Legislation rushed through the Oireachtas last week requiring elderly people to pay up to 80 per cent of their pensions towards their nursing home bills could face a Supreme Court test.
Last night, the President, Mrs McAleese, announced that she has summoned the Council of State to meet on Wednesday to discuss the Health Amendment (No. 2) Bill, 2004. Following the council's meeting, the President has absolute discretion to refer the legislation to the Supreme Court to get a judgment on its constitutionality.
The emergency legislation was produced after the Attorney General, Mr Rory Brady, warned that deductions from pensions for nursing home care were not lawful under existing law.
The Health Amendment (No 2) Bill was published last Wednesday and passed all stages in the Dáil in just four hours on Thursday, followed by an equally swift passage in the Seanad.
Under the change, charges on elderly patients in State nursing homes and in private nursing home beds hired by health boards "are and always have been lawful".
A spokesperson for the President said she had not "identified" any particular part of the legislation.
"She just wants to consult further," the spokesperson said.
Last night, a spokesman for the Tánaiste and Minister for Health, Ms Harney, said she accepted that the Council of State meeting was "entirely within the prerogative of the President".
"I don't want to anticipate the meeting of the Council of State. It is going to consider the issue," the Tánaiste's spokesman said.
The President has called only three previous meetings of the Council of State - which renders "aid and counsel" at her request - to offer advice on the constitutionality of legislation.
Following past meetings, she referred Part V of the Planning and Development Bill, 1999 and Sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 to the Supreme Court.
Both of these pieces of legislation were subsequently found to be constitutional.
In 2001, she decided not to refer the Housing (Miscellaneous Provisions) (No. 2) Bill to the Supreme Court after a meeting of the council.
Legislation cleared by the Supreme Court after being referred by the President can never again be challenged constitutionally.
Accusing the Government of rushing important legislation, Fine Gael TD Mr Liam Twomey last night welcomed the President's move. "I hope that they are seriously going to discuss this. It flew in and flew out of the Oireachtas."
Legislation passed in 2001, he said, clearly stated that people over the age of 70 were entitled to free nursing care, though 1976 legislation was more ambiguous.
The Council of State is made up of the Taoiseach, Mr Ahern, the Tánaiste, Ms Harney, the Chief Justice, Mr Justice John L Murray, the President of the High Court, Mr Justice Joseph Finnegan, the Ceann Comhairle, Dr Rory O'Hanlon, the Cathaoirleach of the Seanad, Senator Rory Kiely and the Attorney General.
It also includes former Presidents Dr Patrick Hillery and Mrs Mary Robinson, former Taoisigh Dr Garret FitzGerald, Mr Charles Haughey, Mr Liam Cosgrave, Mr John Bruton and Mr Albert Reynolds, in addition to two former chief justices, Mr Justice T. A. Finlay and Mr Justice Ronan Keane.
Following her inauguration last month for a second term, Mrs McAleese appointed Col Harvey Bicker, Ms Anastasia Crickley, Ms Mary Davis, Prof Denis Moloney, Senator Martin Mansergh, Mr Enda Marren and Ms Daráine Mulvihill to the council.