers accepted that I was not present at the meeting when this issue was discussed and decided upon and Mr. Travers confirms that the decision to seek the Attorney General's advice was a "predictable" one. The report confirms the position of all present at the meeting that the reform programme was the dominant issue and that it was followed by a meeting on the Hanly proposals. The record shows that the items for brief mention, of which I think there about five or six, were taken before I arrived——

Pádraic McCormack (Galway West, Fine Gael)
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Where was the Minister?

Micheál Martin (Cork South Central, Fianna Fail)
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——specifically because they were not viewed as requiring my presence. It is certainly not the case that I missed the discussion because I was late. All the persons who attended the meeting confirmed that the item merited only a short discussion. The context of the discussion was that clarification was to be sought before it could be substantively considered. In light of the manner of the distribution of the briefing materials, the manner in which the issue was listed on the agenda, the brevity of the discussion and the fact that it was discussed as a matter requiring clarification before its importance could be assessed, I do not see how the Ministers of State or advisers present could reasonably have been expected to appreciate the urgency of the issue. This fits exactly into the pattern of briefings over 28 years, which the report describes as being "at the most superficial of levels" and "completely inadequate".

On Tuesday of last week, Deputy Rabbitte made statements in this House about the treatment of the issue at the 16 December meeting. I will quote from the Official Report. The Deputy said: "At that meeting this was the main issue discussed." Over the years Deputy Rabbitte has established a unique reputation for his willingness to read rumours into the record of the House. In light of the clarity of the report in showing that his statement was completely false and also his often stated demands that the record of the House be corrected, I look forward to hearing the Deputy withdrawing this statement and explaining why he chose to make it.

Following the meeting of 16 December, the matter should have been referred to the Attorney General but was not. Exactly why this was not done is not clear. It seems to have been an error which arose due to the undoubted large workload then being carried by officials. While the recollections of officials differ and are not fixed, as the different statements submitted during the course of the inquiry show, there is no doubt about the core issue. The fact is the file was not given to me and nor is there any record of it being given to me. This is particularly relevant because there was no reason for me to see the file. I was not required to take any decision or sign anything and, in fact, it would have been a departure from normal practice for it to have been brought to my attention, just as in other Departments legal advice is sought from the Office of the Attorney General on a regular basis and Ministers rarely play a role in this regard.

The report also lays to rest the idea that I or my predecessors were briefed in any substantive way on the illegal charges and issue of retrospection. It states that, irrespective of whether it is accepted that the issue was mentioned, any briefings which may have happened were "at the most superficial of levels" and "completely inadequate to what was required". It is worth quoting the report fully on this matter:

Absolutely no documentation was made available to me to demonstrate or to indicate that the Minister had been fully and adequately briefed by the Department on the serious nature of the issues arising which the management of the Department acknowledge carried significant potential legal, financial and political consequences. Such briefings that did take place appear to be at the most superficial of levels.

Mr. Travers also states:

I have come across many expressions of views in the course of preparing this report, that suggest that over the years Ministers were "informed", "advised", "briefed", "told" in relation to the issues concerned . . . However, even if all such contentions are correct ... they would be completely inadequate to what was required given the nature, substance, risks and inevitable negative consequences of the practices in place.

During my time as Minister for Health and Children, the record will show that I was fully accessible to staff and willing to address issues even at the shortest of notice. At no time did I shy away from sensitive issues because they might have cost implications or reflect badly on Governments.

Pádraic McCormack (Galway West, Fine Gael)
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The Minister did so every time.

Micheál Martin (Cork South Central, Fianna Fail)
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This is a policy I have followed throughout my ministerial career. In the normal course of events with an emerging issue, the relevant officials would seek a meeting with me, the issues and course of action would be discussed and a decision arrived at.

The recollections of people about whether something was mentioned in passing as part of other discussions has been considered in detail by the report. Even if every person shared exactly the same recollections, there is no suggestion that briefings amounted to a substantive treatment which would have allowed Ministers to know about the seriousness of the issue or to take action. The Opposition has been stating for some time that I and others must have known. This is a way of ignoring the full evidence of the information available to us. If the decision of the Opposition is to reject the findings of the report on this issue, let it say so in a clear way and there should be no mistake in understanding this. If we accept the contention of Opposition parties that Ministers must have known because of the information in this report, they are rejecting a central finding of the report. If they want to do this, they must then get down to the business of showing how exactly the same types of briefings, when involving Ministers of their parties, should be treated differently. If they are indicating that Ministers should be able to know about every issue and take action on the basis of "superficial" and "completely inadequate" briefings, let them say so.

The report also considers the issue of what would have happened had I and my predecessors been fully briefed. It has been suggested that we would have shied away from it because it was too sensitive. The report states the evidence does not support this as the required amendment is relatively uncomplicated and the idea that there should be such a contribution is widely accepted. In addition, it states: "In the context of the many difficult and controversial decisions taken by successive Governments and successive Ministers of Health over the years a legislative change on the lines required to, effectively, legitimise existing practice could not, plausibly, be regarded as one of undue political difficulty."

As I have previously stated at different times during my ministerial career, I have shown a full willingness to take on issues which were viewed as highly sensitive and showed failures over many years. For example, as Minister for Education and Science, I reversed the policy of the previous Government of ignoring issues of child abuse in State institutions. I also opened up the State's files and provided funding for groups whose aims involved questioning the role of the State. In this particular case, if I had been aware that an illegal charge was in place, I would have dealt with it.

As I have said in the past, everybody in the Department of Health and Children carries a large workload and there is generally no let-up in terms of major issues to be dealt with. As Mr. Travers notes: "The life and death nature of the issues with which it is concerned, the scale, the breadth and complexity of the policy agenda, the number of unpredictable events to be handled and the constant media and political attention all combine to produce an environment of immense organisational and individual work pressures in which the urgent constantly conspires to drive out the important." He further notes that this practice of charges for persons in long-stay care in health board institutions "was a case of 'good intentions' not being supported by the requisite legal foundations".

I strongly agree with the report's conclusions concerning the need to reform the operations of the Department. In this context, the report explicitly cites the structural reform programme I developed and helped to put in place as offering a "new beginning" for the Department. This was the intention of the programme, the most significant reform of the Department since its establishment. The Department must be given space to set strategies and oversee them rather than being constantly involved in minute issues of implementation.

The report shows a 28-year story of the failure to deal with a problem which could easily have been rectified. The issue should have been brought clearly to the attention of successive Ministers but was not. Having considered in detail all elements of the information given to Ministers, the report concludes that it was at most provided "at the most superficial of levels" and was "completely inadequate to what was required".

Pádraic McCormack (Galway West, Fine Gael)
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Is the Minister drawing a line in the sand?

Enda Kenny (Mayo, Fine Gael)
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I wish to share time with Deputies Twomey and Perry. This is an important day for the House and the principle of political responsibility and accountability. It is a great honour and privilege to be appointed a Minister but with this privilege comes responsibility and accountability. These are set out in section 3 of the Public Service Management Act 1997 which states clearly that a Minister of the Government is responsible for the performance of the functions that are assigned to his Department. Nothing could be clearer. The political buck stops with the Minister, not the Secretary General, assistant secretary or the Minister's special advisers. There is a clear duty on every Minister to acquaint himself or herself with an issue when it is brought to his or her attention. The Minister who goes to Áras an Uachtaráin to receive his or her seal of office has this responsibility and nobody else.

It is clear from the reaction of members of the Government, particularly the Taoiseach, the Tánaiste, although she stated she accepts political responsibility, and the Minister for Enterprise, Trade and Employment, Deputy Martin, that they do not regard this legislation as applying to them. They assume they are some sort of elite or that they are superior and exempt from the law of the land which applies to the rest of us. This is in sharp contrast to the incoherent hysterical rantings of some Fianna Fáil Deputies when the party was in Opposition.

The Government has tried to portray the Minister, Deputy Martin, as some sort of poor innocent soul, cut off from his Department and denied access to crucial information while the civil servants around him conspired to perpetrate a massive fraud. While there is evidence that management within the Department, especially in recent years, failed to deal properly with an issue which has such significant legal financial and political consequences, assigning that responsibility to the management of the Department does not exonerate the political head of the Department from his responsibilities. It is not the case that either civil servants or the Minister are responsible for running Departments. Responsibility is assigned to both, with the Minister as the political head of the Department.

The Minister, Deputy Martin, has claimed consistently that he was never given a briefing which allowed him to appreciate the significance of the charges issue. That is not true. The Travers report states in paragraph 4.36 that background papers on the charges issue were circulated to all those expected to attend the meeting of 16 December 2003. It then tells us in paragraph 4.41 that the Minister of State at the Department of Health and Children, Deputy Tim O'Malley, read these papers in advance of the meeting, as one would expect of any responsible Minister, and having read them formed the view, as he indicated in his evidence to Mr. Travers, that if the opinion and legal advice the South Eastern Health Board had received were correct, they would give rise to “significant legal, operation, financial and political implications”. The Minister also received this briefing. Whatever criticisms are made of the Minister of State, Deputy Tim O'Malley, for assuming the necessary legal advice was obtained, at least he met his fundamental ministerial responsibility by reading the documentation, although he seems to have disavowed his responsibility for this area because he has special responsibility for the intellectually disabled. The same cannot be said of the then Minister for Health and Children, Deputy Martin or the then Minister of State at the Department of Health and Children, Deputy Callely. The latter was so excited about the issue that he promised to brief the Taoiseach and the Minister, Deputy Martin, but then failed to tell the Minister or follow up on an issue impacting directly on his area of responsibility. Last month, we will recall he announced a €16 billion infrastructure programme without it being first approved by the Government.

Yesterday in the House, I referred to the 2002 guidelines issued by the Taoiseach, informing Ministers of their responsibility to ensure systems are in place and operational to enable their Departments to meet their goals and objectives. Chapter seven of the Travers report identifies large numbers of changes needed to the practices and procedures in the Department of Health and Children. It provides compelling evidence that the Department did not have systems in place to carry out its functions. According to the Taoiseach's guidelines, the Minister must take responsibility for such a system failure.

The third area where the Minister, Deputy Martin, must face up to his responsibilities is that of his special advisers. The Public Service Management Act 1997 clearly sets out the legal position that special advisers are accountable for the performance of their function to the Minister who appointed them. In the Travers report, the then Minister's special advisers are criticised for their "apparent lack of concern or even [apparent] interest" in the issue of charges. He also states that they "might have been expected to more actively probe and analyse the underlying issues involved". Serious issues arise concerning these special advisers. Why does Mr. Travers recommend that special advisers are not part of the line management system of the Department? These advisers received the same briefing note as the Minister of State, Deputy Tim O'Malley. They were there for the discussion that so excited the Minister of State, Deputy Callely, yet they still failed to brief their Minister. Their failure is the Minister's responsibility.

