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Dáil Éireann debate -
Wednesday, 26 Jul 1961

Vol. 191 No. 11

Committee on Finance. - Health (Corporate Bodies) Bill, 1961— Committee and Final Stages

Sections 1 and 2, inclusive, agreed to.
SECTION 3.
Question proposed: "That Section 3 stand part of the Bill."

Subsection (3) of Section 3 states:

A body so established shall be a body corporate with perpetual succession and a seal and with power to sue and to be sued in its corporate name and to hold land.

There are precedents for this such as in the Voluntary Health Insurance Act. The form there for such a body is "to acquire, hold and dispose of land." Do these words not require to be incorporated in the general powers of a corporation of this kind?

I do not think so. This body will not be an independent body in the sense that the Voluntary Health Insurance Board is. The Voluntary Health Insurance Board is, in fact, a commercial enterprise.

Does the statement that it has power to hold land mean that a situation can be brought about in which, having acquired land, the body might find itself unable to dispose of it, if it wished to do so? There does not seem to be any power in such a body corporate to dispose of property which it has. We are all aware of the difficulties which arise in the case of local authorities.

Perhaps the Deputy would turn to the section which deals with the winding up of such bodies— Section 7. It is contemplated that the property will be transferred only to certain persons —"the Minister; any one or more than one other body established by an establishment order; any one or more than one health authority, or any one or more than one joint board of health authorities established under Section 45 of the Health Act, 1953." It is not contemplated that it would be disposed of to a private person or as part of a commercial transaction.

I do not suppose that is contemplated. We are all familiar with the problem that arises when a local authority acquires land to build some public amenity and then determines afterwards that it is not suitable or more suitable land becomes available. There used to be a provision that they had an obligation to sell that land back to the person from whom it was compulsorily acquired in the first instance. In many cases, there was no power to sell the land. That led to confusion. Why does the Minister not give them that power?

It is not contemplated that there will be health authorities. The position would probably be this: If an establishment order were made setting up a body which required to purchase property, it would, so to speak, be purchased on behalf of the Minister and held for him. The purpose of the section is to make it definite that a body of this sort may hold land. These bodies perform entirely subsidiary functions on behalf of the Minister for Health. I am advised that it is not essential that their powers to purchase and dispose of land be specified in the Bill. It suffices to state that they are entitled to hold land.

That is all right but if this Bill had been an Act, the Blood Transfusion Service would probably have been a body corporate under this Act. Is that not so?

The Blood Transfusion Service buy Pelican House and after a time find it might be more suitable to move into the suburbs and wish to dispose of Pelican House and purchase alternative premises in some other centre. There is that power under this Bill to dispose of it?

No, they would not have power to dispose of Pelican House in that way because we are dealing with a body which at the moment is not covered by this Bill. Perhaps it will come within the context of this Bill.

It might.

And could.

It could if it were to pass the necessary resolution under Section 8. It cannot be liquidated. That is one of the provisions, that the process of liquidation does not have to be gone through. If in those circumstances it were decided that the National Blood Transfusion Association were to become an established body under this Act, then the establishment order would provide for all those contingencies.

Subsection 5 says that:

The Minister may from time to time by order amend an establishment order made under this subsection.

Subsection 3 establishes the body as a body corporate. Subsection 4 says that all courts shall take judicial notice of the seal of a body so established. It does seem to me a little bit contradictory that in this section we are setting up a body corporate to be subject to the judicial laws but that at the same time the Minister may amend the establishment order. I personally do not object to that but we should put the matter in correct perspective. Are these three subsections not in some way contradictory of one another?

Further, under subsection 5, the Minister may amend an existing order. That means the Minister still has considerable autonomy over this particular body. Such being the case, would the Minister care to indicate to the House that he is prepared to answer Parliamentary Questions, as he in fact indicated on the Second Stage he intended to do? Would the Minister indicate to the House that whoever the successor to the present Minister may be will also be answerable to the House?

