Emer Higgins (Dublin Mid West, Fine Gael)

I thank the Deputies for giving me the opportunity to discuss the Government’s position on Second Stage of this Private Members’ Bill, the Ministers and Secretaries (Attorney General) Bill 2023. At the outset, I remind Deputies, as Deputy Bacik has done, that the Attorney General is a constitutional officer appointed by the President on the recommendation of the Taoiseach under Article 30 of the Constitution. Their role is to be the adviser of the Government in matters of law and legal opinion. The Bill contains provisions that risk significantly undermining these relationships. They could also undermine the Office of the Attorney General and the Attorney General’s capability to properly defend litigation on behalf of the State.

To summarise the purpose of the Bill, as set out in the explanatory memorandum and by Deputy Bacik, its principal purpose is stated to be to provide a mechanism for both acknowledging and accommodating public interest concerns in State litigation. Another purpose is to ensure that claims of legal professional privilege are not made in relation to the advice of the Attorney General referred to and relied upon by the Government in explaining its policy approach to Bills and resolutions in the Houses of the Oireachtas. The final principal purpose is to introduce the Attorney General into the regime of codes of conduct for office holders that are provided for in the Standards in Public Office Act 2001. I will address each of these three points in turn.

Regarding the public interest, the Bill, if enacted, would be counter-productive to the efficient work of the Government. Duplication arises in a number of areas, for example, the State litigation principles, the programme for Government commitment to update the ethics in public office legislation and the delegation of functions by the Attorney General to a deputy or assistant Attorney General. The Bill seeks to introduce a number of inflexible provisions seeking to unnecessarily regulate matters relating to the Attorney General’s remuneration, private practice and practice at the Bar, many of which are already addressed appropriately in a non-statutory manner.

Since this Bill was originally put on the Order Paper, the Government has approved the adoption of State litigation principles which serve as guidelines in the conduct of litigation by the State. The 15 litigation principles recognise the imperative that the State should act in the public interest, broadly construed, in pursuing and defending litigation and should consider the broader public interest before taking certain procedural steps in litigation. The litigation principles apply where the State, through the Government, a Minister of the Government, a Department or an agency under its direct control, initiates or engages in litigation. These principles clearly articulate standards for the State and its lawyers in the conduct of legal proceedings. They set out how the State can and should behave in its capacity as a party to a given dispute before the courts.

The litigation principles, in clarifying and explaining existing best practice, assist officials in the different Government Departments, and the lawyers acting on their behalf, in upholding the high standards already expected of the State. They also assist in explaining the approach of the State to litigation and foster a better understanding of how the State serves the public interest when litigating. The litigation principles, when they were introduced in 2023, were not intended as a radical departure or change from what was done previously but, instead, represented a distillation of feedback and existing best practice. While it is simply not possible to prescribe in advance how to act in every conceivable situation that will arise in complex and high stakes litigation on behalf of the State, the litigation principles serve as guidelines for the conduct of litigation in accordance with high standards of ethics and integrity.

The litigation principles provide a more suitable approach for the State in this context than an inflexible statutory regime and they do not alter the reality that the State has, and should have, the same entitlements as any other litigant in respect of litigation. The 15 litigation principles inform how the State views public interest in the context of litigation. To seek to do this in an overly prescriptive and inflexible statutory rule carries with it the risk of damage to the State’s ability to litigate properly in the public interest. The Deputies mentioned a number of concerns in their contributions. As one would expect, the litigation principles refer to the need to act honestly, avoid legal proceedings where possible, minimise legal costs for all parties, not take advantage of the less well-resourced litigant and apologise where the State has acted unlawfully. These are among the principles that were devised as State litigation principles in 2023.

The next issue of privilege is a proposal to not allow a claim for legal professional privilege to be made in relation to advice from the Attorney General in order to explain a position that has been adopted in relation to the passage, defeat or amendment of a Bill or resolution in either of the Houses. It has been the long-standing policy of successive Governments, consistent with professional practice in respect of legal matters, that detailed legal advices provided to the Government by the Attorney General are provided in confidence and remain confidential. The Government, as the “client” of the Attorney General in receipt of advice, is entitled to the same professional privilege as any other client in receipt of legal advice. It is well recognised that legal professional privilege enables open, candid and confidential communications between a client and their lawyer, which is a cornerstone of the administration of justice.

The Attorney General in their advices will often draw attention to risks or legal vulnerabilities with a policy proposal or a Bill. Of course, the risks or vulnerabilities will have been examined before a Bill reaches the Houses. As Deputies would expect, every effort is always made in the development of policies and legislation to remove or reduce to the minimum the extent to which the State, and the taxpayer, may be exposed to risk and litigation. However, releasing this kind of advice may lead to the revelation of possible legal risks or vulnerabilities that could be leveraged in actions against the State or see strands of costly litigation against the State seeking to exploit potential legal vulnerabilities. That would not be in the public interest.

The statutory regime governing ethical behaviour in public office at national level is provided under the ethics Acts. The 2025 programme for Government contains a commitment to update the ethics in public office legislation and work is ongoing in my Department to meet this programme for Government commitment.

It is important to note that, in the meantime, the Attorney General is currently subject to the provisions of the ethics regime. For example, the Attorney General makes a statement of registerable interests on an annual basis, and this statement is furnished to the Taoiseach and the Standards in Public Office Commission. This statement sets out the interests of the Attorney General, as well as of their spouse, child or civil partner, which could materially influence the performance of the Attorney General’s official functions. In addition, the Attorney General must make ad hoc statements where a function falls to be performed and he or she has actual knowledge that he or she or a connected person has a material interest in a matter to which the function relates. The statement must be furnished to the Taoiseach and SIPO, and must describe the nature of the interest. As one would expect, the Attorney General must fulfil the tax clearance requirements for appointment to the office.

The ethics Acts also provide for the making of codes of conduct. These codes are designed to indicate the standards of conduct and integrity for the persons to whom the code relates in the performance of their functions and in relation to any matter connected with or affecting, or likely or appearing to affect, their performance. As the legislation is currently framed, the manner in which the ethics Acts apply to the Attorney General depends on whether the Attorney General is a Member of the Houses of the Oireachtas or not.

While the legislation provides for codes of conduct to be made in respect of Oireachtas Members, officeholders, directors and employees of public bodies, an Attorney General who is not also a Member of the Oireachtas is not covered by a code of conduct. The Private Members' Bill before us seeks to adjust this by providing that the reference to an "office holder" in this context is deemed to include an Attorney General who is not a Member of the Oireachtas. Consideration of this matter would fall under the overall update of the ethics Acts, which, as the Deputy said, is a programme for Government commitment. That is something that is happening now and is an ongoing review.

The principal purpose of the Bill has been to a large extent addressed by the State litigation principles and the 2025 programme for Government commitment to update the ethics in public office legislation addresses additional elements of the Bill. I have outlined serious issues with the Bill in terms of legal professional privilege in relation to Oireachtas business, which may cause the disclosure of significant volumes of very sensitive legal advice by the State in a manner which may leave legislation more vulnerable to challenge in litigation.

After careful consideration, the Government has decided it will oppose this Bill as it would seriously undermine the work of the Attorney General and by.extension, the work of the Government which the Attorney General is constitutionally charged with advising.

See this speech in context