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, who, again, has a record in this regard, also contacted me. 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 on Second Stage and to work with us. We welcome Government amendments and consultation on how to get this Bill through.

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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.

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Sorry, is it me-----

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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 to 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 they 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 the vote next week.

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