Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

I want to echo the sentiments, which the Minister expressed before he started into this debate, on the many thousands of people who come here from abroad to work in our health service.

We depend on these people to keep our health service running. It is shocking that they or any of their countrypeople are subjected to racial abuse in this country. As the Minister did, I thank them for their contribution and apologise on behalf of those elements who have targeted essential people who come to our country. The Minister’s comments were welcome but he needs to establish a public awareness campaign. That was made clear to us by all the health unions which came to the health committee yesterday. I hope the Minister picks up on that.

The Minister said in his opening comments that this comprehensive report was produced very quickly and allows a full and informed debate in the House today. I do not accept that for a moment. This is not a comprehensive report. This is a report requested of the Attorney General. The Government asked him, as he pointed out in the report. In relation of the two issues before us, he was asked to provide an account of the litigation management strategy adopted by the State, insofar as it was based on the legal advices. That is all. That is a particularly narrow, though important, focus. The issues before us are much wider than that, encompassing people’s rights, what we are as a society and what the Government is as a political organisation which has to take a much broader view than what is legally possible or advisable. We cannot have a fully informed debate unless we get into those broader issues. This is not about what is legally advised, but what is right and fair. That seems to have been lost in this. Successive Ministers through many years are hiding behind the legal strategy. That strategy can be defended and, viewed through a narrow lens, can be seen as legitimate. However, the job of Government is not solely to be mindful of the legal strategy advised. It is to take a broader view of people’s rights and what it means to be a properly inclusive society. That is being missed in all of this.

I question the role of the Attorney General in this. It would have been more appropriate and informative to bring somebody else in - somebody of the standing of John Travers, for example. He did a report in the 2000s that took that broader view. That is what we need. It would refer to the legal strategy and the management of it, but also take a broader view. It was a mistake to confine this to the Attorney General. He has a strict constitutional role, which is to "be the advisor of the Government in matters of law and legal opinion". That is the extent of it. It is the job of Government to decide what is most appropriate in terms of providing services for the public and what creates a properly functioning society. That wider issue is not covered, unfortunately.

The relationship between a client and lawyer is underpinned by the principle that lawyers advise but clients decide. Irrespective of the legal advice the Attorney General provides, it is the job of the Government and of politicians to take the advice on board and decide on the broader range of issues that need to be taken into consideration. It has been suggested to me that in a normal lawyer-client relationship the client asks if he or she can do such and such a thing, but when it comes to Government, the question should be “Should we do that? Is it right to do that? That may be the legal advice, but should we be doing that?” It seems that was not really asked. Taking that broader view is what politics is about and should be what good Government is about. It is the job of Government to defend the rights and entitlements of this country’s citizens, not to ride roughshod over them in the interests of financial expediency. That seems to have been the approach taken by successive governments and Ministers in purely following the strict legal advice.

I have many concerns about the Attorney General’s report. The tone of it is not particularly helpful. It is quite condescending. It is almost as though he is saying grown-ups in government have to make tough decisions which the general public could never understand. Then there is the language it uses and the insistence that it is all about protecting the taxpayer. Taxpayers are also people with disabilities, older people and people with family members who need the care of the State. Financial constraints are one aspect but there are other issues that should be taken into consideration. He also sets up a straw man when he says:

It is sometimes tempting to resort to generic stereotypes about the State being in some way cruel or unfair to its citizens where they are deprived of a benefit and bring legal proceedings challenging this deprivation. But the irresistible logic of such a perspective is that the State has unlimited resources, must concede every court case that is brought against it, and must fund every claim for compensation or redress that is demanded of it.

That is a straw man. Nobody is claiming that for one moment but we are looking for Government to balance protection of the public purse with vindicating the rights of weaker citizens.

There have been a number of enlightening responses to the Attorney General’s report. I was most struck by Máiréad Enright of the University of Birmingham, who wrote inThe Journal yesterday. She made the point that “the State is a peculiar type of defendant because it is the plaintiff’s protector as well as her opponent; her opponent because it is defending itself against her claim, and her protector because it has duties to guarantee her fundamental rights.” That broader view was not taken into consideration.

I was also struck by the Disability Federation of Ireland’s point that it is deeply discouraging that the report took such a narrow view, with no mention of reflection on the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD. That refers to what happened in relation to the disability payments. It makes no mention of the UNCRPD or Ireland’s responsibilities as a signatory to that important international human rights convention. A blinkered view was taken. It is one thing for the Attorney General to take such a view, but it is an entirely different matter for Government to take it.

I absolutely endorse Age Action’s call for an independent commissioner for ageing.

I return to a point I made last week when I raised this with the Taoiseach. Running through all this is the absence of a legal entitlement to healthcare. This has been at the root of many of these problems. There is no such entitlement to healthcare, while there is one to social welfare, for example. We use the vague term “eligibility”. People are eligible for services but, in many cases, those services do not exist. Given a situation where there is no underlying right to most healthcare services and the direction of travel of this and previous governments has been towards the increasing privatisation of services, the window of opportunity for public patients to access public services is getting narrower and narrower.

Will the Minister apply his mind to the need for a legal entitlement to healthcare? I do not know why he has three months to consider this further. That sounds very much like kicking the can down the road.

Before the Minister comes back to us again on this issue, will he please concentrate on the need to introduce a legally based right to public healthcare?

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