The Minister, Deputy Martin, can run from this issue, but he cannot hide. He received a briefing that would have alerted him to the seriousness of the matter. Even if he did not get that briefing, he had a duty to ask questions. Whether it is brought to one's attention inside or outside the Department, ministerial accountability and responsibility requires a Minister to be briefed on every issue. Did the Minister, Deputy Martin, ask questions when the Human Rights Commission clearly spelled out the illegality of charges? Did he ask questions when the Sunday Independent carried a story that thousands of medical cards holders were being illegally charged? Did he even read the many replies he gave to parliamentary questions on the issue in this period? The Tánaiste claims she must sign off on 300 parliamentary questions on some Dáil sitting days. I have evidence from families who wrote to the then Minister, Deputy Martin, on these charges who never even received the courtesy of a reply from the Department.

The picture that emerges is of a Minister, divorced from his officials, surrounded by special advisers, immersed in commissioning reports and craving photocalls and public relations opportunities, while underneath a major scandal was brewing. Contrast this with the approach of the late Mr. John Boland when Minister in 1987. He prepared legislative proposals, approved formally by the then Government on 5 February 1987. The incoming Government in March 1987 reviewed them but did not proceed with this legislation. The then Minister for Health was none other than the Ceann Comhairle, a matter raised by Deputy Rabbitte this morning.

I do not expect the Minister, Deputy Martin, will accept his responsibilities. The Taoiseach claims he has confidence in the Minister. I expected the Minister to tender his resignation on the matter. I do not expect the Taoiseach will have the courage to call on the Minister and the Ministers of State involved to resign. As the Secretary General, Mr. Kelly, briefed the Minister to some extent on the issue, it is still the Minister's responsibility. The two Ministers of State, Deputy Tim O'Malley and Callely, knew about the briefing document before 16 December 2003. The Minister's inactivity and inability to deal with the issue has cost the taxpayer €500 million from 2001.

I have given the Tánaiste some credit for taking action when the Attorney General gave her his advice on stopping the charges. Consequently, she introduced a Bill which had to be referred to the Supreme Court and has left us in this mess. Of all the Ministers for Health, Deputy Martin was the one in possession of a briefing document before 16 December 2003. He knew these charges were illegal but did not act upon them. He has, therefore, abdicated his ministerial responsibilities. He must tender his resignation to the Taoiseach.

Pádraic McCormack (Galway West, Fine Gael)
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Without having his photograph taken.

Liam Twomey (Wexford, Fine Gael)
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I agree with the Minister for Enterprise, Trade and Employment that the Travers report was complete. It was complete in destroying the reputations of senior officials in the Department of Health and Children. It does not, however, cover the political responsibilities of the previous Minister for Health and Children, Deputy Martin, or the Ministers of State, Deputies Tim O'Malley and Callely. It is clear from Mr. Travers's report that the briefing note that allowed the Minister of State, Deputy Tim O'Malley, to conclude issues in regard to nursing home charges is at variance with what has been said in the House, and elsewhere, by the Minister and Minister of State, Deputies Martin and Callely. The Fine Gael Party will call on the Minister to make a frank statement on these briefing notes at the Joint Committee on Health and Children.

Far too many questions remain unanswered in the report, particularly in the area of political responsibility. The conflict of evidence between the Minister, Deputy Martin, and Mr. Michael Kelly must be cleared up. There is disagreement between what was and was not said at a meeting on 10 March. We do not see any reason Mr. Kelly would lie to either the Minister or Mr. Travers. It is accepted that there was maladministration in the Department of Health and Children. However, there has also been political irresponsibility in the Department, particularly since 2001.

There is the issue of the missing letter to the Attorney General, which was not followed up. Mr. Kelly is of the belief that he passed the letter to the then Minister for Health and Children, Deputy Martin, given its important consequences for the Department. An official who worked in the unit dealing with the charges who recalled it being in the ministerial suite supported Mr. Kelly's belief. He also recalled being approached by another official in the office to discuss the papers in question. This official's recollection is partly collaborated by another official from the minister's office who also recalls discussing this issue. There is significant evidence to suggest the file was in the ministerial secretariat at some stage. However, it seems to have gone missing.

Mr. Kelly is rightly blamed for not keeping his eye on the matter and not following up to check if this letter went to the Attorney General. Equally, there is a political responsibility on both the then Minister, Deputy Martin and the then Minister of State with special responsibility in this area, Deputy Callely, to give frank answers on where they stood in regard to this matter.

The role of ministerial advisers was not explained at the committee on health and children yesterday. Were Deputy Martin's advisers in the chain of command, a buffer between himself and his civil servants or were they lateral to the Minister, giving him outside advice? It seems from the report that the then Minister for Health and Children did not know what was going on in his Department, with certain advice not being passed on. So far it is the civil servants who are being accused of this. Very little has been said about the role of his advisers. It is not crystal clear where they fitted into all these events. This is an issue that needs to be cleared up. It is difficult to get anything from this report as to the role the Minister's advisers played in the Department of Health and Children during his tenure there. Perhaps they are responsible for not passing information on to him.

Mr. Kelly has taken the rap for this. If he is to take the rap for maladministration in the Department and if he is the only person to take responsibility for this, does that basically mean that he is the person who was fully in charge of that Department and if that is the case, what role does the Minister have? Does he have any ministerial responsibility to his Department? We have read both the guidelines issued to him and the 1997 Act. At the end of the day, the former Minister, Deputy Martin, has full political responsibility for this issue which was raised every few months in the Department. I do not accept the former Minister, Deputy Martin, taking this issue back to 1976. There was a High Court case in 1975 followed by regulations in 1976. High Court advice was given to the Fianna Fáil Minister for Health in 1978, which was not acted upon. The heads of a Bill were brought forward by a Fine Gael Minister for Health, which were not acted on when Fianna Fáil came back into power. We could easily go back prior to 2001 and lay much blame at the door of Fianna Fáil Administrations, but we are looking at the irresponsibility of what happened in the Departments from that date on. Deputy Perry will expand on that issue. The former Minister, Deputy Martin, should appear before the Oireachtas Joint Committee on Health and Children to explain his role fully.

John Perry (Sligo-Leitrim, Fine Gael)
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Why did the former Minister, Deputy Martin, need briefing on this very important Act given that after 2001 there was no doubt about the legislation despite a certain ambiguity in its interpretation before that date? The former Minister, Deputy Martin, is hiding behind civil servants. He launched the health strategy document which was a ten-year plan. The Tánaiste has now inherited that plan without €2 billion.

The Ombudsman's report of January 2001 clearly indicated difficulties with charges. The Ombudsman paid back €25,000 in 2002 and €20,000 in 2003. That was a clear marker. The former Minister, Deputy Martin, cannot hide behind civil servants.

In regard to the liability, why is the former Minister, Deputy Martin, not taking full responsibility? I looked at this file dating back to 2001. The information was well known in the Department. Why is the former Minister, Deputy Martin, not taking the political responsibility which rests entirely with him?

Pat Rabbitte (Dublin South West, Labour)
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If possible, I will try to share some of my time with Deputy McManus. In this very inadequate format, it is only possible to initiate this debate and the type of debate the Travers report warrants. The Taoiseach and his Government colleagues have engineered for themselves a head start and a clear run for a day or two in their attempts to manipulate public opinion on the Travers report but their distortions are becoming apparent.

The former Minister, Deputy Martin, is accountable for leaving the taxpayer with an invoice which, according to the Tánaiste, might reach €2 billion. If he knew the implications, he should resign because he is in dereliction of duty. If he did not know, given any fair reading of the Travers report, he should resign because he is incompetent. His two Ministers of State are without excuse or defence and must go.

Before he escaped from the House, the Taoiseach contrived to leave the impression that several Ministers from Brendan Corish in 1976 share responsibility for this debacle. Travers shows that this is a familiar fabrication by the Taoiseach because only former Ministers, Mr. Haughey and Deputy Martin, are implicated in the report. In fact, the Brendan Corish regulations, contrary to what the former Minister, Deputy Martin, just said, remain intact. It was the circular of 1976 issued by his officials which was wrong.

There is only one exception to the Haughey-Martin involvement and that concerns the mystery surrounding why the proposals to legislate brought forward in 1987 by the former Minister, John Boland, and approved by Government, were not proceeded with by his successor. The Boland proposals would have saved the taxpayer hundreds of millions of euro. When I raised this crucial point this morning, the Ceann Comhairle seemed to suggest that he must decline the invitation to address the House because his office must not become involved in what he called "controversy". We will have to return to that when we engage with this debate properly when the Taoiseach returns. There is no evidence in this report that former Ministers Cowen, Noonan, Howlin, Desmond and Woods were ever advised by the Department of this issue or its implications. The Taoiseach was deliberately misleading for outside effect.

The legislation to extend the medical card to everybody over 70 years of age changed all that. It is unbelievable that when enacting the 2001 Act, the former Minister, Deputy Martin, did not know what he was doing. The Travers report states: "The records made available to me indicate that the Department of Health and Children was, fairly immediately, aware of this consequence of the 2001 Act for the practice of charging in place since 1976 as described in earlier chapters of this report." The Department was fully aware, yet we are supposed to believe it never told the Minister. One must remember the report does not make a distinction, when referring to "Department", as between officials and Minister. It is crystal clear the Department knew from 2001.

Mr. Michael Kelly, the then Secretary General of the Department, claims he told the Minister twice about the matter and that, in all probability, he sent the file to the Minister and, as we know, a third party, another official, recalls seeing the file in the Minister's outer office. This would be perfectly compatible with the presence of the Minister's special adviser and policy adviser at the famous meeting of the management advisory committee, MAC, in the Gresham Hotel on 16 December 2003.

Mr. Kelly says he "can think of no reason why I would have sent it to any official in the Dept". In Civil Service, or in layman's English, when a senior civil servant says he can think of no reason he would have sent that file to any official, he means he sent it to the Minister. He goes on to say: "However, given its potential consequences, my belief is that I would have brought it to the attention of the Minister in advance of issuing the letter." The Travers report does not draw conclusions. It is a matter for this House to draw conclusions. The only plausible conclusion we can draw is that Mr. Kelly is being truthful. This would explain why the file was in the outer office of the Minister, and someone took a decision to keep it there.

Given that we got the substance of what was in that file this morning from the Tánaiste setting out the implications of this phenomenally important case, the most amazing thing about all this is that nobody ever asked whether the Attorney General ever gave advice on it. The former Minister, Deputy Martin, who was supposed to be in charge of the Department, never asked: "By the way, did the Attorney General say our arse is out the window on this?" It is completely improbable and entirely unbelievable.

It is even more bizarre that at a subsequent meeting of the MAC on 29 March chaired by Mr. Kelly, it was recorded that: "It was mentioned that the Department has sought legal advice in relation to long-stay charges issue", although no such legal advice was sought and nobody intervened to say it was not true. At the next meeting on 18 October, it was recorded "that the legal options are still being reviewed". That meeting was also chaired by Mr. Kelly. It is almost beyond belief. It was reported to the two subsequent meetings of the MAC that advice was sought. This was 18 October. What did they think the Attorney General was doing? The Travers report states "strikingly incorrect information appears to have been conveyed to the meetings by the Department". Mr. Kelly was in the chair. If he knew, he could have put it right. Did he believe the file had gone to the Attorney General? How could he have held such a belief when he knew he had not signed the letter to dispatch the file?

