Dáil debates
Thursday, 20 January 2011
Adjournment Debate
Consultancy Contracts
4:00 am
Alan Shatter (Dublin South, Fine Gael)
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With the agreement of the House I will go ahead of Deputy Deenihan, who will be with us in a few moments. I thank the Ceann Comhairle for allowing me to raise this issue, which is of some considerable importance. Before I deal with the substance of the issue, I emphasise that I am not in any way casting aspersions on any of the law firms involved in the matter. To the best of my knowledge, all such firms are firms of legal expertise and integrity and my comments are not in any way meant to be critical of any particular law firm or any solicitor associated with any particular law firm. My concern in this area relates to the steps taken by the HSE with regard to the obtaining of legal services for the HSE across a broad range of areas and the involvement, if any, of the former Minister for Health and Children, Deputy Mary Harney, the Minister of State at the Department with responsibility for children, Deputy Barry Andrews, or the Minister of State at the Department who is present this afternoon, Deputy John Moloney, within whose brief this matter falls.
As I understand it from a reply to a Dáil question on 12 January 2011, the HSE has qualified 35 law firms to deliver legal services through four geographical panels, each representing a HSE administrative area. The law firms on these panels are to be used to deliver advices and services in key legal areas such as child care, environmental health, mental health, disability and other areas. In response to a Dáil question, I was informed that these law firms would be managed by a single law firm, which will act "as the service manager for the contract". In addition, one particular law firm with which we are familiar and against which I make no imputation of any description, Arthur Cox, is to be responsible for providing the HSE with all its corporate legal advice.
I tabled the Dáil question to find out the involvement, if any, by the Minister for Health and Children in these new arrangements or that of Ministers of State in her Department, to find out what discussions took place, to seek the identity of the solicitors firms on the relevant panels and the solicitors firm that, it is envisaged, would be appointed in this managerial capacity. In reply, the Minister did not indicate to me if she had any consultations of any description with the HSE in advance of its advertising or putting in place this new, and what I describe as extraordinary, structure. The Minister simply stated that the HSE advised that on 13 November 2009, a contract notice was dispatched to the Official Journal of the European Union announcing the commencement of a procurement process for the delivery of what is described as a concessionary-type model for legal services.
What is my complaint? My complaint is that it appears that with questionable legal authority, possibly without any consultation with the Minister - this matter might be clarified - without any debate in the House and without any notice to the Joint Committee on Health and Children, the HSE has divested itself as the statutorily established body of a role with regard to the legal services it obtains and has delegated its statutory function to a private law firm. I emphasise that I am not being critical of Arthur Cox as a law firm. There was a tender process and it lawfully tendered and, I presume, was successful in the tender process. A private firm of solicitors has been conferred, apparently by a statutory agency established by this House, with a role that reflects the role of a State-sponsored body. It will be the supervisory body that determines what work will be done across this State by 35 other law firms on behalf of the Health Service Executive, HSE, in a broad range of areas of great sensitivity including child care. I have absolutely no idea what expertise some of these firms have in this area or on what basis this work can be done. The law firm to which this work has been subcontracted has no obligation of any description to be accountable to this House or the Oireachtas Committee on Health and Children for any aspect of the work undertaken.
I again emphasise that I am not critical of the firm that succeeded in obtaining the tender. My criticism is that this extraordinary and bizarre divesting of statutory responsibility and the restructuring of law services to deliver crucial services to the HSE should have been discussed in this House with some public deliberation and consultation. Measures should be in place to ensure no conflict of interest occurs. I do not know whether one of the 35 law firms, for example, may deal with a child protection issue for the HSE-----
Seán Ardagh (Dublin South Central, Fianna Fail)
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The Deputy cannot expand on this. He should finish on this point.
Alan Shatter (Dublin South, Fine Gael)
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-----while advising the Catholic church on issues in which it is accused of child sexual abuse.
Seán Ardagh (Dublin South Central, Fianna Fail)
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Has the Minister of State a response to this?
Alan Shatter (Dublin South, Fine Gael)
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I will conclude and thank the Acting Chairman for his forbearance. This is an issue of fundamental seriousness that should not have been dealt with in this way. What is the extent of the Government's involvement in this matter? Will the events in this case be the subject of a review?
John Moloney (Laois-Offaly, Fianna Fail)
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I accept Deputy Shatter is not being critical of any specific law firm. I thank him for raising this issue and giving me the opportunity to clarify the position on the new arrangements put in place by the HSE for the provision of legal assistance to it.
Neither the Minister for Health and Children nor her Department has a role in sanctioning HSE procurement. This is a matter for the HSE and its board. The HSE has its financial and procurement policy which sets out authority levels for entering into contracts, up to and including board level, for larger contracts.
The HSE advised the Department that on 13 November 2009 a contract notice was dispatched to the Official Journal of the European Union which announced the start of a procurement process for the delivery of a concessionary type model for legal services.
The contracting model is two-tiered. To start with, the model will involve a total of 35 law firms. All these law firms have been qualified by the HSE to deliver services through four geographical panels, based on the four HSE administrative areas. The law firms on these panels, known as member firms, will be used to deliver advices-----
Alan Shatter (Dublin South, Fine Gael)
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The Minister of State is reading the same reply I received in a parliamentary question on the matter.
John Moloney (Laois-Offaly, Fianna Fail)
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Deputy Shatter was having a great chat with his colleague on the opposite benches so he could have at least listened to my reply before interrupting. No matter what I say, he is going to be critical of it either way.
These firms will be managed by a single law firm which will act as the service manager for the contract. In addition to acting as the service manager, this law firm will also be responsible for providing the HSE with all of its corporate legal advice.
The general requirement to reduce legal costs has been the subject of discussions between the HSE and the Department of Health and Children, in the context of achieving value for money. Specific targets on cost reductions were included in the HSE's 2010 service plan. The Minister for Health and Children was informed by the Secretary General in October 2010 that the procurement process was under way and that it was hoped the new arrangements would come into operation from 1 January 2011.
The head of the legal division in the Department was also aware that the tendering process was taking place, from discussions with her opposite number in the HSE. Following a detailed and comprehensive evaluation process, the firm of Arthur Cox was selected as the preferred bidder to act as the service management firm for the new contracting model. The head of the legal division in the Department was informed that Arthur Cox had been chosen and its name was going before the board at a meeting to take place in December. Contractual negotiations are ongoing with this firm with a view to a contract commencing on 1 March 2011. To manage any risk associated with conflict of interest, a firm from outside of this jurisdiction was engaged to assist the HSE in preparing contract documents. The firm engaged to assist in this regard is McGrigors LLP, whose head office is in Edinburgh, Scotland. Senior counsel has also been retained on an as-required basis to advise the HSE.
Alan Shatter (Dublin South, Fine Gael)
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What about the lawfulness of the HSE delegating this function to a private law firm? Why did the Chief State Solicitor's office have no involvement in this process?
Seán Ardagh (Dublin South Central, Fianna Fail)
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I call on Deputy Deenihan.