I cannot do that. But in any event, there is no inconsistency. I am sorry but the Deputy seems to be under a complete misapprehension. There is no inconsistency between any of the three subsections he has cited. One gives power to establish a body corporate. The other gives power to amend the establishment order by a further order, subsequently to be laid before the House. There is not any inconsistency in that. It might happen that it might be found desirable in practice to merge two bodies which have been established under separate establishment orders. Then the one establishment order would cover the merger and all the provisions to be made arising out of it.

I appreciate what the Minister says, but, at the same time, does it not give the Minister full power?

I explained to the Deputy on the Second Stage that the Minister has every power at present and that the purpose of this Bill is to bring under statutory control the functions and powers which the Minister can now exercise without the cognisance of the House. These are powers which have been exercised by my predecessors.

The Minister is somewhat at cross purposes with my argument. What I am trying to convey is this. This is a new Bill— Section 3 is the main section of it— dealing with the setting up of these new bodies. These bodies will be corporate bodies or statutory bodies, whatever you like to call them. At the same time, there is another subsection which leaves the Minister the power to countermand anything they do. I am not objecting to that, subject to the fact that the Minister is answerable to this House for anything he may do. He has the majority behind him and he may do anything he wants to do. It is natural to assume any subsequent Government will have the same, but I want to ensure that the Deputies have the right to query by Parliamentary Question any order the Minister may make.

Of course.

I think that is a reasonable demand to make.

There is no question of that.

Is not subsection 5 giving him that authority?

Not at all. The Minister must lay that amending order before the Dáil and it can then be discussed by Deputies.

That brings me to the very point I want to make. Can it be dealt with by Parliamentary Question?

I am not the judge of what can or cannot be dealt with by Parliamentary Question. That is a power vested in the Ceann Comhairle.

That is rather begging the question, if I may say so. One of the main functions of Deputies, be they in opposition or in Government, is to come in here and query things that have passed into legislation. We cannot discuss these things on Estimates because we are ruled out of order. We cannot refer to legislation on Estimates. Our sole defence for the public, for those we represent and for the democratic system as a whole is the procedure of Parliamentary Question. I am merely asking the Minister to clarify whether this makes him subject to Parliamentary Question or not. He says not, but I think it does. If he is going to give a definite order to a corporate body——

I am awfully sorry but really the point is this. The Deputy misconstrues the function of a Parliamentary Question. If he wanted to raise the administration of any one of these established bodies, the proper way to do it would be by motion before the House. However, I am quite willing to answer, but I am not the judge as to what questions will be permitted.

I accept the Minister's reply that he is prepared to answer, but the difficulty is that he will not always be Minister for Health. I am not saying that from an election point of view, but there will be subsequent Ministers for Health. We are constantly passing legislation here but at the same time we are to an extent removing the functions of a Deputy. I want to ensure that all legislation we pass may be subject to Parliamentary Question, because I think it is the greatest safeguard of our freedom. If the Minister would just indicate whether he believes that to be the case in this instance, perhaps he could amend it accordingly.

Question put and agreed to.
SECTION 4.

I move amendment No. 1:

In paragraph (b), page 3, to delete all the words in the paragraph after "established" in line 3.

The main purpose of this amendment is to ensure that where an existing corporate body established under the Companies Acts becomes an established body it will be possible to apply the Local Government Superannuation Act, 1956, to the staff of the limited company which becomes an established body. In order to do that it may be necessary to modify the existing provisions of that Act. For instance it may be necessary to modify them to enable credit to be given for service with the company when superannuation comes to be reckoned under the Local Government code.

Again, it may be necessary to waive the condition of a superannuation contribution. It might happen that the staffs of some of these companies might have a pension scheme — we do not know if they have at the moment, but they might develop in that way — before they decide to pass the necessary resolution to enable them to become established bodies under this Act. It might happen that they might have pension schemes of their own towards which no contribution had been paid. We could not apply the Local Government Superannuation code to the staffs of these bodies without modification in the manner proposed — giving credit, for instance, for service with the company before the company became transformed into an established body and, secondly, waiving the contribution addition which is a pre-condition of the Local Government Superannuation code.

Amendment agreed to.

