Billy Kelleher (Cork North Central, Fianna Fail)
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This is flawed legislation in terms of commitments made in the programme for Government. One could re-name the Bill the health (alteration of the programme for Government) Bill because it is not reflective. In the programme for Government the Government stated it would deal with the related problem of legislation being shunted through at high speed. Dáil Standing Orders provide for a minimum period of two weeks between each stage of a Bill, except in exceptional circumstances. I have no understanding of the reason this is an exceptional circumstance. I understand the budgetary position the Government is in and that it is trying to make the case in that regard.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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We cannot have Second Stage speeches on Committee Stage.

Billy Kelleher (Cork North Central, Fianna Fail)
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I understand that. We have had no discussion on the broader context of the legislation outside the Chamber. We have had Second Stage and are now on Committee Stage, but the difficulty is that no stakeholders have been consulted and there has been no opportunity for anyone other than elected representatives, including advocacy groups and those who advocate for and represent older people, to contribute. Such groups and persons have not had an opportunity to contribute.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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The Deputy can make those points when the Bill is on Fifth Stage. We are on Committee Stage now and are dealing with the sections.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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Debates in this House on health services are being stifled.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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We are dealing with section 1 of the Bill, which concerns the Short Title, collective citation and commencement.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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I need an opportunity to make my points at some stage.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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Most of the points the Deputies are endeavouring to make now are Second Stage points, but we have moved on to Committee Stage. However, before the Bill is formally passed, the Deputy can refer to matters in the Bill generally. We must deal with Committee Stage now.

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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Amendments Nos. 1 and 2 have been ruled out of order.

Billy Kelleher (Cork North Central, Fianna Fail)
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We have concerns with regard to the criteria for assessing eligibility. We are concerned that in moving to a situation where eligibility is assessed based on the consumer price index and an assessment of gross limit incomes and all that flows from that, with no referral back for parliamentary scrutiny, this will undermine the ability of this Chamber to hold the Department to account with regard to reductions in entitlements. This is quite a move forward from where we are. We will now have a situation where the income assessment is based on something else completely as opposed to on decisions which would be accountable in this Chamber. While I trust in the humanity of the Minister of State and know he will look at these issues sympathetically, I feel there should be a mechanism in place whereby reductions in entitlement and eligibility can only be brought about through accountability to the Oireachtas.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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Section 3 subsections (a), (b) and (c) are acceptable because they update the legislation in line with the provision of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. However, I cannot understand the provision in the latter part of subsection (c). The programme for Government suggests there will be free GP access for everybody and the Labour Party and Fine Gael opposed the previous Government when it tried to withdraw the medical card from people over the age of 70. However, the Government is now going in the opposite direction, by reducing the eligibility limit for people over 70. This is wrong.

I know that legislation is bad when people come to my advice clinics in tears on account of something. Therefore, Sinn Féin will oppose section 3 in its entirety because of the latter part of section 3 subsection (c).

Alex White (Dublin South, Labour)
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With regard to the consumer price index issue raised by Deputy Kelleher, that only relates to the rather restricted circumstances in which the Minister can increase or decrease the limits in accordance with the index. We had some discussion on this on Second Stage and the impression may have formed in some quarters that this is a kind of catch-all power for the Minister and that he could simply make an announcement increasing or decreasing the limits, without regard to any set of standards or requirements. The Bill is very clear that it confines the discretion of the Minister acting on his own - in other words acting otherwise than in accordance with what the Oireachtas provides for. Those circumstances are very limited. They are limited only to the circumstances set out and referred to at section 3 (d) and set out in section 7(5) of the Bill. It states:

The Minister shall, on 1 September of every year, review the most recent information on the consumer price index made available by the Central Statistics Office, and may, with the consent of the Minister for Public Expenditure and Reform, by regulations to take effect on 1 January next following that review, increase or decrease the gross income limits specified for the purposes of this section to reflect any increase or decrease in that index.

