Fintan O’Toole: At every stage of this extraordinary saga, the State knew it was acting unlawfully

The Attorney General’s defence of the way this and previous governments have dealt with court actions arising from the State’s illegal imposition of charges on people in nursing homes is only 30 pages long. But it speaks volumes about official attitudes to the relationship between the State and its citizens.

What should happen when governments systematically break the law? That’s the question the Attorney General should be answering. It’s also the one he most assiduously avoids.

The heart of this whole story is that the Health Act of 1970 stated that “charges shall not be made for in-patient services” in public nursing homes for residents with medical cards. But, in 1976, the Department of Health told the regional health boards that then ran the system to implement such charges.

Everything else in this whole saga flows from that blatant flouting of a law passed by the Oireachtas. This is why the story cuts so deeply into the idea of Ireland as a democratic state: a major arm of the State simply decided to set aside a law passed by parliament. If that can happen, we are not a democracy.

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The Constitution puts it very clearly: “The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” And yet, for decades, the Department of Health usurped that authority and made its own laws.

The Attorney General does not dispute this illegality. But instead of asking the fundamental question – how should a democracy respond to such a radical violation of its constitutional order? – he wraps it up in several layers of sophisticated evasion.

[ Nursing home charges issue: Public interest and public purse not the same thing ]

[ Attorney General does not address question at heart of nursing home controversy ]

He writes that, “It is in the nature of these things that some people will be disappointed if they are refused a benefit to which they believe they are entitled.” This is quite breathtaking.

People did not believe they were entitled to free nursing home care. They were entitled, full stop.

He claims that “Over time, benefits are modified and new benefits are introduced… But these decisions, at their heart, are fundamentally policy decisions for Government”. Well, not they’re not.

Benefits that have been enshrined in law cannot be “modified” (in this case modified out of existence) by Government policy decisions. They can be changed only by the Oireachtas that created them.

The Attorney General tells us that “determining how to deploy scarce resources is a fundamental task of Government. It involves difficult decisions.” This manages to be both a truism and a circumlocution.

Of course, governments have to make decisions about the use of resources. But the relevant point, which the Attorney General slaloms around, is that if successive governments wanted to make a “difficult decision” to withdraw the right to free care, they were constitutionally obliged to go back to the Oireachtas and ask it to change the law.

He tells us that the courts often decide that this or that action by the State is unlawful, but that this does not mean that the State then has to compensate those for whom these actions had adverse consequences.

[ Legal advice on nursing home charges was ‘sound, accurate and appropriate’, Attorney General concludes ]

This is true – but completely irrelevant to the nursing homes story. The courts will accept that the State sometimes unknowingly acts in a manner that it thinks is lawful but that is later ruled not to be so.

But that’s emphatically not what happened here. At every stage of this extraordinary saga of administrative malfeasance, the department knew that it was acting unlawfully because every legal opinion it got told it so.

There’s a world of difference between good-faith misunderstanding of what the law requires and bad-faith determination to impose costs on vulnerable citizens, while knowing full well that it was illegal to do so. It is disturbing to find the Attorney General apparently glossing over that difference.

According to the Attorney General, “Any suggestion that the State should have fewer rights to defend itself in litigation than private individuals or companies is misplaced.” Well, no it isn’t.

The State is not a private individual or a company. It is a democratic entity, one of whose core values is the protection of the lawful entitlements of its citizens, and especially of those who are most vulnerable.

[ Does Attorney General’s report bring nursing home charges controversy to an end? Not quite ]

The State certainly has the right to defend civil cases taken against it, but it has to do so in a way that upholds and respects the equal dignity of those citizens. Again, it is worrying that the Attorney General makes light of this distinction.

Finally, the Attorney General writes that “Paying for the choice by citizens to take up beds in private nursing homes was, put simply, a benefit that the State never agreed to provide for its citizens…” That word “choice” is bizarrely misplaced.

The whole point here is that people were denied the public care to which they were entitled. They didn’t choose private care as a consumer preference – they were left with no option but to use it.

Nowhere in the Attorney General’s document can we find any hint of an answer about what the State must do when its executive branch cuts itself off from accountability to the Oireachtas and to its own citizens. It is not even clear that he recognises the question.