Mary Lou McDonald
Question:9. Deputy Mary Lou McDonald asked the Taoiseach if he has met with the Attorney General following publication of his report on nursing home charges and disabled persons maintenance allowance. [6848/23]
View answerWednesday, 22 February 2023
Questions (9, 10, 11, 12, 13, 14, 15, 16)
Ivana Bacik
Question:10. Deputy Ivana Bacik asked the Taoiseach if he has any plans for reform of the Office of the Attorney General; and the legal actions under way against his Department [6928/23]
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Jim O'Callaghan
Question:11. Deputy Jim O'Callaghan asked the Taoiseach if he has plans for reform of the Office of the Attorney General. [8503/23]
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Mick Barry
Question:12. Deputy Mick Barry asked the Taoiseach if he has met with the Attorney General following publication of his report on nursing home charges and the disabled persons maintenance allowance. [8633/23]
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Richard Boyd Barrett
Question:13. Deputy Richard Boyd Barrett asked the Taoiseach if he has met with the Attorney General following publication of his report on nursing home charges and the disabled persons maintenance allowance. [8828/23]
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Paul Murphy
Question:14. Deputy Paul Murphy asked the Taoiseach if he has met with the Attorney General following publication of his report on nursing home charges and the disabled persons maintenance allowance. [8831/23]
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Gino Kenny
Question:15. Deputy Gino Kenny asked the Taoiseach if he has met with the Attorney General following publication of his report on nursing home charges and the disabled persons maintenance allowance. [8833/23]
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Bríd Smith
Question:16. Deputy Bríd Smith asked the Taoiseach if he has met with the Attorney General following publication of his report on nursing home charges and the disabled persons maintenance allowance. [8834/23]
View answerOral answers (8 contributions)
I propose to take Questions Nos. 9 to 16, inclusive, together.
Deputies will be aware that, as provided in Article 30 of the Constitution and in the Ministers and Secretaries Act 1924, the Attorney General’s role is to advise the Government in matters of law and legal opinion. The Attorney General also attends meetings of Government. I maintain regular contact with the Attorney General and meet with him in the normal course of Government business and at Government meetings. I have met him since the publication of his report on matters relating to nursing home charges and the disabled persons maintenance allowance on 7 February.
The Office of the Attorney General comprises three constituent elements: the advisory counsel to the Attorney General; the Office of the Parliamentary Counsel to the Government; and the Office of the Chief State Solicitor. All three assist the Attorney General in the provision of legal advice to the Government. This includes advice to Ministers, Departments and certain other public bodies, the drafting of legislation, the representation of the State in litigation and the performance of other functions, particularly those of a statutory nature. The current arrangements for the Attorney General’s office have served and continue to serve the State well. There are no plans at present for significant or fundamental reforms to the office.
The Attorney General’s office, like Departments and other State offices, seeks to operate as efficiently and effectively as possible. It embraces organisational change and development in order to meet the growing demands on its services. The nature of the work, with constant changes in Irish, EU and international law and high demands from across Government, requires a responsive office and compliance with the highest professional and public service standards.
There are currently three legal actions against the Department of the Taoiseach, two of which relate to regulations providing for access to information on the environment. The third concerns matters relating to agriculture, in which my Department is named as one of the respondents. The House will understand that I cannot comment on the detail of these legal actions because they are currently before the courts.
The Disability Federation of Ireland described the Attorney General's report as deeply discouraging. Nowhere in his report did the Attorney General refer to the State's obligation to people with disabilities under the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, or Ireland's responsibility as a signatory to this international human rights convention. Inclusion Ireland has had to remind the Attorney General and the Government that Article 21 of the UNCRPD is clear on the right to information for disabled people. Does the Taoiseach accept that the State is now in serious breach of this part of the convention? Fintan Butler, who worked for a number of years in the Office of the Ombudsman, wrote a thoughtful response to the report. He concluded that one might reasonably expect the Attorney General, as the guardian of the public interest, to be concerned with finding a fairer way forward. It is Mr. Butler's view that on the evidence in the report, the Attorney General appears to be simply acting as another partisan lawyer. He appears blind to the State's international legal obligations to its citizens. The Disabled Federation of Ireland has sought assurances that the UNCRPD will guide and be the foundation of the review being carried out by the Department of Health and the Department of Social Protection and any future responses to this issue. Will the Taoiseach provide assurances in that regard?