In the interests of fairness it is necessary to say that no amount of huffing and puffing by the Association of Higher Civil Servants can get away from the fact that this is a baleful day in the history of the Civil Service, that this is a catalogue of error almost unrivalled, and that should be recorded. However, it is simply not credible that senior civil servants did not verbally bring the implications of this matter to the attention of the Minister. It is certainly not credible that at a minimum, after the South Eastern Health Board put the Department in possession of its legal advices to the effect that these charges were illegal, that was not mentioned to the Minister. Given the scale of the implications if the South Eastern Health Board was right, that we are asked to believe that senior conscientious civil servants did not bring that to the ear of the Minister beggars belief and cannot be accepted in this House.

The Government is asking us to believe that the former Minister for Health and Children, Deputy Martin, is personally insulated from responsibility in circumstances in which his two Ministers of State were present at and participated in the discussion, where his special adviser and his policy adviser were present for the discussion concerned. It does not matter for how long the discussion went on. This was a major issue and the Minister was absent.

Dinny McGinley (Donegal South West, Fine Gael)
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The Deputy's time has expired. Five minutes remain for Deputy McManus.

Pat Rabbitte (Dublin South West, Labour)
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The House will have to wait until another day for Deputy McManus's incisive contribution. I must finish this point.

The Government would have us believe the former Minister for Health and Children is personally insulated in circumstances where his two Ministers of State were present, where his two advisers were present, where he had received an advance briefing paper, and where he had received the minutes afterwards, and that he knows nothing, like Manuel in "Fawlty Towers". We are expected to believe he never read the advance briefing paper, that he never read the minutes when they issued, and that he knows nothing about it. Nobody who has ever served in Government would believe that is possible. It is entirely implausible, and I suspect the Minister Deputy Martin knows it.

Political accountability in this case rests on two questions. First, did the former Minister for Health and Children know or could he reasonably have been expected to know of the problem of illegal charging for nursing home care? Second, if he knew, did he act at appropriate speed to close off the accumulating liability to the State? The only rational inference and answer in respect of the first question is "yes", that he knew. The answer to the second question is "no", that he did not act. I use the phrase "could reasonably have been expected to know" advisedly. I do not believe a Minister can be expected to keep tabs on the location of every paper clip in his Department. However, I expect him to ask questions and to inform himself on crucial matters. This Minister would have us believe he did not do that. I cannot accept that.

I am on record in this House and elsewhere as acknowledging the integrity of the Tánaiste and Minister for Health and Children in political and other matters. The Tánaiste, whether she likes it or not, mounted her white steed this morning and she is protected by a halo, a Colgate ring of protection that does not surround the rest of us. It is very important this House should know that it was Deputy John Perry and not the Tánaiste who caused this matter to be investigated in the Department. When the Tánaiste learned about it she compounded the original error by seeking to legislate to make it retrospectively legal. It is fair that should be recorded.

When the Tánaiste says she will not adjudicate as between the conflicting positions of Mr. Michael Kelly and the former Minister for Health and Children, Deputy Mícheál Martin, she is evading her responsibility. She knows the implications and she ought to come down on one side or the other. As far as I am concerned, it is patently clear that Mr. Michael Kelly has quite properly taken the honourable course because there was failure on the part of the administrative Government, although I do not regard a sideways promotion to the HEA as much of a penalty.

It is equally clear that there was even more gross dereliction of duty on the part of political Government and that the Minister proposes to take no such honourable course. This is a very bad day for accountability. I propose to send this report to Mr. David Blunkett as an illustration of what would happen if he were a Minister in this jurisdiction. He resigned from Government because he was accused of fast tracking an application for a non-national. If a Fianna Fáil Minister did not fast track the application, he would probably lose his place in Government.

The State is being exposed to a bill of what the Tánaiste thinks might be €2 billion and the Minister responsible seeks to tell us he knew nothing. That is simply not plausible. Unless he is accusing the civil servants of a conspiracy of silence there is no rational explanation. We know from the Travers report that they knew. Therefore, the Minister must be saying they conspired not to tell him. Does the Chair believe that? I certainly do not believe it, and there is only one honourable course for this Minister to take at the end of today's debate.

Paddy McHugh (Galway East, Independent)
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I wish to share time with Deputies Connolly, Gormley and Ó Caoláin.

I have read the Travers report, including the various statements and conclusions. Nowhere in it can I find the answer to a very simple question. Why was this issue not addressed by simple legislation when it first came to light? Why was it allowed to roll on for 29 years without a definitive conclusion? The report does not provide the answer to that basic question. It finds that the Department of Health and Children failed over more than 28 years to deal effectively with the flawed legal foundation for charges levied on persons with full eligibility. The evidence provided in the report backs up that finding. Therefore, in accepting that finding it is logical to accept that there is blame to be laid at the desk of officials.

Mr. Travers says he finds no evidence to indicate the Minister was fully briefed. The political parties who are not in Government at this time have sought a political scapegoat. Apparently the former Minister for Health and Children, Deputy Martin, is the target. However, it must be recognised that this issue has been live since 1976. When the 1976 regulations were drawn up we had a Labour Minister for Health. Since that time we have had three other Labour Ministers for Health. During that 29 year period we have also had two Fine Gael Ministers for Health and seven Fianna Fáil Ministers for Health. If the political blame game is to be played we have not just one political party in contention but three, Fianna Fáil, Fine Gael and Labour.

Finian McGrath (Dublin North Central, Independent)
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Hear, hear.

Paddy McHugh (Galway East, Independent)
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A central point in this case is whether a Minister is to blame for inaction if he or she is not briefed by officials even though that Minister knew or should have known that a problem existed. It has been nauseating to witness people in this House engaging in manufactured hysteria since the issue arose, leading at one stage to calls for the Tánaiste to resign, just because she did what nobody else did and brought the matter into the open.

Pádraic McCormack (Galway West, Fine Gael)
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Deputy Perry brought it into the open.

Paddy McHugh (Galway East, Independent)
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It was totally illogical and juvenile for any Member to adopt that stance on such a serious issue. This is a cock-up of monumental proportions, which must be faced up to. Those responsible must be brought to account.

Paudge Connolly (Cavan-Monaghan, Independent)
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I welcome the opportunity to speak on this matter. What we have is another fine mess and once again the taxpayer will be expected to foot the bill. It renders insignificant the fiasco of the electronic voting system which cost the country €60 million with the taxpayer again picking up the bill. This time the bill is €2 billion and rising. If this €2 billion had been pumped into the health service it would have solved many of our problems, particularly those in accident and emergency departments and nursing home beds for years to come.

What method of calculation will be used when the Health Service Executive pays back the money owed? Will it use the same method used when people owe money to the HSE? Between 1976 and 1987 the health boards used a compound interest rate of 7% per annum and from 1987 onwards they used 6% compound interest. To translate this into today's terms, £1 in 1976 is equivalent to €9.42 now. This is why I feel the cost could well exceed €2 billion.

What will happen to the interest on patients' savings and moneys used by the health boards in that period of time? As interest rates were very high, those amounts would have been substantial. The general answer was that money was used on patient comforts. We must have had the most comfortable patients in the world if that type of money was spent on them.

A few examples of files going missing at critical times are the Dublin and Monaghan bombings, the Barron report, the case of Our Lady of Lourdes Hospital where 40 files disappeared, the Dunne inquiry, the Moriarty tribunal and the time of the sterling devaluation. We also had the missing file concerning the paedophile and we know what happened at that juncture. It is a wonderfully strange coincidence how files can go missing at vital times. Perhaps we should put tracking devices on files. The past 30 years of health administration smacks of the television comedy programme "Yes, Minister". This issue will give new meaning to that programme for many people in future.

John Gormley (Dublin South East, Green Party)
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The Travers report is an indictment of the administrative and political culture in the Department of Health and Children. It exposes a litany of poor decisions, fudges and errors as well as "extreme maladministration" as the Tánaiste put it. By using that phrase she nicely prepared the way for this report. As I said at the time, it was preparing the way for civil servants to get it in the neck. Mr. Kelly has accepted his responsibility in the debacle. However, Government politicians have simply washed their hands. No one has assumed political responsibility.

Finian McGrath (Dublin North Central, Independent)
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Hear, hear.

John Gormley (Dublin South East, Green Party)
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It seems this is the pattern we now associate with the Government, with a series of Ministers brazening it out. Let us be clear, the Tánaiste has supported the former Minister for Health and Children, Deputy Martin. She has said she does not want to adjudicate on a conflict of evidence. However, this is entirely disingenuous because she has adjudicated. She has made it clear as to what side she is on. She is on the side of the Minister for Enterprise, Trade and Employment, Deputy Martin——

Finian McGrath (Dublin North Central, Independent)
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And the Minister of State, Deputy Callely.

John Gormley (Dublin South East, Green Party)
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——and the Ministers of State, Deputies Callely and Tim O'Malley. Did the Tánaiste try to dissuade Mr. Kelly from going elsewhere? While she may smile about the matter, she accepted it because she wants to accept the version given to us by the Minister for Enterprise, Trade and Employment, Deputy Martin. I ask the Tánaiste to admit this is the truth today, as we need to have clarity on this point. She rowed in behind Fianna Fáil on this matter as she has done on so many other occasions. I clearly recall her rowing in behind the former Minister, Mr. Ray Burke, saying that she had full confidence in him.

Pádraic McCormack (Galway West, Fine Gael)
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It is always the same.

John Gormley (Dublin South East, Green Party)
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Clearly she has full confidence in the former Minister for Health and Children, Deputy Martin.

The Tánaiste should no longer ask the Minister for Justice, Equality and Law Reform to climb up lampposts with posters saying "One-party Government — no thanks." It seems we now have one-party Government. The Progressive Democrats is indistinguishable from Fianna Fáil and I no longer know its purpose in Government. It has become obsolete — what is it doing there? Is it holding people to account? That party has shirked political responsibility.

The Minister for Enterprise, Trade and Employment, Deputy Martin, spoke of spin, but who are the masters of spin? I was at the launch of the 2001 health strategy. It was like a discotheque with all its blazing lights. The Minister claims we are making a mistake trying to distinguish between full eligibility and the question of legality and illegality. These are important points and the Minister was told about the matter. He was clearly told in 2001 when he issued medical cards to the over 70s. That was a nice bit of spin on the Minister's part. While he was criticised in the Brennan report about this matter, it was done because these are the people who vote and the Government parties reaped a harvest afterwards. In 2003, the Minister had the legal opinion from the former South Eastern Health Board. Is he claiming nobody knew about that matter? Of course people knew about it.

