Dáil Éireann debate -
Thursday, 20 Jan 2011

Vol. 727 No. 2

Adjournment Debate

Consultancy Contracts

Deputy Alan Shatter

With the agreement of the House I will go ahead of Deputy Deenihan, who will be with us in a few moments. I thank the Ceann Comhairle for allowing me to raise this issue, which is of some considerable importance. Before I deal with the substance of the issue, I emphasise that I am not in any way casting aspersions on any of the law firms involved in the matter. To the best of my knowledge, all such firms are firms of legal expertise and integrity and my comments are not in any way meant to be critical of any particular law firm or any solicitor associated with any particular law firm. My concern in this area relates to the steps taken by the HSE with regard to the obtaining of legal services for the HSE across a broad range of areas and the involvement, if any, of the former Minister for Health and Children, Deputy Mary Harney, the Minister of State at the Department with responsibility for children, Deputy Barry Andrews, or the Minister of State at the Department who is present this afternoon, Deputy John Moloney, within whose brief this matter falls.

As I understand it from a reply to a Dáil question on 12 January 2011, the HSE has qualified 35 law firms to deliver legal services through four geographical panels, each representing a HSE administrative area. The law firms on these panels are to be used to deliver advices and services in key legal areas such as child care, environmental health, mental health, disability and other areas. In response to a Dáil question, I was informed that these law firms would be managed by a single law firm, which will act "as the service manager for the contract". In addition, one particular law firm with which we are familiar and against which I make no imputation of any description, Arthur Cox, is to be responsible for providing the HSE with all its corporate legal advice.

I tabled the Dáil question to find out the involvement, if any, by the Minister for Health and Children in these new arrangements or that of Ministers of State in her Department, to find out what discussions took place, to seek the identity of the solicitors firms on the relevant panels and the solicitors firm that, it is envisaged, would be appointed in this managerial capacity. In reply, the Minister did not indicate to me if she had any consultations of any description with the HSE in advance of its advertising or putting in place this new, and what I describe as extraordinary, structure. The Minister simply stated that the HSE advised that on 13 November 2009, a contract notice was dispatched to the Official Journal of the European Union announcing the commencement of a procurement process for the delivery of what is described as a concessionary-type model for legal services.

What is my complaint? My complaint is that it appears that with questionable legal authority, possibly without any consultation with the Minister — this matter might be clarified — without any debate in the House and without any notice to the Joint Committee on Health and Children, the HSE has divested itself as the statutorily established body of a role with regard to the legal services it obtains and has delegated its statutory function to a private law firm. I emphasise that I am not being critical of Arthur Cox as a law firm. There was a tender process and it lawfully tendered and, I presume, was successful in the tender process. A private firm of solicitors has been conferred, apparently by a statutory agency established by this House, with a role that reflects the role of a State-sponsored body. It will be the supervisory body that determines what work will be done across this State by 35 other law firms on behalf of the Health Service Executive, HSE, in a broad range of areas of great sensitivity including child care. I have absolutely no idea what expertise some of these firms have in this area or on what basis this work can be done. The law firm to which this work has been subcontracted has no obligation of any description to be accountable to this House or the Oireachtas Committee on Health and Children for any aspect of the work undertaken.

I again emphasise that I am not critical of the firm that succeeded in obtaining the tender. My criticism is that this extraordinary and bizarre divesting of statutory responsibility and the restructuring of law services to deliver crucial services to the HSE should have been discussed in this House with some public deliberation and consultation. Measures should be in place to ensure no conflict of interest occurs. I do not know whether one of the 35 law firms, for example, may deal with a child protection issue for the HSE——

Acting Chairman (Deputy Seán Ardagh)

The Deputy cannot expand on this. He should finish on this point.

Deputy Alan Shatter

——while advising the Catholic church on issues in which it is accused of child sexual abuse.

Acting Chairman (Deputy Seán Ardagh)

Has the Minister of State a response to this?

