When the debate was adjourned last week I was saying that the first point raised by Deputy Andrews was invalidated instantly by the reply to the question which he asked me across the floor of the House, namely, where was the Attorney General? The question was in connection with his allegation that once the office of Director of Public Prosecutions was created the position of the Attorney General would become redundant. When I told Deputy Andrews that the Attorney General was in Norway in connection with the torture trial he admitted that that was an extremely important function and an important job for the Attorney General to be doing.
In a very striking way it underlies the emptiness—and I do not mean that it was not seriously meant—of the criticism of Deputy Andrews in regard to this Bill. The torture trial in connection with which the Attorney General was absent on that day has absorbed colossal quantities of the time of the Attorney General ever since the complaint was lodged, which was before the change of Government. I am told that the amount of time which that case alone has absorbed in the Attorney General's office is roughly equivalent to onehalf of the total volume of work on ordinary criminal prosecutions arising within this State, That gives, in very graphic form, a picture to the House of how the work in the Attorney General's office has exploded in recent times. This single case alone has taken up half the total amount of the time of highly-qualified and responsible people, which time is devoted in an average year to criminal prosecutions arising within the jurisdiction.
In my opening statement I referred also to other sources from which an increased burden of work has accrued to the Attorney General and particularly to the work arising from our membership of EEC. Perhaps even more important than that is the enhanced burden on the Attorney General in connection with advising the Government on legal matters which arise in connection with the situation in Northern Ireland and the situation as between us and the British in connection with Northern Ireland. The whole Sunningdale arrangement was preceded by an immense quantity of consultation and work to which the Attorney General was privy and which depended in no small measure on his advice in the months preceding it. Although that peak has been passed there is no reason to assume that that kind of burden on the Attorney General is going to become less.
The general picture, when one looks at the legal complexities arising from membership of the EEC and the increasing volume of legislation, all of which has to be referred to the Attorney General at drafting stage in some shape and form, the enormous demands imposed by a single case like the torture complaint before the European Court and the other very serious matters, in all of which the Attorney General is central, arising from the Northern Ireland situation, shows that what used to be his main function, namely, directing criminal prosecutions within the State, has shrunk by comparison with the whole and that the rest of his work is really almost more than enough for one man without the burden of ordinary criminal prosecutions having to be carried by him. I hope if Deputy Andrews were here that he would agree that that disposes of the suggestion that the office of the Attorney General would become somewhat redundant once this director was appointed. It will not become redundant but the Attorney General will be free for carrying out extremely important tasks which are of national importance. He will be freed from the routine burden of considering the initiation and direction of public prosecutions.
The debate last week was fairly acrimonious in places. I do not want to bring it back to that level. I would like to dispose at the outset of the most contentious matter raised by Deputies Andrews and O'Malley, namely, the matter of patronage. It particularly stuck in Deputy Andrews' craw that my opening statement had said that allegations of patronage in regard to the distribution of State work whether true or false tended to undermine confidence in the administration of justice. He described it as a bit of hypocrisy and humbug that we should have said: "whether true or false" when we knew perfectly well that they were true. I replied to him across the floor that I thought that reference was intended to be pacific — in other words, that it was intended to raise as few weals as possible. Unfortunately in the report the word "pacific" has come through as "specific", which takes all the sense out of it.
What I intended to do was to keep away from a consideration in the House of how much basis there is for the allegations. If Deputy Andrews wishes, I will freely admit that allegations of patronage have in very large measure been true and in small measure false. If I were to pursue that line, I could keep the House here for the rest of the afternoon with a description of how matters stood under the former Administration, but I would sooner remain pacific. Therefore, I will restrict myself to mentioning one or two matters on which he and Deputy O'Malley laid particular stress.
The present Attorney General was accused of exercising a merciless system of patronage since he came into office 15 months ago. Just as there is no use in Fianna Fáil denying that its principle political weapon at all levels and in all professions was patronage, there is no use in my denying that in the last 15 months Coalition supporters in the legal profession have certainly got the big end of State work. There is no point trying to hide that fact, because it is true. Those Coalition supporters for the most part at all levels of seniority, senior and junior counsel alike, men who raised families, were people who under a fair and equitable system of the distribution of State work or of appointment of judges would either have been judges on their merits long ago—some of them have since become judges—or would have had their fair share of State work.
