Emergency! Paging Dr. Law

(Or perhaps pages, doctors, cheats? With apologies to Miami Sound Machine.)

Here we go again with the emergency legislation. PDF copy of the Health (Miscellaneous Provisions) Bill, published this morning. What’s it all about? (News coverage here, will add more).

1. The actual emergency

The Attorney General has apparently advised the Cabinet that there is a problem with certain bits of health legislation, in particular the Health (Corporate Bodies) Act 1961 which enabled the setting up of various boards like the Dental Hospital, St. James’s Hospital, the Crisis Pregnancy Agency, etc (I call them the 1961 Bodies in this post).

The explanatory memo to the ‘emergency legislation’ says that it’s article 15.2 that is causing the trouble: they don’t explain this any further, and I think this is a mistake. While I understand that the AG’s full legal advice won’t be disclosed, it would be useful to explain the problem in accessible terms, rather than hiding behind ‘a concern of unconstitutionality’.

Article 15.2 provides that “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

The most significant case on the interpretation of Article 15.2 is Cityview Press v AnCO [1980] IR 381, which dealt with a challenge to a training levy on companies; this article was discussed (as support for a challenge to a statute which gave the Minister considerable freedom in setting up the levy), and it was held that –

In the view of this Court, the 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. On the other hand, if it be within the permitted limits - if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.

Emphasis added by me. So this is familiar first-year constitutional law, and the ‘principles and policies’ test is a well-known one (Justice Keane said it had “continuing vitality”. He said this in the Laurentiu case (1999), where part of the Aliens Act was struck down because it was similarly lacking in principles and policies, leaving it all to the Minister. (Incidentally, how many more provisions like this are there hidden in the statute book? Shouldn’t someone go and check?)

Now, the provision struck down (section 5(1)(e) of the Aliens Act 1935) in Laurentiu said:

The Minister may, if and whenever he thinks proper, do by order (in this Act refer to as an aliens order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens, that is to say … (e) make provision for the exclusion or the deportation and exclusion of such aliens from Saorstát Éireann and provide for and authorise the making by the Minister of orders for that purpose.

So what this means is that a provision of a statute that doesn’t contain guidance for the Minister, i.e. leaving it all up to him and her to deal with the matter, may be unconstitutional.

The relevant section of the 1961 Act is (I think) s 3(1) (and see s 5 which is relevant in explaining it, perhaps):

3(1). The Minister may from time to time by order (in this Act referred to as an establishment order) establish a body to perform functions in, or in relation to, the provision of a health service or two or more health services.

5. An establishment order shall contain such provisions as the Minister considers appropriate defining the functions of the body established by the order in, or in relation to, the provision of the health service or health services to which the order relates, and the manner in which and the conditions under which the body so established may perform the functions so defined.

(As an aside it does seem that s 4 and s 6 of the 1961 Act are helpful in that they specifies certain things relating to staff/Board memebrship/administration that must be in such an order)

The method that they’re taking in this emergency legislation (incorporating the orders into legislation by reference) was challenged in the 2004 Leontjava case (which dealt with the Immigration Act’s cheeky fixing of the Laurentiu problem) and was discussed at great length – however it was found to be acceptable to go about remedying a problem this way. Basically, what happens is that the orders are deemed to have effect as if they were statutes, and all acts (subject to constitutionality) are confirmed.

For what it’s worth, I disagree with this approach; I think the point of Laurentiu should have encouraged the Oireachtas to take its constitutional responsibilities more seriously and simply making the problem go away by declaring that the orders should be treated as if they were legislation in the first place. That’s primarily a political and democratic-institutions point but there were some good (but unsuccessful) legal arguments made in Leontjava that the Court could strike down the supposed corrective measures; indeed, the High Court said so, and the State brought in new legislation in the gap between the High Court and Supreme Court decisions! This article by Rossa Fanning of UCD (PDF) explores the decision in more detail – but I stress that there is no question that the Oireachtas can legislative this way on this occasion. Whether they should is a different question…

2. Privatisation – not an emergency

There are further, serious concerns about things that are included in the Bill that have absolutely no connection with the constitutional issue.

For example, section 7 provides that various changes be made to the orders governing the 1961 Bodies (which are now to be considered as in the position of statutes!). In general, the changes made by the Schedule would replace the Minister with the HSE in various places, and reformulate certain Ministerial approvals as being instead with the HSE’s approval and the consent of the Minister and Minister for Finance. Furthermore, detailed provisions to enable two of the 1961 Bodies (St. James’s Hospital and Beaumont Hospital) to participate in proposed ‘co-location’ arrangements (a particularly controversial matter in the Irish health system). It is wholly inappropriate for these provisions to be included in this Bill in this fashion. It’s also worth noting that the grant of power is quite broad, as follows:

The Board may, with the consent of the Health Service Executive, enter into an agreement with one or more persons for the provision by any person (in this section referred to as the ‘private undertaking’) specified in the agreement, on land vested in the Board, of hospital services that are not paid for primarily out of public moneys.

This, of course, is a broad grant of power and is not limited to current political proposals that carry the cute name of co-location – let us not forget that. There are various other sections in the full page of provisions to facilitate these proposed activities by ‘private undertakings’, setting out the mechanics of such in more (albeit not particularly restrictive) detail.

This element should be debated and introduced separately and there are no constitutional reasons to introduce it alongside the correction of the more general problem with the creation of the 1961 Bodies.

3. And while you’re at it

One one hand, some elements of the Bill are necessary follow-ons from the main issue. For example, section 4 would repeal s 70 of the Health Act 2004 – this section allows for 1961 Bodies to be incorporated into the HEA – this (rightly) should not be possible as these are now ‘statutory’ bodies. Section 8 would allow the Minister to continue to give money to 1961 Bodies (with 2 exceptions where this apparently isn’t planned anyway), s 9 keeps the C&AG involved which is a good thing.

On the other hand, sections 10-19 contain pages of separate and unrelated amendments to the Medical Practitioners Act (which was only passed this year!), and section 20 brings in some more (consequential) in a schedule. Will they get the debate they deserve?

And on top of that we have section 21 that’s apparently fixing a problem with the Health Act 2004 in respect of audits – as best I can work it out someone made a mistake in numbering when providing for tendering in a part of the Health Act 2007 and they may have accidentally messed up the existing provisions. And that’s what they are fixing. I think. All we’re told in the explanatory memo is that it’s a ‘technical amendment’. Thanks, lads.

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