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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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Deputy Caoimhghín Ó Caoláin: Information on Caoimhghín Ó Caoláin Zoom on Caoimhghín Ó Caoláin I follow on from Deputy Howlin's point about seeking an assurance from the Minister for Health. The Tánaiste who is also in the House will recall attending a meeting of the working group of committee Chairmen a couple of weeks ago. The general scheme of the Bill was published on 24 January. In that regard, I speak as a former health spokesperson for 14 years and a Border Deputy. The Tánaiste will recall very well that at the meeting I referred to a quick perusal on my first sighting of the pledged intent in the withdrawal legislation in respect of health services. On publication of the Bill, however, I see that none of the detail in the area of health has transferred from the general scheme. This is not the case in respect of the commitments relating to other Departments. The Ceann Comhairle will say I cannot address some of the amendments I proposed. Of course, in that regard, I would have argued for the inclusion of the word "shall", rather than "may". However, if the Minister is giving Deputy Howlin an assurance, I will ask for one also. Will he give me and those I represent an assurance on the critical commitments contained in the general scheme of the Bill? At the meeting of committee Chairmen I indicated to the Tánaiste that there were other things to which I could probably point, but in the listing the critical significant areas were covered, which I welcomed and the Tánaiste will confirm as much. I ask the Minister to confirm continuation for those cross-frontier workers who qualify for a full medical card under the current arrangements. I only use this as an example and do not intend to take up any more time than is necessary. It was the very first matter, but I could add a number of others that I have identified in the period since. We were able to secure some of them in our work at the Joint Committee on Health and Children, as it was then known. I ask the Minister for an assurance that the language now employed does not offer a way to recoil from them and reserve a right to say "No". Our hope is the current situation that obtains in health services and healthcare entitlements on a North-South basis will continue under this legislation as the guarantee in the worst case Brexit scenario. I would appreciate it if the Minister responded to that question.

Minister for Health (Deputy Simon Harris): Information on Simon Harris Zoom on Simon Harris I thank Deputies for their contributions on this important section. Deputy Howlin is right to point out that healthcare is an issue citizens in the North and the Republic are watching very carefully. While a great deal of the conversation about Brexit pertains to issues related to trade, economic well-being and growth, all of which are terribly important, health will, on a human and practical level, be the sort of matter on which, as Deputies Howlin and Ó Caoláin articulate so clearly, people will want to know whether the status quo can continue post Brexit, regardless of how it ends up being composed. I assure not only the House but the people that it is the very clear intention of the Irish and British Governments to continue to provide health services between the jurisdictions on the North-South and east-west basis that obtains today. Only today the Cabinet approved the signing by the Tánaiste of a detailed memorandum of understanding with the UK Government to enable issues related to the common travel area to be addressed. I also met the HSE recently as part of our own Brexit preparations and was informed by it, to answer Deputy Ó Caoláin's question directly, that there was no cross-Border health service available which would not be available post Brexit. That is an absolute tribute to the incredible individuals in the health services in the Republic of Ireland and Northern Ireland who have worked so hard to ensure that is the reality. As Deputy Ó Caoláin will know better than many Members, owing to his geographical location and representation of a Border county, the links between the health services and our peoples run very deep and have done so for a very long time. The commitment of all to maintain these links has been extraordinarily helpful. I provide the assurance for which Deputy Ó Caoláin asks and I am pleased to be able to do so.

  Deputy Howlin asked a very specific question and I accept his sincerity and bona fides in raising it. He wants to know that this is the right way to go and me to assure the House that our legal advices are robust in that regard. I assure him that we have received advice from the Office of the Attorney General and liaised with the Office of the Parliamentary Counsel. All of the legal advice available to the Government is that this is an appropriate way to proceed and, in fact, is the most straightforward approach considering that it is emergency legislation. While it is legislation we hope we will never have to implement, we want to have it on the Statute Book should we end up in a crash-out.

