Legislation giving the Government retrospective power to charge residents of State care institutions by deducting up to 80 per cent of their pensions will come before the Supreme Court next month after the President, Mrs McAleese, asked the court to test its constitutionality.
As Opposition parties said there were serious doubts about the legislation, the Tánaiste and Minister for Health welcomed the development and said the court would bring legal certainty to the practice.
A definitive ruling would avoid protracted legal challenges to the regime through different courts, Ms Harney said.
The Government stopped making the deductions a fortnight ago, pending passage of the legislation. The referral to the Supreme Court means the Government cannot claim the €2.5 million a week in charges which would have been levied from residents if the President had signed the legislation into law.
The case is likely to be heard on January 24th after Mrs McAleese said she had asked the court to decide whether the Health Amendment No 2 Bill was repugnant to the Constitution.
The President's referral followed a meeting on Tuesday of the Council of State. It is the first such referral of Mrs McAleese's second term and the first time she has referred an entire Bill to the court.
The Government rushed emergency legislation through the Dáil and Seanad last week after the Attorney General said the practice of charging elderly nursing home residents for their care by making deductions from their pensions was legally unsound
As well as regularising the practice for the future, the legislation gave retrospective power to the Government to take the previous deductions, by saying that the "imposition and payment of a relevant charge is, and always has been, lawful".
The court has 60 days to deliver its ruling.
If approved, the legislation will go back to Mrs McAleese for signature and cannot subsequently be challenged. In 12 of the 14 presidential referrals since 1940, the Supreme Court decided that the legislation was constitutional.
Ms Harney said the Government had sought to bring legal certainty to the area since it received advice from the Attorney General.
She also reaffirmed the Government's commitment to rationalise what she said was an unnecessarily complicated system of providing care for the elderly. ...
Labour's health spokeswoman, Ms Liz McManus, said her party had legal advice suggesting that there were "serious doubts" about the constitutionality of the legislation.
Fine Gael's health spokesman, Dr Liam Twomey, said he believed the Government was unsure about the Bill's status from the time that it was drafted.
He said the Taoiseach, Mr Ahern, had indicated to the Dáil that the legislation would have not have a retrospective element.
The Green Party spokesman, Mr John Gormley, said the legislation was drafted to legalise and justify the costs imposed on the most vulnerable in society.
