Alan Shatter (Dublin South, Fine Gael)
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I wish to share time with Deputies Olivia Mitchell and Andrew Doyle.

It is appropriate, if not ironic, that on this, the second last day of the Dáil session before Christmas, we are confronted with this Bill. It is a measure to tidy up some of the mess created by the Government in its former guise prior to the last election, as well as to tidy up a mess in terms of an issue for which the Minister cannot be held responsible but with which she has dealt with her characteristic, if I could put it straightforwardly, ineptness.

This Bill apparently has three or four objectives. The first is to deal with the problems created by the 1961 Act about which the Minister was told on 26 October 2007 by the Attorney General. The Opposition who first had sight of this measure last Thursday evening — it was not officially published until Friday — have been told that we should simply pass it because the Attorney General's advice is that we should do so. The odd and fortuitous feature of this country is that we are still democracy. This Parliament is not ruled by the Attorney General but governed by Deputies who are fortunate enough to be elected to it to represent the people.

I have a simple view on this. The Attorney General is the law officer to the Government and gives it advice. If the Government is the client, the advice is privileged if the Government wants to exercise privilege over that advice. However, if this House is confronted with a Bill first officially published on a Friday and told it must pass it by the following Tuesday because the Attorney General advises it should be passed, Members are being treated with nothing short of contempt to be told also that the Government cannot give them the Attorney General's opinion for their consideration. It is the wrong way to deal with an issue that is alleged to be important. I do not like rushed legislation. Some of what the Bill seeks to do is to correct errors made in the Medical Practitioners Act, which was rushed with unseemly haste through this House, despite being in planning for five or six years prior to the last election.

We are back here engaged in rushed legislation and told that we are trying to legislatively copperfasten the status of a variety of bodies, all of which perform important functions, because there is a constitutional doubt about the manner in which they were created under the 1961 Act. That constitutional doubt, which has not been fully set out, is that the provisions contained in that Act were so broad as to confer not only on the Minister but also on her predecessors from different parties a power that was essentially a delegation by the Oireachtas of the legislative function to a Minister. The argument, I presume, in the Attorney General's opinion is that the power was too broad; the Minister and her predecessors by creating different bodies were performing a legislative function, not an administrative or limited one, and a Minister cannot perform legislative functions under the Constitution.

If there is a constitutional doubt about that legislation, I record that I have constitutional doubts about this legislation. It tries, in a different format, to do the same thing. Section 5(1) states "Subject to subsection (6), every order under section 3 of the Act of 1961 made before the passing of this Act shall have statutory effect as if it were an Act of the Oireachtas." What we are doing is retrospectively providing that Ministers could perform functions as if they were the Houses of the Oireachtas. I believe that provision in this Act is open to constitutional challenge and Members should be entitled to see the Attorney General's opinion on which that is based. That provision in this Act should be referred by the President, under Article 26 of the Constitution, to the Supreme Court and in those circumstances the entire Bill should be referred by the President, under that article, to the Supreme Court for its consideration because there are grave constitutional doubts about the efficacy of that section.

This legislation is representative of what I regard as the organisational and financial shambles that is the Department of Health and Children and its prodigy, the HSE. We have in the HSE an unacceptable, bureaucratic, overgrown quango proven to be incapable of performing the statutory functions given to it. A major objection to this Bill is that it continues the devolving of powers from the Minister to the HSE, a body that is not accountable directly to this House, and relieves the Minister of further accountability to this House for the shambles that is currently the health service.

We have great people working in our health service. The shambles is created by an organisational deficit, an organisation that cannot get its finances in order and that is completely and utterly incapable of organising the services it provides in a coherent way. Some 53% of the population have private health insurance; ten years ago the figure was 35%. The reason is that the majority of people have no confidence in the public health system. It is an indictment of 11 years of Fianna Fáil and Progressive Democrats, now joined by the Greens, in Government that we find ourselves in that position.

On principle it is right to vote against this legislation as a protest at the ineptitude of the Minister who heads up the Department of Health and Children and of the HSE's complete incapacity to provide our people with the type of health service to which they are entitled.

Olivia Mitchell (Dublin South, Fine Gael)
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Like my colleagues, I have no problem in supporting the legislation which is necessary to copperfasten and legitimise the status of the existing bodies, but I question the other measures contained in the legislation. I also question the reason this issue is suddenly so urgent that we must put emergency legislation through the Dáil during Christmas week. The reality is that the urgency comes in the context of co-location and the Minister's anxiety to put the legitimacy of co-located hospitals beyond doubt and, crucially, beyond challenge. It is not the status of the 19 bodies concerned that is urgent but the two bodies in question, St. James's Hospital and Beaumont Hospital. Those two are the only ones about which there is any urgency from the Government's point of view.

