Calls have been made for the Government to stop the “blanket ban” approach to publishing the Attorney General’s advice.
An opposition party has pledged to publish the Attorney General’s advice when relevant and important while a constitutional expert has said there is no legal reason why the advice should not be published.
The office of the Attorney General in Ireland has a number of different roles, chief of which is as the Government’s legal adviser.
Rossa Fanning, who has worked on many high-profile cases during his legal career, was appointed as the new Attorney General on December 17th, replacing Paul Gallagher.
Dr David Kenny, an associate law professor at Trinity College Dublin, said reports down the years indicate the Attorney General’s advice on policy can be “hugely influential”.
He said that the Government enjoys the same confidentiality on the Attorney General’s advice as a citizen would legal advice.
Despite the significance of the Attorney General’s role, Dr Kenny said in recent years it has become less common for government to publish the advice, despite there being no legal reason for it.
“Privilege around legal advice can always be waived by the person who holds it,” he said.
“The Attorney General is not an ordinary lawyer, the Attorney General is not advising you just about lawsuits you’re facing.
“The Attorney General is advising you about laws you may intend to pass, about whether or not a particular legislative agenda is going to be possible or deemed impossible, is going to have a huge effect on what we do in terms of legislating, in terms of policymaking.
“The tradition that has grown up, which is we treat the AG’s advice as almost completely secret, I think is quite problematic.
“It often hides the decision-making process around things being constitutional or unconstitutional, or legal or illegal under European law in this kind of cloak of secrecy, when really those things should be open for scrutiny in the Oireachtas in many cases.”
The Attorney General’s advice has been cited by ministers over the years as the reason for a number of policies not being feasible to implement.
This includes proposals such as a three-year rent freeze, which the Government has argued would be unconstitutional, but the legal argument for why this would be the case is not public.
“The Government suggested at various points that it’s almost not allowed to publish advice, that it would kind of be inappropriate to, which is just not the case,” Dr Kenny said.
“The Government has done in the past, there’s been lots of past instances where the Government has published a portion of the attorney’s advice or all of the attorney’s advice when it suits the Government to do so.
“There are many examples from earlier decades where the Attorney General’s advice was published in whole or in part. So this secrecy has become even more extreme in recent decades.”
'Owned by Government'
Jim O’Callaghan, a Fianna Fáil TD and practising barrister, said the legal advice the Attorney General gives is “owned by the Government”.
“If the Government, like any private client, wants to disclose the legal advice it’s received, it can. But in general, people don’t do that because, I suppose, it advantages people who are trying to make a legal claim against them.
“People are perfectly entitled to challenge the legal advice that the Attorney General gives to Government. They don’t have to see it.”
When asked whether a debate in Dáil Éireann on legal advice would be helpful to promote transparency, Mr O’Callaghan said he believed “it would not be beneficial”.
“We need to recognise that an attorney general is not accountable to Dáil Éireann, he’s accountable to the Taoiseach.
“What I don’t think would be beneficial is if in Dáil Éireann, and we were discussing legal advice that was received and somebody else saying ‘Well, we’ve got different legal advice’.
“Everyone knows that there’s different legal advice on different issues, and there’s nothing to stop an opposition putting forward legislation or publishing their legal advice if they want to.
“But I don’t think the Government should publish the advice of its Attorney General.”
Reform
Labour leader Ivana Bacik, who is also a barrister, said she believes the Attorney General role should be reformed, and said her party would publish the AG advice “where relevant and important” if in Government.
When asked if the Westminster model could be used, where the Attorney General debates legislation in the House of Commons, and where the opposition has a shadow attorney general, Ms Bacik says “it’s certainly something that should be looked at”.
Unlike in the UK, where the attorney general is a member of the Cabinet, Ireland’s Attorney General is not constitutionally recognised as a member of Government.
“I think it’s because of the way the Attorney General evolved,” Ms Bacik told PA. “They were very much a practitioner first, and a political adviser second.
“In recent years, it’s pivoted and we’ve seen the political legal advice and the Cabinet role taking pre-eminence.”
Dr Kenny said there are other ways to promote transparency around the role.
“I think introducing some transparency mechanism would be extremely important in terms of reform of the office. It doesn’t have to be everything is revealed – there are good reasons for having legal advice being private in certain circumstances.
“But when you’re dealing with a legislative proposal, perhaps you could do what they do in Canada.
“In relation to the Charter of Rights in Canada, the Attorney General basically prepares a statement about any piece of legislation the government is introducing, and… the attorney explains to parliament their thinking in terms of the legal side of the Bill.”
He said another option would be that the Government publishes a summary of the attorney’s advice if a majority of TDs vote for it in the Dáil.
“Just something that explains the Attorney General’s reasoning so that parliament can consider it and consider whether or not the Attorney General has made a mistake, because the Attorney General is not the Supreme Court – it doesn’t get to make final determinations on what’s constitutional or unconstitutional.”
In a statement to PA, the Department of An Taoiseach said: “The arrangements in place have served the State well for a century and there are no current plans to alter them in any significant respect.
“It has been the long-standing policy of successive Governments, consistent with professional practice in respect of legal matters, that detailed legal advices provided to the Government by the Attorney General are provided in confidence and remain confidential.
“This does not prevent the conclusions or the gist of legal advices to be disclosed as may be considered appropriate.”
