Professor Donncha O'Conell

What was the Government thinking when it asked Attorney General Rossa Fanning, its own legal adviser, to produce a report on its litigation strategy in respect of cases taken by individuals affected by illegal nursing home charges and others denied disability payments? Did it wish to reframe a narrative that characterised it as nasty and callous? Did it wish to correct factual errors informing that narrative by providing its own “alternative facts”?

Perhaps it just wanted an objective legal assessment of its approach to litigation, warts and all, to allow itself a fair hearing in the court of public opinion where the narrative of nastiness was clearly taking hold. But is the Government so friendless that it has to seek that objective assessment from its own legal adviser?

To be fair, the report of the Attorney General released after Tuesday’s Cabinet meeting is illuminating. It’s illuminating in ways that the Government may live to regret. Insisting, as it does, on “nothing to see here” is guaranteed to make people look more closely. When they do they may not like what they see.

We should be grateful to the Attorney General for sharing with the wider public what individual litigants against the State have known for years. He is not just sharing the recipe for making sausages, he’s also showing us how they are made and it is not appetising.

The State, using the many considerable advantages at its disposal, will fight you tooth and nail, availing of every trick in the litigation handbook, they will wear you down and may even break you before finally conceding. That concession will be made just at the point at which you might be about to achieve a court victory of wider benefit to others similarly situated to yourself but not parties to your case.

We sometimes call these cases “public interest litigation” but, bizarrely, the Attorney General sees them as self-evidently contrary to the public interest. In his world, the State defending itself against litigation and keeping a tight grip on the public purse is always acting in the public interest. So, when the State faced down Gladys Ryan, May McGee, David Norris, Raymond Crotty, Kathy and Jamie Sinnott and, more recently, Patrick Costello (to name but a few) it was acting in the public interest. Similarly, the State defended “our” interests in defending cases taken by women like Vicky Phelan.

In the law schools we generally describe these people as public interest litigants and, mistakenly it seems, we characterise them as acting for the benefit of others and not just themselves. How could we have been so wrong? The “good guys”, it would appear, were on the other side defending the public purse in the public interest!

Of course, it’s not really about good and bad guys. An individual suing the State, often as a last resort, should not be characterised by the law officer charged with giving legal advice to Government and protecting the public interest as acting, in any way, contrary to the public interest. We all think we are for the public interest. Clearly, we don’t agree on what it means. But the report of the Attorney General evinces some circular logic on what his office means by “the public interest” and, frankly, that matters.

His view of the public interest is far too closely determined by the dictates of the public purse. So even if we accept that from 2008 onwards the public purse was especially empty, and that this fact may provide some contextual justification for parsimonious prudence with regard to “test cases”, you would need to be an especially unaware citizen not to recall that the public purse was empty because it was being used to bail out banks at precisely the same time.

This is not a matter for which the current Attorney General should have to answer but it highlights a point of acute political importance for the Government. Fanning’s report which may seem to have bought the Government some time has moved confidently, but dangerously, outside the safe lane of legal advice into the more hazardous highway of political justification. That is not a space in which any Attorney General should want to find themselves, at least not publicly.

Repeatedly, in hammering home a version of the public interest that serves the litigation interests of the State well, the report justifies political choices while simultaneously validating those choices legally and constitutionally. This is a lot more than legal advice or forensic analysis.

Governments that end up defending unpopular political decisions, even past decisions, by recourse to presumably authoritative legal advice can find that this does not appeal to the hearts and minds of the public. Ask Michael Noonan while whispering the name Brigid McCole.

The State in which we now exist is light years removed from the world of 19th-century writs and courtroom duels. We now have an elaborate system of functioning regulators and tribunals designed to reduce recourse to court-based litigation. Since 2017 we have legislation specifically designed to implement a government preference for mediation.

Since the early 1980s we have had an Office of Ombudsman that has operated with good effect on behalf of citizens in advancing its understanding of the public interest. Had it been taken more seriously in respect of the nursing home payments issue — an issue on which more than one ombudsman reported perceptively — the current government might never have had to justify the litigation strategy of the State in the manner in which the Attorney General’s report has done with robust but unappealing defensiveness.

The Republic has corrected many constitutional design flaws in recent times and we are fortunate to have a constitutional system that is amenable to change and improvement. Now is the time to re-engage with the sensible proposal made in 1996 by the Constitution Review Group chaired by TK Whitaker to give constitutional recognition to the Office of Ombudsman. This could be done in a way to end the pretence that the Attorney General can act as legal adviser to the Government and guarantor of the public interest.

If the ombudsman, at arms-length from Government, was given constitutional recognition (akin to that afforded to the Attorney General and Comptroller & Auditor General) and explicitly assigned the role of guardian or protector of the public interest we could effect a recalibration in constitutional design that would allow for an authentic and meaningful representation of the public interest.

Such an enhancement of the deliberative processes of the State, the details of which could be settled easily, might actually reduce the level of antagonistic, costly and inefficient litigation that is so corrosive of the relationship between the State and its citizens. The big “class action” or “public interest” issues that are difficult to resolve by non-contentious means could be dealt with by way of multiparty litigation with reasonable and fair rules of engagement as recommended by the Law Reform Commission as long ago as 2005.

• Donncha O’Connell is an established professor of law at University of Galway and served two terms as a commissioner of the Law Reform Commission. This article first appeared in The Irish Times.