Seanad Éireann - Volume 115 - 03 April, 1987

Health (Amendment) Bill, 1987: Committee and Final Stages.


Mr. Durcan: I move amendment No. 1:

In page 3, between lines 8 and 9, to insert the following subsection:

“(2) Notwithstanding subsection (1) of this section, regulations made wholly or partly under this section before the passing of this Act and in force at such passing shall continue in force until revoked.”

The amendment is one which, if passed by this House, will have the effect of inserting a new subsection into section 1 which, in turn, is a substitute section.

Section 56 (3) of the Health Act, 1970 provides that a health board shall make available outpatient services without charge for children not included among the persons referred to in subsection (2) in respect of diseases and disabilities of a permanent or long term nature prescribed with the consent of the Minister for Finance. Section 1 of the Bill before the House at present proposes, among other things, to repeal that subsection. I would submit that, if that subsection is repealed by the Bill before the House, then the regulations made under that subsection will automatically fall as the basis for the coming into existence of those regulations will have ceased to exist.

The Minister himself would appear to recognise this fact when he said in the course of his remarks in the House this afternoon:

The Bill seeks the powers to enable the Minister for Health to make regulations setting out the charges to be made and the categories of people to which they will apply.

It is obvious, therefore, that if this Bill is enacted in this present form the regulations already in existence will cease to exist and, until the Minister makes new regulations, we will enter a twilight zone where nothing but the enabling legislation will exist. I regard that as a very unsatisfactory position.

I do not agree with the legal advice tendered to the Minister of State. Nor can I accept the categoric assurance the Minister has given in relation to these matters. In the course of my Second Stage remarks I said that the Minister and the Government gave many assurances in relation to the public health service. They have now adopted an approach fundamentally different from that spelled out by them in the course of the election campaign. Whereas I agree with the principle underlining this Bill I believe there is a difficulty to be overcome — one of the nature I have outlined — and it can be if my amendment is accepted by the Government.

Minister of State at the Department of Health (Mr. Leyden): I might reiterate that the amendment put down by Senator Durcan is not necessary. I might say that subsection (3) differs in one respect only from the original. The change consists of the deletion of the words “not included among the persons referred to in subsection (2)”. The reason for this change is that, since 1979 the entire population [2205] is included in the provisions of subsection (2). The Bill before the House substitutes subsection (3) for the original subsection (3). The legal advice I have been given is that the diseases and disabilities prescribed by the Minister for Finance under the original subsection (3) continue in force on the enactment of this Bill. Therefore the necessity for the amendment does not arise.

I might repeat what I said earlier, that we will be placing in the Oireachtas Library the regulations which will state clearly the exemptions from this charge. I want to repeat — and these will be contained in the regulations — that the following exclusions will apply: medical card holders and their dependants, children suffering from diseases and disabilities of a permanent or long term nature, children who require attendance on an outpatient basis in respect of defects which have been noticed at a health examination provided in accordance with the Health Act. Also to be excluded under the regulations will be; all women in respect of motherhood, infants up to the age of six weeks, as already provided for under the provisions of the 1970 Health Act, persons in receipt of services for the diagnosis or treatment of certain infectious diseases prescribed under the Health Act, 1947.

I might reassure the House further that I shall be discussing with my officials and legal department the questions raised by Senators Durcan, Dooge and O'Leary in relation to the amendment they are proposing and which we have been assured by our legal advisers is totally unnecessary. But if there are any doubts or questions raised in the course of further discussions I will have no hesitation in placing those regulations before the Oireachtas or the Library again. Therefore Senators need not be worried about this section. The matter is covered within the regulations. We are not repealing any of them and we are quite satisfied that there is no need for the amendment. Therefore we would recommend that the amendment would not be pressed.

Mr. Durcan: Will the regulations the [2206] Minister proposes making be different in any respect from those at present in existence?

Mr. Leyden: The Senators can be assured that there is no revocation of the old regulations. The new regulations have been put forward but the old regulations are not being revoked. I assure the House of that.

