Brian Lenihan Jnr (Dublin West, Fianna Fail)

It is open to the courts to make those interpretations. I do not want to be giving an interpretation in advance of a concrete adjudication. I raised the issue about the hospitals and I gave the example that many of the older voluntary hospitals clearly had a foundation in statute. Where some of the newer private hospitals are established by companies under the Companies Act, I suspect an issue would arise as to whether incorporation under that Act was sufficient to amount to something being established by law within the meaning of the statute, whether that was an essentially private or public exercise. I suggested that that it might well turn on the issue of how much public funds were committed to the institution in question. That is speculation.

Our difficulty is that there is a very long list of bodies which carry out mixed private and public functions. We are trying to provide a standard based on established by law or performing executive, legislative or judicial functions of the State and, on that basis, the courts will have to make a call on whether the body falls within. The alternative for us was to formulate an exhaustive list, which would be difficult to do.