There is a maxim that, if you go to court seeking justice, all you will get is law. Jaundiced as that may sound, many litigants have survived to attest to its truth. Go to court, and watch swarms of expensive lawyers spinning the gossamer of statutes, precedents and rules of evidence on the head of a pin. For humanity, try elsewhere. Ergo, if you want to wriggle out of your obligations, follow the State’s example and get legal advice.
Attorney General Rossa Fanning has said that advice given by some of his predecessors underpinning the State’s aggressive policy of denying compensation to older citizens and others with disabilities who were deprived of social welfare supports was “sound, accurate and appropriate”. No offence to the Cabinet’s legal adviser but, in the immortal words of Mandy Rice-Davies, he would say that, wouldn’t he? He was asked for his professional opinion as a law practitioner. He gave it. Had the Cabinet sought counsel from an ethics adviser, the answer would have been quite different. As any sage on any barroom stool knows, you get what you pay for.
Those who remember the case of Brigid McCole in 1996 might have hoped the heartlessness that episode exposed on the State side would have rebalanced public principles in dealing with these matters
Whenever the State finds itself in a fix, the law proves to be less an ass and more a beast of burden. Time and again, it has facilitated governments in thwarting vulnerable citizens who have sought redress after being mistreated, discriminated against, cheated, abused or lethally injured. Those who remember the case of Brigid McCole in 1996 might have hoped that the heartlessness that episode exposed on the State side would have rebalanced public principles in dealing with these matters.
The Co Donegal mother of 12 was one of 1,600 women poisoned by contaminated anti-D coagulant supplied by the Blood Transfusion Service Board. Having used every legal loophole in the book to try to stop her High Court action from being heard, including the statute of limitations, the State sent the 54-year-old woman a letter 12 days before she died from the liver disease it gave her. It threatened to pursue her for enormous legal costs if she lost the case. Afterwards, Fine Gael’s Michael Noonan, who had been the minister for health in charge, described the McCole case as an “emotional and intellectual” watershed for him.
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Yet, nothing changed. Four years later, the High Court heard that Jamie Sinnott, a 23-year-old Co Cork man with autism, had only ever received two years of meaningful education in his life. It awarded him and his mother £222,500 and found the State had failed him in its constitutional duty to provide him with primary schooling. The State appealed to the Supreme Court and won, leaving families with autistic members feeling further isolated.
[ Attorney General does not address question at heart of nursing home controversyOpens in new window ]
The State has gone on to crush other citizens seeking justice by engaging the full weight of the law. Considering Fanning’s reference to the Government’s duty of care for the public purse in his opinion on the nursing homes and disability payments legal strategy, it is an ironic twist in this shabby tale that the State’s expenditure of astronomical sums in defending these cases compounds the injustice. In the McCole case, its legal bill came to £1.35 million. This is the people’s money being used against citizens who have scarce resources.
Such was the public disgust on learning from the late Vicky Phelan that the State was saying “see you in court” to terminally ill cervical cancer patients whose smear test results were misread (and the information withheld from them once their cancer was diagnosed) that the Taoiseach felt compelled to promise to stop going to court. As we know, the State did not stop. Belligerently contesting dreadful medical negligence cases all the way to the courtroom door is standard operating procedure.
One of the most cynical legal strategies employed by the State was in the case of Louise O’Keeffe, whose school principal in Dunderrow, west Cork, Leo Hickey, was jailed in 1998 for abusing her when she was an eight-year-old child. It took her 16 more years, after the State ruthlessly fought her in the High Court and the Supreme Court, to successfully assert in the European Court of Human Rights that she had been entitled to be protected in her school. Despicably, the State had threatened other plaintiffs it would chase them for legal costs if they did not withdraw their High Court actions after O’Keeffe lost in the Irish courts. Many of them were terrorised into withdrawing their cases, only to discover when the government published the qualifying conditions for the redress scheme it was forced to establish on foot of the European court’s ruling that they were rendered ineligible by a requirement that a prior complaint had to be recorded in the school before they were abused. In 2019 — 21 years after Hickey was jailed — retired High Court judge Iarfhlaith O’Neill ruled that this criterion was too onerous for survivors to meet.
Bullying the weak while sucking up to the powerful is the classic conduct of a coward
The unforgivable cruelty inherent in such minatory defence is that it traumatises people all over again. It is reprehensible that the State hounds some of its most vulnerable citizens while, at the same time, absolving some of its most powerful ones of any liability, as exemplified by the billions of euros the public must pay for defective buildings. Bullying the weak while sucking up to the powerful is the classic conduct of a coward.
Experience has shown that the State cannot be trusted to do the honourable thing when its citizens have suffered at the hands of its institutions. A particularly contemptible aspect of the current welfare compensation controversy is the revelation that the State legally bound to secrecy the few plaintiffs who settled their cases out of court. This tactic was employed to prevent other eligible applicants from learning about their entitlement to reimbursement, ostensibly to protect the exchequer. Opposition parties in the Dáil who have condemned this practice ought to put their votes where their bile is and legislate to prohibit State agents from demanding non-disclosure agreements in cases involving information that is in the public interest.
When governments regard legal advice as the only advice worth hearing, binding ethics legislation is imperative. After the economy collapsed in 2008, an uncontested strand of the postmortem blamed, among other culprits, an ethical collapse. A State that sincerely cares about the public good, as well as the public finances, would not repeat that mistake.