Ivana Bacik (Dublin Bay South, Labour)

I thank my colleague, Deputy Ciarán Ahern, and Deputy Mairéad Farrell for their words of support. I should also have thanked Deputy Ged Nash, who co-sponsored this Bill with me, at the outset. I also thank Deputy Farrell for her kind words about my background. I should have declared my interest at the start. As a practising barrister, I represented both the State and individuals suing the State. I have had some experience on both sides of the courtroom and have worked for and with Attorneys General on defending litigation against the State, so I know the way this works.

I am disappointed, frankly, that the Government has taken this "Dr. No" approach to the Bill and the principles within it. It is a pity the Minister of State did not see fit to let it go through on Second Stage so that we could have worked with her on addressing some of the issues she outlined, on seeing whether amendments could be made and whether the spirit of the Bill or the principles within it could best be encapsulated in some other way. I am conscious that other Private Members' Bills have been delayed for 12 months or even, as we saw last week, 24 months. Even that would have been preferable to straightforward opposition to a Bill that is fundamentally meritorious.

I will go back to the two specific issues and aspects of the Attorney General's office addressed in the Bill. The issue of litigation and the public interest in it referenced by the Minister of State can be summed up by a phrase she used several times in both her initial speech and her response - "any other client". She said the Government is like "any other client" in receipt of legal advice. Fundamentally, that is not so. The Government or the State is not any other client. The Attorney General is not any other lawyer. He or she is a constitutional officeholder who simply cannot be regarded in law, policy or legislation as the same as any other legal adviser. In the same way, the State cannot be regarded as just any other client. That is a fundamentally skewed basis on which to view this Bill. We are saying we are absolutely cognisant of the Attorney General's role constitutionally, and that of the Government, but that is why this legislation is needed - to ensure there is regard to the very specific roles of the Attorney General, the State and the Government.

Deputy Ahern rightly referred in particular to instances where the State defended cases in a way that was against the public interest. The Louise O'Keeffe case is one glaring example. I will come back to the nursing home charges case, however, because that was the initial prompt for this. In that case, the State was simply behaving as any other client would have, but that was against the public interest. It was against the interests of all those people who had been wrongly charged. It was fundamentally wrong that those people who had, as I said, the wherewithal to hire lawyers were given a settlement but those who did not were left without any recompense from the State.

Further to the public interest and litigation strategy point, and the Minister of State emphasised this in her closing speech, the Government introduced guidelines or State litigation principles in 2023. Much of what is in section 2 of our Bill reflects, as she said, best practice and what is in those guidelines, but the whole point is guidelines do not have the force of statute. The Minister of State made a virtue out of these being guidelines and said that statute would be too rigid and inflexible. We absolutely refute that. The way we have crafted the Bill, and we crafted section 2 very carefully, ensures it would not tie the hands of an Attorney General. It simply states that the Attorney General has responsibility for ensuring that functions are performed in the public interest. Of course, the Attorney General retains discretion to determine what is in the public interest subject what is set out in section 2(2), where there is a long list. I do not think anyone could disagree with what we have outlined there because, as the Minister of State said, much of it is reflected in the principles that were set out in 2023, but if we already have these principles and guidelines, why not put them in statutory form? They are not overly prescriptive in the way they are framed, they do not tie the Attorney General's hands and would have the huge merit of ensuring that an Attorney General, when looking at a case before him or her, would take cognisance of the fact he or she is not just any other lawyer advising any other client, that he or she is the State's constitutional legal adviser to the Government who is advising the Government and the State, and that he or she must balance the public interest with the interests of the State in ensuring value for money and that the public purse is protected and so on. There is a lot of merit in our proposal set out in section 2 that the public interest should be named in statute as a consideration for the Attorney General in the conducting of claims and litigation against the State.

Turning to the second key aspect of the Bill, where we look to ensure that the Attorney General's advice may be published, Deputy Ahern pointed out a very useful example, that of the long campaign by adopted persons to have a right to information. I should say that I was very involved in that. The then Minister, Katherine Zappone, did her very best on it. The subsequent Minister, Deputy O'Gorman, eventually succeeded in getting legislation through, but it was a tortuous process. As an Opposition Senator and TD, I sat in on many meetings where I heard, as Deputy Ahern rightly said, departmental officials saying, "The Attorney General says" and "The Attorney General's advice is". We never saw the Attorney General's advice. I was in the unenviable position of trying to assist with drafting in a constructive way without knowing what the Attorney General had actually said. That really is not helpful when we are trying to legislate in the public interest, in the interest of transparency and to ensure we have what everyone accepted was a much-needed reform. "The Attorney General says no", a bit like "computer says no", became a sort of unanswerable point.

Let us think of other examples. I did not mention this, but during last year's referendums on care and equality, which the Government was defeated on, from the Opposition and as Chair of the Committee on Gender Equality, I did my best to work constructively to ensure we saw appropriate amendments made to the awful text on the family that now, sadly, remains in Article 41 of the Constitution.

Again what was not helpful was the constant reference to the Attorney General's advice as the basis for the flawed wording that the Government produced and which inevitably people ended up rejecting. The publication of the Attorney General's advice would have been really helpful to those of us who were campaigning from Opposition for the amendment and to those members of the public who were genuinely puzzled and perplexed by the wording.

It is also fair to say, of course, the Attorney General's advice could be published in redacted form in any of these instances. We are not saying the Attorney General's advice must in all cases be published in full - far from it. Section 1 is very carefully crafted. We say that a claim of legal professional privilege shall not be made in respect of legal advice where the Attorney General's advice is being referred to by a Minister in order to explain a position that has been adopted related to the passage, defeat or amendment of a Bill or resolution. It is actually quite a confined provision.

We say specifically it does not apply to legal advice given in the course of litigation. We are not suggesting the Attorney General's advice be published in respect of individual cases. It is without prejudice to any grounds other than a claim of legal professional privilege that could be relied on for non-disclosure of legal advice. We are again careful not to be overly prescriptive and, as I have said, there is no requirement that the advice must be published in full in any instance. For example, in a particular issue that arose about a particular form of wording in the referendum, the Attorney General's advice on that specific point could have been published and would have been very helpful.

I also mentioned the occupied territories Bill. The Tánaiste has helpfully indicated that he wants to see an occupied territories Bill passed and he wants to work with Opposition on how broad it can become. I conveyed the Tánaiste's view, as expressed to heads of Government from other member states at a pre-European Council meeting last week in Brussels, to our socialist grouping because across Government and Opposition we all want to see the occupied territories Bill passed. However, we in opposition want to see it passed in full, covering goods and services. It is not helpful that it appears we cannot see the Attorney General's advice. All too often this has been used as a cover in my view. The Minister of State said it is a long-standing practice not to publish. Deputy Ahern referred to Professor David Kenny in Trinity, who has been a noted commentator and noted legal expert on these matters. He has pointed out that it can be published and in many cases it would be helpful to do so.

The Minister of State's trump card at the end was to say that it would not be efficient and would undermine the work of Government and Opposition to pass this Bill, particularly on those two points of public interest and publication of Attorney General's advice. It is unfortunate to hear that efficiency would trump transparency.

Deputy Farrell referred to the former Deputy Brendan Howlin. Brendan Howlin and the Labour Party have a long track record of improving transparency and accountability in governance in many different pieces of legislation before this House over many years. We see this as an in keeping with that spirit. We are disappointed that the Government sees fit to oppose it. We again ask the Minister of State to reconsider in advance of vote next week.

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