The reason I am here at 8.40 p.m. during Christmas week is that I strongly believe that co-location is a big mistake. It is not the direction in which we should take Irish medicine. While we will pass this legislation in haste, unfortunately we will repent at leisure because we will regret the path on which we are taking medicine by this move.

Co-location is very much the Minister's baby and she genuinely believes it is a desirable innovation, but I could not more strongly state that I believe she is wholly wrong in this. It is a far more fundamental change than merely one that will give us hospital beds in a hurry, and that is the ostensible reason for opting for co-location.

The mistake we are making in taking the allocation of private beds out of public hospitals will fundamentally change medicine in Ireland for the worst. It is not what the Minister intended, but it is what will happen. The reason given for co-location is that the private sector can provide quicker than the public sector, which I do not doubt for one minute. That is true, but it is not a reason to opt for co-location. The issue, essentially, is a planning problem. We do not have to go to the extreme of taking the allocation of private beds out of public hospitals and depriving them of the stream of money they have taken from the health insurers, primarily the VHI, over the years. The cutting of that funding on which the hospitals have depended will have a fundamental effect on and will reduce the standards in public hospitals. It will cut the income doctors have received and that has helped to keep the best doctors for public patients in public hospitals, as a result of the mix of public and private medicine.

That system worked very well for us, hard as it is believe, up to the time when the supply of beds fell behind the demand for them, in other words, when demand outstripped supply. That happened as a result of the cutbacks in the 1980s and 1990s, subsequently followed by the growth in population. It was not the public-private mix that was wrong but that rationing had to take place when supply was outstripped by demand. That was the problem.

Unlike others who oppose co-location because they oppose private medicine, I do not oppose it for that reason. I believe there should be more private medicine and that it is a good idea to buy services for public patients. People who buy health insurance should be allowed to continue to do so. There is better value and consumer focus in private medicine and our public hospitals should not be deprived of that incentive to higher standards and better doctors. They will suffer catastrophically from the withdrawal of private medicine. For that reason I believe co-location is a big mistake. The Minister should think long and hard before she takes us down a road that we will bitterly regret in the future.

Andrew Doyle (Wicklow, Fine Gael)
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Others have dealt with the issue surrounding the 19 bodies affected. I seek to voice my concerns about one of the 21 bodies that have been established and dissolved in the relevant period, the National Rehabilitation Board. The Minister is not dealing with serious concerns about the legality of that process. Questions have been asked since 2000 as to whether the Minister was empowered to dissolve the NRB and distribute its assets without being required to comply with the employment and superannuation legislation.

The NRB was established under the enabling legislation, which is the 1961 Act. It was dissolved in 2000 under a statutory instrument of the Minister for Health and Children. The staff were reassigned to other agencies, under coercion. The assets were stripped from the organisation. It subsequently transpired, as was determined by the Ombudsman and High Court, that a legal lacuna exists. In 2001, the Employment Appeals Tribunal examined the termination of employment of an official of the NRB which arose from the dissolution of the organisation. The tribunal confirmed that redundancy payment was due from the NRB in 2000, as defined under the Redundancy Payments Acts. It further designated the Minister for Health and Children as the appropriate representative of the NRB, as the NRB was established and dissolved by that Minister.

In 2002, however, the Minister appealed this determination to the High Court. That court upheld the redundancy finding, stating that there seemed to be no provision in the statutory instrument to provide for people in the position of the defendant in the case. However, the court said it was not its function to correct that omission and that the tribunal was incorrect in attempting to attach responsibility to the Minister as representative. The outcome of the High Court decision is that redundancy was due. The body was initiated by the State under the Health (Corporate Bodies) Act. The Employment Appeals Tribunal, in further clarification of the law in 2004, assigned responsibility to the NRB, dissolved, which by definition had no assets.

The legal consequences of the tribunal and High Court decisions were that the Department of Health and Children and the HSE were advised by the offices of the Chief State Solicitor and the Attorney General in 2004 that the legal position warranted the award of an abolition of office pension in respect of that redundancy situation because of superannuation regulations. This pension, which was illegally withheld from 2000, was finally granted in 2006 to one person, on foot of a question in October 2005 from Deputy Enda Kenny. A total of 185 staff were employed by the NRB when it was dissolved by the Minister. Their superannuation entitlements were withheld from them at the time as a matter of Government policy. That policy did not conform to the law. Now, in 2007, the lawful position of the NRB staff is being obstructed by the State, with the declaration by the Department of Health and Children that the Minister has no responsibility for the acts of the NRB. This is a complete contradiction.