The Attorney General announced shortly after he took office that he proposed to do away with the system of political patronage. It would have been an act of superhuman virtue on his part had he, with the full intention of introducing this Bill, spent the remaining 15 months continuing in their lucrative positions the Fianna Fáil supporters who had been dining fatly and richly off the people of Ireland for the former 16 years while giving nothing to the people whose principles forbade them to appear to support Fianna Fáil even though they might have enhanced their own incomes very substantially by doing so. As I said, it would have been an act of superhuman virtue. I am not so sure it would have even been virtue, but it would not have seemed so to the men who had felt themselves not only passed over but humiliated in the eyes of their profession by being thrown aside by those to whom they had struck through thick and thin.
I admit, and this would be as true of the Fianna Fáil side as it would be of ours, that in all matters of patronage it is not very often so much the money that counts as recognition. There have been cases in the last 15 months of gentlemen, supporters of the Fine Gael or Labour Parties, who got State work who never had it before, after perhaps 20 or 25 years practice at the Bar. They did not get very much but what little they got was enough to reassure them that at least their refusal to go along with a side which used to boast freely that they would never be put out of office, and their willingness to put up therefore with never getting State work, had been recognised once the Government changed. I hope that will not seem like a sophistical defence of patronage, although I am afraid there may be a trace of that in it. I would not support the continuance of that system and I am thoroughly in favour of ending it.
So much stress was laid here last week on what has happened over the last year that I must ask the House, in fairness, to consider whether the Attorney General would not have been thought to be doing wrong had he continued what was a blatant injustice over the previous 16 years and if he had neglected to give the big end of State work to the men who, because of their political affiliations, had been left out of State work for 16 years.
When we talk about State work we are not talking about work of a political nature or work in which there is a political dimension, which in the nature of things would require that the advocate should be a political supporter of the party in power. Of course, there are such cases. We are talking about cases which have no political dimension but which were cases involving public interest, as all criminal prosecutions do and in which the people of Ireland are entitled to the best service that can be got.
It is far from me to imply that the gentlemen briefed by Fianna Fáil were not competent. I believe the majority of them were and are competent to do State work. What I say is that the pool from which prosecuting talent was drawn was the pool not of the Irish Bar but of the Irish Bar less those of its members who happened to support Fine Gael or Labour—in other words, half of the Bar. That, of course, represents a wrong way of doing the public's business because you are not getting the best brains available from the whole pool; you are only getting the best brains available from half the pool. Apart from the individual unfairness to the men concerned who were being penalised for their principles, there was an unfairness to the people of Ireland who were being denied a service, whether on the bench or as State advocates, of roughly half the barristers' profession.
I acknowledge gladly that the last Fianna Fáil Attorney General enjoyed esteem among his colleagues and that there was a slight loosening of the ruthlessness which characterised the distribution of State work when I was at the Bar, some 12 or 13 years ago. I acknowledge that and would not begrudge that admission. I do not go along with the impression created by Deputy Andrews that the element of political patronage had totally disappeared under the Fianna Fáil Administration. Anybody who studies the figures which are elicited in this House year by year of money paid for State briefs can make the computation himself. He will see that gentlemen prominently identified with Fianna Fáil—that is men who are high up with Fianna Fáil—got in State work over a period of two, three or four years sums like £20,000 or £30,000. There were others who did not, who were far lower on the scales. There were some Fianna Fáil supporters, such as Deputy O'Kennedy who admitted it here openly, who were never on the State panel. I do not know how the former Attorney General arranged his affairs. I acknowledge freely that he enjoyed steem from the whole profession. I acknowledge also that some State work was given to people who were not his political allies but the really big end of State work was reserved for the legion of the rearguard. That is the simple fact of the matter. I cannot let Deputy Andrews get away with the suggestion that we are only now institutionalising a system of fairness which Fianna Fáil, in fact, had practised. They did not practise it. They did not pretend to practise it.
The last point I want to mention in regard to this question of patronage was raised by Deputies Andrews and O'Malley who described it as hypocrisy that we should be introducing this Bill. I must say that though I make every allowance for the fact that it is a new experience for Fianna Fáil to find a Bill being introduced in this House which shatters in the hands of any and every Government a very powerful political weapon—it must be a new and uncomfortable feeling for Fianna Fáil to find that happening and to find themselves deprived of that weapon when they are next back in power—making all allowance for that, I have to say that it is a new definition of hypocrisy to me that you should be called a hypocrite for reforming a bad practice of which you yourself are not entirely guiltless. How is that hypocrisy? I understand the word "hypocrisy" roughly to mean preaching one thing and practising another.
