This is flawed legislation in terms of commitments made in the programme for Government. One could re-name the Bill the health (alteration of the programme for Government) Bill because it is not reflective. In the programme for Government the Government stated it would deal with the related problem of legislation being shunted through at high speed. Dáil Standing Orders provide for a minimum period of two weeks between each Stage of a Bill, except in exceptional circumstances. I have no understanding of the reason this is an exceptional circumstance. I understand the budgetary position the Government is in and that it is trying to make the case in that regard.
Health (Alteration of Criteria for Eligibility) Bill 2013: Committee and Remaining Stages
SECTION 1
Question proposed: "That section 1 stand part of the Bill."
We cannot have Second Stage speeches on Committee Stage.
I understand that. We have had no discussion on the broader context of the legislation outside the Chamber. We have had Second Stage and are now on Committee Stage, but the difficulty is that no stakeholders have been consulted and there has been no opportunity for anyone other than elected representatives, including advocacy groups and those who advocate for and represent older people, to contribute. Such groups and persons have not had an opportunity to contribute.
The Deputy can make those points when the Bill is on Fifth Stage. We are on Committee Stage now and are dealing with the sections.
Debates in this House on health services are being stifled.
We are dealing with section 1 of the Bill, which concerns the Short Title, collective citation and commencement.
I need an opportunity to make my points at some stage.
Most of the points the Deputies are endeavouring to make now are Second Stage points, but we have moved on to Committee Stage. However, before the Bill is formally passed, the Deputy can refer to matters in the Bill generally. We must deal with Committee Stage now.
Question put and agreed to.
Section 2 agreed to.
SECTION 3
Amendments Nos. 1 and 2 have been ruled out of order.
Amendments Nos. 1 and 2 not moved.
Question proposed: "That section 3 stand part of the Bill."
We have concerns with regard to the criteria for assessing eligibility. We are concerned that in moving to a situation where eligibility is assessed based on the consumer price index and an assessment of gross limit incomes and all that flows from that, with no referral back for parliamentary scrutiny, this will undermine the ability of this Chamber to hold the Department to account with regard to reductions in entitlements. This is quite a move forward from where we are. We will now have a situation where the income assessment is based on something else completely as opposed to on decisions which would be accountable in this Chamber. While I trust in the humanity of the Minister of State and know he will look at these issues sympathetically, I feel there should be a mechanism in place whereby reductions in entitlement and eligibility can only be brought about through accountability to the Oireachtas.
Section 3 (a), (b) and (c) are acceptable because they update the legislation in line with the provision of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. However, I cannot understand the provision in the latter part of subsection (c). The programme for Government suggests there will be free GP access for everybody and the Labour Party and Fine Gael opposed the previous Government when it tried to withdraw the medical card from people over the age of 70. However, the Government is now going in the opposite direction, by reducing the eligibility limit for people over 70. This is wrong.
I know that legislation is bad when people come to my advice clinics in tears on account of something. Therefore, Sinn Féin will oppose section 3 in its entirety because of the latter part of section 3(c).
With regard to the consumer price index issue raised by Deputy Kelleher, that only relates to the rather restricted circumstances in which the Minister can increase or decrease the limits in accordance with the index. We had some discussion on this on Second Stage and the impression may have formed in some quarters that this is a kind of catch-all power for the Minister and that he could simply make an announcement increasing or decreasing the limits, without regard to any set of standards or requirements. The Bill is very clear that it confines the discretion of the Minister acting on his own - in other words acting otherwise than in accordance with what the Oireachtas provides for. Those circumstances are very limited. They are limited only to the circumstances set out and referred to at section 3(d) and set out in section 7(5) of the Bill. It states:
The Minister shall, on 1 September of every year, review the most recent information on the consumer price index made available by the Central Statistics Office, and may, with the consent of the Minister for Public Expenditure and Reform, by regulations to take effect on 1 January next following that review, increase or decrease the gross income limits specified for the purposes of this section to reflect any increase or decrease in that index.
It is important to note that the power about which Deputy Kelleher is concerned is quite confined and restricted and this should allay his concerns.
With regard to the issue raised by Deputy Colreavy, an issue which was raised by Deputy Ó Caoláin on Second Stage, I sought to point out to the House on Second Stage that contrary to what Deputy Colreavy says, this section is not going in the opposite direction in respect of our commitments with regard to free GP access. I will explain this clearly to the House again. There is a commitment in the programme for Government to extend free GP access to the entire community. Nothing in this Bill takes us in the opposite direction to that commitment. That commitment stands and is not in any way undermined, redirected or negatived by anything we are doing here.
We estimate 20,000 people will lose access to a full medical card following this Bill, but that access will be replaced by free GP access. Therefore, we are not going in the opposite direction. There is nothing in the Bill that takes us in the opposite direction from GP access. Deputies should understand that nobody will lose free GP access as a result of anything in this Bill.
I must be confused. I have read the Bill and the explanatory memorandum. Section 3 provides for the amendment of section 45A of the Health Act. The memorandum states:
Subsection 45A(4) will be amended to provide for a decrease in gross income limits in addition to the existing provision to increase gross income limits. The limits are reviewed annually by the Minister for Health and may now be increased or decreased with the consent of the Minister for Public Expenditure and Reform to reflect increases or decreases in the consumer price index.
This is quite clear and explicit and states there will be an amendment to the Health Act 1970 to allow the Minister, in consultation with the Minister for Public Expenditure and Reform, to change the limits. I believe the only way an entitlement should be removed from people should be by accountability to this elected Chamber. I have a serious concern that this amendment could have profound implications on people's rights and entitlements.
If a Government has budgetary challenges, it should be accountable in terms of the decisions it makes to the Oireachtas. Perhaps I am missing something, but does this section remove that accountability? Even if it does not, it should not be there because it certainly diminishes accountability. I oppose section 3 on that ground.
I suggest that people must come in and explain in detail the reasons an eligibility, an entitlement or a right is being withdrawn. It is clear in another section of the Bill that this is not just about the consumer price index. The Minister will be able to make decisions with reference to the consumer price index, but they will not have to be based on the index.
That is incorrect.
I do not think it is. If one examines the legislation in detail, one will see that it leaves some wriggle room. I do not believe there is enough strength of purpose in this Bill and in the 1970 Act to protect the right to entitlements. They should not be withdrawn without being subjected to democratic accountability in the Oireachtas.
The Minister of State said on Second Stage that 20,000 people will have their medical cards withdrawn. According to the HSE service plan, some 40,000 cards will be withdrawn. I would love to understand the rationale for the difference. I agree with Deputy Kelleher that there is some wriggle room that will allow the Minister of the day to deviate from the consumer price index. Even if he or she does not deviate from it, this responsibility is being given to him or her. That is a substantial change on the legislation as it currently operates. This section should be opposed.
The consumer price index formula that is being used is almost precisely a word-for-word replica of what is in the 2008 Act. I would be concerned if it were true, as Deputy Kelleher suggests, that this will give the Minister of the day a certain latitude. I would be concerned about his view if it were true, but it does not seem to me that it is. It seems to me that any clear or reasonable reading of what is provided for here will appreciate that we are essentially maintaining the real value of the eligibility limits if there is a change in the consumer price index. I remind the House that the index is not a secret.
