PoliticsAnalysis

Attorney General’s nursing home charges report as much about politics as the law

Rossa Fanning document a strong defence of legal strategy — and political stance — adopted by successive governments

Attorney General Rossa Fanning's report echoes the defence of the Government's legal strategy advanced by Taoiseach Leo Varadkar last week. Photograph: Niall Carson/PA Wire

The report by Attorney General Rossa Fanning offers a strong justification of the legal basis for the State’s position in the cases taken against it over nursing home charges and the withholding of disability payments.

Mr Fanning’s report is entirely in agreement with the defence offered by the Taoiseach Leo Varadkar last week and is likely to be cheered by Government, just as it will be decried by the Opposition.

It defends the legal advice supplied by various attorneys general to different governments as “sound, accurate and appropriate” and rubbishes criticism that the State employed callous and secretive tactics to frustrate its citizens in the rightful pursuit of their entitlements. This is, he suggests, based on a fundamental misunderstanding of the nature of litigation and the responsibility of the Government.

Controversy

The report cites media reports on the controversy, suggesting many of them demonstrate “significant unfamiliarity with the civil litigation process. Litigation is, by its very nature, adversarial. Each side is legally represented. Each side has a strategy. Each side keeps that strategy to itself. Every single litigant therefore must, of necessity, have a ‘litigation strategy’ and they have a fundamental legal right to keep that strategy confidential. There is nothing whatsoever sinister about that.”

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But the report by Mr Fanning — his first major intervention in the public side of politics since his appointment to the role less than two months ago — goes beyond just legal matters; it is as much a political document as it is a legal one. It is hard to remember anything quite like it from previous attorneys general.

The report explains — sometimes as though it is addressing an especially dim-witted class of schoolboys — the nature of the decisions about expenditure that all governments must make.

“Determining how to deploy scarce resources is a fundamental task of Government,” he writes. “It involves difficult decisions. Government has no money other than that which it collects from current taxpayers or which it borrows, for the account of a future generation of taxpayers.

“The period of time covered by the issues of controversy addressed in this Report includes an era in which the Government’s finances were very strained, but in good times or bad, any Government is always obligated to make difficult decisions in respect of the allocation of scarce resources.”

Noting that the current Government will this year spend almost €47 billion on health and social protection, Mr Fanning says that decisions on how and where to expend resources, and who should qualify for particular benefits, “at their heart, are fundamentally policy decisions for Government, and when Government is sued for failing to provide a particular benefit or for imposing a particular charge, it simply does not have unlimited resources to concede litigation on every occasion.

“It is sometimes tempting to resort to generic stereotypes about the State being in some way cruel or unfair to its citizens where they are deprived of a benefit and bring legal proceedings challenging this deprivation. But the irresistible logic of such a perspective is that the State has unlimited resources, must concede every court case that is brought against it, and must fund every claim for compensation or redress that is demanded of it.

‘Finite resources’

“Governments must make hard choices all the time, with finite resources, and the requirement to defend litigation that seeks to challenge those choices ineluctably follows.

“It is fundamentally incorrect to suggest that Governments are unwilling to provide benefits to their citizens and only do so when they are legally compelled to. On the contrary, the source of any legal obligation upon Governments to provide benefits to their citizens is the very laws that they themselves enact.”

He adds that “portraying the State as callous or insensitive when electing to defend, rather than concede litigation, has no regard for the true context in which difficult decisions must be made”.