That is not what we are doing here. We are preaching one thing and practising it. We are preaching one thing and ceasing to practice the other. That is what has been called hypocrisy. The word "hypocrisy" has been strung out so much in politics that it has been devalued to the point of being worthless, and I do not take it at all too seriously when I hear it coming from that side. I do not suppose they take it too seriously when they hear it coming from us. However, I must say that this is a usage of the word which is quite new to me —that a man who takes it on himself to reform a practice, of which he himself has not been completely guiltless in the past, should be called a hypocrite. If you are to preach about reform and do nothing about it, that would be hypocrisy, and that is a charge which we often enough have had to level at the other side. When something is done about it when it need not have been done, when you deprive yourself of the means to carry on this ill-practice when you could, if you wished, have held on to it, how is that hypocrisy? If it comes within the four corners of order, I should like one of those Deputies to explain that at a later stage of the Bill's passage.
A fair number of fairly serious points were made by the three Opposition Deputies who spoke. I will deal with them as well as I can. I have drawn the attention of the Attorney General to all of them—I understand he will conduct the Committee Stage of the debate. I have drawn all these points to his attention and, of course, he has read the debate as well. In the meantime, I can give the Government's answer to the more substantial points.
Deputy Andrews spoke about the provisions in the Bill regarding the qualifications for becoming a Director of Public Prosecutions. His view was that the only person who could be acceptable was a barrister with wide experience of criminal work. I accepted that serious argument, perhaps even an appealing one, but I should just like the Deputy to know the Government's reason for sponsoring the section in the form in which it is. The Government felt that the choice of Director should be left as wide as possible. It seems to me, for example, that Deputy Andrew's argument—I do not know whether he has considered this or not—would exclude from consideration for the post of Director anyone who was a solicitor. Solicitors plead in criminal cases only in the inferior courts—they are very seldom seen on their feet in the High Court or the Supreme Court.
The argument of Deputy Andrews would exclude solicitors, and although it might easily be, looking into the future, that not many solicitors would be even interested in this post or would be likely to apply for it or would even be likely to be appointed if they did apply, the Government felt it would be wrong to narrow the choice to exclude from consideration automatically somebody who might be a very good choice. That is why the qualifications have been drawn so widely. Although, as the House knows, I do not believe in taking examples from the English when we have clear indications in our own country of what the right thing to do is, it may not be irrelevant to remark that of the four Directors of Public Prosecutions there so far have been in Britain, two have been solicitors. Although it is not orderly to mention names even of non-nationals, one of those solicitor Directors of Public Prosecutions is admitted to have been the most distinguished they have had and was regarded in the legal profession in Britain as having established the post for good in a position of high regard in the public eye.
Needless to say that is not necessarily a headline for us, but the Government's feeling, rightly or wrongly, was that the qualifications should be drawn as widely as possible so as to give the Government and the selection committee as wide a field of choice as possible.
I should like to emphasise that there is envisaged in the Bill a very high powered committee to advise the Government on this appointment and although it is true that the Government are not bound by the provisions of the Bill to follow the committee's decision, or to appoint only a person named by the committee—I think it is the practice in legislation that a Minister or the Government are not ever compelled to follow the advice given him or them—it seems to me entirely unlikely as a practical proposition that this Government or any Government would ignore the recommendation, which can be of more than one name, sent up by this committee.
Under section 2 (7), the committee will consist of the Chief Justice, the Chairman of the General Council of the Bar of Ireland, the President of the Incorporated Law Society, the Secretary to the Government and a senior legal assistant in the office of the Attorney General. Does anyone in the House seriously imagine that a committee consisting of the Chief Justice and the Chairman of the Bar Council are likely to allow a name to go forward of somebody grossly incompetent or even partly incompetent in the matter of directing public prosecutions? It seems to me to be a totally unlikely proposition. I concede that the section does not require the Government to accept the committee's recommendation, but I am sure the Opposition spokesman will admit as a practical matter that it is highly unlikely the Government would ever depart from the name or number of names submitted to them by the committee. I think the committee are a guarantee that, so far as a man's quality or work can ever be gauged beforehand for a particular job, no fool, no bigot, no megalomaniac, no pedant will ever be appointed to this post. The person appointed to this post will be somebody who, taking all things into consideration, including legal experience, will be the person whom this very broadly based committee think to be the best qualified.