I accept that.
It is published by the CSO. It is not the case that there is no accountability. Anybody can see the consumer price index. The limited power being given to the Minister to increase or decrease the income limits will be predicated exclusively and expressly on movements in the consumer price index, which is open for all to see on the public record because it is published by the Central Statistics Office. I would be concerned if I thought there was substance to the suggestion, which Deputy Colreavy seems to believe, that some kind of broader discretion is being given to the Minister apart from the discretion I have mentioned that is based on the consumer price index. It seems that no such broader discretion will arise because the limited and confined power we are providing for is entirely consistent with the existing legislative position going back to the 2008 Act, which I have in front of me. That legislation was inserted into the Health Act 1970, just as this legislation will be.
Question put:
The Committee divided: Tá, 71; Níl, 27.
Tá
- Bannon, James.
- Breen, Pat.
- Bruton, Richard.
- Burton, Joan.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Catherine.
- Byrne, Eric.
- Carey, Joe.
- Collins, Áine.
- Conaghan, Michael.
- Conlan, Seán.
- Connaughton, Paul J.
- Conway, Ciara.
- Coonan, Noel.
- Costello, Joe.
- Coveney, Simon.
- Creed, Michael.
- Daly, Jim.
- Deasy, John.
- Deering, Pat.
- Doherty, Regina.
- Donohoe, Paschal.
- Dowds, Robert.
- Doyle, Andrew.
- Durkan, Bernard J.
- Farrell, Alan.
- Feighan, Frank.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Flanagan, Charles.
- Harrington, Noel.
- Harris, Simon.
- Hayes, Tom.
- Heydon, Martin.
- Howlin, Brendan.
- Humphreys, Heather.
- Kehoe, Paul.
- Kenny, Seán.
- Kyne, Seán.
- Lawlor, Anthony.
- Lynch, Ciarán.
- McGinley, Dinny.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- Maloney, Eamonn.
- Mitchell, Olivia.
- Neville, Dan.
- Nolan, Derek.
- Noonan, Michael.
- Ó Ríordáin, Aodhán.
- O'Donnell, Kieran.
- O'Donovan, Patrick.
- O'Dowd, Fergus.
- O'Mahony, John.
- O'Reilly, Joe.
- O'Sullivan, Jan.
- Perry, John.
- Phelan, John Paul.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reilly, James.
- Ring, Michael.
- Ryan, Brendan.
- Shatter, Alan.
- Timmins, Billy.
- Twomey, Liam.
- Varadkar, Leo.
- Wall, Jack.
- White, Alex.
Níl
- Browne, John.
- Calleary, Dara.
- Collins, Joan.
- Colreavy, Michael.
- Cowen, Barry.
- Crowe, Seán.
- Daly, Clare.
- Doherty, Pearse.
- Ferris, Martin.
- Flanagan, Luke 'Ming'.
- Healy, Seamus.
- Higgins, Joe.
- Kelleher, Billy.
- Kitt, Michael P.
- McConalogue, Charlie.
- McGrath, Finian.
- Moynihan, Michael.
- Murphy, Catherine.
- Ó Caoláin, Caoimhghín.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- Ó Snodaigh, Aengus.
- O'Brien, Jonathan.
- O'Sullivan, Maureen.
- Pringle, Thomas.
- Stanley, Brian.
- Wallace, Mick.
Tellers: Tá, Deputies Ciara Conway and Paul Kehoe; Níl, Deputies Aengus Ó Snodaigh and Seán Ó Fearghaíl.
Question declared carried.
SECTION 4
Question proposed: "That section 4 stand part of the Bill."
For clarification, section 4(2) states: "The Minister may by regulations provide for the making and determination of appeals under this section." What regulations are being referred to? Are these regulations in the 1970 Act?
A Bill is in progress. Will Members leave the Chamber if they wish to have a chat, as they are upsetting the Deputy? He is getting a bit anxious, as he cannot hear himself.
The Minister of State cannot hear me either. The Minister may by regulations provide for the making and determination of appeals under this section. I just need clarity before I can accept this section. Are these regulations in the Health Act 1970 or the amended Act of 2008, or are they new regulations? If they are new, we are being asked to buy a pig in a poke.
In an effort to be helpful, I suggest that the draft regulations be put before the Oireachtas Joint Committee on Health and Children.
This is an exact restatement of the provision in existing legislation. It is only an enabling power, which already existed, for the Minister to bring in regulations. My information is that regulations have not been introduced to date. It is a restatement of a power that has always been in the legislation entitling the Minister to make regulations. A Minister cannot make regulations unless he or she has a statutory power to do so. It is just repeating that the Minister has the power to make regulations. It does not mean that he will make regulations. My information is that regulations have not been made in this regard at any stage.
The definition of stupidity is doing the same thing over and over and expecting a different result. I sat on that side of the House and we know what happens when times are difficult and people are forced for whatever reasons to find savings. The regulations clearly should be part and parcel of what we are doing, or there should be some mechanism for absolute accountability. This section states quite clearly: "The Minister may by regulations provide for the making and determination of appeals under this section." While the Minister of State says that the Minister may not bring forward regulations or has no intention of doing so, we cannot take that as a factual position, because the legislation allows him to bring forward regulations - regulations about which we know nothing. In the context of this Bill, there must be some accountability in terms of laying before the House or discussing at the Joint Committee on Health and Children the regulations to be introduced. Otherwise, we are giving quite sweeping powers to the Minister. I have major concerns about section 4 because of that subsection.
It is important to make a distinction between a law that is made giving or removing substantial entitlements and a procedure that exists for a person to lodge an appeal if he or she is in some way disappointed or has lost out on an application. All this does is to allow the Minister to provide, by regulation, for the making and determination of appeals under this section. It is purely a power on the Minister's part to make regulations governing the process. Deputy Kelleher is being quite vigilant here, as is proper in Parliament, but I reassure him and the House that there is no basis for concern that this could be used in some way by this or any other Minister to spirit in some substantive policy provision, be it in terms of eligibility or otherwise. It could not be done. The fears that might exist are not well-founded. I say that with respect to Deputy Kelleher, who is being absolutely vigilant in this regard. This is purely a repetition of a provision in law that allows the Minister, should he or she deem it fit, to make regulations, but they are regulations governing the procedure and process of an appeal and not any other type.
That is exactly the issue. It gives the Minister powers with regard to the process, and the regulations have not been published. A person who feels he or she is entitled to or eligible for a medical card makes an application. If it is refused, the person has the right to appeal. The difficulty here is that there is no specified time for assessment of the appeal if the Minister may by regulation provide for the making and termination of appeals under this section. As a practising Deputy in the first instance, the Minister of State knows as well as I do that what often happens is that an application for an appeal is made, the appeal goes through the process and, lo and behold, more information is requested a few days before the final decision is to be made. I said previously in this House and in Oireachtas hearings that I have concerns that at certain times towards the end of a financial year, appeals processes are slowed. Perhaps I am factually incorrect, but my interpretation is that this is done so that if a medical card is to be awarded, it will be awarded in a new financial year. The concern I have is that the Minister may by regulation provide that there will be no determined period of time in which the appeal must be lodged and assessed, additional information provided to satisfy the HSE or an agent appointed by same and a decision made. There should be no reason a decision cannot be made in a set period of time once all the information is assessed, assembled and taken into consideration.
