'It was a terrible thing to do and could have bankrupted a lot of people. I find the whole thing very, very disturbing. Nobody should be treated in this way," Mary Raftery reports.
So said a Government Minister this week. At last, one might think, some hint of decency from at least one member of Cabinet over the theft by the State of old-age pensions from nursing home residents.
Perhaps it was even a condemnation of the shocking practices of the Southern Health Board, revealed during the week. Not content with removing almost all their pensions, this particular body is also forcing elderly patients with medical cards who are incontinent to personally pay over €1,000 a year extra for their hygiene pads.
But no, sadly, the Minister's remarks related to none of this. It was instead an attack by Michael McDowell on Roscommon County Council over its attempt to interfere with the construction of his large holiday villa in Rooskey. He had just won his High Court case against the Council.
Michael McDowell had full access to the courts to vindicate his rights, as is perfectly correct. His access was speedy and efficient, as it should be for every citizen. By contrast, on the same day of the Minister's court case, Justice Peter Kelly was dealing with a different matter.
Marie O'Donoghue from Cork could not afford to go to court to sue for divorce. She had applied to the Legal Aid Board for assistance, but endured a two-year delay before it took her case. Justice Kelly found that this delay was an infringement of her constitutional rights.
His finding is significant in that he made clear that the delay was not the fault of the Legal Aid Board, which was under-resourced and swamped with work. Justice Kelly concluded that the State was responsible for denying Marie O'Donoghue's right of access to court by failing to adequately fund the Legal Aid Board.
The difference, of course, between the Minister for Justice and Marie O'Donoghue is that he can afford to pay for his access to the courts. It is that divide which underlies so much that is at issue in the matter of the nursing homes debacle.
The denial of legal redress for elderly pensioners is at the heart of last week's Health Bill, rammed through the Dáil with such unseemly haste. With only €35 a week left to old-age pensioners in nursing homes, most would in any event have little chance of being able to afford to go to court to vindicate the right to keep their pensions.
But the State's persistent denial of the constitutional right of access to the courts for those unable to afford it is no longer enough, apparently. This new government policy, as enshrined in the Health Bill 2004 to ring-fence a group of people and exclude them from the courts is something each and every one of us should find profoundly disturbing.
The Irish democratic system is predicated on a structure of checks and balances which operate between the three pillars of the State - namely the legislature, the executive and the judiciary. In his 2001 report to the Oireachtas on the nursing homes subventions issue, the then ombudsman, Kevin Murphy, made a number of far-reaching comments about the failure of that system, many of which are highly pertinent to the current issue of nursing home charges.
His view was that in practice the model of government based on checks, balances and accountability, as envisaged by the Constitution, was increasingly becoming "more of a theoretical construct than a reality". He argued that the important role of the legislature, i.e. the Oireachtas, to debate, analyse and vet new legislation "appears not to be functioning". He added that "the main casualty in all of this is the integrity of the governmental process".
What this meant in terms of nursing home charges, according to the ombudsman, was that "post hoc damage limitation" became the driving issue rather than any "notions of entitlement and legal propriety".
He pointed out that there was little evidence the rights of people in nursing homes were paramount. In criticising the internal dialogue between the Minister, civil servants and the health boards, he said what was lacking was the "acceptance that, increasingly, human rights, including economic and social rights, have to be addressed".
Finally, and most tellingly in the context of the Government's current attempts to limit the access of pensioners to the courts, the ombudsman referred to the third pillar of our system of government, namely the judiciary: "In cases where a government has not adequately protected these and other human rights, it is important that the citizen is enabled to pursue the matter further to the courts." It would be a great mistake to believe that with the President's referral of the Health Bill 2004 to the Supreme Court, our democratic system is healthy and functioning. Whether or not that Bill is ultimately found to be constitutional, the fundamental flaws identified by the ombudsman remain deeply rooted in the manner in which the Irish State conducts its business and treats its citizens.
mraftery@irish-times.ie