The former Minister for Health and Children was late for the meetings. Unfortunately, meetings are not good for spin. They are matters of substance that take place away from the media spotlight. As a result it would appear they were treated with a certain amount of disdain by the Minister. However, his Ministers of State and advisers were in attendance. The Ministers of State, Deputies Callely and Tim O'Malley, told us they assumed the Minister, Deputy Martin, knew about the matter. The Minister of State, Deputy Callely, said he had a conversation with the Taoiseach when going through the lobbies, which indicates the seriousness he attached to the subject. The Minister of State, Deputy Tim O'Malley, said he assumed it would happen as a matter of course. However, I have repeatedly asked about the follow up. These meetings were minuted and as is normal in such circumstances, matters arise. Did anyone ask what was happening with this matter? Did the Minister of State, Deputy Tim O'Malley, ask what was happening with the legal opinion? As nobody asked the fundamental question there was a dereliction of duty. The Minister for Enterprise, Trade and Employment will not assume his political responsibility for that debacle.

Where do we go from here? Irreparable damage has been done to the relationship between Ministers and civil servants. Where do special advisers fit in? The Tánaiste came to yesterday's meeting with her special advisers. I would like her to repair that damage.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Travers report is a massive indictment of successive Governments and successive Ministers for Health since 1976. It is also an indictment of the ethos within the senior management at the Department of Health and Children in the same period. The Tánaiste and Minister for Health and Children has, initially at least, tried to shift the responsibility onto the shoulders of civil servants. While senior civil servants clearly cannot be exonerated, it is beyond question that primary responsibility rests with the Ministers who are supposed to be responsible to the Dáil and to the people.

We are expected to believe that the former Secretary General at the Department of Health and Children, Mr. Michael Kelly, was the chief culprit in this matter and as a result he has been penalised by being moved out of the Department. However, as has already been stated, the Government has moved him to another senior and well paid position as the full-time chairperson of the Higher Education Authority, despite the OECD report having recommended an extensive public recruitment campaign for this position. This needs to be explained. If the Government considers this civil servant culpable, why did it not take steps to dismiss him as it is empowered to do? If he was not culpable or negligent, why was he moved or required to move? Does the Government fear that a dismissal, if it were challenged in open court, might further expose the responsibilities of Ministers in this debacle? Who does the Government hold responsible? If all senior civil servants for 30 years were responsible then no one was responsible.

Has the Tánaiste any indication of how many people had charges stopped because they complained? How many received refunds as a result of their complaints being processed? Does the Tánaiste agree it is a scandal that charges were dropped for those who complained or who had somebody to complain on their behalf, while vulnerable and incapacitated people or those with disabilities, who had no knowledge of or ability to articulate their case and nobody to do so on their behalf, continued to face charges? Is it seriously suggested that, because charges were dropped in cases brought to the attention of the Department, the knowledge within the system did not make its way to ministerial attention over all those years? We must know how many cases were brought to the Department for determination and in respect of which charges were quietly dropped.

The Travers report observes, "Ministers should insist on full and periodic briefings on key issues of policy and operational performance". It is a scandal if Ministers did not do this in regard to the illegal charges. However, if they did so, we are clearly not being told the truth about the knowledge of successive Ministers for Health and Children. The report describes the illegal charging of people in care as the result of "long term systemic corporate failure".

It beggars belief that this could have continued for almost 30 years and that successive Ministers failed to take action over the lack of a legal basis for the charges. The report could not be clearer when it states the Department of Health and Children undertook "many reviews" of the charging practice over the years from 1976 to 2004. All these reviews concluded that the legal basis for the charges was at the very least uncertain and should be rectified by the introduction of amending legislation.

Even more disturbing are the wider implications of this report for the running of the health services over the last three decades. In this regard, I wish to highlight an important conclusion of the report and one that has received little attention. This goes to the heart of why this situation was allowed to continue for so long. As a former member of a health board, I am certain this is the case. The report makes findings about why it took from 1976 until 2004 for the Department of Health and Children to request legal advice from the Attorney General. Among the underlying reasons it finds "a strong desire to protect what was regarded as an important source of 'own income' by the health boards as a means of protecting the provisions of essential health services in a health system widely regarded as being underfunded". The import of that statement is very serious. The underfunding of health services by successive Governments contributed to the belief within the system that the illegal charges as a source of funding for health boards should not be threatened. It was judged better to continue to charge people illegally than to take the necessary decisions to increase revenue for the health system, to reform it and to organise public health services on a more equitable and efficient basis. This is a damning report.

Dinny McGinley (Donegal South West, Fine Gael)
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That brings to a conclusion the time for formal statements. The Tánaiste and Minister for Health and Children, Deputy Harney, and the Minister for Enterprise, Trade and Employment, Deputy Martin, shall now each take questions for a period not exceeding 30 minutes. I will try to accommodate all Members who wish to contribute so I ask that questions be concise.

Liam Twomey (Wexford, Fine Gael)
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What does the Tánaiste believe is the appropriate outcome of this matter in terms of political accountability? Will she clarify the contents of the briefing notes given to the three Ministers and does she have any plans to release those briefing notes? Will the Tánaiste clarify the statement in her speech that the "administrative culture of any Department is influenced by the style and leadership of its political head"? This is the Department the Tánaiste has described as systemically maladministered.

Mary Harney (Dublin Mid West, Progressive Democrats)
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As I said in my remarks, Ministers are accountable through the Oireachtas for their Departments and they must accept this accountability. Secretaries General are accountable to the Committee of Public Accounts for their Department's Vote. There are, therefore, clear lines of accountability. I will ask the Department to make available the briefing notes received by the three Ministers. I have no problem with making information available. As the Deputy knows, all such information was provided to Mr. Travers.

As politicians, we all engage in cat calls across the floor of the House. Perhaps we are all subjective to such an extent that when a report does not say what we would like it to say, we are inclined to put things into it that are not there. I hope I am a person who is fair in regard to any decisions I have made and any judgments to which I have come. I assure Members I have certainly sought to be extremely fair in regard to these matters. I am not into scapegoating anybody, particularly public servants.

The report is very clear in regard to its conclusions. It states, for example, that Ministers can be faulted for not probing more deeply. However, it continues by observing that these shortcomings were of a scale, substance and order of magnitude considerably less than those of the system of public administration. That is the finding of Mr. Travers. The report further states that the fundamental reason for the period of time that elapsed from 1976 until October 2004, when the Attorney General was asked for advice, lies in "long-term systemic corporate failure" and that this failure is "principally a failure of public administration which, essentially, failed to identify, recognise and acknowledge" the situation. I do not get any pleasure in saying this. As I said yesterday, I have had the pleasure over the last five months of working with committed, professional and thorough civil servants in the Department of Health and Children. I want to work with them to put in place the excellent recommendations in this report.

Mr. Travers is a man of enormous integrity with whom many Members from all sides of the House have worked in various roles in different Departments and organisations. These are his conclusions based on what he saw, was told and discovered. We must be decent enough to accept them and to make changes where such are required. That is what I want do because, above all else, we must look to the future in regard to many of these issues. We all accept this situation is a total mess. The consequences are considerable, involving 315,000 people and going back to 1976. Some institutions are closed and no records exist. Besides the huge amount of money involved, this issue represents a mammoth task from an administrative and logistical point of view.

Liz McManus (Wicklow, Labour)
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Does the Tánaiste accept the Travers report does not say it is solely an issue of administration and that there is clearly political responsibility in this matter? Does she accept, for example, that any Minister has enormous powers and supports and always gets credit when he or she is successful but that there is also an onus on Ministers to accept and bear responsibility when there is negligence and failure? Is this a principle the Tánaiste takes seriously?

The Tánaiste says she is open to the publication of information. Will she publish the legal opinions in respect of this issue, particularly that of the South Eastern Health Board? It would be useful to see what information was available to the latter. Is there any record in her Department as to why the Minister for Health and Children who took over in March 1987, Dr. Rory O'Hanlon, decided not to proceed with legislation that had been prepared by his predecessor, Mr. John Boland? Presumably that information is still in her Department. It is important to know what the story is regarding that decision, considering the size of the bill the taxpayer is left to pay so many years later.

Mary Harney (Dublin Mid West, Progressive Democrats)
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I accept Ministers have enormous powers and resources, and I accept the principle of political accountability, as I said in my earlier comments.

Liz McManus (Wicklow, Labour)
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Not in this case.

Mary Harney (Dublin Mid West, Progressive Democrats)
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No, I only know what I was told, or what I was not told, and I will be accountable for myself. I was appointed on 29 September and I went to the Department on 30 September. I was briefed extensively and so on. This issue arose in the House, for which I have given credit to Deputies Perry and Kenny, and that is how I got to make inquiries of the Attorney General. I have acknowledged that many times and I am sure the Deputies opposite will agree that, as I said earlier, hopefully, I am fair.

I asked for a report to be done on this issue and I brought it to Government on 14 December. It gives me no pleasure to say that it was not accurate — it was not complete and that was the basis on which we made decisions, including the one on retrospection. That is why I appointed Mr. Travers because I learnt the next day that a crucial piece of information was not included in that report. That is why I asked Mr. Travers to carry out his investigation and that is why certain other things happened. It is not a case of somebody being scapegoated for 28 years of maladministration, it is for different issues. Information was withheld from the Government and from me, and that is not acceptable to me. The legal opinions, if available, are opinions of health boards. I understand they were widely available to members of those health boards, both the 1987 opinion of the Eastern Health Board and the subsequent opinion — I understand there were many in between — of the South Eastern Health Board, but they belong to those bodies, subject to legal advice. The relevant parts of those opinions are quoted in the report. In the document we released this morning that went to the Attorney General in October, the background note refers quite extensively to the opinion of the South Eastern Health Board, but subject to legal advice I do not have a difficulty in making the opinions available.

Liz McManus (Wicklow, Labour)
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The Tánaiste has not answered the question I asked on records in her Department concerning an extraordinary decision to abandon the legislation.

Mary Harney (Dublin Mid West, Progressive Democrats)
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There were no records apparently in my Department, according to Mr. Travers. He got these records from the Department of Finance. He got the two memoranda to Government. It is a fact that in the report that on 5 February the late John Boland took a memorandum to Government. A memorandum was put to John Boland, who was the caretaker Minister as the Labour Party had withdrawn from Government, to implement the decisions of the budget. That budget brought in the concept of inpatient charges which had to be legislated for. In the context of that memorandum, he apparently, in his own handwriting, stated he wanted to include this. From where the knowledge for that came I do not know, but he wanted to include this. The Government agreed to the drafting of legislation accordingly.

The election was held a few days later and a new Government came in. The same memorandum was brought back to the new Government in March of that year. The decision was proceeded with in terms of the budgetary decision. There is a note on the Government decision that apparently states "proceed as relevant". Mr. Travers refers to the "pinks", the notes that the Secretary General to the Government takes, which are not the formal Government decision. They note that the Taoiseach, the Minister for Finance and the Minister for Health were to meet to review this issue. That is the end of the paper trail and that is all I can tell the Deputy.

I read the Official Report subsequently on that legislation and although Fine Gael proposed this legislation, it voted against it and the new Government took it through the Dáil. There are many things we all learn from this process. The Government that had signed off on this ended up in opposition opposing it, something on which we could all reflect.