The Oireachtas makes the law. The Minister does not make the law. That is the position, and that was also the case when Deputy Kelleher was on this side of the House. That is the system we have - parliamentary democracy. If any Minister is going to make regulations, he or she cannot do so willy-nilly. There must be an Act under which the Minister may make the regulations. The substantive aspect of this is in section 47(1). It is not the Minister who decides on a person's appeal. It is the HSE that decides that a person does not come within a category specified by or under the relevant section. The section as amended states: "[A]n appeal shall lie from the decision to a person (who may be an employee of the Health Service Executive) appointed or designated for that purpose by the Minister." That is the important part. We are allowing, as is absolutely proper, an individual to bring an appeal. We have to have that. It is vital that people be allowed to appeal.
The second part is the additional aspect, which is in a sense ancillary to the main part. It simply says that in respect of the appeals process, which is being dealt with substantively, the Minister may by regulations provide for the making and determination of appeals. It does not state that the Minister will be deciding on appeals or introducing anything new by the back door, because he cannot do so. There is no way any Minister could bring in a regulation that would in some way undermine or negate what is in the legislation, because it would be ultra vires. No Minister can undermine the will of the Oireachtas as set out in legislation through regulations brought in afterwards. We all know that from time immemorial. The Oireachtas makes the laws.
This has been the position in the legislation since the 1970 Act - that the Minister may, by regulation, provide for the making of determination of appeals. There is nothing particularly new here. We are neither adding nor subtracting anything from the main provision, nor are we negativing the main provision, which is to give people the right of appeal, which they should properly have. I do not think there could be any reasonable basis for an objection to a statutory power for the Minister to bring in regulations to govern such a process.
In the case of social welfare appeals, people are waiting 18 months for decisions on disability assessments on appeal. In my view, the provision is an attempt to save money. A certain percentage of successful appeals will mean a cost to the Exchequer. I am concerned that this provision is open-ended. Neither the substantive 1970 Act nor the amended 2008 Act contains a provision that the Minister is obliged, when laying down the criteria through regulation, to stipulate a defined period of time. If I could be given an assurance that a defined period of time was provided for, I would be very satisfied. There have been cases in which information is sought, an assessment is made and then, a very long time after that, another letter goes out seeking further information from the applicant. There is not a Deputy in the House who does not become familiar with this scenario week in, week out. The file is sitting somewhere being assessed. Additional information is required, yet those responsible will not send a letter in a timely fashion seeking that additional information. This is not only the case for medical card applications; it is how the public sector works across the board. I am concerned that there is a slow grinding down of the system in order to delay determinations. In the event of the regulation being published, a defined period of time should be stipulated. I am not concerned that the Minister will interfere in the decision-making process, but I am concerned about the process under which the decision is made.
For the information of the Deputy and of the House, I can only deal with the issue of medical cards, not the social welfare issue or the other matters referred to by the Deputy. As the House has previously been informed, the HSE has confirmed that the average waiting time for an appeal is currently between four and 12 weeks. On 18 March 2013, 95.38% of medical card applications were being processed within 15 working days. I understand the Deputy's point about the historical difficulties of a backlog of people waiting for decisions, but the facts prove that this has been largely addressed.
I do not doubt the ability of the Minister of State. However, in the event that the Minister was not as capable as Deputy White, the regulations would not force the HSE to make decisions within a defined period of time.
Question put and declared carried.
SECTION 5
Question proposed: "That section 5 stand part of the Bill."
This power is given to the Minister under section 5. In my view, it is a power that might work better if it were put before the Oireachtas Joint Committee on Health and Children. I refer to the issuing of guidelines with regard to those ordinarily resident in the State. I know that this posed significant challenges for Irish people who had to go abroad to work because they could not find work at home. Their work permits having expired, they were forced to come home, but when they applied for medical cards they were told they had to negotiate all sorts of hoops and banners in order to prove they were ordinarily resident in the State. Those definitions and guidelines are better when they are considered and examined by a number of different parliamentarians - for example, in a committee. If there is one thing we know as parliamentarians, it is the difficulties encountered by people when they try to fit within the guidelines laid down by Departments. I ask the Minister of State to give a commitment that draft guidelines be brought in the first instance to the Joint Committee on Health and Children.
On the same issue, the reason I referred to other Departments and State agencies is that this has happened previously. As Deputy Colreavy has rightly pointed out, a major issue of concern was the situation for returning Irish citizens who were unable to qualify for social welfare payments because of the guidelines laid down and interpreted by the Department of Social Protection and its officials. The Minister may issue guidelines to the Health Service Executive and persons appointed or designated by him or her under section 41(1) to assist those persons in making decisions or determining appeals as to whether a person is ordinarily resident in the State for the purposes of sections 45, 45A, 46, 58 or 58A. Difficulties have arisen for people who have left the country to work abroad, who, when they return - after many years of making contributions in the State - find they are unable to access the most basic social welfare payments and may have problems qualifying for medical cards. We are being asked to trust the system without the opportunity to scrutinise the guidelines and regulations. This is another area that is vague with regard to the powers of the Minister. Are criteria in place with regard to qualification for social welfare payments, medical cards and other State supports?
The position is exactly as the Deputy describes: there are already guidelines in place which have been issued and circulated by the Minister. This section of the Bill provides for the same guidelines for those over 70. It is simply repeating the power of the Minister to issue guidelines to the HSE and persons designated by him or her with regard to the question of whether a person is ordinarily resident in the State. These guidelines are already in place and are habitually circulated. This section proposes that the same apply in the context of provisions for those over 70, which are being dealt with in this Bill.
With regard to whether a person is ordinarily resident in the State, ordinary residence is quite a flexible and, relatively speaking, liberal - if I may use that word - concept. It is not the same as domicile, for example - which is more difficult to prove - or tax residency. It is not the same as any of these other more onerous requirements. I am not giving any undertakings as to how it may be dealt with, but as a general proposition, a person can show ordinary residence if he or she is renting a property, for example. I am not saying it always happens, but it is possible for an individual who returns to the State after a relatively short period of time to show ordinary residence. It is quite a flexible instrument compared to domicile or tax residency. It is very much at the liberal end of what a person needs to demonstrate.
I cannot agree completely with the Minister of State on that point, because I have come across instances in which that is not the case. Perhaps there are different interpretations in different areas. However, I do not understand his reluctance to accept that when designing guidelines for something like this, a better decision could be made if the draft guidelines were to go initially to the Joint Committee on Health and Children. Surely what is missing is the experience-based advice of those who are meeting daily with people who experience problems in satisfying the conditions laid down in the guidelines.
I find it difficult to understand the Minister of State's reluctance to accept the concept that an Oireachtas committee can make a better product.
