The retrospective nature of the Tánaiste's legislation will likely be scrutinised, writes Ivana Bacik
The announcement by the President, Mrs McAleese, that she has convened a meeting of the Council of State to discuss the Health Amendment (No 2) Bill 2004 has come as little surprise.
The Bill was rushed through the Oireachtas last week. The Tánaiste and Minister for Health, Ms Harney, said it would "establish a sound legal basis for the long-established practice of health boards charging for the costs of maintenance in institutions providing long-term care".
This "sound legal basis" is required because the practice is known to be illegal.
More controversially, the Tánaiste has also introduced the Bill to provide retrospective legality for the past illegal practice of levying the charges.
The flawed basis for the charges appears to have arisen 28 years ago, but serious concerns arose about the legality of the practice back in 2001, the year full eligibility for medical cards was extended to all those over 70. Sections 52 and 53 of the Health Act, 1970, provide that persons with full eligibility cannot be charged for in-patient services.
Faced with the prospect of court cases taken by those illegally charged for their care, the Government has sought to apply the new Bill retrospectively, by inserting an amendment to section 53 of the Health Act 1970. The new section 53(5) provides that "... it is hereby declared that the imposition and payment of a relevant charge is, and always has been, lawful".
A new section 53(6) further provides that this rule does not apply to relevant charges that are the subject of legal proceedings instituted on or before December 14th, 2004.
In other words, subsection (5) declares a practice that we all know was illegal at the time, to have been legal all along.
Subsection (6) will effectively mean that nobody who was illegally charged under this practice will be able to sue for any loss, unless they began legal proceedings on or before December 14th, 2004. Subsection (5) is the provision upon which the attention of the Council of State is likely to focus this week.
There is a general presumption that legislation takes effect prospectively, and, in particular, that it will not operate retrospectively if it affects personal rights. Article 15.5 of the Constitution enshrines a principle of non-retrospectivity, stating that: "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission."
This means that an act that was lawful at the time it was carried out cannot be subsequently declared unlawful. The Article applies to both civil and criminal legislation, but has only generated significant case law in the last two decades.
In 1993, for example, the Supreme Court held that the new ban on reckless trading in the Companies (Amendment) Act, 1990, could only apply prospectively, because "to declare retrospectively innocent actions as constituting that wrong would necessarily amount to a breach of Article 15".
Does Article 15.5 have the opposite effect, of declaring an action that was unlawful to have been lawful all along?
There is no clear answer. The Supreme Court has in the past allowed the Oireachtas to legislate retrospectively in some cases, for instance in order to recover wrongly paid social welfare entitlements.
But the court is more reluctant to allow legislation to have retrospective effect where it impacts adversely on the personal rights of the individual under Article 40.3 of the Constitution.
In a 1982 family law case, the court ruled, for example, that the Family Home Protection Act 1976 could not operate to prevent performance of a contract for sale of a family home entered into before its passing, since such retrospective application would have unfairly prejudiced the plaintiff's property rights.
Apart from the effect it may have on individuals' personal rights, the Health Bill may have another effect that makes Article 15.5 particularly relevant.
If it makes the past imposition of charges valid, so that health boards are deemed to have been legally entitled to collect charges over the years, then it may also create a corresponding obligation on patients to have paid those charges all along.
Past non-payment could be seen as amounting to a breach of a legal obligation.
Thus, it is possible that the Bill may have the effect of creating an infringement of the law with retrospective effect, contrary to Article 15.5.
Whatever decision the President makes, there is likely to be significant political fallout.
The Tánaiste has also announced that Mr John Travers will inquire into the management of the issue in the Department of Health.
The question of illegal in-patient charges is likely to be with us well into the new year.
Ivana Bacik is Reid professor of law at Trinity College Dublin