With regard to the issue raised by Deputy Colreavy, an issue which was raised by Deputy Ó Caoláin on Second Stage, I sought to point out to the House on Second Stage that contrary to what Deputy Colreavy says, this section is not going in the opposite direction in respect of our commitments with regard to free GP access. I will explain this clearly to the House again. There is a commitment in the programme for Government to extend free GP access to the entire community. Nothing in this Bill takes us in the opposite direction to that commitment. That commitment stands and is not in any way undermined, redirected or negatived by anything we are doing here.

We estimate 20,000 people will lose access to a full medical card following this Bill, but that access will be replaced by free GP access. Therefore, we are not going in the opposite direction. There is nothing in the Bill that takes us in the opposite direction from GP access. Deputies should understand that nobody will lose free GP access as a result of anything in this Bill.

Billy Kelleher (Cork North Central, Fianna Fail)
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I must be confused. I have read the Bill and the explanatory memorandum. Section 3 provides for the amendment of section 45A of the Health Act. The memorandum states:

Subsection 45A(4) will be amended to provide for a decrease in gross income limits in addition to the existing provision to increase gross income limits. The limits are reviewed annually by the Minister for Health and may now be increased or decreased with the consent of the Minister for Public Expenditure and Reform to reflect increases or decreases in the consumer price index.

If a Government has budgetary challenges, it should be accountable in terms of the decisions it makes to the Oireachtas. Perhaps I am missing something, but does this section remove that accountability? Even if it does not, it should not be there because it certainly diminishes accountability. I oppose section 3 on that ground.

I suggest that people must come in and explain in detail the reasons an eligibility, an entitlement or a right is being withdrawn. It is clear in another section of the Bill that this is not just about the consumer price index. The Minister will be able to make decisions with reference to the consumer price index, but they will not have to be based on the index.

Alex White (Dublin South, Labour)
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That is incorrect.

Billy Kelleher (Cork North Central, Fianna Fail)
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I do not think it is. If one examines the legislation in detail, one will see that it leaves some wriggle room. I do not believe there is enough strength of purpose in this Bill and in the 1970 Act to protect the right to entitlements. They should not be withdrawn without being subjected to democratic accountability in the Oireachtas.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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The Minister of State said on Second Stage that 20,000 people will have their medical cards withdrawn. According to the HSE service plan, some 40,000 cards will be withdrawn. I would love to understand the rationale for the difference. I agree with Deputy Kelleher that there is some wriggle room that will allow the Minister of the day to deviate from the consumer price index. Even if he or she does not deviate from it, this responsibility is being given to him or her. That is a substantial change on the legislation as it currently operates. This section should be opposed.

Alex White (Dublin South, Labour)
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The consumer price index formula that is being used is almost precisely a word-for-word replica of what is in the 2008 Act. I would be concerned if it were true, as Deputy Kelleher suggests, that this will give the Minister of the day a certain latitude. I would be concerned about his view if it were true, but it does not seem to me that it is. It seems to me that any clear or reasonable reading of what is provided for here will appreciate that we are essentially maintaining the real value of the eligibility limits if there is a change in the consumer price index. I remind the House that the index is not a secret.

Billy Kelleher (Cork North Central, Fianna Fail)
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I accept that.

Alex White (Dublin South, Labour)
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It is published by the CSO. It is not the case that there is no accountability. Anybody can see the consumer price index. The limited power being given to the Minister to increase or decrease the income limits will be predicated exclusively and expressly on movements in the consumer price index, which is open for all to see on the public record because it is published by the Central Statistics Office. I would be concerned if I thought there was substance to the suggestion, which Deputy Colreavy seems to believe, that some kind of broader discretion is being given to the Minister apart from the discretion I have mentioned that is based on the consumer price index. It seems that no such broader discretion will arise because the limited and confined power we are providing for is entirely consistent with the existing legislative position going back to the 2008 Act, which I have in front of me. That legislation was inserted into the Health Act 1970, just as this legislation will be.