I do not like to labour a point either but we have had form in this area before. Irish citizens who were abroad for just a number of years and came home of their own volition or because things did not work out in their new home and encountered the difficulty on return to Ireland that they were ineligible for many social welfare payments. My concern is that the guidelines the Minister issues may make it difficult for people who left the country for a period to qualify on return before the expiry of a set period. That is clearly the issue. We have already been given commitments in respect of previous legislation that guidelines would be flexible and able to take into account individual circumstances. When times are difficulty, however, the noose is tightened around guidelines qualification criteria by a Minister. By narrowing guidelines, the Government diminishes more people's rights and entitlements. There must be some form of scrutiny of guidelines. I have always believed regulations should be laid before the Houses of the Oireachtas and the subject of discussion in the Joint Committee on Health and Children. Even the programme for Government - that fine document - refers to the need to give Oireachtas committees more meaningful input on the monitoring of Departments and the discussion, implementation and teasing out of regulations. Section 5 represents another carte blanche approach to an issue. I am being asked to say in the Dáil simply that the Minister may issue guidelines. Of course, he will issue guidelines and do so quickly to make it difficult for people to qualify.
They have been doing it since 1990.
That it was done does not necessarily mean it was right. It happened in the context of social welfare. I sat on the other side of the House and voted for it. I voted for something that caused great distress and hardship to people when they returned to Ireland and found that after only a few years away they could not qualify for any social welfare payments. We had to beg and borrow and approach community welfare officers to get a few pounds to keep people going. That is something we cannot visit on those who are returning and who made a major contribution to this country for many years. We are talking in this context about people aged over 70 years. The provisions are to give guidelines. Any person who has made a major contribution to this country and comes back after a period of time should be entitled to the basics. Surely, the basics include a medical card even in the context of the grounds of eligibility. I am concerned that there would be a major move to tighten up the criteria in terms of who can apply in the first place on foot of the definition of "residency" and all that section 5 purports to include in the legislation if passed.
Although its application in this context is to the over-70s, it is not a new provision that the Minister may issue guidelines in respect of matters such as ordinary residence. It has no application whatsoever to social welfare.
I know that. I was just giving an example.
The examples that have been given are being given in the context of social welfare. This has no application to social welfare. There is no point in invoking examples from the social welfare code in support of an argument on the question of medical cards. They are two completely different regimes. What we are dealing with here is medical cards and a specific provision which is not new in terms of its antecedents. It is neither a new idea nor a new provision. It is simply being newly applied in this particular context. I emphasise that Deputy Kelleher very reasonably said that if someone had made a major contribution to the country and returns he or she should be entitled to avail of the provisions set out in the legislation. I say that he is right. If someone comes back to Ireland with the intention to stay he or she will have no difficulty proving ordinary residence. I do not have the guidelines in front of me but I am advised that people who have been staying in a place for a year are clearly ordinarily resident and meet the criteria or that people can say they intend to stay and produce a rent book to prove he or she qualifies. These requirements are at the liberal end of the spectrum. The criteria is not domicile, tax status or other onerous requirement, it is ordinary residence and it is relatively easy to show.
With respect, guidelines are as liberal or as tight as a Government decides at a particular point in time. While I trust the Minister of State, I do not know who will be in office in six or even three years.
That is the point. I would not trust myself.
The Minister of State has not addressed my suggestion which is that where changes are proposed to existing guidelines, the draft guidelines should be brought before the Oireachtas committee. I do not understand the Minister of State's reluctance to take the suggestion on board. When something like this is suggested, the more experience-based advice that goes into its consideration, the better the guidelines will be. I ask the Minister of State to make a commitment that where changes to guidelines are proposed, the draft proposals would be put before the Joint Committee on Health and Children.
The Minister of State made my argument inadvertently by pointing that the current qualification criteria are liberal because they are not based on domicile or Revenue Commissioners' criteria. The legislation, however, will allow the Minister to change the regime to make it more difficult to qualify than it is to qualify as domiciled. There is no guideline to say otherwise. We are to depend totally on the Minister's whim as to who qualifies for an over-70s medical card where people return here to reside. The criteria can be decided by the Minister at any time. That is the issue of concern. We should never point to the personality of the Minister of the day. It is the system that will decide this once the Minister makes the regulation. It is tantamount to conferring rights on or denying rights to citizens through guidelines. It is inherently wrong. I instance the example of social welfare where another arm of Government brought forward regulations that were inherently unfair. Every Deputy was up in arms about it. People were returning to Ireland after a number of years away to find they could not qualify for basic social welfare payments. These were Irish citizens who had worked here for years and made contributions. My concern is that the Minister will have sweeping powers as to what constitutes a residency qualification. He or she could make it more difficult.
I am not minded to make the section contingent or conditional on the referral of guidelines to the committee.
I value highly the input, contribution and insight of the Oireachtas Joint Committee on Health and Children, as does the Minister, but I am not minded to make the section conditional or contingent on the matter going before the committee. At the risk of irritating the Members in the Chamber, no amendment was proposed in respect of making the section contingent on the ratification of the committee.
We were depending on the goodwill of the Minister of State.
As I am sure Deputy Ó Caoláin has, Deputy Kelleher has carefully gone through the legislation line by line, as is his want, and no amendment was tabled. I am not minded to accept such an amendment because all we are doing is giving the power to the Minister that he may issue guidelines. It is simply a repetition of the current position. Deputy Kelleher referred to the legislation changing the criteria. The provisions in section 5 will not change the criteria. The Minister already has the power to issue guidelines and that has been the case since the 1990s in respect of how ordinary residence should be interpreted by the HSE. These are just guidelines and the HSE makes a decision, not the Minister. At the risk of upsetting Members, we are in danger of seeing difficulties where there are none.
Question put and declared carried.
Section 6 agreed to.
SECTION 7
Amendments Nos. 3 to 5, inclusive, have been ruled out of order.
Amendments Nos. 3 to 5, inclusive, not moved.
Section 7 agreed to.
SECTION 8
Amendments Nos. 6 and 7 are related and may be discussed together.
I move amendment No. 6:
In page 11, subsection (9), line 2, after “shall” to insert “not”.
I would like to hear the reply of the Minister of State.
I am anticipating the case the Deputy makes in what I say. I do not propose to accept amendment No. 6. There are clear definitions of personal data and sensitive data under the existing Data Protection Acts 1988 to 2003. Personal data means data relating to a living individual who is, or can be, identified from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller. The meaning of sensitive personal data includes personal data as to the physical or mental health of an individual and under the Data Protection Acts, sensitive personal data also means the racial or ethnic origin, the political opinions or the religious or philosophical beliefs of the data subject, whether the data subject is a member of a trade union, the sexual life of the data subject, the commission or alleged commission of any offence by the data subject, or any proceedings for an offence committed or alleged to have been committed by the data subject, the disposal of such proceedings or the sentence of any court in such proceedings.
The HSE may hold personal information relating to the health of an individual. Therefore, in order to avoid a lacuna in the future wrong operation of this provision, it is necessary to clarify to which personal data these exchange provisions relate. Given that the HSE may hold health-related data about a person, it is necessary to be clear that these provisions, as well as the Data Protection Act, apply to such sensitive data. I do not propose to open up the definitions of sensitive personal data in the existing Data Protection Act, which reflect the provisions of the Council of Europe data protection convention. If the amendment was accepted, it would introduce a degree of uncertainty as to whether or how the exchange of personal data could take place, solely on the grounds that the data held by the HSE is health-related. For example, if the Revenue Commissioners ask the HSE to confirm that an individual is in receipt of drugs under the general medical scheme or the drugs payment scheme with respect to a medical expenses tax relief claim, the amendment would leave it unclear as to whether the HSE could respond to such a request.
