Jim O'Callaghan
Question:14. Deputy Jim O'Callaghan asked the Taoiseach if he will report on the new State litigation principles announced by the Attorney General on 21 June 2023. [31190/23]
View answerTuesday, 11 July 2023
Questions (14, 15, 16)
Paul Murphy
Question:15. Deputy Paul Murphy asked the Taoiseach if he will report on the State litigation principles announced by the Attorney General. [32554/23]
View answer
Peadar Tóibín
Question:16. Deputy Peadar Tóibín asked the Taoiseach if he will report on the new State litigation principles announced by the Attorney General on 21 June 2023. [33724/23]
View answerOral answers (16 contributions)
I propose to take Questions Nos. 14 to 16, inclusive, together.
The State litigation principles mark a codification and public statement of best practice in the State’s conduct of litigation. They were approved by the Government on 30 May. The 15 litigation principles were drawn up by the Attorney General following consultations with senior legal staff in his office on the advisory counsel side, in the Chief State Solicitor’s office and in the State Claims Agency. It should be noted that many of them are already applied on a daily basis by officials and lawyers charged with managing litigation on the State’s behalf. They are not, therefore, intended to change radically how the State conducts litigation. They affirm that the State should act in the public interest in pursuing litigation and should consider this broader public interest before taking certain procedural steps in litigation.
The principles apply where the State, through the Government, a Minister or a Department of State or an agency under its direct control, engages in litigation. They are intended to act as guidelines to help maintain existing high standards of ethics and integrity in the conduct of litigation by the State. They do not, however, contain rules of law, have any binding legal effect or alter the fact that the State has the same entitlements as any other party to litigation either as plaintiff or defendant.
I welcome the Taoiseach's reply and the publication by the Attorney General of the principles. I also welcome that the Government has adopted them.
This issue entered the public domain relatively recently because of the nursing home charges issue. There is a lack of awareness, and more information needs to be provided to the public, as to how the State conducts itself in litigation. Obviously, there will be significant State involvement in litigation, given that it is sued more than most other legal entities. Sometimes, it also has to initiate proceedings. As such, the State has a significant role to play in respect of litigation.
I sometimes fear that the public perception is that the State adopts a harsh and adversarial approach to litigation. While I do not believe that is completely true, it is certainly the case that this message seems to have spread abroad. It would be worthwhile if the Government tried to publicise in even greater detail what was involved in the principles and why the State could not just concede liability in certain cases. Alternatively, it needs to explain why the State cannot just accept the quantum of a claim that has been made by a claimant. The State has an important role to play in terms of litigation and it must ensure that it does not put up a defence if there is no statable offence. If liability deserves to be conceded, the State should do so, but a difficulty that the State sometimes faces is that a claimant, as is his or her entitlement, always tries to maximise the value of the claim. From the point of view of the State and the taxpayer, there are obligations on the State to try to ensure that it does not pay out excessive amounts in respect of any individual claim.
I have noticed something about litigation involving the State. Whether a person is appearing for or against the State, it can sometimes be more difficult for those proceedings to reach a resolution. In part, this is because many officials who are representing the State may prefer the courts to make a decision on a claim as opposed to the State making a decision to settle the claim and pay out. We need to try to encourage officials within the State to move away from that mindset. Resolution is always preferable to conflict. If there is an exposure to the State, that should be acknowledged.
I would like to see a greater publication of the principles, if possible.
I will allow Deputy Paul Murphy a generous two minutes.
I thank the Leas-Cheann Comhairle.
Yesterday, the Data Protection Commission fined the Department of Health €22,500 for excessive and disproportionate eliciting of sensitive personal details about the private lives of people who had taken legal action against the State over access to supports for children with special educational needs. It came after the exposure of this practice by Mr. Shane Corr, a whistleblower in the Department of Health who spoke about the practice of collecting sensitive medical and personal information about vulnerable children and their families when the State was defending lawsuits. He stated:
I saw several notes relating to alcoholism within the family structure. I saw notes relating to siblings of the children that weren’t relevant ... Whether the child was prone to violent acts towards its parents, its siblings, its teacher, its doctor. Everything that you would not want to know about the family living beside you was there.