Deputy Alan Shatter

I will conclude and thank the Acting Chairman for his forbearance. This is an issue of fundamental seriousness that should not have been dealt with in this way. What is the extent of the Government's involvement in this matter? Will the events in this case be the subject of a review?

Minister of State at the Department of Health and Children (Deputy John Moloney)

I accept Deputy Shatter is not being critical of any specific law firm. I thank him for raising this issue and giving me the opportunity to clarify the position on the new arrangements put in place by the HSE for the provision of legal assistance to it.

Neither the Minister for Health and Children nor her Department has a role in sanctioning HSE procurement. This is a matter for the HSE and its board. The HSE has its financial and procurement policy which sets out authority levels for entering into contracts, up to and including board level, for larger contracts.

The HSE advised the Department that on 13 November 2009 a contract notice was dispatched to the Official Journal of the European Union which announced the start of a procurement process for the delivery of a concessionary type model for legal services.

The contracting model is two-tiered. To start with, the model will involve a total of 35 law firms. All these law firms have been qualified by the HSE to deliver services through four geographical panels, based on the four HSE administrative areas. The law firms on these panels, known as member firms, will be used to deliver advices——

Deputy Alan Shatter

The Minister of State is reading the same reply I received in a parliamentary question on the matter.

Deputy John Moloney

Deputy Shatter was having a great chat with his colleague on the opposite benches so he could have at least listened to my reply before interrupting. No matter what I say, he is going to be critical of it either way.

These firms will be managed by a single law firm which will act as the service manager for the contract. In addition to acting as the service manager, this law firm will also be responsible for providing the HSE with all of its corporate legal advice.

The general requirement to reduce legal costs has been the subject of discussions between the HSE and the Department of Health and Children, in the context of achieving value for money. Specific targets on cost reductions were included in the HSE's 2010 service plan. The Minister for Health and Children was informed by the Secretary General in October 2010 that the procurement process was under way and that it was hoped the new arrangements would come into operation from 1 January 2011.

The head of the legal division in the Department was also aware that the tendering process was taking place, from discussions with her opposite number in the HSE. Following a detailed and comprehensive evaluation process, the firm of Arthur Cox was selected as the preferred bidder to act as the service management firm for the new contracting model. The head of the legal division in the Department was informed that Arthur Cox had been chosen and its name was going before the board at a meeting to take place in December. Contractual negotiations are ongoing with this firm with a view to a contract commencing on 1 March 2011. To manage any risk associated with conflict of interest, a firm from outside of this jurisdiction was engaged to assist the HSE in preparing contract documents. The firm engaged to assist in this regard is McGrigors LLP, whose head office is in Edinburgh, Scotland. Senior counsel has also been retained on an as-required basis to advise the HSE.

Deputy Alan Shatter

What about the lawfulness of the HSE delegating this function to a private law firm? Why did the Chief State Solicitor's office have no involvement in this process?

Acting Chairman (Deputy Seán Ardagh)

I call on Deputy Deenihan.

School Accommodation

Deputy Jimmy Deenihan

Mercy Secondary School, Mounthawk, Tralee, is the largest voluntary secondary school in the country with just under 1,200 pupils. It was opened in 2001, a result of the amalgamation of Moyderwell and Balloonagh secondary schools as a CEIST school. It has proved to be very successful.

Unfortunately, it was originally built to accommodate 900 pupils when its first enrolment was 1,200. From day one it had to get prefabs for accommodation that still remain on the site. The school has a staff complement of 100, including special needs assistants. It achieves high academic standards and teaches subjects across the curriculum spectrum. It is co-educational with a 50:50 split. The teachers there are very energetic and well-motivated. I must declare an interest as my wife is a teacher there, as well as Deputy McEllistrim's sister.

Acting Chairman (Deputy Seán Ardagh)

Is there any Sinn Féin or other party involvement in the staff?