Furthermore, under the section, as well as the existing data protection legislation, there are limits on what the Revenue Commissioners and the Department of Social Protection can request from the HSE. Under subsection 2, the Department may only request personal data required for the purpose of calculating the means of persons to assess or review the entitlement of such persons to receipt of benefits and services under the Social Welfare Act. Under subsection 3, the Revenue Commissioners may only request personal data required for the purpose of assessing or collecting a tax, duty or other charge payable to the Revenue Commissioners. For the HSE, the purpose of data exchange is set out in subsection 1. It relates to checking the means of applicants for medical cards or GP visit cards and the review of the cardholder's means in order to ensure a person's eligibility is accurate and valid. In its entirety, section 8 provides an explicit legal basis enabling the HSE to exchange personal data with the Revenue Commissioners and the Department of Social Protection for the purposes of the performing its functions. These provisions are entirely in line with the existing data protection legislation. In addition, these provisions have been developed in consultation with the Office of the Data Protection Commissioner. I do not propose to accept the amendment.
Nor do I propose to accept amendment No. 7. For similar reasons to those outlined in connection with amendment No. 6, it is inappropriate to exclude sensitive personal data from subsection 10. There are clear definitions of sensitive data and sensitive personal data under the existing Data Protection Acts. Excluding the reference to sensitive personal data would leave its meaning in the Bill ambiguous. It should be clear the term sensitive personal data has the same meaning as defined by the existing Data Protection Acts 1988 and 2003. It would be inappropriate to leave a question mark over its meaning when it has been already defined in the existing Data Protection Acts, which reflect the provisions of the Council of Europe data protection convention. I do not propose to accept these amendments.
I should have anticipated the reply of the Minister of State. This is fundamental for a number of reasons. Section 8(4) states: "Notwithstanding anything contained in the Data Protection Acts 1988 and 2003, but subject to this section, a person who receives a request made in accordance with subsection (1), (2) or (3) shall comply with that request and shall do so in accordance with an agreement entered into under subsection (5) between the person and the person who made the request." The difficulty between personal data and sensitive personal data is that the definition of what is sensitive can be interpreted in various guises. The Data Protection Commissioner has looked at this and we have discussed it. Legislation is in place. People should be informed about precisely what data can be transferred between various agencies. I am all for ensuring we have efficiency in the public sector in assessing criteria and delivering services. Making sure various Departments and agencies talk to each other about rights and entitlements is a good thing, one could argue. However, equally, citizens should be clearly informed when making an application as to the information that will be transferred to other Departments. A person should be informed that sensitive data can be transferred so that he or she has the right to make an informed decision on whether to make an application for a medical card on the basis of a request for information that may be passed on to other agencies.
It is not that people might be trying to hide something which is criminal or illegal. They may have very good grounds for doing so, particularly in the areas of sexual orientation, religious beliefs and so on. We are really beginning to probe into citizens' very personal details. We have always spoken about Big Brother watching us. As software and communications between various agencies evolve, there will come a time when a citizen's information will be passed around the system very easily. Why should an agency have the right to the information a person puts on an application form, particularly in the area of health? In any decision made in this regard the applicant should be made fully aware that all information will be made available on request to the Department of Social Protection, the Revenue Commissioners and other agencies, not in the small print at the back of the application form where he or she signs. They would then not know that was the case. There should be an obligation to clearly highlight this. We could debate the issue of personal and sensitive data forever and a day. It is welcome that the Data Commissioner was involved in the consultation, as I would not have expected anything less. However, it is a little disturbing.
The other issue in section 8(3) is that a data exchange agreement may be varied by the parties to the agreement. At what stage would it be varied? That is critical. If a person makes an application and submits all of his or her personal data based on the exchange agreement of the day, are we now saying information previously furnished will be furnished under the new agreement? That is something which would be of concern to many. If someone makes an application and provides information in good faith based on the exchange agreement in place, he or she might find sometime in the future that the agreement has been changed by the parties to it without consulting him or her and that the information may be furnished to other agencies of the State. If people make an application in good faith and furnish full information, that information should only be passed on with their consent if there is a change to the data exchange agreement. Am I missing something in this regard? Is the applicant also a party to the agreement?
I support both amendments in Deputy Billy Kelleher's name. I did not submit amendments because I find the proposition of what the Bill sets out to do offensive. There are elements of it which I identified in my Second Stage contribution with which I agree and understand must progress, but these are coupled with the proposition that the medical card will be taken from 20,000 people who will be affected by the reduction in the threshold from €700 to €600 per week. The big question in my mind, given that the national service plan of the HSE signalled a 40,000 reduction in medical card numbers in the current year, is where do the other 20,000 people rest. Clearly, further steps will be taken by the Government. Is it prepared to advise if further legislation will be required to disempower a further 20,000 persons entitled to a full medical card?
In regard to these two amendments, section 8(9) states that, for the avoidance of doubt, it is hereby declared that references in this section to personal data shall include references to sensitive personal data. The Minister of State has indicated what the Data Protection (Amendment) Act 2003 defines as sensitive personal data. It includes racial or ethnic origin, political opinions or religious or philosophical beliefs of the data subject, whether the data subject is a member of a trade union, the physical or mental health or condition or sexual life of the data subject, the commission or alleged commission of any offence by the data subject or any proceedings for an offence committed or alleged to have been committed by the data subject and the disposal of such proceedings or the sentence of any court in such proceedings. What puzzles me is what the Minister is proposing to do. Why would the HSE require such information on any citizen or resident in this jurisdiction? It is beyond belief that the HSE, the responsibility of which is to provide for the physical or mental health of all who reside in the State, requires information of this girth on any one of us or on citizen or resident across the Twenty-six Counties, or that it should be protected in legislation in securing this information. It beggars belief. As I said, the HSE's remit covers physical or mental health. Obviously, the health status of a person is relevant but not the huge range of other categories covered.
Deputy Billy Kelleher referred to Big Brother. This is in the same vein as 1984 and any of the other references that describe this kind of state intrusion into the rights and personal integrity of every person. Where are the personal protections in regard to what the Bill provides for? Where are the rights to privacy upheld? They are being set aside in a bold and brazen way, as the wording makes very clear. It states, "for the avoidance of doubt", in case any of us thought otherwise. It is very bald, bold and clear and there is no doubt. I am not prepared to accept this.
The amendment tabled by Deputy Billy Kelleher is as it should be. The insertion of the word "not" is a requirement after the word "shall". I also support the amendment to section 8(10) in Part 3 for the same reasons I have explained.
I do not accept the suggestion made by the Deputies that this represents some kind of licence for inappropriate or excessive use of personal data or sensitive personal data. The contrary is the case. Deputy Caoimhghín Ó Caolain has asked where is the personal protection of the privacy of citizens.
The answer to his question lies in the Data Protection Acts and is evident from the central role of the Data Protection Commissioner, as clearly referenced in this Bill. Deputy Kelleher may not have intended to convey the impression at the outset of his contribution that sensitive personal data are open to interpretation in some way. They are not as they are defined.
