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Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019: Committee Stage (Continued)

Tuesday, 5 March 2019

Dáil Éireann Debate
Vol. 980 No. 4

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  6 o’clock

(Speaker Continuing)

[Deputy Stephen Donnelly: Information on Stephen Donnelly Zoom on Stephen Donnelly] Some order is required from the sitting Minister for Health to make sure the team can come in, that the insurance policies are covered, to make sure the drugs they use are sanctioned and so on: it is a complex legal field. The way that 75A and 75B are written provide that any order, arrangement or regulation from the Minister for Health all require the consent of the Minister for Finance and the Minister for Public Expenditure and Reform, currently held as one post, but after a reshuffle or a general election the roles could quite easily be back to two different posts.

I have two concerns. The first is that it slows things down and it does not allow the Minister for Health of the day make the decisions that he or she is entrusted by the Taoiseach to make. My second concern is on a democratic point. I do not believe it is appropriate that a Cabinet Minister should seek consent of the Minister for Finance.

I have tabled three amendments that say, very specifically, consent is required from the Minister for Finance when the issue relates to taxation, and that consent is required from the Minister for Public Expenditure and Reform where there is an expenditure implication of the order. For taxation and expenditure it would be yes, but for everything else I do not believe it would be appropriate for a Minister for Finance to have that authority. It is not what they are doing day to day: they are not immersed in the world of healthcare.

I hope the Minister will accept the amendments. They are modest but important in making sure the Minister for Health of the day can move with the necessary speed. Sometimes these situations can move very fast. A surgeon and his or her team could be sitting in an airport ready to come to Ireland, or on arriving in Our Lady's Hospital for Sick Children in Crumlin they may need support from the sitting Minister. There is no reason why any Ministers for Finance or Public Expenditure and Reform should be involved, unless there are taxation or expenditure issues, in which case the amendments cover both of those. I hope the Minister will support the amendments.

An Ceann Comhairle: Information on Seán Ó Fearghaíl Zoom on Seán Ó Fearghaíl I should have said earlier that amendments Nos. 5, 8, 9, 20 and 21 are related and will be discussed together. Amendment No. 8 is a logical alternative to amendment No. 5. Amendment No. 20 is consequential on amendment No. 9.

Deputy David Cullinane: Information on David Cullinane Zoom on David Cullinane I wish to speak to the Sinn Féin amendments, which are part of the group of amendments under discussion. I am aware that the Fianna Fáil amendments that relate to the Minister would need to give permission for the provisions of the Bill to come into effect. Sinn Féin suggests that the Dáil could give consent. I put it to the Minister that while we support the passage of the Bill and many of the provisions of the Bill, including the provisions in this section, at the end of the day we believe it is important that there is proper oversight and that the Dáil has proper oversight. While we give the consent now all of this is being done on the basis that there may be a hard crash. While nobody wants to see a hard crash most of the provisions are on the basis of a no-deal Brexit and a hard crash scenario. In that case, if these provisions were to come into effect - the Tánaiste has quite rightly said that nobody wants the majority of these provisions ever to come into effect - we would believe it is important to have proper oversight and that the Dáil would have a say at that time. I do not wish to prolong the debate and I shall conclude by saying that our amendments are very obvious: we want the Dáil to be able to give its consent if and when these provisions were to come into effect.

Deputy Brendan Howlin: Information on Brendan Howlin Zoom on Brendan Howlin I support the Sinn Féin amendment. It cures a deficiency that in my Second Stage contribution I had asked to be addressed. In his response to our concerns at the end of Second Stage the Tánaiste will be aware that he said our concerns, which I had set out in my Second Stage contribution, had been addressed. The Tánaiste said:

Deputies have noted the range of measures in the Bill to facilitate in an operational way the shift to the UK being a third country. Deputy Howlin made two points relating to Parts 2 and 6. I reassure the Deputy that the Bill and all its Parts has been prepared in consultation with the Office of the Attorney General and on the basis of legal advice from that office. I am sure the Minister for Finance, Deputy Donohoe, and the Minister for Health, Deputy Harris, can address the Deputy’s concerns in more detail, if necessary.

Saying that the Attorney General has looked at it is hardly a comprehensive response to the constitutional issue I raised. I would like to hear what his views were and why it is constitutional in the way it is asserted, which is obviously very important. The amendment suggested by Deputy Cullinane would cure that in as much as it would have to have the consent of the Dáil.

  Labour’s concerns cannot be easily put into an amendment to cure that infirmity - I was trying to think of an amendment myself - on the legality of the section from a constitutional perspective. The relevant concern is that Labour believes there is a constitutional problem with Part 2 of the Bill. I had simply sought very clear advice to assuage those concerns.

  The UK Brexit legislation has relied heavily on so-called Henry VIII clauses, which in the British system, with no written Constitution, allow ministerial orders to amend Acts of Parliament and these by-pass the legislature. I have looked at a number of other countries in this regard and new powers are being devolved to Ministers to act by decree in many jurisdictions because we do not know exactly what problems might arise. I can understand the administrative attraction of such a power that the Minister may act by decree without reference to primary legislation. We, however, have very clearly set out restrictions on the powers of Ministers to act without the consent of the Oireachtas.

  Several judgments of the courts make it clear that such clauses are constitutionally prohibited, except where necessitated by EU membership, which has already been permitted by referendum of the people. In this section the Department of Health is seeking to create a Henry VIII type clause as part of our own Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019. In Part 2, the Government has proposed to give the Minister for Health power to “make such adaptations and modifications to the Health Acts 1947 to 2019 or any regulations made under those Acts as the Minister considers necessary for the purpose of bringing those Acts or regulations into conformity with this Part.” I believe this would clearly involve the Minister for Health changing primary legislation without the direct authority for that change being brought before the Dáil and provided by the Dáil. My legal advice is that this is not constitutional. The specific section where the power is described is in section 4, which proposes to insert section 75B(2)(c) into the Health Act 1970.

  Under Article 15 of the Constitution, the “sole and exclusive” law-making power of the State is vested in the Oireachtas. As a result, regulations that modify primary legislation are necessarily beyond the power of any individual Minister and cannot be vested in any individual Minister. I read some of the legal judgments into the record during my Second Stage contribution so I will not revisit it here. In essence, this is a matter of substance. It is not a trivial matter. We need to have very clear assurances from the Minister that what he is doing is constitutional. We do not want a situation where the health co-operation between this jurisdiction and Northern Ireland becomes one of the most fundamental causes of concern. A person contacted me this week who was due to have a serious operation in April under the cross-Border health initiative. This person asked me if it was safe and would it go ahead. I do not want there to be any legal doubt about any authority that might vest in the Minister to make changes that could be challenged constitutionally or which could be infirm. I would welcome a very clear statement on the advice and considerations of the Attorney General on why he and the Government believe that vesting in the Minister for Health - what on the face of it is an unconstitutional power - is in fact constitutional.


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