News Analysis

Wednesday 3 September 2014

Elaine Byrne: For our ruling 'law and order' party, rules are optional

Elaine Byrne

Published 09/12/2012 | 05:00

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'Implicit in the minister's position is an expectation that. . . we can decide when it suits us to obey the law and we can disregard the law where it is troublesome or inconvenient to abide by it."

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Emily O'Reilly's extraordinary remarks to the Oireachtas committee on public service, oversight and petitions last Thursday were off the Richter scale.

That an Ombudsman would so openly criticise the Department of Health for its "culture of prevarication, disregard for the law and an inability to take hard decisions" is unprecedented, to put it mildly. Public servants are not in the habit of publicly airing stringent views on the actions of ministers and their departments. So on the rare occasions they do, we should pay deliberate attention.

Emily O'Reilly's frustration stemmed from the rejection of recommendations she made in two recent reports for people with disabilities.

She described James Reilly's stance on the mobility allowance scheme and the motorised transport grant as tantamount to "an unequivocal statement that the law is optional".

The Ombudsman ruled that both schemes were being operated on the basis of eligibility conditions which breach the Equal Status Acts. In the case of the Mobility Allowance, the upper age limit of 66 amounted to age discrimination. The scheme has breached the law for the last 12 years and the department knew that it was illegal for the past four years.

These facts are not contested. The department accepts fully these findings but has decided to ignore them.

In a letter to the Ombudsman last October, the secretary general of the Department of Health explained why.

Implementing the recommendations would "create liabilities that the State could not afford", Ambrose McLoughlin said.

A view most people would have sympathy with given the difficult budget decisions announced this week.

And this is exactly what is wrong with Ireland and why this country collapsed into a wallowing pit of failure.

The Department of Health has persistently engaged in a policy of short-term decision-making, while hiding behind the excuse of financial pragmatism.

There are two problems with this approach. Number one – it is downright illegal. Why should a citizen obey the rule of law if the Government refuses to?

Ireland is not an Orwellian farm where some are more equal than others.

If the financial liability is unmanageable or unrealistic, why not change the legislation or the scheme rather than intentionally choosing to operate outside of the law?

Number two – there are financial consequences when the Government decides to act contrary to the law because it leaves the state wide open for liabilities.

The Department of Health has already had to pay out significant compensation for disregarding the rule of law.

In the section of her speech entitled, 'History of Disregard for the Law', Emily O'Reilly detailed three instances where the department's "carelessness about the law" had cost the exchequer at least €500m and potentially several billion.

The nursing home subventions scheme was operated by the health boards until 1999. Despite clear legal advice and warnings by the then Ombudsman Kevin Murphy, for "six years the department gambled that it would get away with something which it knew from the very outset to be illegal."

Emily O'Reilly also noted that about IR£6m had to be paid in compensation as a consequence.

The second example of the department's disregard for the law was the illegal charging of 300,000 medical cardholders for long-stay care provided by the health boards. Although the Department had known since 1976 that the charges were illegal, the scheme continued until 2004.

To date, about €500m has been paid out.

The third case is ongoing and potentially will be the most costly. Under the 1970 Health Act, health boards had an obligation to provide long-stay care for older people. However, thousands of people failed to get places in public nursing homes and had no choice but to avail of expensive private care. More than 300 individuals have begun High Court proceedings against the HSE, the Department of Health and the State seeking compensation for the private nursing home costs incurred.

The Department of Health had said that the costs could amount to several billion euro.

How much in compensation claims has the Department left itself open to with regard to the two disability schemes highlighted by the Ombudsman? Apart from the financial consequences, the rule of law is the core principle upon which our democracy functions.

As Emily O'Reilly told Jonathan Healy on Newstalk last Friday: "We are ruled by law and we can see what happened in other countries when people start to chip away at the democratic process and democratic institutions."

This dangerous assumption that the law is optional is not confined to the Department of Health. The Supreme Court ruled last month that the Government had acted wrongfully in part of its €1.1m information campaign on the children's referendum.

The death of Savita Halappanavar highlighted how the Government has ignored the 1992 Supreme Court ruling on the X case for 20 years.

This Government has the largest political majority in the history of the State.

We are an overwhelmed people, burdened by six austerity budgets, distracted by the hazy years of recession Ireland. The enemy at the gates rots at the soul of a nation for he undermines the pillars of a country by infecting the body politic so that it can no longer resist.

Of all parties, it is the "law and order" party of Fine Gael that presides over the notion that the rule of law is voluntary.

How very authoritarian.

Sunday Independent

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