The Minister has failed to vindicate the legal entitlements of the NRB employees for the past seven years. Their superannuation entitlements were withheld as a matter of Government policy in 2000 and the responsibilities vested in the Minister under the Health (Corporate Bodies) Act 1961 have been sidestepped without reference to the law. The Oireachtas has failed to address the legal lacuna. In accordance with the Health (Corporate Bodies) Act 1961, who does the Minister suggest is responsible for the superannuation entitlements of the NRB staff as they existed in June 2000? Who in 2007 and 2008 will address the legal liabilities of the State with regard to the superannuation entitlements of all former NRB staff? The NRB pensions group should be invited to speak to the joint committee on health at the first opportunity in the new year.

Mary Harney (Dublin Mid West, Progressive Democrats)
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I will first address the issue of the NRB, which was also raised by Deputy Jan O'Sullivan. This has been the subject of litigation on the part of one individual. There is nothing in this legislation that affects a person's constitutional rights. Clearly, people have an opportunity to vindicate those rights, through the labour relations machinery of the State and also through the courts. If the Deputies wish, I can provide a brief to them on the wider issues that apply. That body was dissolved in 2000 and I was not Minister for Health and Children at the time. I am not as familiar with the issues as, perhaps, one of my predecessors might be, but I will be happy to have my officials provide a briefing for the Deputies.

Andrew Doyle (Wicklow, Fine Gael)
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On a point of order, the then Minister for Health and Children assigned responsibility to the Department of Enterprise, Trade and Employment. It is ironic that the situations have been reversed.

Kathleen Lynch (Cork North Central, Labour)
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That is not a point of order. We will let the Minister continue. Perhaps she will contact the Deputy later.

Mary Harney (Dublin Mid West, Progressive Democrats)
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Yes. I reiterate some of the comments I made in my opening remarks on the legislation. When we were advised by the Attorney General on 26 October that we should bring forward, as a matter of urgency, legislation to put beyond doubt the legal status of the 19 bodies still in existence that had been established under the 1961 Act, there was an onus on me, as Minister, and my officials to do that. There was great complexity involved due to the number of statutory instruments. Forty bodies in total were established during that period and all those bodies had to be checked and the statutory instruments had to be examined. Notwithstanding that, the legislation was prepared very quickly.

Sometimes emergency legislation deals with a specific technical loophole in a single legislative measure. Earlier this year we had to introduce amending legislation to deal with risk equalisation. If memory serves, we were able to draft and publish that legislation in a matter of days. In this case, however, there was equally strong advice from the Attorney General that, because there is a legal doubt, one should not put people on notice. These bodies are not akin to the bodies under the local government Act of 1971. These bodies expend over €900 million of taxpayers' money and employ huge numbers of staff. They have contracts with many organisations.

It was not a question of not trusting the Opposition but of the legal advice I am obliged to accept on how I handle these issues legally. I did that. Equally, when the Opposition Members asked me last Thursday if I would make the Attorney General's advice available, I made a commitment to talk to him. I did so at length by telephone and he wrote to me stating that the advice should not be made available. I am obliged to accept that advice. Advice of that kind is never made available. The Attorney General made the strong point that those giving advice from the Bar Council would have to be put on notice, in advance of giving their advice, that it would be the subject of public examination. They give their advice in a privileged way.

The parties in this House have legal advice available to them. Political parties are far better resourced now than they were previously. I assume the parties have the same legal advice that is available to me, although obviously not from the Attorney General. However, the Attorney General went to the bother of getting counsel opinion on these issues.

We brought forward the legislation as quickly as possible. Given the scale of the public money involved, as well as the number of organisations, their staff and contracts, it was clearly in the public interest not to give long periods of notice during which litigation could be initiated. As I said last week, we are not aware of any litigation pending; it is not a case of us not telling of it. No litigation is pending and we do not wish to put people on notice for long periods of time, during which they can litigate where they might have a legal grievance with any of the bodies.

On issues surrounding the Medical Practitioners Act, the Medical Council came to us after that Act was passed in April with legal advice on the issue of complaints. Patients making complaints would not be familiar with medical language or methodologies, so if the preliminary inquiry committee examines, for example, a complaint about a doctor who treated somebody badly and issues come to light in the context of its examination which were not the subject of the initial complaint, the Medical Council wants the freedom to pursue them. It would seem strange if it was prevented by a legal technicality from pursuing an issue that came to light in the course of a preliminary investigation that was not the subject of the complaint simply because the complainant was not well versed in medical language. A chicken and egg issue also arose in that a registrar is needed to elect the new Medical Council, whereas the Medical Council is needed to appoint a new registrar.