The Taoiseach said he has no plans for fundamental reform of the Office of the Attorney General. I ask that the Taoiseach look at the Bill my colleague, Deputy Nash, and I drafted to reform the Office of the Attorney General. The Bill in question is currently with the Bills Office for review. In it, we propose several much-needed changes to the Office of the Attorney General. First, the Attorney General would be required to have regard to the overall public interest, not just the narrower legal interests of the specific Government of the day. Second, our Bill would enable the publication of the Attorney General's advice in certain circumstances. While we accept that legal professional privilege properly attaches to advice given to the Government for the purpose of litigation - the Taoiseach outlined specific cases against his Department - we do not see any reason why it should not be published when it refers to public policy matters or legislation. For example, in the coming weeks, the Government will make a decision on extending the eviction ban. The Taoiseach confirmed to me earlier that decision will be made by St. Patrick's Day. I think the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, indicated that the Attorney General is being consulted about it. That is the sort of legal advice from the Attorney General that could be published because it will help us frame debates on the eviction ban and whether or not it should be extended.
Our Bill would also incorporate rules adopted from Australia for the State to act as a model litigant. We see increasing interest in this concept of model litigation strategy and requiring states to act as model litigants. We have seen too much pain and trauma caused to so many people as a result of the stance taken by the State over many decades in cases such as that involving illegal nursing home charges. In that context, it is time to take an open view on the reform of the Office of the Attorney General. It is disappointing to hear the Taoiseach say that he has no plans to do so. I ask him to look at our Bill favourably once it is introduced.
If there is going to be a debate about reform of the Office of the Attorney General, it is important that everyone in the House has a clear understanding of the functions, role and limitations of that office. As the Taoiseach indicated, under Article 30, it is clear that the Attorney General is an adviser to the Government. That is the Attorney General's sole function. The Attorney General provides legal advice to the Government and Ministers in order that they, in navigating policy decisions, can ensure they abide by the law. Also, the Attorney General can, like any other lawyer, set out a litigation strategy. Let us be clear, when it comes to a decision about what strategy should be adopted, that is a decision for the principal, not the lawyer who provides advice. We need to recognise that, under the Constitution, the Attorney General is not a member of the Government. Rather, he is an adviser to the Government. It is also the case that he is the guardian of the public interest. Nowhere is that set out in Article 30, but it is a development of the common law in Ireland. That function is limited. I was interested to hear what Deputy Bacik said about the legislation proposed. That may be a beneficial development of the Office of the Attorney General, but, in my opinion, it would require a constitutional amendment because his sole role is to give legal advice to the Government.
I do not think so. We have advice to the contrary.
Regarding the report which led to these questions, let us recall that the Government asked the Attorney General to prepare that report. The Attorney General is not an independent agent who can operate of his own accord. He is not a principal; he is a person who responds to requests from the Government. He compiled the report, which the Government decided to publish.
I wish to ask the Taoiseach about something tangentially connected to the issue of nursing home charges. The overcharging of people has been discussed as a historical issue, but I came across a case this week of something that I suspect is much more widespread. I refer to a couple I met who are on the fair deal scheme and both of whom are in receipt of the State pension. The wife is in a nursing home and is supposed to give over 80% of her income. These people do not have any more than that. The nursing home is imposing significant additional charges, for example, €40 for physiotherapy, €3 per day for activities and €25 per hour for a chaperone to take the woman, who is suffering with Alzheimer's disease, to the physio. She could not go to the Royal Victoria Eye and Ear Hospital because her husband could not afford to pay for a taxi.