I did not say that.
In that case, I misunderstood the Deputy. As the Deputy knows, this is clearly set out in the amending legislation of 2003. I do not believe the definition was in the principal Act. In any event, it is in legislation. Lest anybody is tempted to imagine for a moment that we are just bringing in the definition, he or she should note that personal data and sensitive personal data are already understood and clearly defined in statute. There is no danger of inappropriate, excessive, officious or extensive use of personal data being licensed in this legislation, as the precise opposite is the case. I again draw the attention to the House to subsections (1), (2) and (3) of section 8. Subsection (1) provides that the HSE may request the Minister for Social Protection or the Revenue Commissioners to furnish it with personal data held by that Minister or the Revenue Commissioners, as the case may be, when the HSE requires the personal data for the purpose of assessing or reviewing the eligibility of persons for services provided under the Health Acts 1970 to 2013. Subsection (2) provides that the Minister for Social Protection may request the HSE to furnish to him or her with personal data held by the HSE when he or she requires the personal data for the purpose of calculating the means of persons to assess or review entitlements. Similarly, subsection (3) provides that the Revenue Commissioners may request the HSE to provide personal data held by the HSE when the Revenue Commissioners requires the personal data for the purpose of assessing or collecting any tax, duty or other charge payable. Therefore, the basis upon which the respective bodies may request data of one another is clearly circumscribed in the Bill, such that there may be a request only where the body requires the data for the purpose of assessing or reviewing the eligibility of persons - for example, in the case of the HSE. Therefore, there can be no suggestion whatsoever that the Bill will lead to anything like what is being suggested in respect of 1984 and personal data flying around the place willy-nilly. This is simply not borne out in the plain terms of the Bill.
Subsection (6) provides that a data exchange agreement may be varied by the parties to the agreement, while subsection (7) states that the HSE shall consult the Data Protection Commissioner in relation to a data exchange agreement before it is entered into or varied. The House should be aware that there will be a requirement for advance consultation with the Data Protection Commissioner in respect of any data sharing or exchange agreement between any of the bodies involved. The Data Protection Commissioner is very much at the heart of the proposal. Consultation with the Commissioner is not optional but mandatory. The HSE shall consult the Data Protection Commissioner in relation to a data exchange agreement before it is entered into or varied.
An issue arose regarding the consent of individuals. An extensive amount of data are held right across the State by all kinds of bodies, both public and private. The reason we have data protection legislation is to protect that data from improper use. It is very important and necessary legislation. The role played by the Data Protection Commissioner is crucial, and it will not change by virtue of this legislation. What we are simply doing is introducing what I understood everybody believed was a good provision, that is, a provision in law for data exchange. We are embedding in the legislation additional protections or at least clarifying the basis upon which the data may be sought. It can only be done where it is necessary or when, for example, "the HSE requires the personal data for the purpose of assessing or reviewing the eligibility of persons for services provided under the Health Acts 1970 to 2013". Therefore, we should not suggest that data are being cast about the place or sought for officious, irrelevant, improper or inappropriate purposes, be the circumstances akin to those in 1984 or otherwise. This simply does not arise; the very contrary is the case in respect of what is being set out.
One can interpret the matter both ways. The reason I tabled the amendment was to find out what would be said by the Minister of State. The Revenue Commissioners may request the HSE to furnish it with personal data held by the HSE when the Revenue Commissioners requires the personal data for the purpose of assessing or collecting any tax, duty or other charge payable to the commissioners. That is fair enough, but the point I am making is that people should be informed well in advance of making an application for what they believe is a medical card. If they feel the information being sought is too intrusive, for whatever reason, they should be informed well in advance. People should have a right to information, including the information retained on them. This is the issue of major concern. We should be quite clear that not everybody is fully aware of the Data Protection Act. The Department of Health was not even fully aware of it, and there was a difficulty in recent days with the Guthrie cards. We must be up-front with citizens. If they make an application for a medical card, any detail supplied for determining eligibility, including very sensitive personal data, can and will be transferred to other Departments, if requested, on foot of discussion with the Data Protection Commissioner. However, every citizen should be informed that sensitive information included in an application form could be transferred to other agencies of the State. The State should be duty-bound to inform citizens of this. That is my issue of concern.
Despite all that is noble about what the Minister of State said about subsections (7) and (8), subsection (4) of section 8 concerns me. More often than not, when we have passed legislation, we ask why we did not tease it out further. This relates to my original point, that is, that the legislation is being rammed through the Dáil.
It was published only last week, following which we dealt with Second Stage. Today we are dealing with Committee and Remaining Stages, following which it will be out the gap. There has been no discussion on it with stakeholders and Deputies have not had an opportunity - unless they did so over the weekend with the Data Commissioner - to tease out the detail of it, the Data Protection Acts 1988 and 2003 and Health Acts 1970 and 2008, which are substantial bodies of legislation. We are expected to pass this legislation without having had the opportunity to explore it in detail, which is at variance with decent parliamentary democracy and with what is stated in the programme for Government, namely, that there would be a minium of two weeks between various Stages from publication to Final Stage. That has not happened. This legislation is being rammed through for reasons I do not know. I cannot understand the urgency of passing this legislation.
In passing this legislation we will be agreeing to sweeping powers with regard to personal data. The definition of "sensitive" and so on is defined in the Data Protection Acts. We are in my view passing legislation tonight that will allow for the transfer of data, which the Minister of State may not consider sensitive but which is sensitive to the applicant, without informing the applicant in advance of signing a declaration for medical card eligibility that such information could be transferred to other agencies of the State. There is an obligation and onus on the State to inform citizens about this.
This is rushed legislation. I will be opposing section 8.
The Minister of State indicated in his response to our opening contributions that the purpose of this was to "protect from improper use". What about the issuance of sensitive, personal data to any agency of the State and its employees? In this regard, I mean the unnecessary and inappropriate release of critical information regarding a citizen. Let me be clear, I have no problem with appropriate and relevant data exchange. The Minister of State and I are not in conflict in terms of that need. What this Bill seeks to do is to open up the release of sensitive, personal data regarding any citizen at the request of the two other named bodies. It is a two-way street in terms of the information flow. Nowhere is it specified in the Bill that such release will be particular or relevant to the exercise to be undertaken.
It does. I will read it again for the Deputy.
The Bill states, "That the Minister for Social Protection may request the Health Service Executive to furnish to him or her personal data held by...", "...when he or she requires it for the purpose of calculating...". There is no guarantee in that language that the data to be released are to be particular to the exercise to be undertaken by the Minister for Social Protection nor is that encompassed in the wording of section (8)(3) in relation to the Revenue Commissioners. They can require the information held. Nowhere in the wording of subsections (2) or (3) or that which applies to the Health Service Executive in relation to the two-way flow of information, is there an absolute requirement on the releaser to ensure the information released is particular to the exercise to be undertaken by the recipient agency. What will happen, therefore, in real terms is that whatever information is held on file in relation to citizens Alex White, Billy Kelleher or Caoimhghín Ó Caoláin will be transferred as requested. In terms of oversight and final determination of the utilisation or relevance of that information, this will be done by the receiving agency. There is nothing in the wording of this legislation that places the onus on the initial holder of the data to properly assess and determine the relevance of the information before it is released. This legislation as drafted offers no protection. There is no guarantee. As I have already stated, there is no personal protection or affirmation of the rights of citizens to privacy within Part 3 of the Bill. It is open season for the release of any and all information held by the Health Service Executive, the Minister for Social Protection and the Revenue Commissioners. My only question is, why did the Government stop at these agencies? Why not add everything else besides and let us open up a real spaghetti junction of information in relation to each and every citizen? The Minister of State has no defence. He has not been able to counter the arguments made or to challenge the amendments put forward by Deputy Kelleher.
