Mary Harney (Dublin Mid West, Progressive Democrats)

I thank the Seanad for its consideration of the Bill. People are often suspicious of that which is regarded as urgent.

On 27 May 2006, a senior departmental official, Mr. Barron, sent me a detailed note on the proposed national paediatric hospital which I will synopsise for the House. In it, he stated it has been and remains our intention that the hospital's board will be funded by the Health Service Executive rather than directly by the Department of Health and Children. His note continued that the legal adviser queried this and pointed out there are no provisions in the 1961 Act to enable the Minister, by regulation, to confer powers or impose duties on the HSE that it does not already have under primary legislation.

The note stated the Health Act 2004 contains two sections which enable the HSE to fund third parties. Section 38 allows the HSE to enter into a funding arrangement with a person or body for the provision of health or personal social services by that person or body on behalf of the executive. The legal adviser pointed out that as the new board will be building the new hospital under its statutory remit, there is a difficulty in regarding it as doing so on behalf of the executive. Section 39 allows the HSE to give assistance to a body that provides a service, similar or ancillary, to a service the HSE may provide. While at first sight this would appear to cover the new board, the legal adviser considered it was not clear it could be relied upon in this instance. The language of the section would not seem to have envisaged it being used by the HSE to fund the building of a hospital. The section refers to the HSE contributing to the expenses incurred by a body rather than, as in this case, meeting all the expenses of that body. In the final analysis, the note concluded, it would be a matter for the HSE to be satisfied in this regard.

It was on foot of that advice that the Attorney General's office became involved. Subsequently, his office believed the HSE had the power to fund the children's hospital but that there was a much larger issue. It is somewhat similar to an old bridge requiring its steel to be reinforced. The legal test is different today than the one applied in 1961. The powers of the Minister under section 3 of the 1961 Act are regarded as so sweeping and significant, one could create any body by way of statutory instrument. The Attorney General believed if this provision were constitutionally challenged, there was a doubt it would survive. He took outside advice from Mr. Maurice Collins Senior Counsel and his advice was confirmed.

There is case law in this area which the lawyers in this Chamber will find interesting. A decision in the Cityview Press case in 1979 is particularly significant. It set out the principles and policies test in regard to the validity of statutory instruments and according to the then Chief Justice, Mr. O'Higgins:

[T]he test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution.

We obtained the advice because the bodies spend more than €900 million a year and employ thousands of people. Between the two hospitals alone they would employ between 6,000 and 7,000 people if not more. The amount of money, the numbers of people employed and the number of contracts these bodies have is so significant we had to act urgently. Furthermore, the Attorney General advised we could not give public notice because although we are not aware of any litigation pending against any of these bodies, if we gave notice, one body, person or entity could litigate which would damage the public interest. That is why we set about amending this legislation as quickly as possible.

We considered marrying the implications of the Local Government Services (Corporate Bodies) Act 1971 to this legislation in an omnibus Bill but that would have delayed this legislation. Although I am not running down the bodies under the 1971 Act, they are not as significant in terms of their powers, the extent of their remit, the public moneys they spend, the number of people they employ or the contracts they have. They are important bodies but not as significant financially or legally as the other bodies. Through my officials' great work we were able to prepare this legislation. None of the statutory instruments can be interfered with once the legislation is passed. They will be legally frozen. We will need another Bill next year giving the Minister powers to establish bodies of whatever kind. We must do a great deal of work on that, take legal advice and be specific. From here on the existing bodies are frozen and none can be given new powers.