Ciarán Ahern (Dublin South West, Labour)

All too often the State approaches litigation against it in the same way any private corporate entity would. It is a war of attrition against each individual plaintiff who dares to sue it. That approach must change, not least because it is hugely discriminatory against those who do not have the time, resources or mental fortitude to fight a case like that. We must also consider the appropriateness of the State pursuing unsuccessful litigants for costs in certain situations, for instance, where a case that is of constitutional importance or concerns human rights is taken. In the case taken by Louise O'Keeffe some time ago, she was ordered to pay €500,000 in costs after losing in the High Court but the Supreme Court overturned the costs order against her due to the case's public importance. I cannot imagine the stress this put Louise O'Keeffe under as a survivor of abuse and someone the State had failed to protect.

This Bill, which has been moved by Deputy Bacik, deals with advice from the Attorney General and the Government's treatment of that advice, particularly the frequent reluctance to make that advice public. This is a major problem because the Government often cites the Attorney General's advice as a kind of trump card in debates around public policy matters. The Government says that it would do something but, unfortunately, the Attorney General has said "No" so its hands are tied. This effectively gives the unelected Attorney General a veto over particular Government policy. In some ways, this makes the Attorney General, who is not a member of the Government under the Constitution, the most powerful member of the Government.

One example of an area where the Attorney General's advice was consistently cited but not disclosed in recent decades is on the topic of adopted people's rights to access their birth certificates and early life records which are held by a range of agencies and institutions. For decades, adopted people were told that it was impossible, and that there were complex constitutional issues at play. Successive governments simply asserted that mothers had and actively sought a constitutional right to privacy which required secrecy. Without access to the Attorney General's advice over the years, however, it was not possible to see how or if the Attorney General factored into the legal equation the coercive and forced adoption system that prevailed during the 20th century. This had little regard for women's rights and instead left them with no other choice but to relinquish their children. It also was not possible to see if the Attorney General's advice considered that birth records had been public records since 1864 and that no guarantee of privacy could have been given to mothers in the first place. Under Ireland's adoption system, women were forced to sever legal and familial ties with their own children and act as if they had never given birth.

It is unknown whether or to what extent the Attorney General had considered the extreme discrimination caused by denying one group of Irish people the most fundamental knowledge of themselves that others took for granted. These people were being denied basic knowledge of their identity. Had the Attorney General considered mothers' rights and demands to access their records, and after 2018, what did the Attorney General think of the EU data protection law requirements in that regard? It is because of advice which came from - we are told - the Attorney General that the Birth Information and Tracing Act discriminates against adopted people, still denying them the unconditional access to their birth certificates and records that is enjoyed by the general public. This was and is far too serious and complex an issue for people to be told repeatedly that the Attorney General says "No", the Constitution says "No" and the law says "No", but this is what adopted people have been subjected to for decades. It is as if their demand for information was some kind of competitive battle where it would prejudice the State to reveal its hand and where adopted people and their allies could not be trusted to know the real reasons behind the Government's stance.

This Bill is about having respect for the people of Ireland, not patronising them by suggesting they cannot understand why the Government makes the decisions it does. It is about strengthening our democracy so legislation is designed and debated with as full a picture as possible of the relevant facts and the relevant legal interpretations. Professor David Kenny of Trinity College has made the point that this practice has only emerged in recent decades. We have seen it play out with the occupied territories Bill recently. The Government repeatedly relied on the Attorney General's advice as a reason for delaying the Bill yet refused to publish that advice. The public concern on this matter was and remains evident and, now, for reasons we cannot be quite sure of because we have not seen the initial advice, the Government is seeking further advice on ostensibly the same matter from the Attorney General.

Why would the Government not be transparent with the advice it receives on matters such as this? Anything less leads to legitimate political questions as to whether the advice it received actually gave it an answer it did not want. We must strengthen our democracy when we see any cracks forming. That is what we are trying to do here. I commend Deputy Ivana Bacik for bringing forward the Bill and I commend it to the House.

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