Feargal Quinn (Independent)

A good measurement of a democracy is how a State looks after those who are unable to look after themselves. This is most evident in the area of health. I am aware that one hospital in Ireland has asked the public to stay away, due to the third outbreak of the winter vomiting bug in three months. I contrast this with hospitals in Britain; they have league tables for hospitals and this has reduced the instances of MRSA infection dramatically. Compare this to Denmark, which has no instances of infection because hospital beds are washed after each patient. This is a reminder that the way we care for the health of our citizens should be a priority. It is a measure of whether we deserve the term "democracy". I have no problem with this Bill but am more concerned with its background and the way it is being rushed through the Oireachtas.

I would have thought that the bad experience we had with the Bill's predecessor would have given the Government pause before again trying to rush through another measure. There may be no doubt about the constitutionality of what is before us now, but a Bill can be fully constitutional and still be bad law. It is all the more likely to be bad law if it is rushed. I accept that delay costs the State approximately €2 million for every week that the Bill is not enacted, but that is not a sufficient excuse for rushing it through.

I have no problem with the idea of charging people for nursing home accommodation. The State hands out old age pensions on the basis that the people receiving them have to provide a roof over their heads. When the State takes over this responsibility it is fair that some of the pension should be clawed back. Very few reasonable people would disagree with this, even those whose money was wrongly taken over the past 30 years.

What was wrong about those charges was not that they were unfair or unreasonable but that they were illegal. They were imposed in flagrant defiance of the law, which has until now specifically proscribed such charges. It is important to bear in mind who was breaking the law. Many laws are broken every day by citizens who, for the most part, are brought to book. The law is not called into question because some people break it and still less is our democracy threatened by such actions. However, it is very different when the law-breaker is the State.

What defines a democracy is not having elections, or elected representatives, or even having a legislature. Beneath those trappings is something more fundamental, and that is the very thing we have spoken about today, namely, the rule of law. We speak of it because of the statement from P. O'Neill yesterday and we realised how important the rule of law is. In a democracy, people do not rule, the law rules and everybody, without exception, is subject to it. All of us must be bound by the law, whether we are citizens, legislators, administrators, Ministers or members of the Judiciary. Even those of us who have the privilege to make laws, as we have in this House, are bound in what we do by a more fundamental law, namely, our Constitution. We found that out within the past month. It is simply not open for us to say, as if we were Humpty Dumpty, that the law is what we say it shall be. If lawmakers break the fundamental rules that bind us, we are quite rightly held to account.

The law is supreme. I am sorry if I am going on about this but, above all, this supremacy applies to the State itself. If the State can be above and beyond the law, we have no democracy worth talking about. It is nothing but an empty sham. If the law does not protect us from arbitrary actions by the State then we do not live in a democracy, no matter how many elections we might have or political parties to contest them or however free our media may be. A democracy is a state where everybody, including the state, is obliged to conform to the law.

Apart altogether from that consideration, it is surely in the State's own interest to uphold the law. If it expects its citizens to be law abiding, then it should set a good example. It should uphold the rights of citizens, not trample them under foot. This is why we must take the question of the nursing home charges with the utmost seriousness. We must do so not because they were unfair or unreasonable but because they were illegal and this illegality was perpetrated by the State.

This issue is made all the more serious because this was not a once-off happening. It was not a temporary aberration that was quickly noticed and immediately corrected. This was something that went on for nearly 30 years without anybody putting a stop to it. That length of time makes the whole situation worse purely in terms of size. With each passing year the sum of money involved became significantly greater. The problem of doing something about it quite soon turned into a vista that was appalling in its magnitude alone. No doubt this will be argued in mitigation.

Surely the most appalling aspect of the entire affair was that this was not something that happened in secret. This was not a sinister plot that was hatched in the depths of the Department of Health and Children, however culpable some of that Department's administrators may have been along the way. It now becomes clear that the legal basis of these charges was something that was known about right from the beginning.

Everybody is now rushing to cover themselves, to argue that they knew nothing about what was going on. Everybody today is busy scanning the 160 pages of the Travers report, looking for convenient scapegoats. I cannot join in that witchhunt because I am as guilty as everybody else in this matter. I suggest this guilt is shared by every other Member of this House and of the Lower House as well. We can argue about how difficult it is to hold Ministers to account. No doubt Ministers, in turn, will argue that they cannot know everything that their civil servants do. To make such arguments is beside the point. We can all read and, despite the amount of paperwork that descends on all of us all of the time, there are certain things we have a duty to read. They include the reports of the Ombudsman. When we look back over the reports of every Ombudsman who has held office, we see this malpractice held up before our eyes in the clearest possible terms.

There was no secret. It was a public scandal that was repeatedly publicised by each Ombudsman. We cannot claim that it happened out of our view or that these events were beyond any possible oversight that we as legislators could be expected to exercise. Ombudsman after Ombudsman cried out to us but, as legislators and as citizens, we chose not to hear.

In giving the nod to this legislation, let us not think that we are disposing of the matter. Let us not fool ourselves into paying out €2 billion in compensation and think that will undo the damage that has been done. Long after this Bill is enacted, long after the last pensioners, or their descendants, have got their money back, I suspect this question will be around to haunt us. How could we let this threat to democracy happen right before our eyes and not do something about it?

We are doing something about it now and obviously it is better late than never. I am not sure that it is right that we have been dragged into doing it on a second attempt. We have nobody to blame but ourselves and therefore I am not looking for scapegoats. I am accepting responsibility, as I believe each one of us should do.