Constitutional right to private property was at the heart of the judgment, writes Carol Coulter.
Only two of the 14 referrals of a Bill to the Supreme Court by the President of the day has resulted in a finding that the Bill was unconstitutional. The Health (Amendment) (No 2) Bill, sections of which were found unconstitutional yesterday, makes a third.
The basis for the finding was, like one of the other referrals, the right to private property which is stated particularly strongly in Article 43 of the Constitution, and protected as a personal right in Article 40. Article 43 states: "The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods." It goes on to guarantee to pass no law attempting to abolish the right to private property, and Article 40 guarantees to protect these rights from "unjust attack".
Parts of the Employment Equality Bill of 1996, referred to the Supreme Court by President Robinson in 1996, were found to contravene this right when they imposed what was seen as an excessive obligation on employers to make provision for employees with disabilities.
In this instance, however, the right to private property was seen by the Supreme Court as belonging to a very different category of people - the vulnerable elderly. The court examined whether a property right existed, and concluded that the right to reclaim money charged unlawfully was, in law, a form of personal property known as "chose in action".
Once it had defined the property right involved, the court went on to examine whether the State could retrospectively extinguish that right. It concluded that it could not. "The effect of the Bill is to abolish the property rights in question in their entirety, without compensation. This is an unjust attack on those rights for the purposes of Article 40.3.2 of the Constitution," it said.
The court was in no doubt that State officials were fully aware that the money was being taken illegally, especially after 2001.
After stating that the right to ownership of property has a moral quality intimately related to the humanity of each individual, the court stressed that this right deserves particular protection when it comes to a "person of modest means".
The judgment is trenchant: "It bears repetition that the property rights to be abrogated in their entirety by the Bill belong to the most vulnerable members of society," it said.
"It is an undoubted fact that the Bill will affect very many people who are old, or poor and disabled, mentally or physically, or in many case all of these."
Such people will have had little or no capacity to understand their rights under the legislation, or to protest at the unlawfulness of the charges, it said.
The judgment therefore imposes an obligation on the State to be especially protective of the rights of the particularly vulnerable, an obligation that was conspicuously absent from the considerations of the Department of Health during the whole sorry saga of nursing home charges.
The judgment also rejected the contention, put forward by counsel for the Attorney General, that a repayment of the money would constitute a "windfall" to the people concerned, or their relatives. It stated categorically that the property right in question "is assignable and will devolve on the estates of deceased persons".
The judgment did find that it lay within the competence of the Oireachtas to impose charges for nursing home care.
But, until this Bill was introduced, it did not legislate to do so, and, in fact, the legislation stated the opposite while charges were levied, apparently relying on the inability of most of those paying up to contest the charges. It is this that has now been condemned.
Normally when a Bill has been found unconstitutional by the Supreme Court following a referral by the President, the repugnant sections are redrafted.
But the impugned sections here are those which attempted to retrospectively legalise the illegal imposition of charges on elderly nursing home patients. That purpose was acknowledged by counsel for Attorney General.
The whole principle of doing so has been rejected by the Supreme Court in the strongest possible terms, and the Tánaiste now has no alternative but to find ways to reimburse the money.