John Gormley (Dublin South East, Green Party)
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The Tánaiste said that she wanted to be fair and truthful, and I would like her to be both when she answers my questions. Is it not the case that having expressed full confidence in the Minister, Deputy Martin, at the same time she is expressing no confidence in Mr. Kelly, and that by accepting his move to another Department she is expressing no confidence in him?

On another matter, the State faces a major bill of up to €2 billion. Will the Minister inform the House how she expects to raise that money? The Minister for Finance is sitting beside her and perhaps he could tell her. Are we looking at cuts in the health service? Yesterday the Minister said that she wanted more resources for her Department. I would like her to let us all know how she expects to raise them because this is probably the most serious issue at this stage.

Where do special advisers fit into the scheme of things? The Minister, like other Ministers, has surrounded herself with special advisers. Some of them were with her at the health committee yesterday. What responsiblity do these people have and to whom are they answerable?

Mary Harney (Dublin Mid West, Progressive Democrats)
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I will answer those questions in reverse order if that is agreeable to the Deputy. Special advisers are responsible to me to give me outside independent advice. They are not to supplement the advice I get from civil servants, they are to help me come forward with alternative views or perspectives. They are not a substitute for the Minister. It is not the case that it is appropriate that special advisers either clear parliamentary questions or clear "what the Minister should or should not do". The Minister must make those decisions. The buck rests with the Minister, not with the special advisers.

My special advisers are accountable to me and they work very well, as they did in my previous Department, and, hopefully, as they will in this one, with the civil servants. They work in a team-like way. They are not part of the management of the Department, they do not go to the management meetings in the Department. Mr. Travers makes recommendations in that regard. Different Ministers have different perspectives. I do not attend management meetings, nor did I do so in the previous Department. I believe that is the role of the management in the Department, although we have policy meetings with officials and so on.

On the question of more resources, the Department of Health and Children is constantly getting more resources. I said yesterday that the new role for the Department will be a policy legislative standards role and the Health Service Executive will have the delivery accountability function of the health services. In that new role we must organise resources and we need to put resources into different areas. By more resources I mean we need to beef up certain aspects of the Department to give it more strength in certain key areas where it has huge responsibilities, particularly in respect of legislation. Currently, we are working on several Bills in the Department in respect of medical practitioners, nurses, other health care professionals, pharmacy legislation, health information and so on. There are so many areas and it is a mammoth, onerous task for a Department. In our new role I want to put more resources into that area. It is about moving resources around and it may be about additionality as well.

John Gormley (Dublin South East, Green Party)
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From where will the Tánaiste get the money?

Mary Harney (Dublin Mid West, Progressive Democrats)
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It is about organising the money as well and having certain priorities. It is not always about getting more and more money. We all know the health budget increases by approximately 10% a year, and that is the case this year.

On the cost of this measure — we know what the parameters of the cost could be — there is no sum of money sitting around that we can take and say, "there it is". I have said previously that if the sum were €500 million it would build two new hospitals. If it were €2 billion it would build a new children's hospital, a Mater hospital and several other hospitals. That is what we are talking about. To put it in scale, it is a huge amount of money.

In regard to confidence, I said previously and I repeat that if I did not have confidence in one of my Cabinet colleagues I would go to the Taoiseach and say that. I would not stay in government with somebody in whom I did not have confidence. When I have confidence in people I defend them, even when it might be unpopular to do so. I stand by people, and that is important too.

In regard to Mr. Kelly, he is a bright, hard-working, committed civil servant. That is my view of Mr. Kelly.

John Gormley (Dublin South East, Green Party)
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The Tánaiste has no confidence in him.

Mary Harney (Dublin Mid West, Progressive Democrats)
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No, I will deal with the issue. I dealt with it earlier. I asked for a report for the Government. It was incomplete, it was inaccurate, and that is not acceptable to me.

Pádraic McCormack (Galway West, Fine Gael)
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Does the Tánaiste know or did she inquire where the then Minister, Deputy Martin, was in December 2003 when he missed the important part of the meeting? If he had been at that meeting, would this problem have been solved in December 2003? His duty demanded that he should have been at that meeting wherever he was.

Mary Harney (Dublin Mid West, Progressive Democrats)
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The Deputy should ask the Minister, Deputy Martin, where he was. I do not know where he was——

Pádraic McCormack (Galway West, Fine Gael)
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The Tánaiste did not ask him.

Mary Harney (Dublin Mid West, Progressive Democrats)
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——but in the number of months since this issue arose I did not think of asking him "Where the hell were you and why weren't you there?"

Pat Rabbitte (Dublin South West, Labour)
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He was at the disco.

Mary Harney (Dublin Mid West, Progressive Democrats)
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In any Department a Minister is involved in thousands of meetings every year. Sometimes one goes to all the meetings, other times one attends part of a meeting. Decisions would never be made or actions taken if we were attending meetings all the time. That is not an issue.

I wish to correct something I said earlier. I said Fine Gael voted against that legislation but it abstained. I want to correct the record before I am called on to do so.

Pádraic McCormack (Galway West, Fine Gael)
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As the Tánaiste did not answer my question, I will put it to the Minister, Deputy Martin.

Finian McGrath (Dublin North Central, Independent)
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Do the Tánaiste and the Minister, Deputy Martin, accept that successive Governments let down the elderly, stabbed them in the back and ripped them off over the years? The Minister, Deputy Martin, told the House today:

During my time as Minister for Health and Children the record will show that I was fully accessible to staff and willing to address issues even at the shortest of notice. At no time did I shy away from sensitive issues because they might have cost implications or reflect badly on Governments.

Many Deputies feel the Minister did shy away from such issues, as did the Ministers of State, Deputies Callely and Tim O'Malley. I refer in particular to the Minister of State, Deputy Callely, who was responsible for the elderly at the time. I remind the Minister and the Ministers of State that the Constitution states that Ministers should have ultimate responsibility. There have been serious problems in this regard for many years. Successive Governments have let the elderly down. I demand political accountability. Will the Minister accept responsibility for the actions?

Mary Harney (Dublin Mid West, Progressive Democrats)
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I have no problem with accepting accountability for my actions in respect of this matter.

Finian McGrath (Dublin North Central, Independent)
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What about responsibility?

Mary Harney (Dublin Mid West, Progressive Democrats)
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I have made it clear that I will do that now and in the future. The Deputy should ask the Minister, Deputy Martin, about his accessibility. I think he is very accessible. Questions about the Minister should be directed to him, to be fair to all of us, including him, and to the House. I do not doubt that political responsibility has to be accepted when political errors are made.

Pádraic McCormack (Galway West, Fine Gael)
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Where is it now?

Mary Harney (Dublin Mid West, Progressive Democrats)
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That is a long-standing——

Finian McGrath (Dublin North Central, Independent)
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I do not see it.

Micheál Martin (Cork South Central, Fianna Fail)
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It is in the report.

Mary Harney (Dublin Mid West, Progressive Democrats)
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We are acting on the findings of the report.

Finian McGrath (Dublin North Central, Independent)
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If it happened in a primary school, the principal of the school would be held responsible. One would not blame the class teacher who was on yard duty.

Mary Harney (Dublin Mid West, Progressive Democrats)
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Any fair-minded person who reads the report could not call on people to resign on the basis of it.

Pádraic McCormack (Galway West, Fine Gael)
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The policy of Ministers seems to be to stay in Government at all costs.

Seán Ryan (Dublin North, Labour)
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One hears a great deal about what various people did and did not know. The Tánaiste said earlier:

Most unfortunately, the Government's decisions on the Health (Amendment) (No. 2) Bill 2004 were based on inaccurate and incomplete information. The Attorney General's advice in advance of that decision was based in part on poor, inaccurate and incomplete information.

The Tánaiste knew there was a major problem when she was preparing the Bill.

Pádraic McCormack (Galway West, Fine Gael)
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She drove it through anyway.

Seán Ryan (Dublin North, Labour)
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Why did she introduce retrospective legislation, the net effect of which was to deprive elderly people of their entitlements?

Mary Harney (Dublin Mid West, Progressive Democrats)
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The Bill was introduced for a number of reasons. As I have said in this House, I believe we were acting in good faith when we decided to introduce the Bill. In other words, there was no legal knowledge in the Department of Health and Children that the matter was unconstitutional and did not have a safe legal basis. That is a fact. If one reads the opinion——

Pat Rabbitte (Dublin South West, Labour)
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They did not even tell the Tánaiste then.

Mary Harney (Dublin Mid West, Progressive Democrats)
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No.

Pat Rabbitte (Dublin South West, Labour)
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That is almost——

Seán Ryan (Dublin North, Labour)
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They did not tell the Tánaiste when she was preparing the legislation.

Mary Harney (Dublin Mid West, Progressive Democrats)
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No.

Pat Rabbitte (Dublin South West, Labour)
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Why is she getting rid of just one official?

Mary Harney (Dublin Mid West, Progressive Democrats)
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The Deputies can read the report that was prepared for the Government.

Pat Rabbitte (Dublin South West, Labour)
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It is unbelievable.

Mary Harney (Dublin Mid West, Progressive Democrats)
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It is at the back of the Travers report. It was during the Christmas holiday break that the Keane judgment came to light.

Pádraic McCormack (Galway West, Fine Gael)
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We advised the Tánaiste not to go ahead with it.

Mary Harney (Dublin Mid West, Progressive Democrats)
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As I said in my speech, the discovery process for the Supreme Court hearings started in parallel with the discovery process for the Travers report. I remember getting a call and being told about the Keane judgment. I was surprised to hear that the Government had been advised in such strong terms in 1978 that this was wrong. As a result, the State did not argue in the Supreme Court case that it had acted in good faith. The advice given to me by the Attorney General was based on his belief that we were acting in good faith.

I was also asked about retrospection. Of course I wanted to try to protect taxpayers' money by making this legal retrospectively and going forward. The Supreme Court made it clear that the legislation was not struck down on the basis of retrospection, or on the basis of Article 15.5.1° of the Constitution. It was struck down because the Supreme Court ruled that it is unconstitutional to take away people's property rights without compensating them. The only circumstances in which it would be constitutional to do that would be if it were to cause a disequilibrium in the public finances. The Supreme Court took the view that the sum of money involved would not cause such difficulty in the public finances. given the current state of the economy. The legislation was struck down on the basis of property rights and not on the basis of retrospection.

Seán Ryan (Dublin North, Labour)
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The situation is more bizarre than ever.

John Perry (Sligo-Leitrim, Fine Gael)
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Does the Tánaiste agree that if one had read section 1 of the Health (Miscellaneous Provisions) Act 2001, one would not need to be a legal expert to understand that the charges were illegal? Will the Tánaiste comment on the Ombudsman's report of January 2001, which stated that the charges being imposed on elderly people at the time were completely illegal? I refer also to the advice of the Comptroller and Auditor General. Why did the Government ignore the advice of two constitutional officers of the State? The Ombudsman and the Comptroller and Auditor General put down clear markers about the illegal charges. The Government's estimate of the number of people who would be affected by changes to the provisions in respect of people over the age of 70 was inaccurate. The State's estimate of the number of applicants was wrong by approximately 50,000 and its estimate of the cost was wrong by approximately €40 million. The Comptroller and Auditor General and the Ombudsman had put down clear markers in this regard. Why did the Government fail to act?

