The Government has refused to bow to Opposition demands to drop sections of emergency health legislation that will be rushed through the Oireachtas next week.
The main body of the Health (Miscellaneous Provisions) Bill 2007 is needed to quell doubts about the legal status of 19 health bodies set up by successive ministers for health since 1961, such as Beaumont and St James's hospitals and the Blood Transfusion Service Board.
However, the Government has also decided to include measures to "put beyond doubt the legal capacity" of St James's and Beaumont to sign deals with private developers to build private hospitals on their grounds.
The 19 bodies were established using powers granted by the Health (Corporate Bodies) Act, but courts have increasingly questioned the Government's right to make decisions using ministerial orders, rather than via more time-consuming legislation.
Article 15.2. of the Constitution states: "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." Attorney General Paul Gallagher has given "unequivocal advice" to Minister for Health and Children Mary Harney that emergency legislation "is legally and constitutionally necessary" to protect the legality of these bodies.
Questioning the approach being adopted, Fine Gael health spokesman Dr James Reilly said: "If the Minister is genuine about getting Opposition co-operation in passing emergency legislation over two days, she has to produce more evidence to support the inclusion of the co-location aspect."
The emergency legislation, which will be dealt with by the Dáil next Tuesday, also includes changes to the Medical Practitioners Act, which only passed through the Oireachtas in May.
The Department of Health and Children last night said that the changes to the latter piece of legislation were necessary because it was found that changes to the Medical Council could not be done on a phased basis, but would have to be done all at once. This the Government did not want to do, since it wanted the new lay-dominated council to take charge of the situation once it had been appointed.
The legislative rush, said Dr Reilly, was particularly questionable since Beaumont and St James's "are quite happy about the soundness of their legal standing".
Labour leader Eamon Gilmore said a host of local government organisations were now legally questionable because they were set up using identical legislation to the one used for the health bodies.