Senator Durcan: Am I right in saying that some of the things mentioned by the Minister in the course of his speech are covered by the old regulations? It appears from the third paragraph of the Minister's script that the Minister then mentioned children suffering from diseases and disabilities. Are there not matters that will be included in the new regulations which are already covered by the old regulations?

Mr. Leyden: The regulations which exist refer to children suffering from diseases and disabilities of a permanent or long-term nature. Those are not being affected by this Bill or by the regulations put forward under this Bill.

Mr. O'Leary: I am confused about this. Will the Minister explain it to me? Are there regulations in existence which are stated to be regulations made under the provisions of section 56 (3) of the Health Act, 1970? If there are, will the Minister explain how he can abolish the section and keep the regulations? No doubt there is a logical explanation. Our whole political life is based on the triumph of logic over emotion.

Mr. Leyden: The existing regulations stand in relation to children suffering from diseases and disabilities of a permanent or long-term nature. The legal advisers in my Department have reassured me on that point. We are putting forward regulations under the Bill but the original regulations still stand. I would have no reservations in putting those regulations in the Library so that the Senators can see them. I can give that assurance to allay Senators' fears.

[2207] Mr. O'Leary: Nobody doubts the Minister's good faith in the matter. That is not at issue, but the Minister's good faith is not being enacted. The question I asked was quite specific and I do not expect the Minister to answer it off the top of his head. The Minister can take whatever advice he wishes. Are there regulations in existence which are stated to be regulations made by virtue of the power which exists in section 56 (3) of the Health Act, 1970?

Mr. Leyden: Yes. The regulation under section 56 (3) just lists the diseases and disabilities. The list stands and is not amended or revoked by this Bill.

Mr. O'Leary: What the Minister is saying is that these regulations continue to exist notwithstanding the fact that he is proposing to repeal the portion of the Act on which they are based. I cannot understand that. Is the Minister suggesting that if we abolish the Health Act, 1970, altogether, regulations made under that Act would continue to have a life of their own? Effectively that is what he is saying. How could regulations made by virtue of section 56 (3) continue to exist if section 56 (3) is gone? I cannot understand that. I am only very simple-minded about those things and no doubt the Minister will tell me.

Mr. Durcan: We are all trying to help. We are all here as legislators trying to make complex legislation more simple. I do not follow the legal advice given in this case bearing in mind the legal advice which was apparently given to the Minister for Social Welfare when he came in here today to put to the House the Social Welfare Bill, 1987. In a similar type of section, section 10 of that Bill, we had a subsection (2) which reads:

(2) Notwithstanding subsection (1) of this section, regulations made wholly or partly under section 76 (1) (b) of the Principal Act before the passing of this Act and in force at such passing shall continue in force until revoked.

[2208] It would appear that the legal adviser in the Department of Social Welfare is giving different advice from the one in the Department of Health. One can accept that legal advisers can give differing advice. That is what makes life in the law so interesting——

Professor Dooge: ——and profitable.

Mr. Durcan: ——and profitable for a few. Bearing in mind that there is differing legal advice in relation to a particular problem of principle, to be absolutely sure that a problem is not created for people who may wish to avail of these regulations I ask the Minister to reconsider the matter.

Mr. Leyden: We are not repealing these subsections. We are substituting subsections for the old ones. In the light of the points put forward by such eminent Senators, we will re-enact the regulations made under the old subsections so as to assure the Senators that these categories are covered in the new law. In case Senators have any doubts, I will have those old regulations brought forward in conjunction with the new regulations so that Senators can be assured that they will still be in existence.

Mr. Harte: I am a little puzzled by all the proceedings. Is the Minister saying that the two regulations can work in tandem?

Mr. Leyden: Basically the new regulations put forward do not revoke the old regulations. They will remain but to reassure the House, I will re-enact the old regulations when this Bill is passed.

Mr. Harte: Is the Minister giving that undertaking to the House?