This was an horrendous approach, with the State abusing its position as a provider of care in order to gather information and use it against parents and families who were just trying their best to get what they needed for their kids.
It is really horrific that it happened. I am not sure that a fine of €22,500 is sufficient. I invite the Taoiseach to take the opportunity to condemn what happened and to ensure that such an approach to these things will never happen again.
I want to raise the issue of CervicalCheck again. I am getting really frustrated with the Government's stonewalling of my questions. The CervicalCheck scandal broke in 2018. It involved among other things smear test slides that were misread. Women sued and received apologies and payments. The Taoiseach issued a State apology. The courts and the Government have conceded that these women were wronged and the slides were misread. However, when the Royal College of Obstetricians and Gynaecologists review was announced by the Minister in light of the scandal, the terms of reference provided by the Department were such that only slides of women who had since been diagnosed with cancer were re-examined to see whether there were mistakes in them.
The problem is that countless slides were skipped over and left on the shelf because they belonged to women who did not have a diagnosis of cancer at that stage. At the time of the review, some of these women had cancer or pre-cancerous or abnormal cells but they did not know they were ill. As such they were excluded from the review. Some of these women have since been diagnosed and the slides, which date to before the scandal, have been examined. The courts have ruled that those historic slides contain abnormalities. Is it true to say that had their slides been included in the review in 2018 they would have been diagnosed earlier and their lives could have been saved?
With regard to what Deputy Jim O'Callaghan said earlier, I agree we should make some effort to make people more aware of the principles that have been set out by the Attorney General and agreed by the Government. This is being disseminated among Government bodies and agencies. There are plans for seminars. Perhaps this needs to be done more widely.
The State certainly does not always get it right in its litigation strategies. It loses cases from time to time. I agree that the perception of the State being an aggressive litigant is not entirely fair and I will give two examples. I will not go into the details of the cases. One that I am aware of is a medical case where the plaintiff settled for 25% of the original claim. This was presented by them and in the media as a total victory by the plaintiff against an unkind State which dragged them through the courts and strung it out and only at the end gave in. This is not what happened at all. The amount could have been settled for years previously. Questions are never asked by broadcasters or journalists as to how much the claim was, how much people looked for and how much they settled for in the end. I do not know why these questions are never asked.
I know of another case that had two aspects. The plaintiff won on one aspect and the State won on the other. Yet it was presented as a total victory and vindication on behalf of the plaintiff. Of course that is not what happened at all. The plaintiff won half the case and lost the other half. Again it was perceived that the State dragged this person into court, fought them all the way and lost. This is not what happened. There is a failure on behalf of journalists to dig into the cases properly and ask the hard questions that are not asked. We often see the solicitor for the plaintiff making a statement on the steps but we never see the solicitor for the State doing this. For whatever reason, the State does not stand over its position or the reason it took the position it did.
I am not aware of the finding mentioned by Deputy Murphy. I probably should be, so I will get briefed on it. Perhaps it was only in the past few days. Certainly if the Department of Health broke any rules, regulations or laws, I cannot stand over it. We need to make sure it does not happen again.
Deputy Tóibín asked very specific questions about CervicalCheck. I cannot answer them here. I will ask the Minister, Deputy Donnelly, to come back to him directly or I will do so myself. One thing I will draw attention to is the World Health Organization's report that came out recently which demonstrated the extent to which Ireland is now an outlier when it comes to how the courts and our justice system treat screening. Screening, as we have always said, is not a diagnostic test although we never really explain what this means. The whole point of screening is that it cannot be relied upon to diagnose cancer. The whole point of screening is that we take a large number of healthy people. Let us say we want to check people for their blood pressure. In that case we would take a large bunch of healthy people with no symptoms-----
These are misread slides.
I am not commenting on that because I do not know enough about it and they may or may not be misread. I do not know that.
The courts said they were misread.
I do not know about that.
You apologised for it in here. What did you apologise for?
The courts found in one case that they were misread so far.
I do not think that has been a finding in all cases. Maybe it has been a finding in a number of cases. I do not know about the particular cases to which Deputy Tóibín is referring to.
What was the apology for?
In most of the settlements there has been no admission of liability. I do not think we should be getting into this on the floor of the House, quite frankly.