Billy Kelleher (Cork North Central, Fianna Fail)
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For clarification, section 4(2) states: "The Minister may by regulations provide for the making and determination of appeals under this section." What regulations are being referred to? Are these regulations in the 1970 Act?

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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A Bill is in progress. Will Members leave the Chamber if they wish to have a chat, as they are upsetting the Deputy? He is getting a bit anxious, as he cannot hear himself.

Billy Kelleher (Cork North Central, Fianna Fail)
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The Minister of State cannot hear me either. The Minister may by regulations provide for the making and determination of appeals under this section. I just need clarity before I can accept this section. Are these regulations in the Health Act 1970 or the amended Act of 2008, or are they new regulations? If they are new, we are being asked to buy a pig in a poke.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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In an effort to be helpful, I suggest that the draft regulations be put before the Oireachtas Joint Committee on Health and Children.

Alex White (Dublin South, Labour)
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This is an exact restatement of the provision in existing legislation. It is only an enabling power, which already existed, for the Minister to bring in regulations. My information is that regulations have not been introduced to date. It is a restatement of a power that has always been in the legislation entitling the Minister to make regulations. A Minister cannot make regulations unless he or she has a statutory power to do so. It is just repeating that the Minister has the power to make regulations. It does not mean that he will make regulations. My information is that regulations have not been made in this regard at any stage.

Billy Kelleher (Cork North Central, Fianna Fail)
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The definition of stupidity is doing the same thing over and over and expecting a different result. I sat on that side of the House and we know what happens when times are difficult and people are forced for whatever reasons to find savings. The regulations clearly should be part and parcel of what we are doing, or there should be some mechanism for absolute accountability. This section states quite clearly: "The Minister may by regulations provide for the making and determination of appeals under this section." While the Minister of State says that the Minister may not bring forward regulations or has no intention of doing so, we cannot take that as a factual position, because the legislation allows him to bring forward regulations - regulations about which we know nothing. In the context of this Bill, there must be some accountability in terms of laying before the House or discussing at the Joint Committee on Health and Children the regulations to be introduced. Otherwise, we are giving quite sweeping powers to the Minister. I have major concerns about section 4 because of that subsection.

Alex White (Dublin South, Labour)
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It is important to make a distinction between a law that is made giving or removing substantial entitlements and a procedure that exists for a person to lodge an appeal if he or she is in some way disappointed or has lost out on an application. All this does is to allow the Minister to provide, by regulation, for the making and determination of appeals under this section. It is purely a power on the Minister's part to make regulations governing the process. Deputy Kelleher is being quite vigilant here, as is proper in Parliament, but I reassure him and the House that there is no basis for concern that this could be used in some way by this or any other Minister to spirit in some substantive policy provision, be it in terms of eligibility or otherwise. It could not be done. The fears that might exist are not well-founded. I say that with respect to Deputy Kelleher, who is being absolutely vigilant in this regard. This is purely a repetition of a provision in law that allows the Minister, should he or she deem it fit, to make regulations, but they are regulations governing the procedure and process of an appeal and not any other type.

Billy Kelleher (Cork North Central, Fianna Fail)
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That is exactly the issue. It gives the Minister powers with regard to the process, and the regulations have not been published. A person who feels he or she is entitled to or eligible for a medical card makes an application. If it is refused, the person has the right to appeal. The difficulty here is that there is no specified time for assessment of the appeal if the Minister may by regulation provide for the making and termination of appeals under this section. As a practising Deputy in the first instance, the Minister of State knows as well as I do that what often happens is that an application for an appeal is made, the appeal goes through the process and, lo and behold, more information is requested a few days before the final decision is to be made. I said previously in this House and in Oireachtas hearings that I have concerns that at certain times towards the end of a financial year, appeals processes are slowed. Perhaps I am factually incorrect, but my interpretation is that this is done so that if a medical card is to be awarded, it will be awarded in a new financial year. The concern I have is that the Minister may by regulation provide that there will be no determined period of time in which the appeal must be lodged and assessed, additional information provided to satisfy the HSE or an agent appointed by same and a decision made. There should be no reason why a decision cannot be made in a set period of time once all the information is assessed, assembled and taken into consideration.