Mr. Leyden: I am, and it will be honoured by the Department and by me.

Professor Dooge: I am not a lawyer so I cannot cite legal argument. I am an engineer. One of the things I know from my engineering is that if you want to [2209] design something properly you must build in a certain amount of redundancy. To say that something has necessarily been done may be sufficient for a lawyer but it is never sufficient for an engineer. That is my approach to this problem. If the Minister gives us a categorical assurance in the House tonight that when the substitution is made, as I understand it, when the President signs the Bill that he will re-enact on the following day the regulations as they now stand, a lacuna will be avoided. The concern of this part of the House is to avoid a lacuna.

Reasonable legal argument has been put forward in regard to the validity of regulations if the statute law under which they have been made falls. That is a question which could go right to the Supreme Court. It is not for us to deal with probabilities. We would like to deal with certainty. If the Minister would give us a categorical assurance that on the day following the signing of this legislation by the President he will re-enact the existing legislation with the full freedom to bring in further regulation at any time in the future. This would go a good distance towards meeting the case that has been made from this side of the House.

Mr. Leyden: What we are doing is exempting certain children from the charge. It is therefore in my interest to ensure that the list of disabilities and diseases are in existence. I assure the House that I will have those lists and regulations, in conjunction with the regulations which I make under this Bill, placed before the House.

Professor Dooge: We are seeking the assurance that it be done on the day following the signature of the Bill.

Mr. Leyden: It will be issued in conjunction with the other regulations.

Professor Dooge: That is not sufficient.

Mr. Leyden: I will make it my business [2210] to see that it is brought in the day after the Bill is signed. As you know it is very difficult to give such a total guarantee.

Professor Dooge: The Minister has five to seven days before the Bill is signed. All we are asking him to do is not to produce new regulations but to prepare a fair copy of existing regulations. That task should not occupy more than five days.

Mr. Leyden: You are very persuasive Senator Dooge and I have decided to make sure that those regulations are placed as you request. That will have to be honoured.

Professor Dooge: On the day following the signature.

Mr. Magner: Not being a lawyer nor an engineer and to relieve Senator Durcan of any difficulties he might have I accept the guarantees given by the Minister.

Mr. Durcan: Not speaking as a lawyer and not being an engineer but as somebody who will shortly be a redundant politician, I accept in good faith the undertaking given by the Minister because he personally gave that undertaking. The amendment is withdrawn only on that basis. I am quite sure that Members who become redundant of their own volition and who find that undertakings given to them are not honoured can come back and haunt this House.

Amendment, by leave, withdrawn.

Question proposed: “That section 1 stand part of the Bill.”

Mr. Ferris: The Labour Party could not agree to section 1, amended or otherwise, because they are in total disagreement with the whole concept of the Bill which is the bringing in of charges for outpatients.

Question put.

The Committee divided: Tá, 13; Níl, 5.

[2211] [2212]

de Brún, Séamus.

Fallon, Seán.

Fitzsimons, Jack.

Hanafin, Des.

Hillery, Brian.

Hussey, Thomas.

Kiely, Rory.

Lanigan, Mick.

Mullooly, Brian.

O'Toole, Martin J.

Ross, Shane P.N.

Ryan, Eoin.

Ryan, William.


Ferris, Michael.

Harte, John.

McGonagle, Stephen.

Magner, Pat.

O'Mahony, Flor.

Tellers: Tá: Senators W. Ryan and de Brún; Níl: Senators Harte and Magner.

Question declared carried.

Section 2 agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: “That the Bill do now pass.”

Mr. Fallon: I wish to congratulate the Minister of State on his first day in the Seanad. He has handled a very delicate Bill in an excellent manner and I compliment him. He can be proud of his achievements here today. I thank all those Senators who participated in the debate.

Mr. Daly: I too want to compliment the Minister——

An Cathaoirleach: This is out of order.

Mr. Daly: I merely wish to thank the Minister for paying tribute to the Seanad.

Question put and declared carried.