Ivana Bacik (Dublin Bay South, Labour)

I move: "That the Bill be now read a Second Time."

I am sharing time with Deputy Ciarán Ahern. I welcome the fact the Minister of State is here and I thank Deputy Ahern, who will speak alongside me. This is a Bill that we in the Labour Party introduced some time ago. It was drafted in the wake of the nursing home charges scandal. A key purpose of the Bill is to clarify and reform the role of the Attorney General by providing a mechanism for both acknowledging and accommodating public interest concerns in State litigation. When we speak about this we think of the real people involved. We think of the late Vicky Phelan, who bravely went public, along with so many other women, in exposing their treatment by the HSE as they were dragged through the courts. We think of the survivors of thalidomide. We think of all the many individuals who, to vindicate their rights, have been forced, essentially, to sue the State and the State has taken what might be described as a very aggressive role in defending claims. We are trying to ensure there is a rebalancing such that when the State is defending - of course having regard to the interests of the people in terms of value for money and the demands on the public purse - it does not behave like any faceless corporate entity in doing so but would also have regard, through the Office of the Attorney General, to the need to ensure that the public interest is maintained. That is a core purpose of the Bill. It was drafted, as I said, in the wake of the nursing home charges scandal and in light of the fact that so many people affected by that scandal had to take to the courts to pursue their rights.

The Minister of State will recall that successive Cabinets had consistently resisted awarding repayments to holders of medical cards who had to pay for care in private nursing homes because of the lack of beds in public institutions. It was Government policy, on the advice of successive AGs, to settle with residents who threatened legal actions, but the Government kept those settlements secret to deter other deserving potential litigants from taking similar cases, with the net result that those who could afford lawyers sued and settled with repayments. The State avoided a visit to the courts by paying up, but other residents without the money and without legal representation got nothing. There was a real and valid concern when this all came to light that this litigation strategy operated by the State and the Attorney General's office was not in the public interest. A core purpose of this Bill is to ensure that, at the very least, the Attorney General would have to have regard to the public interest when taking decisions in defending claims made against the State.

There are two other aspects of the reforms proposed in this Bill, again focused on the Office of the Attorney General. The Bill would further ensure that claims of legal professional privilege are not made in relation to advice of the Attorney General referred to and relied on by the Government in explaining its policy approach to Bills and resolutions in the Houses of the Oireachtas. To be clear about this, there has been some controversy in recent years about the Attorney General's advice being withheld yet relied on by the Government in taking political positions. I am thinking of two key instances of this in recent years. One is the lifting of the eviction ban. The Attorney General's advice was consistently referred to by the Government in justifying making the decision to lift the no-fault eviction ban, yet there was no clarity for Opposition parties - or anyone else, for that matter, particularly renters - as to what that advice actually said. Of course, there is the ongoing invocation of the Attorney General's advice in respect of the occupied territories Bill.

That is a source of real frustration to us in the Opposition and to the many people across the country who want to see the occupied territories Bill passed. The Government tends to rely upon the cover of the Attorney General's advice in saying it cannot pass the full occupied territories Bill and cannot seek to apply it to services as well as goods, again referring to this secret Attorney General's advice.

The third aspect of the reform is that the Bill will introduce the Attorney General into the regime of codes of conduct for office holders provided for in the Standards in Public Office Act 2001. To go into a little more detail on how we propose to make these reforms, I will focus on two key areas: the need to have regard for the public interest in defending litigation against the State; and the need to ensure the Attorney General's advice, in certain circumstances, may be published.

On the litigation point, we recall that the Office of the Attorney General was established by Article 30 of the Constitution, which describes the Attorney General as "the adviser of the Government in matters of law and legal opinion". Section 6 of the Ministers and Secretaries Act 1924 provides that the Attorney General "shall be vested" with various powers, including "representation ... of the public". The Attorney General is not a member of the Government and acts independently when invoking the jurisdiction of the courts to enforce the Constitution to defend constitutional rights or in a claim of public right. In many cases where public bodies or the State are being sued, the Attorney General's relationship to the Government is that of lawyer to client. This of course entails no accountability to the Houses of the Oireachtas and involves advising the Government on litigation strategy to defend or defeat legal claims. I think we are all aware that in recent years, as I have said, a tension has been exposed between the Attorney General's obligations when acting as legal adviser to the Government and the public interest the Government is supposed to be serving.

A Minister or Department may have an interest in settling litigation on confidential terms to reduce exposure to other potential litigants. That is a legitimate tactic and would be the appropriate tactic for a lawyer to advise in private practice when representing a corporation, for example. It fails to acknowledge, however, the specific public interest considerations which arise in public litigation where there is a public interest in rooting out unfair, unsound or unjust practices. That is why there should be a mechanism in law for acknowledging public interest concerns when the State is the defendant in litigation.

We of course accept the need for the State and State's offices to have regard to value for money but it is not appropriate for the State to wage what we might describe as lawfare - using law as a sort of tool or weapon of war - on citizens and residents who have suffered a wrong committed by the State or an injustice for which the State is responsible. There is a public sector equality and human rights duty here. The Preamble to the Constitution affirms a quest, indeed a need, "to promote the common good". We are very concerned that in cases like the nursing home charges, the public interest is not best served by a Government that simply settles out of court and in secret with those who can afford litigation while abandoning the rest, knowing there are others to whom a wrong has also been done, to stay ignorant of their potential right to compensation. We believe it is not in the public interest to prevent an action from reaching the courts for fear of losing a test case. This appeared to be the root of the State's litigation strategy in the nursing home charges scandal.

We hope the Government will work with us on that first component of the Bill in seeking to ensure a public interest duty is there to be balanced where the State is defending. I appreciate all those who have contacted me regarding the Bill. I mentioned the thalidomide survivors, who have a particular interest in ensuring the public interest is taken into consideration in the State's litigation strategy. Tomás Heneghan also contacted me who, again, has a record in this regard.

I will briefly turn to the second important reform we seek to introduce which is to ensure the Attorney General's advice may be published in certain circumstances. We are all aware that in recent years, the way Government practice has developed means it is now rare for the Attorney General's advice to be published by the Government on any aspect of anything it has been advised on. There is no legal reason, however, for refusal to publish this advice and it can be problematic to treat this advice as secret. The privilege is for the client to weigh and not the legal adviser. The Government - any Government but this Government as much as any other - has tended to hide behind the Attorney General's advice, notably on the issue of inclusion of services in the occupied territories Bill. We are concerned that in a democracy on matters of public importance, such as evictions, housing policy and the occupied territories Bill, there is every reason for the Government to be transparent with the public and with the Opposition, as well as with backbench TDs and Senators. We are concerned that over-reliance on secret unpublished Attorney General advice obscures the decision-making process around policies being constitutional or unconstitutional and legal or illegal under European law.

More often than not, particularly in matters of legislation or big policy like the eviction ban, these are questions which should be open for informed scrutiny by Members of the Oireachtas with regard to the legal advice the Government has received. As the Bill acknowledges, there are individual cases in which the Attorney General's advice should not be published, but on bigger issues we believe the State's public interest is best served by enabling the Attorney General's advice to be published.

Deputy Ahern will speak more on this aspect of the Bill. I appeal to the Minister of State to not oppose our Bill at Second Stage and to work with us. We welcome Government amendments and consultation on how to get this Bill through.

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