Alex White (Dublin South, Labour)
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The Oireachtas makes the law. The Minister does not make the law. That is the position, and that was also the case when Deputy Kelleher was on this side of the House. That is the system we have - parliamentary democracy. If any Minister is going to make regulations, he or she cannot do so willy-nilly. There must be an Act under which the Minister may make the regulations. The substantive aspect of this is in section 47(1). It is not the Minister who decides on a person's appeal. It is the HSE that decides that a person does not come within a category specified by or under the relevant section. The section as amended states: "[A]n appeal shall lie from the decision to a person (who may be an employee of the Health Service Executive) appointed or designated for that purpose by the Minister." That is the important part. We are allowing, as is absolutely proper, an individual to bring an appeal. We have to have that. It is vital that people be allowed to appeal.

The second part is the additional aspect, which is in a sense ancillary to the main part. It simply says that in respect of the appeals process, which is being dealt with substantively, the Minister may by regulations provide for the making and determination of appeals. It does not state that the Minister will be deciding on appeals or introducing anything new by the back door, because he cannot do so. There is no way any Minister could bring in a regulation that would in some way undermine or negate what is in the legislation, because it would be ultra vires. No Minister can undermine the will of the Oireachtas as set out in legislation through regulations brought in afterwards. We all know that from time immemorial. The Oireachtas makes the laws.

This has been the position in the legislation since the 1970 Act - that the Minister may, by regulation, provide for the making of determination of appeals. There is nothing particularly new here. We are neither adding nor subtracting anything from the main provision, nor are we negativing the main provision, which is to give people the right of appeal, which they should properly have. I do not think there could be any reasonable basis for an objection to a statutory power for the Minister to bring in regulations to govern such a process.

Billy Kelleher (Cork North Central, Fianna Fail)
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In the case of social welfare appeals, people are waiting 18 months for decisions on disability assessments on appeal. In my view, the provision is an attempt to save money. A certain percentage of successful appeals will mean a cost to the Exchequer. I am concerned that this provision is open-ended. Neither the substantive 1970 Act nor the amended 2008 Act contains a provision that the Minister is obliged, when laying down the criteria through regulation, to stipulate a defined period of time. If I could be given an assurance that a defined period of time was provided for, I would be very satisfied. There have been cases in which information is sought, an assessment is made and then, a very long time after that, another letter goes out seeking further information from the applicant. There is not a Deputy in the House who does not become familiar with this scenario week in, week out. The file is sitting somewhere being assessed. Additional information is required, yet those responsible will not send a letter in a timely fashion seeking that additional information. This is not only the case for medical card applications; it is how the public sector works across the board. I am concerned that there is a slow grinding down of the system in order to delay determinations. In the event of the regulation being published, a defined period of time should be stipulated. I am not concerned that the Minister will interfere in the decision-making process, but I am concerned about the process under which the decision is made.

Alex White (Dublin South, Labour)
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For the information of the Deputy and of the House, I can only deal with the issue of medical cards, not the social welfare issue or the other matters referred to by the Deputy. As the House has previously been informed, the HSE has confirmed that the average waiting time for an appeal is currently between four and 12 weeks. On 18 March 2013, 95.38% of medical card applications were being processed within 15 working days. I understand the Deputy's point about the historical difficulties of a backlog of people waiting for decisions, but the facts prove that this has been largely addressed.