Deputy Jimmy Deenihan

Not that I am aware of. As it is a top-class school, a large number of pupils in Tralee and the surrounding areas apply for admission to the school. The feeder schools, Moyderwell and Balloonagh primary schools, have first choice. As a result 90 pupils are on the waiting list to gain admission in September. For some time we have been waiting for a consultant post to be filled in Tralee General Hospital. The prospective consultant may not be able to take up this post because he cannot get his daughter into the Presentation School or Mercy Secondary School, Mounthawk, due to the waiting lists.

Mercy Secondary School, Mounthawk, has been one of the success stories of amalgamation and co-education. It should be given preferential treatment as regards the provision of extra accommodation to replace the prefabs and ensure the waiting lists are removed. I hope the Minister of State's reply will not be the usual formula stating it will be sorted in five years.

I hope instead the Minister of State will enlighten the House with regard to the immediate plans the Tánaiste and her Department have for Mercy secondary school in Mounthawk.

Deputy John Moloney

I wish to apologise on behalf of the Tánaiste and Minister for Education and Skills who cannot be present to respond to Deputy Deenihan directly. I thank the Deputy for raising this matter because it provides me with the opportunity to outline to the House the Government's strategy for capital investment in respect of education projects and to outline the current position regarding the application made for an extension to Mercy second school, Mounthawk, Tralee, County Kerry.

Modernising facilities in our existing building stock, as well as the need to respond to emerging needs in areas of rapid population growth, is a significant challenge. The Government has shown a consistent determination to improve the condition of school buildings and to ensure that the appropriate facilities are in place to enable the implementation of a broad and balanced curriculum. The planning and building unit of the Department of Education and Skills assesses all applications for capital funding. The assessment process determines the extent and type of need presenting, based on the demographics of an area, proposed housing developments, the condition of buildings, site capacity, etc., leading ultimately to an appropriate accommodation solution. As part of this process, a project is assigned a band rating under published prioritisation criteria for large-scale building projects. These criteria were devised following consultation with the education partners.

There are four band ratings under these criteria, each of which describes the extent of accommodation required and the urgency attaching to it. Band 1 is the highest priority rating and band 4 is the lowest. Documents explaining the band rating system are available on the Department's website. Information in respect of the current school building programme, along with all assessed applications for major capital works, including the project for Mercy secondary school, Mounthawk, is also available on the website.

Mercy secondary school, Mounthawk, opened in September 2001 as a result of the amalgamation of two secondary schools in Tralee. The school authorities submitted an application for large-scale capital funding for an extension in 2007. The application has been assessed in accordance with the published prioritisation criteria for large-scale building projects and was assigned a band 2.5 rating. A schedule of overall accommodation has been completed for the proposed project. The school's enrolment at 30 September 2009 was 1,175 pupils, which represents an increase of 1% in the previous five years.

The school has received capital grant aid in recent years for other works. Under the summer works scheme 2010, it received funding in the amount of €234,239.39 for external environment improvements. In October 2010, it was included in a list of schools that were approved a grant for water conservation measures.

The forward planning section of the Department of Education and Skills has identified 43 priority areas throughout the country where significant additional accommodation will be required at primary and post-primary level in the medium term. Factors under consideration in this regard include population growth, demographic trends, current and projected enrolments, recent and planned housing developments and the capacity of existing schools to meet demand for places. The indication from the forward planning section is that there is not likely to be a significant growth in demand for additional classroom accommodation in the Tralee area in the short term and that there is sufficient capacity to meet the needs of the area.

The progression of all large-scale building projects — including the project in question — from initial design stage through to the construction phase will be considered in the context of the Department's multi-annual school building and modernisation programme. However, in light of current competing demands on the capital budget of the Department, it is not possible to provide an indicative timeframe regarding the progression of the project. I again thank the Deputy for giving me the opportunity to outline to the Dáil the current position regarding the school building project for Mercy secondary school, Mounthawk, Tralee, County Kerry.