Mary Harney (Dublin Mid West, Progressive Democrats)
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The Travers report makes clear that the foundation decision was taken in 1976 and not in 2002, although it points out that things were brought into focus in 2002. The commission on health funding drew attention to the matter in the late 1980s, as did the health strategy of 1994. The Department received legal advice on the issue in 1975-76. As Mr. Travers states in his report, a great deal of legal advice was received suggesting that the charges were wrong. He said he could not find any substantive advice to suggest it could be done. That is the reality. Mr. Travers acknowledged that the Ombudsman's report dealt with the issue of nursing home subvention, which is related, but not the same.

John Perry (Sligo-Leitrim, Fine Gael)
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It is a separate case.

Mary Harney (Dublin Mid West, Progressive Democrats)
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Litigation is pending in that regard. When this matter arose last December, I asked the assistant secretary of the Department, Mr. Smyth, to conduct an audit of the regulations which impose charges so that a legal opinion on their status could be acquired. That audit is under way and will be finalised as quickly as possible. We have been working extremely hard on it. Meetings will be held with officials from the Office of the Attorney General about many other regulations which have been made under various Acts.

Many people felt that all of this could have been dealt with in the entitlement and eligibility legislation. The Travers report acknowledges that an official in the Department drafted the heads of such a Bill, which I subsequently used here. As Mr. Travers states, that process was commenced but was then parked. The heads of the Bill were to be used in a further, wider Bill, rather than in a stand-alone Bill. I do not suggest that people were not worried about issues relating to entitlement and eligibility, but there was a view that such matters could be dealt with in the manner I have outlined.

The sad reality is that the principle has broad support. I doubt that many Members of the House do not support the principle that people should make a contribution towards their shelter and maintenance if they can afford to do so, just as people in the community do. The difficulty is that we did not have a legal basis for taking such contributions for 28 years.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Can the Tánaiste indicate the number of people whose charges were stopped because they complained? That information is important because it relates to the issue of who knew what and when. Given that the information would help to identify certain processes, has the Tánaiste made inquiries in that regard within the Department? Has she tried to ascertain the methodology of assessment of the complaints? Where were decisions taken when people complained that the charges should no longer apply? I doubt that such decisions were taken at health board level. If advice was ultimately received at health board level, it must have resulted initially from a referral to the Department. That must have happened on a repeated basis and at a high level. If charges were being stopped in some instances because those who made complaints had certain information, or had a sufficient level of belief in the case they presented effectively or the case that was presented effectively on their behalf, it is incredible that this was not known by senior officials in the Department, the Minister and Ministers of State.

I would like to know not only the number of cases but whether the Minister has checked the dates on which they were presented and terminated. This would inform us who was at the helm of the Department when each case arose. I have no idea how many cases there are. Were retrospective refunds paid in any or all of them? Will the Minister address this sincerely? In light of all that has arisen, has she sought the information personally to inform herself on who knew what?

Dinny McGinley (Donegal South West, Fine Gael)
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I will take Deputy Healy's question because there are only three minutes remaining.

Séamus Healy (Tipperary South, Independent)
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Has the Minister for Health and Children sought and received legal advice on the eligibility of elderly medical card holders who have been forced into private nursing homes due to the unavailability of beds in public hospitals or nursing homes or because they have been refused such beds? Is there another time-bomb ticking in the Department regarding this issue? Are the Minister and the Department sticking their heads in the sand in this regard?

Mary Harney (Dublin Mid West, Progressive Democrats)
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On Deputy Ó Caoláin's question, I do not know the precise number of cases. I did say — this is in the report — that anyone who challenged the making of the payments did not have to pay. The advice from the Department to the health board was not to pursue the matter legally. When invited by the registrar of the wards of court to pursue it legally, the Department's advice was that this should not be done.

I do not know the numbers and this clearly creates another issue of inequality. Those who took legal advice or got somebody to take it on their behalf did not pay while those who were not so lucky paid. This is extraordinary.

One will see in the documents published this morning that the line is advanced and that the Department was fearful of pursuing legal action for fear of the outcome. It believed it would not succeed. I do not know the numbers involved, nor do I know if there is a way to obtain them. However, if I can do so, I will.

On Deputy Healy's question, there is legal advice on the matter raised.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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What about the refunds?

Mary Harney (Dublin Mid West, Progressive Democrats)
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I do not know whether people were refunded if they had been paying for a couple of years. I will revert to the Deputy on this matter.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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At what level were the decisions taken?

Mary Harney (Dublin Mid West, Progressive Democrats)
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They were certainly not charged going forward. I am not in a position to state whether they were refunded.

On Deputy Healy's question, legal advice was obtained on the nursing home subvention. Where people are in public beds or in beds contracted by a public authority in a private nursing home the State is exposed. However, issues arise regarding the nursing home subvention. In this regard, one should bear in mind the answer I gave on the audit being conducted by Mr. Smith and the work he is doing with the Attorney General on the other regulations. We are seeking the advice of the Attorney General and doing a considerable amount of work regarding other regulations to determine whether they are legally safe.

Séamus Healy (Tipperary South, Independent)
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Has specific advice been obtained on private beds in private nursing homes?

Mary Harney (Dublin Mid West, Progressive Democrats)
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Yes. Is the Deputy referring to the nursing home subvention? Nobody could expect us to pay for every private bed in a private nursing home environment. I assure the Deputy this would cause financial disequilibrium.

Séamus Healy (Tipperary South, Independent)
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I am making the point that quite a substantial number——

Mary Harney (Dublin Mid West, Progressive Democrats)
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I accept that.

Séamus Healy (Tipperary South, Independent)
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——of elderly patients with medical cards are not well-off. They are forced into private nursing homes because there are no beds available or because they have not been available in public hospitals and homes. They are in severe financial difficulty as a result.

Mary Harney (Dublin Mid West, Progressive Democrats)
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I am aware of that and it is on that issue that the advice has been sought.

Dinny McGinley (Donegal South West, Fine Gael)
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That concludes questions to the Minister for Health and Children. We will now proceed to questions for the Minister for Enterprise, Trade and Employment, for which 30 minutes have been allowed. I call on Deputy Twomey.

Liam Twomey (Wexford, Fine Gael)
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The Minister should note that we responded to Mr. Travers. We said we had nothing to add other than what is already in the public domain. If that was not acceptable to Mr. Travers and put into the submission, it had nothing to do with our views on this issue.

What does the Minister believe a briefing entails, making specific reference to the briefing notes he was due to have received the day before the meeting in December 2003 and the briefing he received on the day and the day thereafter? Although the Minister stated he received a briefing, he is not crystal clear about what he knew about these charges.

How did the Minister feel about the charges? Did he regard them as a matter of concern? What does he believe to be the meaning of political accountability? I asked the Tánaiste the latter question and she did not answer very clearly. She stated there was systemic maladministration in the Department and that maladministration was due to the administrative culture in the Department, which is very much related to the political head of the Department. What is the view of the Minister for Enterprise, Trade and Employment on this?

I asked the Minister about the role of his advisers when he was Minister for Health and Children and whether they acted as a buffer between himself and civil servants. What is his view on this?

The health boards submitted legal advice to the Minister stating the charges were illegal but they continued charging a number of patients. However, payments were stopped in respect of patients who challenged the charges. Has the Minister legal advice on the position of some of the officials in the health boards? There are potential criminal charges involved if the officials continued to charge patients in the knowledge that the charges were illegal.

The Travers report states the memorandum prepared for the Government was parked in both 2002 and 2003 pending legislation to tie up all the eligibility criteria. How much did the Minister know about this at the time? This was the time of the over-70s legislation and the health strategy, with which he was very closely associated. This strategy led to the establishment of the HSE, with which Mr. Kelly was very closely associated. Mr. Kelly and senior officials in the Department felt the strategy represented the way forward for the Department for many years. They knew of all the administrative problems that were occurring. However, it just took so long to have them sorted out that we have ended up in the mess in which we now find ourselves.

Micheál Martin (Cork South Central, Fianna Fail)
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The Deputy asked what I would consider to be a proper briefing. Mr. Travers has described it very succinctly in his report. It is nothing unusual or extraordinary. A sufficient briefing is fundamentally an analysis of a particular issue, an outline of the options a Minister could potentially pursue consequent on that analysis and recommendations by whoever is making the report on what the Minister should do. That, in essence, is what most people would understand to be a proper briefing on an issue of this substance and importance. Mr. Travers makes the point that at no stage, having gone through all the documentation covering over 28 years, did he come across such an analysis.

On the management advisory committee meeting, it is stated in the Travers report that the briefing documentation was e-mailed to the ministerial office or the outer office on the evening prior to that meeting. He has described my explanation — I did not read that particular documentation — as entirely and highly "credible and understandable". I would not have been in Dublin the evening before the meeting. I could have driven up late that evening or flown up the following morning. I would have gone straight to a Cabinet meeting on the day in question and perhaps had a quick bite to eat thereafter. I would have gone to meet the American ambassador thereafter and then straight to the management advisory committee meeting.

It is interesting what Mr. Travers says about the management advisory committee meeting. He actually describes it as a missed opportunity to brief me. One should remember that the legal opinion was with the Department for nine months prior to the meeting. There was plenty of time and sufficient opportunity to prepare the kind of briefing document I have described. Unfortunately that did not happen. I could have been briefed specifically on that issue well in advance of the management advisory committee meeting. I would like to recreate the atmosphere of that meeting. This was not flagged as a substantive issue. There were no alarm bells ringing about this either in advance of, or around, the meeting.

The key item on the agenda, on which several people briefed me, was the health reform programme. A couple of months later we were to set up the new health structures and the Health Service Executive. That had implications for the contracts for chief executive officers of health boards who were somewhat annoyed at the lack of progress in reassuring them about their future and the future of staff across health board administrations. That was the central concern. I was briefed to tell the chief executive officers there was a future for them in the health service.

Immediately after that meeting a further meeting was held with the chief executive officer of the Mid-Western Health Board to discuss the composition of the board that would be charged with implementing the Hanly proposals in the mid-west because we were concerned about certain proposals made by the health board on that issue. I remember that very clearly. They were the core issues. The other six items on the agenda were for brief mention only. No objective analysis of the agenda would give an impression that this was a substantial issue.

Political accountability entails coming into this House to answer questions and to account for one's time in office, which is critical, as well as taking responsibility for issues about which one knew and with which one was in a position to deal. The Opposition talked about maladministration. For years people have known about the difficulties in running the health services, the great pressure on staff in the Department of Health and Children and the almost daily need to react to events. I know this more than most because I was there for four years, nine months.