Billy Kelleher (Cork North Central, Fianna Fail)
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I do not doubt the ability of the Minister of State. However, in the event that the Minister was not as capable as Deputy White, the regulations would not force the HSE to make decisions within a defined period of time.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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This power is given to the Minister under section 5. In my view, it is a power that might work better if it were put before the Oireachtas Joint Committee on Health and Children. I refer to the issuing of guidelines with regard to those ordinarily resident in the State. I know that this posed significant challenges for Irish people who had to go abroad to work because they could not find work at home. Their work permits having expired, they were forced to come home, but when they applied for medical cards they were told they had to negotiate all sorts of hoops and banners in order to prove they were ordinarily resident in the State. Those definitions and guidelines are better when they are considered and examined by a number of different parliamentarians - for example, in a committee. If there is one thing we know as parliamentarians, it is the difficulties encountered by people when they try to fit within the guidelines laid down by Departments. I ask the Minister of State to give a commitment that draft guidelines be brought in the first instance to the Joint Committee on Health and Children.

Billy Kelleher (Cork North Central, Fianna Fail)
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On the same issue, the reason I referred to other Departments and State agencies is that this has happened previously. As Deputy Colreavy has rightly pointed out, a major issue of concern was the situation for returning Irish citizens who were unable to qualify for social welfare payments because of the guidelines laid down and interpreted by the Department of Social Protection and its officials. The Minister may issue guidelines to the Health Service Executive and persons appointed or designated by him or her under section 41(1) to assist those persons in making decisions or determining appeals as to whether a person is ordinarily resident in the State for the purposes of sections 45, 45A, 46, 58 or 58A. Difficulties have arisen for people who have left the country to work abroad, who, when they return - after many years of making contributions in the State - find they are unable to access the most basic social welfare payments and may have problems qualifying for medical cards. We are being asked to trust the system without the opportunity to scrutinise the guidelines and regulations. This is another area that is vague with regard to the powers of the Minister. Are criteria in place with regard to qualification for social welfare payments, medical cards and other State supports?

Alex White (Dublin South, Labour)
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The position is exactly as the Deputy describes: there are already guidelines in place which have been issued and circulated by the Minister. This section of the Bill provides for the same guidelines for those over 70. It is simply repeating the power of the Minister to issue guidelines to the HSE and persons designated by him or her with regard to the question of whether a person is ordinarily resident in the State. These guidelines are already in place and are habitually circulated. This section proposes that the same apply in the context of provisions for those over 70, which are being dealt with in this Bill.

With regard to whether a person is ordinarily resident in the State, ordinary residence is quite a flexible and, relatively speaking, liberal - if I may use that word - concept. It is not the same as domicile, for example - which is more difficult to prove - or tax residency. It is not the same as any of these other more onerous requirements. I am not giving any undertakings as to how it may be dealt with, but as a general proposition, a person can show ordinary residence if he or she is renting a property, for example. I am not saying it always happens, but it is possible for an individual who returns to the State after a relatively short period of time to show ordinary residence. It is quite a flexible instrument compared to domicile or tax residency. It is very much at the liberal end of what a person needs to demonstrate.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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I cannot agree completely with the Minister of State on that point, because I have come across instances in which that is not the case. Perhaps there are different interpretations in different areas. However, I do not understand his reluctance to accept that when designing guidelines for something like this, a better decision could be made if the draft guidelines were to go initially to the Joint Committee on Health and Children. Surely what is missing is the experience-based advice of those who are meeting daily with people who experience problems in satisfying the conditions laid down in the guidelines.

I find it difficult to understand the Minister of State's reluctance to accept the concept that an Oireachtas committee can make a better product.

Billy Kelleher (Cork North Central, Fianna Fail)
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I do not like to labour a point either but we have had form in this area before. Irish citizens who were abroad for just a number of years and came home of their own volition or because things did not work out in their new home and encountered the difficulty on return to Ireland that they were ineligible for many social welfare payments. My concern is that the guidelines the Minister issues may make it difficult for people who left the country for a period to qualify on return before the expiry of a set period. That is clearly the issue. We have already been given commitments in respect of previous legislation that guidelines would be flexible and able to take into account individual circumstances. When times are difficulty, however, the noose is tightened around guidelines qualification criteria by a Minister. By narrowing guidelines, the Government diminishes more people's rights and entitlements. There must be some form of scrutiny of guidelines. I have always believed regulations should be laid before the Houses of the Oireachtas and the subject of discussion in the Joint Committee on Health and Children. Even the programme for Government - that fine document - refers to the need to give Oireachtas committees more meaningful input on the monitoring of Departments and the discussion, implementation and teasing out of regulations. Section 5 represents another carte blanche approach to an issue. I am being asked to say in the Dáil simply that the Minister may issue guidelines. Of course, he will issue guidelines and do so quickly to make it difficult for people to qualify.