These small technical and transitional issues have arisen because we want to commence the Act on a phased basis. We are moving from the current regulatory regime to a very different one, comprising fitness-to-practise inquiries which will be held in public as a matter of course, lay majorities and competence assurance requirements on all doctors. The legislation provides for powers of preliminary examination so that issues do not have to go before full fitness-to-practise inquiries. It was a fundamental overhaul of the 1978 Act and clearly it is important that it is commenced on a phased basis as soon as possible next year. When the opportunity arose of a Bill coming to the House, it was prudent on our part to use it rather than bring separate legislation early next year to deal with Medical Council issues.

There has been no policy change on co-location. At present, 20% of the beds in public hospitals, which are completely funded by taxpayers, are ring-fenced for patients with private health insurance or who are self-payers. Patients who do not have private health insurance cannot access those beds. They cost us €300 million per year in nurses and staff salaries. The insurance forgone is approximately €74 million, so €226 million in taxpayer subsidies is used to staff beds which are only available to private patients. I do not consider that to be fair. When taxpayers provide public facilities, access should be on the basis of medical need rather than on a preferential basis for those with private health insurance. We want to convert those beds to public use for all patients.

Equally, however, we recognise that half the population has private health insurance and that many doctors work in both the public and private systems. Instead of doctors working on and off-site in three or four hospitals, it is better they work on-site. St. Vincent's and the Mater are co-location hospitals for this purpose, with public and private hospitals located side by side. In the case of St. Vincent's they are under common governance.

James Reilly (Dublin North, Fine Gael)
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They are not for profit hospitals.

Mary Harney (Dublin Mid West, Progressive Democrats)
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Some of these are not for profit either.

James Reilly (Dublin North, Fine Gael)
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Some are not but others are.

Mary Harney (Dublin Mid West, Progressive Democrats)
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The profits will be shared with public hospitals, so the €74 million forgone by insurers will be made up by the Exchequer. Money will also be made from leasing the land and, in some cases, through profit-sharing arrangements. The facilities in those hospitals will have to be made available at discounted prices to all patients. That is a very good deal from the point of view of access by patients to the facilities and from a financial perspective. We estimate that acute beds cost €1 million each but these beds will be provided for less than 50% of the cost of providing them in the traditional manner.

In May, Beaumont hospital sought my permission for co-location. The advice, however, was that it did not need my permission for co-location but needed it to lease land from the Department. That permission was to be granted by amending the statutory instrument which established the hospital. My officials were preparing such an amendment when the issue pertaining to the 1961 Act arose. Once legal doubts were placed on the existence of these bodies, I could not give them any new powers. That is why we are using this opportunity to put them beyond doubt.

Even after this Bill is enacted, we cannot amend the statutory instruments but will need new legislation next year to deal with the powers of Ministers to establish bodies. The legal advice suggests that the powers of the 1961 Act, which would be subject in 2007 to a higher level of legal test than in 1961 or even 1971, are too sweeping. The Minister has broad powers to establish almost anything by way of statutory instrument or secondary legislation and that, according to the Attorney General and supported by outside legal advice, is not legally sound. That is why we are reinforcing the law through legal engineering.

We will deal later with some of the more specific questions that arose, but on the reference by Deputy Reilly to Triad Hospitals, that company is not involved with any of the co-location projects. It was involved with the existing Beacon Hospital but I am unsure whether it still is. It is not involved as the operator in any of these hospitals.

When this Bill is passed by the Houses of the Oireachtas and signed into law by the President, these bodies will be frozen in the sense of what they can do legally. Without wider legal powers by way of new legislation, it will not be possible to assign new powers to the 19 bodies or allow them to engage in activities which do not fall within the remit.

Deputy Ó Caoláin asked me the number of beds in each of the locations. The number is 180 at Beaumont and the total will come to 1,163 in the various hospitals when the Blanchardstown and Tallaght proposals are finalised. I can provide a specific breakdown of the figures for the Deputy when we debate the issue. Over recent years, we have provided approximately 1,500 new acute beds. The commitment to 3,000 beds was made in respect of the period from 2002 to 2011. We expect to provide 1,000 beds from this project and the national development plan for the health service provides for a further 500 acute hospital beds, which will bring us close to 3,000 acute beds.

John O'Donoghue (Kerry South, Ceann Comhairle)
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I declare the Bill read a Second Time in accordance with Standing Order 121(2)(i).