Ivana Bacik (Dublin Bay South, Labour)
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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.

Ciarán Ahern (Dublin South West, Labour)
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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.

Emer Higgins (Dublin Mid West, Fine Gael)
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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.

Ivana Bacik (Dublin Bay South, Labour)
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A Cheann Comhairle, might I ask if there is a copy of the Minister of State's speech available? I am conscious there was a lot in it.

Verona Murphy (Wexford, Independent)
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Yes. Minister, normally-----

Emer Higgins (Dublin Mid West, Fine Gael)
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I think it is here. Is it not here?

Verona Murphy (Wexford, Independent)
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We have not yet received it.

Emer Higgins (Dublin Mid West, Fine Gael)
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I am so sorry.

Verona Murphy (Wexford, Independent)
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The Minister of State can certainly forward it. We will ask for it now, if possible. I will let the Minister of State do that, just to finish, if Deputy Farrell does not mind.

Emer Higgins (Dublin Mid West, Fine Gael)
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Somebody can provide that. In the meantime, do you want to photocopy my one?

Verona Murphy (Wexford, Independent)
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That is also helpful, I would assume. We can do that. I thank the Minister of State. The Clerk can collect the Minister of State's speech and get it photocopied. I call Deputy Farrell.

Mairéad Farrell (Galway West, Sinn Fein)
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Gabhaim buíochas leis an Cheann Comhairle agus leis an Aire Stáit.

This is my third week in a row speaking on a Private Members' Bill from the Opposition which, on a Thursday afternoon, is being pushed back or declined by Government. This feeds in to a narrative and the opinion that this is a slow-moving do-nothing Government.

First of all, I commend Deputy Bacik and the Labour Party on bringing forward this Bill. Most of us would be in agreement that, of anybody in the House, Deputy Bacik probably has the most understanding in relation to these matters. It is quite astonishing, to be perfectly honest, that the Government is going against this Bill.

It is also very rare that we see amendments to the Ministers and Secretaries Act, despite it probably being one of the most important pieces of legislation in the State. Sometimes I think people do not realise how important this particular legislation is. Indeed, it is one that establishes the relationship between Ministers and their Secretaries General.

The Bill deals with the relationship between Ministers and the Attorney. In particular, it requires the publication of the Attorney General's advice.

I have seen how often the Government tells us that it cannot do X or Y because of Attorney General's advice. It is almost used to hide behind. It is often the case as well that we are told that something is far too complex for us to understand and that is another reason something cannot be done. Our little minds would never understand. That hiding behind that advice means that they do not pursue a given course of action. One clear example, that is, the most recent example that is on everybody's lips at present is in relation to the unpublished Attorney General's advice on the occupied territories Bill. Consistently, we were told that cannot be done because of legal reasons because the Attorney General's advice. Then, it was seemingly leaked and published by The Ditch, which stated that issues of including services in the Bill was a political decision and it had nothing to do with some insurmountable drafting issues. It was simply a matter for the Government to decide. I have done my fair share of interviews about the occupied territories Bill and the first question I am always asked is that as the Attorney General's advice is that it cannot be done, is insurmountable and that services cannot be included, how possibly therefore can I go against it. Every single time, I reply that according to advice that seemingly was published by The Ditch, it says it is a political decision. Again, every single time we have this kind of debate, we are told that this is not possible. This example alone, especially given that it is so politically charged and is so much within the political vernacular at present, speaks to the merits of this Bill.

More broadly, I have a real issue with the state of transparency in the State and I have raised this on a number of occasions. Transparency and openness are fundamental to faith in political life, political decisions and people's ability and willingness to participate in all of those things. Often, however, transparency and openness have come to be seen as burdensome in some quarters. I see a lack of ambition when it comes to improving oversight. Only last night, my Transparency and Social Value in Public Procurement Bill 2024 was kicked down the road for 24 months. I have seen that happen to other Bills and in my view, that just means that it is not going to happen.

The Minister of State has stated the Government is voting against this Bill and maybe that is a more clear-cut answer from the Government than this crack of delaying it for 24 months. I am the only person I know who got a 24-month ban on the Bill. I got an awful slagging that I got mine a 24-month delay when most Members get nine months to a year. However, I will continue and in two years' time, I will make sure to raise it again.