I move amendment No. 2:

At the end of section 4, page 3, to insert two new subsections as follows: —

"(2) An establishment order or an order amending an establishment order may include provisions for—

(a) the application, with the consent of the Local Appointments Commissioners, of the Local Authorities (Officers and Employees) Acts, 1926 and 1940 to appointments to offices under the body established by the establishment order as if it were a local authority but subject to any modifications specified in the order, and

(b) the application of the Local Government (Superannuation) Act, 1956 to the body as if it were a local authority but subject to any modifications (including modifications relating to service reckonable as pensionable service) which may, with the consent of the Minister for Local Government, be specified in the order.

(3) Where provision has been made in an establishment order or an order amending an establishment order for the application of the Local Government (Superannuation) Act, 1956 to a body established by an establishment order (whether with or without modifications relating to service reckonable as pensionable service) and an officer of that body becomes a pensionable officer of a local authority, subsection (1) of section 11 of that Act shall, in its application to him, be construed as if the following paragraph were added to that subsection: —

‘(i) service as a pensionable officer of a body established under the Health (Corporate Bodies) Act, 1961 to which this Act has been applied under that Act or other service which would be reckonable by such body for the purposes of his superannuation'."

This is consequential.

Amendment agreed to.
Section 4, as amended, agreed to.
Sections 5 and 6, inclusive, agreed to.
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill".

In paragraph (d) of subsection (2) it is provided:

notwithstanding any restriction in any other Act, the transfer of the holder of any office under the dissolved body to a similar office under—

(i) a local authority, or

(ii) any other body established by an establishment order.

I note no power is being taken to enable a Minister to compensate a transferred officer for loss of office if a similar office is not available.

That can be dealt with in the establishment order. If necessary, the body can do it before it is dissolved.

Would a nearly similar office be accepted?

I would say so. The key words there are "notwithstanding any restriction in any other Act." The purpose of that phrase is to get over the difficulty under which entrance into local authority service is regulated by the Local Authorities (Officers and Employers) Act of 1926. This will facilitate the transfer of an officer from one of these established bodies into the service of a local authority if it is decided at any time that the services discharged by the body can be discharged by an ordinary local authority. I cannot see any difficulty arising if there is not an office similar in every respect to the office previously held by the transferred officer. In practice, I do not think any difficulty would arise.

The Minister is satisfied that, in the event of a similar or nearly similar office not being available, there is provision whereby the officer can be compensated?

The corporate body can do that. As the establishment order will be tabled here, I am perfectly certain that questions can be raised here should the necessity arise. I imagine each of these bodies will be very willing to compensate any person who cannot be absorbed into a local authority or into one of the other established bodies.

Question put and agreed to.
Section 8 agreed to.
SECTION 9.
Question proposed: "That Section 9 stand part of the Bill."

It is not anticipated that anything more than ordinary administrative expenses will arise under this section.

Question put and agreed to.
SECTION 10.

I move amendment No. 3:

3. In page 4, before section 10, to insert the following section:

(1) The Minister shall cause a copy of every order made by him under this Act to be sent, as soon as may be after the order is made, to each member of each House of the Oireachtas.

(2) Every order made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next seven days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(3) Non-compliance with subsection (1) of this section in respect of any member or members of either House of the Oireachtas shall not affect the validity, or the coming into operation, of an order made by the Minister under this Act.

This amendment is to meet the points made by Deputy Dillon, Deputy Corish, and others on the Second Stage. Under subsection (1) of this new section, each member of the Oireachtas will be sent a copy of the order made under this Act "as soon as may be after the order is made." That is an innovation. I do not think such a provision exists in any other statute. Every member of the Oireachtas will now be put under notice, so to speak, that this establishment order has been made. This is being done to meet the point made by Deputy Corish.

Again, to meet the point made by Deputy Dillon that there was no provision in the section, as drafted, for annulling an order if either House so desired, we are introducing this amendment to cover that situation. Having regard to the fact that copies will be circulated, we have reduced the time from whatever the normal number of sitting days is down to seven. I think that should be sufficient time for any member to move that an order be annulled.

Amendment agreed to.
Section 10 deleted.
Bill reported with amendments, received for final consideration and passed.
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