Again, and accordingly, I support amendments Nos. 6 and 7 for the same and sound reasons explained by Deputy Kelleher and myself.
With respect, Deputy Ó Caoláin is, again, completely misunderstanding what is proposed. In regard to the protection of privacy and how data are dealt with, I refer Deputies to the data protection legislation, in particular the Data Protection Act 1988, section 2 of which relates to the collection, processing, keeping, use and disclosure of personal data; section 3 which relates to the right to establish the existence of personal data; section 4 which deals with a person's right of access; section 5 which deals with restriction of right of access; section 6 which deals with right of rectification or erasure if something is wrong; section 7 which deals with duty of care owed by data controllers and processors; section 8 which deals with disclosure of personal data in certain cases and section 9 which deals with the commissioner. There are extensive provisions in the 1988 Act, as amended in the 2003 Act, which address the problems referred to by Deputy Ó Caoláin.
We are not taking away the protections in place in respect of protection of citizens' data. We are not asking the House to amend the data protection legislation. All of the justifiable protections in respect of privacy that currently exist in law for data, including access to it, the right to have it altered and dealt with in particular ways, remain in place. There are no changes in that regard. The data protection legislation, which is good legislation, will remain in place if the House passes this legislation.
An individual's rights with respect to his or her data are dealt with extensively in the data protection legislation in terms of when one can have access to it, the circumstances of having access, who can keep it and when they can keep it. That is provided in legislation. We are not taking that away.
Deputy Kelleher made a fair point about people's knowledge of this and whether they should be informed of it. It is good practice that public bodies, in particular, should indicate to individual citizens that their application is subject to data protection legislation. That is the practice in regard to applications for medical cards. Applicants are told that their application is subject to the potential for data exchange. It is quite right that they should be told that. There is not a provision that an individual citizen should in all circumstances be asked for his or her consent. No such provision is being put forward in this legislation, nor has Deputy Kelleher, in his amendments, suggested that.
As I understand the Deputy's amendments, he wants to remove sensitive personal data from the remit of the data that can be exchanged. He is probably happy enough with the inclusion of personal data but I think what he is seeking is the removal of sensitive personal data. That is the way I read his amendments. However, I am not prepared to divide up personal data and sensitive personal data. Subsection (9) provides that: "For the avoidance of doubt, it is hereby declared that references in this section to personal data shall include references to sensitive personal data." I understand Deputy Kelleher seeking to remove the reference to sensitive personal data, but I am not sure if he wants to take the references to all personal data. I am not quite sure what his intention is, but in any event it would not be acceptable to the Government that we would do so because it would change the entire sense and intention of the section. I respectfully say that it would make it unworkable.
I return to the point, and respectfully also say to Deputy Ó Caoláin, that the protections are in place in respect of how this can be used. Deputy Ó Caoláin said that there is no restriction, that any of this data can be sought and used in any way, but it cannot. It can only be used where the body seeking it requires it for the purpose indicated, as against seeking it in the generalised way suggested whereby it could ask for it and use it for any reason under the sun. It can only be used when it requires the personal data for the purpose of accessing or reviewing. It is a reasonable interpretation of that phrase to say that the data must be necessary in order that the body can carry out its function of accessing or reviewing the eligibility of persons or services. It must be referrable to a particular task the HSE is required to carry out, namely, the accessing or reviewing of the eligibility of persons. It cannot be in any sense a gratuitous seeking of information or data. It seems that no reasonable reading of the section, as proposed, could conceivably lead to the conclusion that there would gratuitous seeking or exchange of data for some improper, excessive or unnecessary purpose, as has been suggested.
Deputy Kelleher referred at the outset to the time allocated for the debate and used that phrase we often hear used in these Houses to describe the passage of legislation, namely, that it is being rammed through. There are some circumstances where the use of the phrase "rammed through" might be justifiable. If legislation is being put through in a period of hours, it might be conceivably reasonable to say that something is being rammed through the Houses. However it is not fair or reasonable to say that this legislation is being rammed through the Houses. It was a subject to a Second Stage debate last week, which as far as I can recall finished before the time allotted to it. There has been an opportunity for Deputies to submit amendments and Deputies have done so.
In respect of stakeholders, these announcements in respect of the intention with regard to the eligibility limits were made at budget time. There has been an opportunity, quite properly, for interested bodies and advocacy groups to make their views known publicly, as I know they have. I do not accept that this legislation is being rammed through in the manner that is being suggested.
I would tentatively make the point, as I do not want to fall out with anybody, that the issues in this Bill are fairly net. I do not think that they are of huge complexity; they are relatively net in terms of the eligibility limits. There is the additional provision in respect of data exchange, which everybody seems to think is a good idea, although there is a quibble about the particular data involved. I would respectfully say that we have given this legislation a good airing. We have time to give it some more airing if need be.
It is not fair either to say that sweeping powers are being afforded to anyone, as Deputy Kelleher has said. They are not sweeping powers; they are entirely in line with what is in the data protection legislation. Subsections (1), (2) and (3) carefully circumscribe, define and delineate the circumstances where the data can be exchanged. In addition, there is the protection of the necessary involvement of the Data Protection Commissioner who must be consulted with regard to any exchange agreement before it is entered into or varied.
I will speak to the section as there are two amendments to it and we are opposing the section.
I will be asking everyone to speak to the section.
Subsection (2) provides that "The Minister for Social Protection may request the Health Service Executive to furnish to him or her personal data held by the Health Service Executive when he or she requires the personal data for the purpose of calculating the means of persons". The HSE is retaining information on a particular applicant who goes about his or her business in applying to establish his or her eligibility for a medical card. The HSE will not decide how much information is furnished because, according to this legislation, if enacted, once the Minister for Social Protection makes the request that he or she want all this information, the HSE will be obligated to pass it on. The requester is the one who will decide on the amount of information that will be given, as the opposed to the person who is currently retaining the information.
Subsection (4) provides that "Notwithstanding anything contained in the Data Protection Acts 1988 and 2003, but subject to this section, a person who receives a request made in accordance with subsection (1), (2) or (3)", as already discussed. Quite clearly, there is even an attempt in this legislation to dilute and diminish the protections of the Data Protection Acts 1988 and 2003. There is an effort in that respect in terms of this legislation. I have concerns about this section, and I know the Minister of State will try to convince me forever and a day that there is no cause for them. There has been a creeping effort by the system over a period of time to gather further information on citizens through their interactions with the State. This happens slowly but incrementally all the time. We see further evidence of such creeping effort in every item of legislation that has been passed in this House in recent years. We have the Data Protection Act to provide protection, but at the same time all the other information is being collated on a continual basis.
