I wish the Taoiseach a very happy Christmas from County Clare in particular. I wish to raise with him a Bill that was discussed in this House on 26 November, the Thirty-ninth Amendment of the Constitution (Right to Health) Bill 2019, which I introduced. An amendment was accepted by this House that a report on the Bill would be produced within six months. However, it will be due on 26 May, which most likely will be beyond the lifetime of this Government. I want to keep this issue alive on the floor of this Thirty-second Dáil. I would like to get the Taoiseach's views on the principles of the Bill. I believe it is a bold and ambitious Bill, a constitutional proposal that challenges the current thinking on health policy and health provision. It would place a socio-economic right to health into the Constitution.

The Bill reads:

i The State recognises the equal right of every citizen to the highest attainable standard of health protection; and the State shall endeavour to achieve the progressive realisation of this right.

ii The State shall endeavour, within its available resources, to guarantee affordable access to medical products, services, and facilities appropriate to defend the health of the individual.

iii The health of the public being, however, both individual and collective, the State shall give due regard to any health interests which serve the needs of the common good.

The Government did not accept that proposal and, as I outlined, it tabled an amendment. The two objections the Government made is that the amendment would be justiciable and it wanted to know how it would defend and put a limitation on rights in terms of taking cases to court.

The second ground on which the Government opposed the Bill was the separation of powers. The fear was that courts could dictate Government policy and it raised the question of what enforcement powers the courts would have concerning the provisions within the constitutional amendment.

Health inequality kills, and we certainly have health inequality in Ireland at the moment. Our two-tier system is a blight on the public service, in particular for the marginalised within the community. We continue to export our graduates due to the poor state of the health service. That results in gaps in the service and indefensible delays in the delivery of care, notwithstanding what the Taoiseach has just said. Such an amendment would place the implementation of Sláintecare on a constitutional basis rather than as a leisurely option. There would be no excuse for the Government to delay the implementation of Sláintecare. The amendment would act as a driver of health reform and new health policy. One of the strengths of the amendment is that failure to provide health services that are necessary, reasonable, proportionate and rational can be judged by the courts and, if found wanting, they could direct the Government to act to remedy its failings. In my view, courts would not decide policy, but could direct the Government to formulate policy and to vindicate a right to health. The failure of the Government to deliver on our health needs provides a powerful imperative for this amendment. I would like to get the Taoiseach's views on it.

I had a chance to read the constitutional amendment Bill introduced by Deputy Harty and we had a chance to discuss it at Cabinet. We were all very much of the view that it should not be dismissed out of hand and that it is something that deserves proper consideration by the committee, as has been proposed, if not in this Dáil then certainly in the next one. I have always had an open mind on including socio-economic and cultural rights in the Constitution, whether it is housing, education or health, but I also think we need to be realistic about it too. All of us in this House know that rights may exist in law or they may be put into the Constitution, but that does not mean that they are realised on the ground. Eighty-three countries have a statutory right to housing but every single one of those has homeless people. Just making something a right in law or in the Constitution does not necessarily mean that it happens on the ground in the real world. It does not provide resources or money when money is not available. It does not help one to find staff if the staff are not available. It does not build buildings that do not exist. Governments have to do that, in particular by running an economy well to produce the resources to allow them to do that. No constitutional provision can change that reality or that fact of life.

The second thing we must bear in mind as well is that we need to be cautious not to create new rights and new legal obligations that may put people in a position whereby they can sue the State and receive compensation for not having those rights vindicated. None of us wants to see hundreds of thousands of euro being paid in compensation payments to people who did not get healthcare when that money could have been spent on healthcare, or hundreds of thousands of euro being paid to people because their right to housing was not vindicated when that same money could have been spent building a house. We need to be smart about these things. If we are going to put something into the Constitution, we must fully tease out the sequelae and the unintended consequences. That is the reason I think we are taking the right approach by referring it to the committee for detailed consideration either in this Dáil or the next.

This is not an abstract proposal that can be dismissed or deferred. For instance, we have a constitutional right to primary education. That is a socio-economic right that is already within the Constitution. This amendment would oblige the Government to act to provide health services to meet the needs of citizens.

Only if it failed to demonstrate that would there be a right to appeal to the courts to have it vindicated. The wording in the Bill, to the effect that there would be a progressive realisation of rights within available resources, gives sufficient protection such that there would not be a sudden march to the courts if the provision were introduced. No longer could the Government say that it is doing its best. If this measure were introduced, the Government would be obliged to do much better than its best. It would be obliged to vindicate a right to health. It would occur in respect of cases such as that of Alex O'Shaughnessy, who has had his chemotherapy deferred on several occasions. Ninety year old patients are sitting on chairs rather than lying on trolleys in our accident and emergency departments. An average of 600 patients are on trolleys. The number is only 552 today, which is a pretty good day, but there are 74 people on trolleys in University Hospital Limerick. If what I propose were introduced, it could no longer be said we are sorry we cannot meet the targets for the provision of scoliosis services. The Constitution would oblige the Government to meet them. Failures such as those I have mentioned and myriad others would be unconstitutional. The provision would mean the courts could direct the Government to improve the health services. Failing to do so would be justiciable.

I understand from where the Deputy is coming. I have an open mind on this but I do not believe that his suggestion is the panacea he may suggest it is. A constitutional right and a court judgment cannot build a hospital that does not exist, hire specialists who are not available or create resources that are not available. The Deputy mentioned that he has included in his terms a caveat such that provision be made within available resources. It should be borne in mind that it is only two years since we have been able to balance the books in this country. We had an IMF programme before that. It is only in the past two years that the amount of money we have got in revenue has exceeded the amount we are spending on public services and other matters. Up until two years ago, the courts would presumably have said the resources were not available, and that would have been of no benefit to anyone.

I agree with the Deputy on something, namely, that the two-tier system within our public hospitals is wrong. The Cabinet approved a proposal on Tuesday that the Ministers for Health and Finance will outline later today. It is to offer a new contract to hospital consultants, including new consultants who want to become consultants in our system or existing consultants who wish to move to the contract. The new contract will provide a salary scale to hospital consultants of between €180,000 to €222,000 now, rising to €250,000 per year in 2020, on the proviso that the consultants taking up the contract commit to work in our public hospitals only and dedicate themselves to our public health service. This is a major change. Linked to that is a Government commitment to increase the number of consultants by a net 1,000 over the next ten years. We will press ahead with this. This is Sláintecare happening. We have done a good deal with the general practitioners, of which the Deputies are aware. Progress is being made in that regard. We are now willing to make a deal with consultants and offer them €250,000 per year provided they commit to our public hospitals and public health service alone.