Alex White (Dublin South, Labour)
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They have been doing it since 1990.

Billy Kelleher (Cork North Central, Fianna Fail)
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That it was done does not necessarily mean it was right. It happened in the context of social welfare. I sat on the other side of the House and voted for it. I voted for something that caused great distress and hardship to people when they returned to Ireland and found that after only a few years away they could not qualify for any social welfare payments. We had to beg and borrow and approach community welfare officers to get a few pounds to keep people going. That is something we cannot visit on those who are returning and who made a major contribution to this country for many years. We are talking in this context about people aged over 70 years. The provisions are to give guidelines. Any person who has made a major contribution to this country and comes back after a period of time should be entitled to the basics. Surely, the basics include a medical card even in the context of the grounds of eligibility. I am concerned that there would be a major move to tighten up the criteria in terms of who can apply in the first place on foot of the definition of "residency" and all that section 5 purports to include in the legislation if passed.

Alex White (Dublin South, Labour)
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Although its application in this context is to the over-70s, it is not a new provision that the Minister may issue guidelines in respect of matters such as ordinary residence. It has no application whatsoever to social welfare.

Billy Kelleher (Cork North Central, Fianna Fail)
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I know that. I was just giving an example.

Alex White (Dublin South, Labour)
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The examples that have been given are being given in the context of social welfare. This has no application to social welfare. There is no point in invoking examples from the social welfare code in support of an argument on the question of medical cards. They are two completely different regimes. What we are dealing with here is medical cards and a specific provision which is not new in terms of its antecedents. It is neither a new idea nor a new provision. It is simply being newly applied in this particular context. I emphasise that Deputy Kelleher very reasonably said that if someone had made a major contribution to the country and returns he or she should be entitled to avail of the provisions set out in the legislation. I say that he is right. If someone comes back to Ireland with the intention to stay he or she will have no difficulty proving ordinary residence. I do not have the guidelines in front of me but I am advised that people who have been staying in a place for a year are clearly ordinarily resident and meet the criteria or that people can say they intend to stay and produce a rent book to prove he or she qualifies. These requirements are at the liberal end of the spectrum. The criteria is not domicile, tax status or other onerous requirement, it is ordinary residence and it is relatively easy to show.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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With respect, guidelines are as liberal or as tight as a Government decides at a particular point in time. While I trust the Minister of State, I do not know who will be in office in six or even three years.

Billy Kelleher (Cork North Central, Fianna Fail)
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That is the point. I would not trust myself.

Michael Colreavy (Sligo-North Leitrim, Sinn Fein)
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The Minister of State has not addressed my suggestion which is that where changes are proposed to existing guidelines, the draft guidelines should be brought before the Oireachtas committee. I do not understand the Minister of State's reluctance to take the suggestion on board. When something like this is suggested, the more experience-based advice that goes into its consideration, the better the guidelines will be. I ask the Minister of State to make a commitment that where changes to guidelines are proposed, the draft proposals would be put before the Joint Committee on Health and Children.