I was the first Minister in over 30 years to try to restructure that in line with the leadership of the Administration at that time. Flowing from the health strategy of 2001 we made a clear decision to look at how we structure and deliver health services. That gave rise to the Prospectus report which said the service should be changed to create a national delivery system, remove much of the operational detail from the Department and develop a more strategic framework with clear functions for the Department.

I attempted to alleviate pressure on the health service, a problem that had been known for a long time. It is in train and I set up the Health Service Executive on an interim basis and abolished the health boards, which we debated in the House. That was my role in dealing with the pressures under which people worked.

The Travers report refers to the parking of issues. I discussed the concept of eligibility in my speech. I was briefed regularly during and after the health strategy to the effect that our society needed to take a comprehensive look at its eligibility framework. For example, if one reads that document there is no clear framework for access to a range of community services, such as, dietary advice, speech and language therapy, physiotherapy etc. It was necessary to create a modern statutory framework covering the full range of eligibility across all the areas, including private nursing homes.

Deputy Healy alluded to some of the issues that emerged consistently in that respect. A sub-group formed as part of the health strategy to look at eligibility produced a document. The group included Department officials, members of the National Economic and Social Forum, the Irish Congress of Trade Unions, UCD, the Society of St. Vincent de Paul etc.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Minister has been speaking for eight minutes and we have only 30 minutes left for this debate. With all due respect, he cannot filibuster and waste time because he might not want to face all our questions.

Micheál Martin (Cork South Central, Fianna Fail)
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I will stay as long as the Deputy wants.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We do not need all of that detail. The Minister should answer the Deputy's question. We do not need to hear a Second Stage speech.

Micheál Martin (Cork South Central, Fianna Fail)
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I am answering it.

Brian Cowen (Laois-Offaly, Fianna Fail)
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The Deputy is not known as an example of succinctness himself.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We have only 30 minutes.

Dinny McGinley (Donegal South West, Fine Gael)
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The Minister should conclude because five more speakers have indicated.

Micheál Martin (Cork South Central, Fianna Fail)
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I appreciate that but there were approximately nine questions.

Pat Rabbitte (Dublin South West, Labour)
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The Minister has answered nothing yet.

Liam Twomey (Wexford, Fine Gael)
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Exactly and we want an answer.

Micheál Martin (Cork South Central, Fianna Fail)
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I do not want to be accused subsequently of not having answered a particular question. This is an important point. The sub-group asked what we should do about eligibility over the next ten years. In its report it noted that according to the Department the terms "eligibility" and "entitlement" are legally distinct. The Health Act 1970 provides for eligibility for a service but not that a person is entitled to receive a service. One is eligible when one qualifies to avail of services without charge or subject to prescribed charges. It continues with references to the Ombudsman's report and so on. Not even the various people on the sub-group on eligibility flagged this issue. No one said something illegal had been happening for 28 years that needed to be corrected and rectified.

This report fed into the health strategy. The same happened in the 1994 health strategy. Deputy Rabbitte tried to wipe all that out with one grand gesture, to forget the past. I am not suggesting that Deputy Howlin knew anything about this, quite the contrary, but one cannot apply two standards. The 1994 strategy stated——

Pat Rabbitte (Dublin South West, Labour)
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This is now a 12 minute speech. It is total blather.

Micheál Martin (Cork South Central, Fianna Fail)
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——that those in Government care were governed by inadequate legislation. It also stated the principle was accepted that those in long-term care should contribute to the cost of their maintenance from their incomes but the legislation gave rise to anomalies and inequities in these charges. It promised to amend the legislation to provide a clearer and fairer basis for these contributions.

The Fine Gael-Labour coalition Government was charged with implementing that strategy.

Pat Rabbitte (Dublin South West, Labour)
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Would the Minister like to say something about the Nemo Rangers?

Micheál Martin (Cork South Central, Fianna Fail)
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I wish to be fair. I accept the Travers report according to which successive Ministers were not told that there was a fundamentally illegal regime in place for charges for long-stay residents in nursing homes.

Liz McManus (Wicklow, Labour)
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I ask the Minister not to filibuster when answering my question. Was he not in a unique position? The Supreme Court pointed out that in 2001 when he introduced a change in legislation the issue became clear beyond doubt. He is not like any other Minister who served in that Department.

While we accept that the Minister did not receive a comprehensive briefing it is impossible for us to accept that he was unaware of the seriousness of the issue. Is it not possible to send briefing materials to the Minister by e-mail? Is he saying that Michael Kelly was not telling the truth when he stated that he spoke to the Minister on the day of the management advisory committee meeting and that he briefed the Minister on the issues including the nursing home charges? When was the Minister aware of the South Eastern Health Board legal opinion? Did he have no knowledge of that? Following the management advisory committee meeting, did he speak to the policy adviser and special adviser or his Ministers of State on this issue, all of whom had information? He was surrounded by people who were informed. Was he somehow cocooned from the information circulating around him, that he can now maintain he did not know about the seriousness of the issue?

Micheál Martin (Cork South Central, Fianna Fail)
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In regard to the 2001 Act it is being bandied about that Ministers——

Liz McManus (Wicklow, Labour)
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It is not being bandied about, it was a Supreme Court decision.

Micheál Martin (Cork South Central, Fianna Fail)
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——must have known as a result of the extension of the medical card and its inclusion in the 2001 Act, which was not brought in exclusively to extend the medical card to people over the age of 70. Mr. Travers says that I was not told in any shape or form——

Liz McManus (Wicklow, Labour)
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I am asking the Minister to say——

Brian Cowen (Laois-Offaly, Fianna Fail)
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Does the Deputy want the answer?

Micheál Martin (Cork South Central, Fianna Fail)
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I co-operated with Mr. Travers and he spoke to other people as well. He said there was no submission to me and that based on discussions with other people I was not briefed. I was not. He says in response to this issue the Department knew from the beginning in 1976——

Pat Rabbitte (Dublin South West, Labour)
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What does the Minister say?

Micheál Martin (Cork South Central, Fianna Fail)
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It is important that I have the opportunity to put this on the record because the reference to the 2001 Act is in that context. Only if I knew about the illegal device of the 1976 circular could I have known the full impact of the 2001 legislation.

Liz McManus (Wicklow, Labour)
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I am not asking about that.

Micheál Martin (Cork South Central, Fianna Fail)
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It is true.

Pat Rabbitte (Dublin South West, Labour)
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That is poppycock.

Liz McManus (Wicklow, Labour)
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That is not true.

Micheál Martin (Cork South Central, Fianna Fail)
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The Supreme Court made its decision just last month. It states that circular 76 and the regulations were illegal from 1976 onwards. It then went on to say that the 2001 Act should have made it clear that it was even further illegal to those in the know, including everyone in this House. Let all of us not pretend that we did not know that charges——

Pat Rabbitte (Dublin South West, Labour)
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Travers said the Department knew.

Micheál Martin (Cork South Central, Fianna Fail)
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Yes.

Liz McManus (Wicklow, Labour)
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The South Eastern Health Board provided the information.

Micheál Martin (Cork South Central, Fianna Fail)
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Mr. Travers states that the Department knew since 1976, which is not a surprise. That is the core issue throughout the Travers report.

Liam Twomey (Wexford, Fine Gael)
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The Minister knew.

Micheál Martin (Cork South Central, Fianna Fail)
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He goes on to state that the 2001 Act had the unintended effect of ultimately unwittingly forcing a resolution of the issue. Obviously that was not the intention. I certainly did not know, and it was not made clear to me at the time that this had such implications for the long-stay charges regime and the illegal regime that was in place since 1976.

Liam Twomey (Wexford, Fine Gael)
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When did the Minister know?

Séamus Pattison (Carlow-Kilkenny, Labour)
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I call Deputy Gormley.

Liz McManus (Wicklow, Labour)
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I have not finished. I am not getting answers.

Séamus Pattison (Carlow-Kilkenny, Labour)
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I am trying to give everyone an opportunity to ask a question.

Liz McManus (Wicklow, Labour)
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The Minister was asked direct questions and I am entitled to an answer.

Brian Cowen (Laois-Offaly, Fianna Fail)
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He was told he was filibustering when he was answering.

Micheál Martin (Cork South Central, Fianna Fail)
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I was aware of the eligibility issue. We had to make a choice in 2004 in terms of the Health Service Act versus this major Act on eligibility. However, I was not specifically aware of any illegality in regard to long-stay charges. In respect of my special advisers, the same principle applies to them in that their role is to advise me. They are not, and never were, a buffer zone between my officials and me. This is not how things operated.

Liz McManus (Wicklow, Labour)
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Is the Minister saying that Mr. Kelly is not telling the truth?

Micheál Martin (Cork South Central, Fianna Fail)
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He does not say that in the draft section in the body of the report.

Liz McManus (Wicklow, Labour)
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He said he briefed the Minister on the issue.

Micheál Martin (Cork South Central, Fianna Fail)
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I am not casting aspersions on the integrity of any individual, nor do I intend to do so. I gave my perspective to Mr. Travers, as did others. He drew his conclusions from the various statements and discussions people had with him. I ask the House to consider subsequent events. There was a management meeting with the CEOs on 29 March, to which Deputy Rabbitte alluded. Apparently it is reported in the minutes that it had gone to the Attorney General's office. If one will fast forward to October 2004, the minutes of that meeting state — this was in response to the CEOs of the health boards actively raising the issue — that the legal issues are being reviewed. Add to that scenario that the Tánaiste, on taking office, was not briefed in any shape or form on this issue, which is meant to be of significant importance, substance and so on. I will leave the matter rest at that.

John Gormley (Dublin South East, Green Party)
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Will the Minister give the House his precise recollection of the meeting which took place on 10 March? We would like to hear his accurate recollection of that meeting. In regard to the minutes of the meeting of 16 December 2003, did the Minister discuss these minutes at any stage with his junior Ministers? Did he read the minutes thoroughly and did he take on board what they stated? Did it not occur to him or his junior Ministers that there might be a requirement for a follow-up to find out exactly where was legal opinion on this important matter?

Did the Minister meet regularly his junior Ministers? Did he meet them once a week or how did things operate? I do not know precisely the type of relationship that exists with junior Ministers, or what was their precise role? Clearly they appear to have fallen down on informing the Minister about this meeting.

Micheál Martin (Cork South Central, Fianna Fail)
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They have clear responsibilities as laid down in the instruments by which they are appointed and they are given clear delineated functions. This has increased in recent years in terms of giving specific functions and specific policy areas to Ministers of State. Generally one tends to let Ministers get on with their job. One does not interfere regularly in their sphere of activities. There may be an overlap in some areas of the Department of Health and Children, or any other Department for that matter.

I did not have discussions with them about the minutes in the aftermath of the meeting. I have already said that immediately after the meeting there was another meeting in the Gresham Hotel in connection with the Hanly report. This may explain why there was no discussion about the main meeting. I went straight into another meeting, on the margins of the room, with the chief executive of the health board and officials of the Department to discuss the Hanly report, which was a fairly hot topic at the time. The item under discussion was the composition of the implementation board in the mid-west.