We need to see the publication of the Attorney General's advice when it is given. It should not be used as a shield, a crutch or a curtain. The Minister of State might say that is not what is happening but then the Government should publish it. It should not be used to deflect from legitimate criticism, should not be a crutch to lean on in times of instability and should not be something to hide behind when the Government is unable to marshal meaningful arguments for its own positions.

If Deputy Bacik's Bill was accepted, we would address all of these issues. It is the kind of Bill that would genuinely improve the functioning of Government which, unfortunately, is probably why it is being voted against.

Legislation and reform of this type only seems to happen in the moment of a crisis. That is what I have seen over the past five years. If a person been here for much longer - it is a shame that Deputy Bacik's former colleague, Brendan Howlin, is not here as he could talk about all of these issues at length - I am sure he or she could have a lot more to say about that too and could speak of the shortcomings that exist within our legislative process. Sometimes we need to see a lot more reform and one should not only reflexively shoot down Opposition Bills because one can. We need to have far more reform. We need to see within the Department of public expenditure a far more reformist zeal. Rather than merely going through the motion, it should really deal with reform which is in the title of that Department.

I commend Deputy Bacik on bringing forward this Bill. This particular legislation is very interesting. There is so much that can be done in this House. I can see that a lot of thought went into it and it is targeted and designed to address a specific issue of transparency in a neat and tidy manner. If the "Dr. No" approach of the Government changes and were it to do more than delay or vote down this Bill and were it to see that we need to see reform, I would welcome that. I have no problem welcoming things. In the previous Dáil, sometimes we had Ministers with whom we worked well in changing certain aspects of certain Bills, etc. I am always willing to welcome that when it happens but in this particular Government, we are seeing very much a "Dr. No" approach. That is unfortunate.

I commend the Labour Party on bringing forward this Bill.

Ivana Bacik (Dublin Bay South, Labour)
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Sorry, is it me-----

Verona Murphy (Wexford, Independent)
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No, it is the Minister of State first, then the Deputy.

Emer Higgins (Dublin Mid West, Fine Gael)
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I thank the speakers who have contributed. We all agree that the State should act in the public interest, broadly construed, in pursuing litigation and should consider the broader public interest before taking certain procedural steps in litigation. This is the reason the Government approved the adoption of State litigation principles two years ago. They serve as guidelines in the conduct of litigation by the State. The 15 litigation principles inform how the State views public interest in the context of litigation. The litigation principles provide a more suitable approach for the State rather than an overtly prescriptive and inflexible statutory rule that carries with it the risk of damage to the State's ability to litigate properly in the public interest.

In terms of legal professional privilege, the Government, as a client of the Attorney General, is in receipt of advice and is entitled to the same professional privilege as any other client in receipt of legal advice. The Attorney General in his or her advices will often draw attention to risks or legal vulnerabilities with a policy proposal or Bill. As Deputies would expect, every effort is always made in the development of policies and legislation to remove or reduce to a minimum the extent to which the State and the taxpayer may be exposed to risk and litigation. However, removing the privilege for 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 could see strands of costly litigation against the State seeking to exploit potential legal vulnerabilities, which would not be in the public interest.

This Private Members' Bill seeks to adjust the ethics regime by providing that the reference to an officeholder in the context of codes of conduct is deemed to include an Attorney General who is not a Member of the Oireachtas. Consideration of this matter will fall under the overall update of the ethics Act, which is a programme for Government commitment that is ongoing.

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 that addresses additional elements of the Bill. I have outlined serious concerns with the Bill in terms of legal professional privilege in respect of Oireachtas business, which may cause the disclosure of very sensitive legal advice by the State in a manner that may leave legislation more vulnerable to litigation challenge. For this reason, the Government opposes the 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.

I have copies of my speech that I will circulate.

Ivana Bacik (Dublin Bay South, Labour)
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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.

Verona Murphy (Wexford, Independent)
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In accordance with Standing Order 85(2), the division is postponed until the weekly division time on Wednesday, 9 July 2025.