Billy Kelleher (Cork North Central, Fianna Fail)
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The Minister of State made my argument inadvertently by pointing that the current qualification criteria are liberal because they are not based on domicile or Revenue Commissioners' criteria. The legislation, however, will allow the Minister to change the regime to make it more difficult to qualify than it is to qualify as domiciled. There is no guideline to say otherwise. We are to depend totally on the Minister's whim as to who qualifies for an over-70s medical card where people return here to reside. The criteria can be decided by the Minister at any time. That is the issue of concern. We should never point to the personality of the Minister of the day. It is the system that will decide this once the Minister makes the regulation. It is tantamount to conferring rights on or denying rights to citizens through guidelines. It is inherently wrong. I instance the example of social welfare where another arm of Government brought forward regulations that were inherently unfair. Every Deputy was up in arms about it. People were returning to Ireland after a number of years away to find they could not qualify for basic social welfare payments. These were Irish citizens who had worked here for years and made contributions. My concern is that the Minister will have sweeping powers as to what constitutes a residency qualification. He or she could make it more difficult.

Alex White (Dublin South, Labour)
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I am not minded to make the section contingent or conditional on the referral of guidelines to the committee.

I value highly the input, contribution and insight of the Oireachtas Joint Committee on Health and Children, as does the Minister, but I am not minded to make the section conditional or contingent on the matter going before the committee. At the risk of irritating the Members in the Chamber, no amendment was proposed in respect of making the section contingent on the ratification of the committee.

Billy Kelleher (Cork North Central, Fianna Fail)
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We were depending on the goodwill of the Minister of State.

Alex White (Dublin South, Labour)
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As I am sure Deputy Ó Caoláin has, Deputy Kelleher has carefully gone through the legislation line by line, as is his want, and no amendment was tabled. I am not minded to accept such an amendment because all we are doing is giving the power to the Minister that he may issue guidelines. It is simply a repetition of the current position. Deputy Kelleher referred to the legislation changing the criteria. The provisions in section 5 will not change the criteria. The Minister already has the power to issue guidelines and that has been the case since the 1990s in respect of how ordinary residence should be interpreted by the HSE. These are just guidelines and the HSE makes a decision, not the Minister. At the risk of upsetting Members, we are in danger of seeing difficulties where there are none.

Michael Kitt (Galway East, Fianna Fail)
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Amendments Nos. 3 to 5, inclusive, have been ruled out of order.

Michael Kitt (Galway East, Fianna Fail)
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Amendments Nos. 6 and 7 are related and will be discussed together.

Billy Kelleher (Cork North Central, Fianna Fail)
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I move amendment No. 6:

In page 11, subsection (9), line 2, after “shall” to insert “not”.

Alex White (Dublin South, Labour)
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I am anticipating the case the Deputy makes in what I say. I do not propose to accept amendment No. 6. There are clear definitions of personal data and sensitive data under the existing Data Protection Acts 1988 to 2003. Personal data means data relating to a living individual who is, or can be, identified from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller. The meaning of sensitive personal data includes personal data as to the physical or mental health of an individual and under the Data Protection Acts, sensitive personal data also means the racial or ethnic origin, the political opinions or the religious or philosophical beliefs of the data subject, whether the data subject is a member of a trade union, the sexual life of the data subject, the commission or alleged commission of any offence by the data subject, or any proceedings for an offence committed or alleged to have been committed by the data subject, the disposal of such proceedings or the sentence of any court in such proceedings.

The HSE may hold personal information relating to the health of an individual. Therefore, in order to avoid a lacuna in the future wrong operation of this provision, it is necessary to clarify to which personal data these exchange provisions relate. Given that the HSE may hold health-related data about a person, it is necessary to be clear that these provisions, as well as the Data Protection Act, apply to such sensitive data. I do not propose to open up the definitions of sensitive personal data in the existing Data Protection Act, which reflect the provisions of the Council of Europe data protection convention. If the amendment was accepted, it would introduce a degree of uncertainty as to whether or how the exchange of personal data could take place, solely on the grounds that the data held by the HSE is health-related. For example, if the Revenue Commissioners ask the HSE to confirm that an individual is in receipt of drugs under the general medical scheme or the drugs payment scheme with respect to a medical expenses tax relief claim, the amendment would leave it unclear as to whether the HSE could respond to such a request.