It was going to cost approximately €80. I repeat this is somebody 80% of whose pension is already going to the nursing home under the fair deal scheme and her husband has been left with the State pension. He has to buy her clothes and all sorts. He does not have the money. After a few months in the nursing home the bill has increased to €3,000. He simply does not have it. This is an unacceptable situation. The nursing home is now putting pressure on him to hand over her social welfare card so it can get her money to pay the bill. If this is happening on a widespread basis, it is absolutely shocking and something needs to be done. Otherwise what we thought we were dealing with as an historical wrong is actually persisting and putting elderly, vulnerable and unwell people in an absolutely outrageous situation.
I thank the Deputies for their questions. The Attorney General's report was his own but, as Deputy Jim O'Callaghan pointed out, we asked him to prepare it. It was commissioned by the Government in that sense and we published it because I made a commitment in the House that we would. It was a very solid and comprehensive report. Above all, it pointed out that at least in the view of the present Attorney General, and I believe it would be the same for any Attorney General that I have worked with, the State's interest is the public's interest. The State can have no other interest than the public interest. Often in this country and perhaps in other countries people speak about the State in a very cold and almost alien way. The State is always presented as being cold, callous or hostile. This is because the State has no face. When we put a face on the State what is the face of the State? It is the taxpayer and the people who depend on public services, such as children in our schools, patients in our hospitals and older people who need care. It is our citizens. The interest of the State that we consider is the public interest and we have to look at things in the round. We cannot disregard the interests of the taxpayer. Equally we cannot disregard the needs of people who use our public services, such as children and patients. This is what the public interest is all about. It is never just about the person making a claim. It also has to be about the taxpayer and all of those who depend on our public services. This is the public interest and we have to take it all into account.
Deputy Jim O'Callaghan also pointed out that everyone has a legal strategy. People who sue the State have legal strategies as well as the State having one. There is nothing sinister or secret about this. He also pointed out the need for legal privilege. It would not be fair to expect one side in a case to disclose the advice it has if the other side is not willing to do the same. While we can all perhaps buy into the concept of being a model litigant we have to define what it means. A model litigant should not be one that concedes to every claim or folds in every case. I do not think anyone would argue this. We have to define what "model litigant" actually means.
The UN Convention on the Rights of Persons with Disabilities was ratified by the previous Government during my first term as Taoiseach. I was very glad that as a Government we could do this. It was very much led by the then Minister of State, Finian McGrath. I do not believe we are in breach of it but that is not for me to judge. I do not believe the convention would have applied retrospectively. Again I could be incorrect on this and I would have to seek advice.
With regard to the concept of reforming the Office of the Attorney General, as I mentioned earlier we have no plans to do so. I am not hostile to it either and we will certainly look at the Labour Party's Bill in this regard. It would be disingenuous for me to be against it in principle. In fact when we were in opposition in 2010 and 2011 as part of our New Politics document we proposed reform of the Office of the Attorney General by transferring some of the functions to the Office of the Ombudsman. We do not have a closed mind on the idea of reforming the Office of the Attorney General but we would have to make sure the reforms are for the better.
It has been the case that legal advice has been published in the past in the form of a note simpliciter. When Seamus Wolfe was Attorney General he published a note simpliciter form, or legal advice, on the eighth amendment. Where there is litigation it is a very separate matter and it would not be right to expect the public, that is the State, to publish its legal advice when the people suing the public, that is the State, do not do so.
With regard to the connected issue Deputy Boyd Barrett raised, an issue is arising with regard to nursing homes charging for what are often described as extras or additional services. There has to be greater clarity on this and some guidelines on what is genuinely an extra. I do not think anyone would expect that the fair deal fee paid to nursing homes would cover everything, such as taxis or clothes, but we need to make sure we have proper guidelines and better clarity on what is covered and what is not so that people know where they stand.