‘Watertight’: The word that finally got the NMH plan across the line

Attorney General’s verdict on legal documents assuages lingering Cabinet concerns

In the end, it all came down to a crisp, one-word verdict delivered by the Attorney General: “Watertight.”

Ministers gathered at 9am on Tuesday with the National Maternity Hospital (NMH) memo topping the Cabinet agenda. Green Party Minister Catherine Martin – the last Cabinet member to give her backing to the plan – dialled in to the meeting in the middle of the night from a trade mission in Los Angeles. Ministers were told in no uncertain terms that all legally permissible services would be available in the new hospital, there would be no religious ethos and that clinicians were overwhelmingly in favour of the move. The legal documents, they were told by Attorney General Paul Gallagher, were “watertight”.

The plan to relocate the hospital may have been in the works for a decade but the past fortnight represented a moment of truth for the project. There were three big issues: the definition of ownership of the land, the phrase “clinically appropriate”, and questions around the influence of religious ethos.

Having argued that a 299-year lease is a technical form of ownership and believing that the issue of religious interference had been addressed, the biggest hurdle for Ministers on Tuesday was to address the concerns around the phrase “clinically appropriate”. Last week there was a push from all ranks of Fine Gael and the Greens for a codicil, or legal addendum, to be added to the existing legal documents amid concerns that the phrase was ambiguous and could limit services in future.

Taoiseach Micheál Martin has made no effort to hide his frustration about the delays and at one stage described concerns as "nonsense"

These briefings to media continued over the weekend, with some sources even indicating that the sign-off for the plan would be conditional on such clarifications being attached. Green TDs who were wavering also tentatively welcomed the idea of an addendum, but in the end, it was legal advice that halted the Government’s gallop.

Minister for Health Stephen Donnelly said he was told that any such addendum could in fact create legal problems in future. On the idea of the codicil, Donnelly said on Tuesday: “I think what was being suggested here was a non-exhaustive list. The very clear advice I have is that a non-exhaustive list creates all sorts of problems. When you put in a non-exhaustive list … for procedures that aren’t on the list, people are then genuinely concerned that those procedures are not on the list.”

New line

In an effort to meet the critics’ concerns halfway, a new line was stitched into the Cabinet memo that clarified that “the term ‘clinically appropriate’ allows the new hospital to provide all legally permissible procedures in the areas of maternity, gynaecology, obstetrics, neonatology and gender recognition; and that it is not expected that the new NMH will provide cardiac or orthopaedic surgery, for example”.

Taoiseach Micheál Martin has made no effort to hide his frustration about the delays and at one stage described concerns as “nonsense”. His frustrations were heightened after the Cabinet agreed to hold off on signing the memo for two weeks to allow public scrutiny of the deal. Yet, as reported a fortnight ago, it was never the plan to make any changes to the deal itself. The aim of the game was to win the public’s support and the backing of Government TDs.

Two key moments in the process in the past 10 days helped to get the deal over the line. The first was the appearance of Donnelly in front of the Oireachtas Committee on Heath last week. Flanked by senior clinicians and legal experts, he delivered an assured performance, answering the political questions but leaving the detailed questions on land to the property law experts and the questions about the need for the new hospital to the clinicians.

The second key moment was an appearance at the same committee by Peter Boylan, a former NMH master and one of the most vocal critics of the project, and solicitor Simon McGarr, who has been outspoken on Twitter about issues he sees in the legal documents. Perhaps tactically, some Government TDs chose to bypass Boylan, who is a formidable media performer, to home in on McGarr’s experience in the world of commercial leases.

No match

With copies of the lease for the new NMH in front of him, Fine Gael TD Colm Burke asked McGarr if he was “dealing with commercial leases every day of the week”. McGarr said: “I am not. I absolutely am not. I am looking at this as a person who is delivering his opinion.”

Those who support the move, both publicly and privately, felt the air going out of the opposition campaign at that point, arguing that the contribution of the two men to the committee was no match for the phalanx of experts that appeared the previous day. It was not lost on anyone either that the debate has led to something of a civil war among those who campaigned to repeal the Eighth Amendment.

The jury is very much out on whether the public believes that what has been agreed equates to what has been promised

The Government is now happy that it has addressed any legal ambiguities as part of Tuesday’s memo, and that the lease is effective or technical ownership. However, the political debate may continue for some time yet.

It is only one year since Tánaiste Leo Varadkar said that the public owning the NMH is a “red line issue for Government”. The jury is very much out on whether the public believes that what has been agreed equates to what has been promised: a State-owned hospital on State-owned land.