I cannot recollect whether I read the draft minutes because they would normally have gone to the next MAC meeting. At that stage, most people would have expected that the operational decisions, or other decisions made at the meeting, would have been followed on and moved on to the Attorney General's office. Some 13 items were included, six of which were for brief mention only, including this item. From what I learned subsequently, the discussion was of approximately ten minutes duration. This does not suggest that the issue raised the kind of alarm bells that were on the radar screen to the extent that people are trying to suggest with hindsight.

John Gormley (Dublin South East, Green Party)
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The Minister did not answer the question about his precise recollections of the meeting of 10 March.

Micheál Martin (Cork South Central, Fianna Fail)
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If the Deputy reads the Travers report, there were two meetings on 10 March. There was one meeting at 9.30 a.m. to discuss the new units. The Deputy may recall that there were difficulties trying to open new units at the time, which caused a lot of pressure. I met the officials at approximately 9.30 a.m. I had hourly meetings that day, up to approximately 7 p.m. or 8 p.m.

In the official published diary, there was no meeting scheduled with the Secretary General on the business plan. In the manuscript version of the diary, there is an insertion in handwriting which suggests that the meeting was sought that day to sign off on the business plan. The business plan consists of 400 odd pages. As I said to Mr. Travers, I do not recollect any discussion at that particular meeting of the kind mentioned in the Secretary General's speech. Furthermore, during the preparation and consideration of the Health Service Executive Bill, no proposals ever came to me that legislation relating to this matter should be inserted.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Was the Minister consulted, advised or aware at any time of the cases of those who complained and had their charges stopped? Will he accept that if he had even an inkling of such cases, it should have alerted him to the fact that something was seriously wrong with the whole matter of the application of charges for people in long-term nursing home care?

Given that the Tánaiste, as the new Minister for Health and Children, indicated that she has inherited a Department that has been cursed by systemic maladministration, and referring back to a point made earlier by another speaker, is the Minister concerned about her comments yesterday in committee that she would not adjudicate in the matter? Yet, in her delivery today, she stated very clearly that she recognises that the administrative culture in any Department is influenced by the style and leadership of its political head. Is there not a serious question over the Minister's position and term in office inherent in what the Tánaiste said here this afternoon?

Micheál Martin (Cork South Central, Fianna Fail)
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The answer in regard to complaints is "no". This was not a major issue in terms of people coming to us in advice centres. The big issue, as the Deputy will agree, is private nursing home charges and the difference between the nursing home subvention and the cost people must pay. If I was to say what was significant judging by the barometer of the people coming to my advice centres on a regular basis, that remains a core issue.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I am asking the question of the Minister, not his advice centre.

Micheál Martin (Cork South Central, Fianna Fail)
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I am a Minister at my advice centre. I was a Minister for Health and Children who held weekly advice centres to hear what people had to say.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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In the determination of these cases, was it brought to the Minister's attention? Had he any knowledge of those cases?

Micheál Martin (Cork South Central, Fianna Fail)
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No. In terms of which cases?

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The cases of people who complained and had their charges stopped. It is a very simple question. At any time, was the Minister aware of such cases where charges were stopped?

Micheál Martin (Cork South Central, Fianna Fail)
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No, I was not.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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The Minister was not aware of charges being stopped at any time?

Micheál Martin (Cork South Central, Fianna Fail)
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Only from, in terms of Mr. Travers——

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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At what level would decisions like that be taken?

Micheál Martin (Cork South Central, Fianna Fail)
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According to Mr. Travers they were taken at health board level going back to 1978 and the registrar of wards. That is what Mr. Travers's report says, that the health boards were advised not to contest.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I am sure that was referred up.

Micheál Martin (Cork South Central, Fianna Fail)
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I did not realise that at any stage. I mentioned the private nursing home charges as a major issue. I said repeatedly that eligibility in so far as it relates to elderly people, people with disabilities, and geography is a huge question the political system is facing. We know in terms of how private nursing care has evolved and people's access to services that there is a huge difference between what happened in Dublin and the rest of the country over the past ten or 15 years, there is a huge anomaly in the system. That was the whole reason we set up the Health Service Executive, to achieve national uniformity on eligibility so that the elderly person in Limerick who may be getting €150 or €200 can now have the same treatment and services as a person living in Dublin. We have all known that in this House since the Act dealing with nursing home subventions was put in place in 1993.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Would the Minister answer my second question? Does he accept that if he had any inkling of those cases——

Micheál Martin (Cork South Central, Fianna Fail)
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I have the Deputy's list of questions. On the system of maladministration, there are and have been excellent officials in the Department of Health and Children. It is the one Department that is, as Mr. Travers says, distinguishable from any other Department in terms of its workload and pressures and the way it reacts to a variety of issues within always finite and determined financial constraints. That must be placed on the record. I accept that I was an active Minister who probably tested even more in terms of workload. During my tenure, the Department looked at a range of issues right across the board and at a fundamental reform programme of the system itself. The workload we gave the Department in terms of the health reform programme and Hanly, which were basically a complete revamp, was never appreciated externally, before we add on all the other issues that were dealt with.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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We would not call it reform in Monaghan under the Minister's tenure, with all respect, as I told him many times.

Micheál Martin (Cork South Central, Fianna Fail)
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That is an important point to place on the record of the House because there have been excellent achievements by the Department of Health and Children right across the board over many years and in recent times as well.

Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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Will the Minister answer the question?

John Perry (Sligo-Leitrim, Fine Gael)
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The Minister received a brief on 3 December and did not read it. The Minister of State, Deputy Tim O'Malley, saw its significance. Does the Minister regret not having read that brief in light of the huge impact it had? I am totally shocked at the replies we have heard today with regard to what was known. If the Minister did not know, why was that the case? Was it necessary to get legal advice on something that was so apparent to the Ombudsman from January 2001? Why can the Minister not state it clearly? Continuing liability was discussed when medical cards for over-70s were being introduced. I do not believe what I am hearing. This was known in the Department and I am astonished that the Minister can stand here and state clearly that he did not know. When he got a brief in December 2003, he did not read it. Why was that?

Pat Rabbitte (Dublin South West, Labour)
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Will the Minister state clearly to the House when he knew first about this enormous problem? Did any Member of the House raise this issue with him? When did he become aware of the decision to seek definitive legal advice? Was it only when the Secretary General briefed him at the Gresham Hotel? Did the Minister hear the Tánaiste say that when Deputies Perry and Kenny raised this issue with her, she immediately sought the advice of the Attorney General? Why did he not do likewise?

Does he recall when the infirmity of the pharmacy regulations came up a year earlier that he personally directed that the Attorney General advise him and he immediately terminated the old regulations? Why break the pattern here? Why did he not go to the Attorney General in this case?

Why did he show disinterest in the comprehensive file? Why is it mentioned that it was in his outer office after the date in question? Did his advisers not consider this matter or bring it to his attention? Why is the file missing? Does the Minister know anything about that? Where is the file?

When the Minister says that he knows nothing about this, does he not accept that he is taking the people for fools? He proposes to tell them that the Department knew about this for years, since the 2001 legislation and the legal advice from the South Eastern Health Board, yet the Minister did not know anything about it. Does he believe it is credible to ask people to believe that? Does he think we are all fools? Does he intend to resign? If he does not intend to resign, does he acknowledge that he is a dead man walking as far as a Cabinet member is concerned?

Micheál Martin (Cork South Central, Fianna Fail)
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There is a range of issues. I have made it clear to the House the fundamental fact that I became aware there was an illegal charging regime for long-stay charges when the Attorney General's advice came in late last year. That is the bottom line as far as I am concerned.

Pat Rabbitte (Dublin South West, Labour)
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When the Tánaiste was Minister for Health and Children.

Micheál Martin (Cork South Central, Fianna Fail)
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I have said that consistently from the day I heard of this. I was not aware that long-stay charges were illegally applied since 1976.

Liz McManus (Wicklow, Labour)
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Amazing.

Micheál Martin (Cork South Central, Fianna Fail)
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It is not amazing when one considers that Mr. Travers says no Minister was aware. Why am I supposed to be different from everyone else? Why does Deputy Rabbitte apply different standards to his own Ministers from those he applies to me?

Pat Rabbitte (Dublin South West, Labour)
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John Boland was aware, Dr. Rory O'Hanlon was aware, Haughey was aware.

Micheál Martin (Cork South Central, Fianna Fail)
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I went through all the reviews and Mr. Travers goes through all the reviews. I do not make those accusations about other Ministers. I believe the Travers report that they were not briefed to the extent that there was an illegal charging regime in place.

I note that before this report was ever published, Deputy Rabbitte made his assertions and accusations. He had the script written, the fanciful script by which he always goes, and he has repeated it here again. He had it written before Travers was ever published.

Pat Rabbitte (Dublin South West, Labour)
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The Minister can filibuster as much as he likes. He can keep going but he should answer the questions.

Micheál Martin (Cork South Central, Fianna Fail)
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I find great difficulty in having any respect for the credibility of Deputy Rabbitte on this. The point about the infirmity of the pharmacy regulations is fair.

Pat Rabbitte (Dublin South West, Labour)
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What is the answer to it?

Micheál Martin (Cork South Central, Fianna Fail)
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I will give the answer now. The senior counsel in the courts wrote a note that was handed to me by an official, I had not been briefed on it.

Pat Rabbitte (Dublin South West, Labour)
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Was the Minister briefed on anything?

Micheál Martin (Cork South Central, Fianna Fail)
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Does the Deputy want to know the truth? This is an important point because it shows how I act very quickly when issues of this kind arise.

The senior counsel wrote a note and it was passed to me by an official in the Department of Health and Children. This was the Dame Street case as I recollect, although I am open to correction. He wrote in the note that he had to let me know that it was his view that these regulations were ultra vires. As soon as I got that hand written note, I said to the official concerned that I wanted the Attorney General's view on this immediately. We got an opinion from the Attorney General that was emphatic and absolute in its confirmation of the view of the senior counsel.

Pat Rabbitte (Dublin South West, Labour)
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That is the same advice that the South Eastern Health Board gave the Minister.

Micheál Martin (Cork South Central, Fianna Fail)
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Within days of the High Court — I would not have been aware of the details of that legal case or the fact that we had made a settlement which in essence conceded the principle that was before the court at that time — I immediately abolished the pharmacy regulations which Deputy Rabbitte's Government introduced and which were clearly ultra vires because I do not think they were even introduced with the Attorney General's advice. We can go over specific issues.

Pat Rabbitte (Dublin South West, Labour)
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Why did the Minister not do the same here?

Micheál Martin (Cork South Central, Fianna Fail)
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It was not brought to my attention in that manner, that is the point.

Pat Rabbitte (Dublin South West, Labour)
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The South Eastern Health Board's legal advice was brought to the Minister's attention.

Micheál Martin (Cork South Central, Fianna Fail)
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When the health board's advice came in March, it should have been sent lock, stock and barrel to the Attorney General's office for advice.