Mary Harney’s failed Bill tried to legalise Government malpractice

“WHATEVER exceptions may exist, it is an undoubted fact that the Bill will affect very many people who are old, or poor or disabled, mentally or physically, or in many cases, all of these. As already stated, persons so situated will almost certainly have had little or no capacity to understand their rights under the legislation or to protest at the unlawfulness of the charges. . .

"The constitution, in protecting property rights, does not encompass only property rights which are of great value.

"It protects such rights even when they are of modest value and, in particular, as in this case, where the persons affected are among the more vulnerable sections of society and might more readily be exposed to the risk of unjust attack." That's what the Supreme Court said about Mary Harney's Bill.

The purpose of the Bill was to enable the State to charge elderly people, and people with disabilities, for residential services. Of course, the State has always done this, and it has always been illegal (as well as being done on a scale that was grotesquely mean, and carried out in a way that robbed people of their dignity as well as their money). The other purpose of the Bill was to try to render the illegality of the past legal, a neat trick if you can get away with it.

Reading the Supreme Court judgement, it's clear that they almost got away with it. The court had no trouble with the retrospective legalising of an illegal charge. It was only the property rights issue, quoted above, that did the Bill in. Now the Government will have to legislate afresh to take the money off these "more vulnerable" people.

There was an odd reaction when the Supreme Court struck the Bill down. Some commentators bemoaned the fact that the "taxpayer" was going to have to face a huge bill. I don't remember anyone saying, when the banks were caught with their hands in people's pockets and had to pay the money back, that the poor old shareholders were going to have to face a huge bill. And more than a few of the headlines talked about a big "payout" to elderly and disabled people.

Wrong word. It's payback that is needed, not payout. We have taken money from people who can't afford it for years, for very basic services. In fact, in a great many cases, when people were admitted to homes and residential services, we didn't just take a fee. We took everything they had, their entire pensions and, in some cases, their entire disability allowances, and gave them back a few miserable pence as pocket money.

Sometimes, it was even worse than that. I can remember a practice in the early '70s, in at least one home for the elderly in Dublin, when some nursing staff "minded" the pension books for individual patients. They would cash the pension each week, and dole out a few cigarettes to the patients in return.

I was the trade union official to whom the staff turned when several of them were fired after it was discovered that they were keeping most of the pensions for themselves, and I had to seek the protection of my own boss, Denis Larkin, when I refused to represent them. He told them that if he had known about it, he would have horse-whipped them, and not just sacked them.

However cruel the practice was, everyone thought it was legal then for the homes to confiscate the money. It wasn't, and it now appears the State has known it wasn't for nearly 30 years.

THIS is what Mary Harney said about the Bill when she introduced it to the Dáil last December: "Most people accept that it is fair and reasonable that those who can afford to contribute to the cost of their long-term care should do so.

"This has been implemented by successive Governments, and by Ministers for Health from all parties, since 1954. . . These charges currently generate approximately €100 million for health boards each year. The cost of long-term care is clearly more than this amount. The loss of this income would have an adverse effect on our ability to provide the health and caring services people need.

"The Government recognises that a mistake has been made for 28 years on the legal basis for charges. Notwithstanding the fact the policy had consistent support and that people did actually receive a benefit for their payment, the Government believes that some repayment should be made because a mistake was made. It is clearly beyond our financial and administrative ability to repay all charges since 1976. We have therefore decided, by way of a goodwill gesture, to make repayments to people with full eligibility who have paid charges to date."

But after the Bill had been struck down, Mary Harney addressed the Dáil again. This time she said: "The Supreme Court decision today does not make a judgement whether the charges were made in good faith or bad faith, but in the light of the Supreme Court judgement, and in the light of information that came to light in preparing for the hearings at the court but not available in December, I would not now characterise the levying of these charges in the way I did last December."

And she went on to say she was not satisfied with the practice continuing for 28 or 29 years "because it shows systemic maladministration."

What she is saying is that the State has always known it was illegal to take this money. This illegality was brought to the attention of several Ministers for Health during that period, and they did nothing about it.

She is also saying that when her Government's lawyers went into the Supreme Court to argue that the illegal charges should now be made legal retrospectively, they did so in the knowledge that the State had acted in bad faith over at least some of the previous 28 years.

Did the Government tell the Supreme Court that? It certainly did not. Did anyone on behalf of the State instruct the lawyers that they were to tell the whole truth to the Supreme Court? They did not.

When Mary Harney was pushing her Bill through the Dáil and ignoring the strong advice from Liz McManus and others that it was almost certainly unconstitutional she regarded the charges as a "mistake" carried out in "good faith." After the Bill had passed into law, and been referred to the Supreme Court, she discovered it was no mistake, and there was no "good faith" but "malpractice" instead over the years.

She didn't come back to the Dáil. She didn't tell the Supreme Court of her discovery. If this terrible law, based on a complete misrepresentation of the facts, had been passed by the Supreme Court, would Mary Harney have allowed the Bill to stand, or would she have withdrawn it and told us what she had discovered?

We all, I think, want to believe the latter. But I'm finding it hard.