A REPORT BY the Attorney General – the legal adviser to the Government – was published yesterday which set out his findings on a strategy to limit payouts to people entitled to nursing home care.

The report came after a whistleblower raised concerns about the legal advice given to the government about that strategy. His report also looked at issues with the Disabled Persons Maintenance Allowance (DMPA), where 12,000 people were denied access to the payment after they entered residential care.

Though this report was produced in the context of particular disputes around the charges and allowance, it also contains broader statements of policy around the proper approach to individuals – the individual taxpayers – who find themselves taking a case against the State or one of its agencies.

But insofar as the Attorney acknowledges those litigants, he does so only in very general and abstract terms.

The report is short on specifics.

We learn something about the Attorney’s interpretation of Constitutional principles, but very little about the people who might attempt to challenge those interpretations in court, or about how they are treated in practice.

Side-stepping criticisms

In other words, the report largely side-steps the concrete criticisms that Department of Health whistleblower Shane Corr and others have actually advanced against the government in recent days.

The Attorney reminds his readers that adversarialism is a fundamental feature of civil litigation in Ireland and that the State’s lawyers, in that context, are entitled to defend the State and to avail of the wide range of legal protections (confidentiality among them) ordinarily available to a defendant.

What he forgets is that the State is not an ordinary litigant.

It is obvious to anyone that the State is much more powerful than the individual seeking to challenge it, even where that individual is well advised, and voluntarily engaged in litigation. It is not merely that the State can draw on extraordinary financial resources in its defence, but that the State sets the rules of the game.

If, for example, exceptions are not made to the Statute of Limitations for survivors of ‘historical’ institutional abuse, it is because successive governments have declined to legislate for those exceptions.

If survivors cannot band together in a class action, it is because successive governments have declined to legislate for that option.

The difficulties involved are clear from the very small number of claims that have produced a final judgment, much less a victory for the litigant. Second, the State is a peculiar type of defendant because it is the plaintiff’s protector as well as her opponent; her opponent because it is defending itself against her claim, and her protector because it has duties to guarantee her fundamental rights.

These two features, taken together, ought to mean that the State, though entitled to defend itself, will not defend itself to the hilt. In Australia, for example, organs of government are routinely required to behave as ‘model litigants’ in conducting cases against ordinary citizens.

Straw man

In his report, the Attorney sets up an obvious straw man; the litigant or campaigner who insists that the State should not defend itself and should settle every case, however weak.

The government’s critics are saying something quite different; they are saying that the state ought to take a more measured approach to litigation. Successive governments have already accepted that it is unreasonable to expect especially vulnerable categories of litigants – those who are older, living with the aftermaths of institutionalisation, or in very poor health, for example – to challenge the State in court.

That is, at least in part, how governments have justified the existence of a succession of tribunals, panels and redress schemes in the last decade or more: the State already, in practice, admits the defects in its standard litigation strategy.

The report’s characterisation of litigant’s demands is also striking. The Attorney focuses on individuals who are ‘disappointed’ not to have obtained a benefit from the State, and who want to challenge some ‘difficult’ policy decision that a government has made in determining who should be entitled to some social provision and who should not.

He emphasises that, in defending itself against litigation, the State acts in the public interest. This is of course an incomplete account of the kinds of cases typically brought against the State and its agents. It would be very difficult to characterise Vicky Phelan, Philomena Canning, Elizabeth Coppin, or many others as people who were simply disappointed to have been refused a financial payment.

Constitution 

Many important recent cases have been concerned, not with financial remedies, but with the interpretation and application of constitutional guarantees. Of course, governments enjoy a wide zone of discretion to determine how public resources are used, but citizens are entitled to ask the courts, on occasion, to exercise some limited oversight over government decision-making.

Litigants may bring cases because the State has not offered any remedy for a fundamental human rights violation; for instance, some people who spent time in mother and baby homes or who were illegally adopted have embarked on the process of suing the State because it has refused to recognise forcible family separation as a legal wrong.

Litigants may also sue the State because they want to test or clarify the reasons for their exclusion from a mass redress scheme; here again, many people who were babies in mother and baby homes, or who were boarded out as children may feel compelled to sue the State in order to obtain a clear statement of the reasons for their exclusion from redress.

Crucially, litigants may want the opportunity to argue that the State has a legal, as opposed to a mere moral, obligation to offer redress for certain wrongs. These kinds of cases are not primarily about money; they are about individuals’ efforts to participate, through litigation, in the process of clarifying, shaping and perhaps changing Irish law.

The Attorney acknowledges, in passing, that the State often compromises with litigants. It sometimes settles, or amends pleadings, or consents to adjournments in circumstances where a private litigant might not be so restrained.

This is all true.

It is also true that we have seen high-profile cases where the State has refused to do any or all of these things, up until the bitter end. Increasingly the public wants the government to justify decisions of this kind.

Here, the Attorney, in his report, can only say that governments make policy decisions in ‘the public interest’. He conflates ‘the public interest’ with the State’s interest in managing the public purse.

So, the State may show restraint where it is too expensive or inconvenient to do otherwise. Public interest exceeds these kinds of considerations.

There is a public interest in meaningful access to justice.

What does the Attorney General have to say about that?

Máiréad Enright is a Reader in Feminist Legal Studies at the University of Birmingham.