Deputy Brendan Howlin: Information on Brendan Howlin Zoom on Brendan Howlin How is that constitutional?

Deputy Simon Harris: Information on Simon Harris Zoom on Simon Harris The advice of the Attorney General is that it is constitutional.

Deputy Brendan Howlin: Information on Brendan Howlin Zoom on Brendan Howlin How?

Deputy Simon Harris: Information on Simon Harris Zoom on Simon Harris We rely on the advice of the Attorney General who has assured me that it is constitutional. I assure the Deputy that this approach and the drafting of the legislation have been fully guided by the Office of the Attorney General and the Office of the Parliamentary Counsel in providing enabling legislation in the first instance, with the detail to be provided in regulations. We should remind ourselves why we are doing this. We intend to do no more than maintain the status quo and ensure the Minister of the day will be able to continue that which is in place today. It is about maintaining the status quo, hoping we will never need to use this legislation but ensuring we can if we have to do so in the case of a no-deal Brexit.

  I have considered the specific amendments very carefully. I take very seriously the point made by Deputy Donnelly and the rationale he outlined in putting forward his proposal. It is interesting in some ways that he suggests to the House that the requirement in the legislation is too onerous. I have heard clearly why he believes that to be the case. On the other hand, I also accept the sincerity of Deputy Cullinane who suggests for good reasons that it might be better to create more stringent provisions in providing an oversight role for the Dáil. That convinces me somewhat that the balance we are striking is right. The balance is to ensure the provisions are as robust as is necessary without accidentally putting obstacles in place. While I accept fully that this is not Deputy Cullinane's position, let us just say-----

Deputy David Cullinane: Information on David Cullinane Zoom on David Cullinane The Dáil is hardly an obstacle.

Deputy Simon Harris: Information on Simon Harris Zoom on Simon Harris It could be an obstacle if a situation were to arise while the House was in recess and, to take Deputy Donnelly's example, it took a number of days for it to reconvene. In that way it could be an unintentional obstacle. The purpose of the provisions is to enable the Minister of the day to facilitate the continued provision of the services already in place on a reciprocal basis. It is no more and no less than that.

I refer specifically to the amendments in the name of Deputy Donnelly, namely, amendments Nos. 5, 9, 20 which is consequential and 21. Section 75 will enable the Minister for Health, with the consent of the Ministers for Finance and Public Expenditure and Reform, to make the order or orders necessary to continue in being the reciprocal or other healthcare arrangements in place with the United Kingdom prior to its withdrawal from the European Union. Such an order or orders may specify the categories of persons and the health services to which they should apply. The current wording of the section reflects the exercise of discretion involved in the making of such orders by the Minister and will allow the Minister to make such orders, as required. I took to the Office of the Parliamentary Counsel specifically the point made by Deputy Donnelly about this construct. As constructed, the section refers specifically to the consent required from the Ministers for Finance and Public Expenditure and Reform and was drafted on foot of the advice of the Office of the Parliamentary Counsel which informed me that this was the conventional and established approach. The advice of the Office of the Parliamentary Counsel confirms that the appropriate legislative approach required to ensure there will be a comprehensive governance framework to underpin the regulations making power of the Minister for Health is in place. The office further advises me and I advise the House that adopting the approach proposed in the amendment would have the unintended potential to dilute the robust consent arrangements currently in place in this section of the Bill. In addition, the consequences of adopting the proposed approach outlined in amendments Nos. 5, 9 and 20 are unknown. It may impose unintended obligations on the Department of Health and possibly the Government generally in the general legislative process.

The Bill provides that the healthcare arrangements currently in place will be maintained to the greatest extent possible following the exit of the United Kingdom from the European Union. As the Bill seeks to maintain the existing reimbursement arrangements, it is not considered that additional expenditure implications arise. Accordingly, the policy decision has been taken that the making of the orders will require the consent of the Ministers for Finance and Public Expenditure and Reform.

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