President McAleese is to be commended for referring the Health (Amendment) Bill to the Supreme Court. It may well be found to contain provisions that are repugnant to the Constitution, and which infringe the rights of the elderly people who have been forced to pay charges known by agents of the State to be illegal.
If this Bill is passed, they will be unable to seek the repayment of this money unless they have already started legal proceedings.
Many of these people are vulnerable and infirm. Many too have very limited means. It would be very wrong if the burden of attempting to establish the constitutionality of this Bill were to fall on individuals from this section of the community. Already those who refused to pay, and whose refusal was quietly accepted by the health boards, are fearful that they might have to pay the money back, though it appears that this fear is groundless, and based on a misunderstanding of the proposed Bill.
With the referral to the Supreme Court by the President it now falls on the legal team appointed by the court to argue the case for this vulnerable section of the community. There will be widespread public interest in their efforts. Already there is great public cynicism about the attitude that the Government has taken to elderly nursing home residents, where it appears it was content to continue with a practice thought to be illegal in the hope that no-one would notice. Such an attitude must be contrasted with the alacrity with which the Government acts when its policies seem to conflict with the interests of powerful lobby groups, like the building trade, who had no difficulty is bringing about a change in the legislation providing for social housing.
The most strongly criticised element of the Bill is that providing for retrospective legalisation of the taking of money from the pensions of old people. It appears that this was unlawful even in the case of those in private nursing home care. It can be argued that people should be asked to pay something towards their upkeep when they have to go into residential care. However, such charges should be levied in a way that is transparent and legal, and that does not impose a burden on any dependants of the person receiving the care. This was not the case with the charges imposed up to now.
The Government will argue that rejecting the retrospective element in the Bill would expose the State to an enormous additional charge. This is so. Yet measures that suit the Government's political objectives, like its decentralisation proposals, appear not to be subject to similar financial considerations. Precedents exist for the repayment of money illegally taken, as in the 1995 case when women who received reduced social welfare payments over many years were repaid £260 million - a very considerable sum at the time.
This Supreme Court case will be watched with great interest, especially by those concerned with how the State treats the older generation who have done the State some service throughout their lives.