Yesterday, the Tánaiste announced that the Government is introducing emergency legislation to put in place a sound legal basis for charging elderly patients in public care. I want to give credit to the Tánaiste for moving on this matter in the wake of legal advice given to her after Deputy Perry first raised the matter. I have serious reservations about passing complex legislation in one day at the end of a Dáil term. It is because of Government incompetency in the first instance that this matter has arisen.

I want to refer to the specific issue of the ex gratia payment to the elderly people involved. My party was pilloried for 50 years about a decision made by the late Ernest Blythe in regard to old age pensions. This is a very sensitive matter for these people. Who are they? They are not the people who attend at tents at the Galway races or go on multiple holidays each year. They are the sick, the elderly, the lame, the blind, stroke victims, Alzheimer’s patients in their 70s, 80s and 90s. Because of the incompetence of legislation introduced by the then Minister, Deputy Martin, the State took illegally payments and contributions from these people. It is now expected that these people, many of whom have no next of kin or are unable to follow the events of the world as we might wish, should apply to the Department of Health and Children, which rushed through legislation in 2001 and took payments from these people, for an ex gratia payment.

Before getting into the analysis of the legislation and the complex issues contained therein, the Taoiseach and Tánaiste should examine the matter of a requirement on the elderly to apply for an ex gratia payment, whatever order it may be. The requirement should be waived because the Department has all the records of and from whom it took these payments. This is a very sensitive matter for thousands of elderly people. I ask for this commitment before the legislation is published.

On the two points raised by Deputy Kenny, the Government wants to bring clarity, certainty and speed to the issue of the repayments on nursing home charges. The Deputy raised the issue here on a number of occasions during this session. Very early on, the Tánaiste said the matter would be examined comprehensively by the Attorney General, who did this. I reported that fact when the Deputy raised the issue with me on several occasions. He also used outside senior counsel opinion and provided us with preliminary advice on 5 November and with his full advice on 8 December. The Tánaiste and the Cabinet made a decision to move on the matter straight away because it is important to deal with the matter.

I will not get into an argument on the legislation, but it is clear from reading the file that the issue dates to a decision made in 1976 arising from the McInerney Supreme Court decision, which was carried forward since then within the Department. The scheme dates back to 1954, as amended in 1965. It dates back over a 50 year period, which is on the record. The question of overall eligibility has been examined in the Department over the past two or three years.

On the second issue raised by Deputy Kenny regarding the €2,000 to be refunded to these people, we are not talking about elderly people, but about approximately 20,000 people in institutions, psychiatric hospitals, welfare homes, county homes, district hospitals and community nursing units. I assure the Deputy that, where possible, these people will be identified. Obviously many of them still remain in this position. It is easy to deal with the issue where the records are clear. There will be an advertising campaign and a full effort to identify these people and pay them the ex gratia payment.

Will the Taoiseach repay them?

It is an ex gratia payment based on a gesture of goodwill.

The people were diddled.

Allow the Taoiseach without interruption.

I do not think the Deputy should say that because it is essential that any charges imposed on people have a sound legal basis. It is not an argument about whether people should pay the charges. This payment scheme exists for 50 years under the 1954 Act. It is important for the State to ensure that any charges or taxes imposed on people are legal whether in regard to the health service or any other service. The enactment of the legislation will not change the fact that the payment has existed for half a century.

I have given credit to the Tánaiste for taking action on the basis of the legal advice offered to her. A patient in a public bed for less than six months can get only a proportion of an ex gratia payment. I hope the Tánaiste has not finalised the figure of €2,000. She should not subject the elderly to a bureaucratic regime such as was applied to the drugs refund scheme, or to any other scheme whereby the elderly are forced to apply for a payment which they will now see has been taken from them illegally. If the Department of Health and Children knows those people from whom it has taken the contributions in the first place, then based on those conditions it should be able to make the repayments.

I am concerned that this legislation is being rushed through because it deals with elements of retrospection and of capping the right of people to take a court case. There is no clarity about repayment to estates of people who have unfortunately passed on, and the next of kin may feel that the money was taken from the estate. The Taoiseach is aware that this matter has split families all over the country. Will the Taoiseach decide that those who will get a repayment of an ex gratia nature, or whatever it is, will not have to go through the tortuous process of having to apply to the Department of Health and Children? Let the cheques come through the ward door to those people who will feel very aggrieved that these payments were taken from them illegally in the first instance.

I accept that point fully though it is not the Department of Health and Children which holds the records but the institutes involved. For those in long-term care, those people who are readily identifiable in nursing units and psychiatric units and publicly contracted beds in private nursing homes, district hospitals or county homes, there will be no problem. We will not subject them to any regime but will simply make the ex gratia payments.

I ask Deputy Kenny to accept that in some cases, where people have left or moved away, an advertising campaign will be necessary to identify them, but those who are readily identifiable will not be put through any process and we will give them the ex gratia payments as quickly and efficiently as possible. We will have to do otherwise for some other people, including people who have left the various institutes who may wish to apply, but we will move on the system as quickly as possible.

The Taoiseach says he will rush all Stages of legislation on this matter through tomorrow in order to bring speed and clarity to the issue. Did the chief executive of one of the health boards advise the Department of Health and Children in early 2003 that according to his advice there was no legal basis for these charges? Since the Taoiseach has been aware of the issue from early 2003, there has been no sign of wanting to rush it through with great speed and clarity.