We should not have hiding places for vagabonds and others but this is about medical card eligibility. This is about a person making an application to establish whether he or she is entitled to a medical card. One would have to ask the fundamental question about the necessity for being so intrusive into people's lives in terms of the potential information that is gathered by a legitimate application being passed on to other agencies of the State.
In the broader context of his summing up about the legislation being rammed through, it is in a way because the programme for Government, that novel, states that it is two weeks from the passing of one stage of a Bill to another.
The Deputy is straying away from the amendment.
I know but the Minister of State referred to it.
Yes but the Deputy raised it first and he responded.
Did I?
Yes the Deputy did.
This goes back to my original point which is that it is very hard for us to assess legislation in detail. The Minister of State has all the arms of State, the Attorney General up the road-----
The Deputy is doing an excellent job.
He has a plethora of eminent highly qualified officials who can tell him this and that. I know he does not need to be told much because he knows it already. I have a difficulty in trying to peruse huge Bills in the space of a few days. That is all we have. I have tabled these amendments both because I believe some of this requesting of information is wrong and to see the veracity of the Minister of State's argument in this case. Unfortunately I am still not convinced and I will be pushing for a division in this case because I do not believe that there is enough protection in place.
Only a couple of years ago 10,000 people were out on the streets to protest at the content of this Bill. It is fundamental legislation. I was one of the people on the other side of the House who had to go around to the Merrion Square side of the building to get into the Dáil. This deserves to be thrashed out and discussed because people were out on the streets protesting against the removal of their entitlement to a medical card. Not only is this Bill removing the entitlement but it reduces the eligibility criteria that in 2009 brought 10,000 people onto the streets. They are not here tonight but I will advocate for them. That is why I will oppose this section and the Bill.
In his last response the Minister of State relied on language such as "gratuitous" and "improper" in his defence of the position. Nobody was suggesting something gratuitous or improper other than the fact that I believe that the release of unnecessary and irrelevant information in this two-way flow is improper. It is important to understand that. It does not mean that other access to, and knowledge of, the information then disseminated could not lead to something further improper. The key point is that there is nothing in this wording that prevents or even suggests that the releasing agency exercise sufficient and appropriate restraint in respect of the information that it holds, when requested under this legislation to release information to either the Revenue Commissioners or the Department of Social Protection. It is not there, no matter what way one reads it. That is a significant flaw.
The Minister of State falls back in his defence on the Data Protection Acts 1988 and 2003 yet it has just been correctly highlighted with regard to Part 3 section 8(4) that the Bill states, "Notwithstanding anything contained in the Data Protection Acts 1988 and 2003, but subject to this section,". This Bill takes precedence. It is superior to the Acts that the Minister of State believes are the ultimate defence for each of us citizens.
The Deputy should read the rest of the section.
I have read it on numerous occasions.
The Deputy should read it out loud.
I will use what time I have left as I judge appropriate. The key point here is that it goes on to deal with the person who receives and I am talking all the time about the person who releases. The Minister of State either will not grasp this or he is avoiding it. There is nothing to prevent the release of inappropriate and unnecessary information between these three agencies in the way described and provided for in this legislation. That is a fundamental undermining of our rights as citizens to proper protection and to be sure that sensitive personal data is not released merely on the basis of a request. The key point is that we have a responsibility to provide the protection in law. We cannot now depend on what the Bill requires, a data exchange agreement between the HSE, the Minister for Social Protection and the Revenue Commissioners. We have no sight of that agreement and may never have because it may never pass through this Chamber for the purposes of democratic accountability and oversight or evaluation. The only thing to which we can turn and stand over on behalf of the citizens who elected us is the text of the Bill placed before us. I am sorry but as I have repeatedly explained, this Bill fails the test and the Minister of State's defences do not hold up in respect of the charge I make that this significantly undermines our rights to privacy and the protection that we should usually enjoy.
Subsection (8) makes it very clear that the Data Protection Acts "shall apply to any personal data furnished to a person under this section". All the protection in those Acts applies. The Deputy is focusing on the releaser but the agreement protects people and the system from the release of improper information. There is an agreement required to be entered into pursuant to subsection (4) between the releaser and the seeker of the information. It must be done only by way of agreement and that agreement has to be made on the basis of consultation with the Data Protection Commissioner, the great protector of data. That is exactly what the commissioner is.
I am now required to put the following question in accordance with an order of the Dáil of this day: "That each of the sections undisposed of are hereby agreed to, the Title is hereby agreed to, the Bill is accordingly reported to the House without amendment, that Report Stage is hereby completed and the Bill is hereby passed."
Question put:
The Dáil divided: Tá, 59; Níl, 21.
Tá
- Bannon, James.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Catherine.
- Byrne, Eric.
- Carey, Joe.
- Collins, Áine.
- Conaghan, Michael.
- Conlan, Seán.
- Conway, Ciara.
- Coonan, Noel.
- Costello, Joe.
- Coveney, Simon.
- Creed, Michael.
- Daly, Jim.
- Deasy, John.
- Deering, Pat.
- Donohoe, Paschal.
- Dowds, Robert.
- Doyle, Andrew.
- Durkan, Bernard J..
- Farrell, Alan.
- Ferris, Anne.
- Fitzpatrick, Peter.
- Flanagan, Charles.
- Harris, Simon.
- Heydon, Martin.
- Howlin, Brendan.
- Humphreys, Heather.
- Humphreys, Kevin.
- Kehoe, Paul.
- Kenny, Seán.
- Kyne, Seán.
- Lawlor, Anthony.
- Lynch, Ciarán.
- Maloney, Eamonn.
- McGinley, Dinny.
- Mitchell, Olivia.
- Mulherin, Michelle.
- Murphy, Dara.
- Neville, Dan.
- Nolan, Derek.
- Noonan, Michael.
- Ó Ríordáin, Aodhán.
- O'Donnell, Kieran.
- O'Donovan, Patrick.
- O'Dowd, Fergus.
- O'Mahony, John.
- O'Reilly, Joe.
- O'Sullivan, Jan.
- Phelan, John Paul.
- Rabbitte, Pat.
- Reilly, James.
- Ryan, Brendan.
- Shatter, Alan.
- Stagg, Emmet.
- Timmins, Billy.
- Wall, Jack.
- White, Alex.
Níl
- Calleary, Dara.
- Collins, Joan.
- Colreavy, Michael.
- Crowe, Seán.
- Doherty, Pearse.
- Ferris, Martin.
- Healy, Seamus.
- Higgins, Joe.
- Kelleher, Billy.
- Mac Lochlainn, Pádraig.
- McConalogue, Charlie.
- McGrath, Michael.
- Moynihan, Michael.
- Murphy, Catherine.
- Ó Caoláin, Caoimhghín.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- Ó Snodaigh, Aengus.
- O'Brien, Jonathan.
- O'Sullivan, Maureen.
- Stanley, Brian.
Tellers: Tá, Deputies Emmet Stagg and Paul Kehoe; Níl, Deputies Aengus Ó Snodaigh and Seán Ó Fearghaíl.
Question declared carried.