Furthermore, under the section, as well as the existing data protection legislation, there are limits on what the Revenue Commissioners and the Department of Social Protection can request from the HSE. Under subsection 2, the Department may only request personal data required for the purpose of calculating the means of persons to assess or review the entitlement of such persons to receipt of benefits and services under the Social Welfare Act. Under subsection 3, the Revenue Commissioners may only request personal data required for the purpose of assessing or collecting a tax, duty or other charge payable to the Revenue Commissioners. For the HSE, the purpose of data exchange is set out in subsection 1. It relates to checking the means of applicants for medical cards or GP visit cards and the review of the cardholder's means in order to ensure a person's eligibility is accurate and valid. In its entirety, section 8 provides an explicit legal basis enabling the HSE to exchange personal data with the Revenue Commissioners and the Department of Social Protection for the purposes of the performing its functions. These provisions are entirely in line with the existing data protection legislation. In addition, these provisions have been developed in consultation with the Office of the Data Protection Commissioner. I do not propose to accept the amendment.

Nor do I propose to accept amendment No. 7. For similar reasons to those outlined in connection with amendment No. 6, it is inappropriate to exclude sensitive personal data from subsection 10. There are clear definitions of sensitive data and sensitive personal data under the existing Data Protection Acts. Excluding the reference to sensitive personal data would leave its meaning in the Bill ambiguous. It should be clear the term sensitive personal data has the same meaning as defined by the existing Data Protection Acts 1988 and 2003. It would be inappropriate to leave a question mark over its meaning when it has been already defined in the existing Data Protection Acts, which reflect the provisions of the Council of Europe data protection convention. I do not propose to accept these amendments.

Billy Kelleher (Cork North Central, Fianna Fail)
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I should have anticipated the reply of the Minister of State. This is fundamental for a number of reasons. Section 8(4) states: "Notwithstanding anything contained in the Data Protection Acts 1988 and 2003, but subject to this section, a person who receives a request made in accordance with subsection (1), (2) or (3) shall comply with that request and shall do so in accordance with an agreement entered into under subsection (5) between the person and the person who made the request." The difficulty between personal data and sensitive personal data is that the definition of what is sensitive can be interpreted in various guises. The Data Protection Commissioner has looked at this and we have discussed it. Legislation is in place. People should be informed about precisely what data can be transferred between various agencies. I am all for ensuring we have efficiency in the public sector in assessing criteria and delivering services. Making sure various Departments and agencies talk to each other about rights and entitlements is a good thing, one could argue. However, equally, citizens should be clearly informed when making an application as to the information that will be transferred to other Departments. A person should be informed that sensitive data can be transferred so that he or she has the right to make an informed decision on whether to make an application for a medical card on the basis of a request for information that may be passed on to other agencies.

I am satisfied that there are adequate measures in place to protect depositors in the institutions covered by the Deposit Guarantee Scheme (DGS), which is funded by the credit institutions covered by the scheme and is backed by the Exchequer. The Financial Services (Deposit Guarantee Scheme) Act 2009 provides for the operation of the Deposit Protection Account (DPA). Credit Institutions are required to maintain a balance in the DPA equivalent to 0.2% of their total deposits (subject to a minimum of €50,000 for each bank or building society). The total balance in the DPA was €388m at end December 2012 and has reduced to €379m following compensation payments to IBRC depositors.

In the event of a credit institution being unable to repay deposits, the Central Bank is authorised to make compensation payments to eligible depositors to a maximum of €100,000 per person per institution. The cost of compensation payments is charged against the balances in the DPA. In the event that the cost of compensation exceeds the balances in the DPA, the 2009 Act provides for the Central Bank to be reimbursed from the Central Fund within 3 months, subject to my approval.

Subsequently, credit institutions would be required to replenish the DPA and to repay the government for amounts advanced to cover the immediate cost of compensation. I am authorised to specify the period for repayments and the interest rate chargeable.