How can the Taoiseach justify his Government requiring the banks, for example, when they are guilty of overcharging, to make full restitution to the clients overcharged, and then apply a different rule on this issue? Why are the people subjected to this overcharging not entitled to the same treatment?

The Bill, which I received an hour ago, says for example that "subject to subsection (6) it is hereby declared that the imposition and payment of a relevant charge is and always has been lawful". In other words it seeks to deem something to be legal which was illegal. The Taoiseach must say whether he will make the various advices of the Attorney General in respect of this matter available to the Opposition spokespersons. It is difficult to understand how 20,000 people who have been improperly and illegally charged, without any statutory authority, are now supposed to settle for up to €2,000, about the equivalent of 16 weeks of overcharging, no matter how long the overcharging has gone on. Given the complexity of these issues and the blatant lack of statutory authority for what the Department has been doing over all those years, I cannot see how the Tánaiste can rush the legislation through this House tomorrow. I ask the Taoiseach to provide the Attorney General's legal advice to the Opposition and provide the House with time to consider these matters properly.

We want to bring clarity, certainty and speed to these issues. We want clarity about the law in the past, the present and the future, as well as about the repayments being provided and the charges that will continue. We want to deal speedily with the repayments to people and to maintain the incomes of health boards and the new Health Service Executive. The payments will be made on an ex gratia basis as a matter of goodwill.

Deputy Rabbitte asked if the matter was raised by the health boards. It was, and the Department was working on a scheme of eligibility. It has been looking at the entire legal and policy framework of eligibility for health services because different eligibility criteria have been operating for many years since the Health Act 1970. The criteria are not equal across the health boards. This issue has been raised many times and certainly since the 1996 Act whereby health boards were made responsible for balancing their budgets. That issue was raised many times by Deputies in this House. The health boards must balance their budgets and make ends meet.

The issue before us did not arise from the Health Act 1996. For 50 years since the 1954 regulations, people in long-term care have paid towards the cost of shelter and maintenance. That was provided for under the 1954 regulations. They were amended in 1965, under the Health Care Act 1970 and under the 1976 regulations. People accept it as reasonable and fair that there should be a contribution towards living costs, that is, non-medical expenses of shelter and maintenance. That has been the position for half a century. When people receive State pensions to meet living expenses, those pensions help to take care of them if they enter long-term care. That has been the basis of this. All Governments have implemented this policy. They provided for the new charges from time to time, and from the 1976 regulations onwards the guidelines were given out to the health boards and followed by them. In recent weeks the Attorney General stated that he believed this requires primary legislation and the Government is now providing that, as it must do following receipt of that advice.

I know of no evidence that the Department was taking the action mentioned by the Taoiseach from the time it was advised that there was no legal basis for its actions in this area. It is reasonable to ask if the Minister would even be responding to the matter now if Deputy Perry had not raised the matter in the House. Frankly, I doubt it.

The Taoiseach should note that retrospective changes in procedures are one thing while retrospective imposition of a liability is entirely different. That is in effect what is being proposed. If, for example, the State is dealing with a citizen who does not pay his or her taxes, it levies the full taxes with penalties and interest. When the shoe is on the other foot, however, the Taoiseach says that an illegal charge can be made which can be made legal by retrospective legislation. I instanced the example of the banks. How can a different set of rules apply to citizens dealing with the State as distinct from those dealing with the banks?

The Deputy's minute has concluded.

I accept that, but many people are running out of minutes who are aged, infirm and perhaps not in possession of their full faculties. Frankly, they have been cheated, and offering them a sop at this time in this fashion and asking Members to nod it though the House is not acceptable. There are myriad examples of the courts striking down bad law rushed through these Houses and the Tánaiste should not now be adding to that.

Hear, hear.

I cannot argue one way or another about the courts' rights in this matter. When one reads the 1976 regulations with the hindsight of the cold light of almost 30 years, one might conclude that perhaps they should not have been implemented as they were.

Pay them back——

I do not believe that is the issue, as unpopular as it might be to say so. I believe people in general accept it is reasonable and fair that there should be a contribution towards living costs, that is, expenses for shelter and maintenance. That has been the position for 50 years.

They are paying their full pensions.

They are not paying their full pensions.

They get it back as tobacco money——

The Taoiseach, without interruption, please.

If I can make the point, it is not the same as people not paying their taxes.

——if they are lucky.

I am trying to answer the Labour Party, but Deputy Stagg will not allow me. The people in this case are within the various categories I have mentioned, in welfare homes, district hospitals and long-term care. When they had left their homes they received care, maintenance and shelter in various organisations. That is what the payments were for. They were out of their homes. They are paid a pension for their care when they are living at home and then they are paid it when they are in these organisations. That is the purpose of the payments. It is not a case of taking something for nothing. That is the principle that has operated for 50 years. We were told very recently, a point made earlier by Deputy Kenny, that we did not have the legal basis——

The Government was told that two years ago.

I now have to answer three people in the Labour Party, but the point is work had already begun in the Department on a more general review of the entire legal and policy framework around eligibility for health service. When the issue came up as regards the health board, the Department believed it still had grounds for continuing with the system, but knew there were different criteria on this among various health boards. In good faith it continued to operate the system while the review was going on. As soon as the matter was highlighted the Tánaiste correctly stated that the Government had to deal with it and that is why we are asking for the co-operation of the Opposition to pass this Bill this week.