I do not wish to make little of the argument of Deputy Andrews—I realise it was seriously meant — but for what it is worth, that is the Government's view—the reason behind the section standing as it is.
The Deputy also mentioned the possibility of a conflict between the Attorney General and the Director of Public Prosecutions because of what he took to be the disjunctive effect of Article 30.3 of the Constitution which provides that crimes and offences are to be prosecuted at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose. It is not to me, I confess, absolutely clear whether the Article has the disjunctive effect that the Deputy attributed to it, but even assuming he is right I cannot see as a practical proposition that any danger is likely to arise from the possibility that in the two cases reserved to the Attorney General in regard to reference of matters to the Supreme Court, the possibility of a conflict is a very serious one.
Even putting it at its worst, even if one were to say there might be a conflict and there will be a conflict, as I see the Bill what it means is that if either of them wishes the point to be referred further upwards for consideration by the Supreme Court, it will be done even though the other might not have wished to do it. That may be a situation of tension within the Attorney General's office but it is not a national disaster. If these two law officers are in doubt or in dispute as to whether a point should be raised further upwards, the balance should go in favour of the officer who wishes it referred up.
Certainly if I am right in looking at the section as exposing that possibility, I would defend that interpretation of it, and I cannot see that the public interest could possibly suffer from having a point of law decided at a higher level. However, again I recognise it is a serious point and is seriously intended, and I know the Attorney General will have given it serious thought and that when the section has reached the Committee Stage the Deputy will be answered more fully.
Deputy O'Malley and Deputy Andrews thought that the idea of allowing a subordinate officer to exercise the functions of the Director or the Attorney General in this context might be unconstitutional. Section 4 (1) (a) provides:
A law officer may direct any of his professional officers to perform on his behalf and in accordance with his instructions any particular function of the law officer in relation to a particular case or cases or in all cases in which that function falls to be performed.
Deputy Andrews said this is possibly unconstitutional because Article 30.3 is specifically designed to exclude such delegation. Again I accept that as a serious point and certainly the Attorney General will deal with it in great detail when the section is reached. But I would respectfully disagree with the Deputy. I do not read that subarticle in that way at all. The Article only says that crimes and offences are to be prosecuted at the suit of the Attorney General or now the Director of Prosecutions when this Bill is enacted. Of course in the citation of the case a prosecutor will still appear as the Attorney General or the Director of Public Prosecutions. There is nothing in the Article which prevents a subordinate official of the attorney or of the director from doing all the necessary work in the office, so to speak, on the basis of which the Attorney General or the Director puts his name to the prosecution.
The argument is correct to this extent that the person who is responsible for the prosecution is the Attorney General or the Director, they cannot constitutionally escape that responsibility, but the preliminary work leading up to the final decision to institute the prosecution is effectively already done by members of the Attorney General's staff, and all that is being done is institutionalising that situation. I cannot see—I do not say this in a contentious spirit—that Article 30.3 is breached by that, because the person at whose suit the prosecution is being brought will still be the person envisaged by Article 30.3, namely, the Attorney General or the Director of Public Prosecutions.
The last point in regard to the Director himself and his position was raised by Deputy de Valera, who said he thought the Director should change like the Attorney General with a change of Government. It was a quite new point not raised either by Deputy Andrews or Deputy O'Malley, and I presume Deputy de Valera will pursue it here again on the Committee Stage. To him it seems a fairly basic flaw in the Bill that this civil servant— because he will be a civil servant— should be privy to what he thought was a political function during the tenure of one Government and should then be expected to turn round and exercise his job from a quite different political perspective.
That is not how the Government see the office of Director of Public Prosecutions at all. The political content in his work will be very small; in fact, it will be non-existent except in so far as routine prosecutions are brought under an Act which itself has got a political complexion, and of course that Act should be applied by all Governments so long as it remains an Act. If it is not, is it a matter of reproach to that Government and has been here in this House a matter of reproach in the past in circumstances of which the House is well aware.
This civil servant is, I think rightly established as such. I think it would be quite wrong if it were somebody who changed with the Government going out of office because that would identify him clearly as a political creature. That would be wrong because it would encourage the public to do what this Bill is designed to discourage. It would encourage the public to believe that political pressure or political croneyism of some sort brought to bear on the Director of Public Prosecutions could be effective. Since naturally he himself would, because he would lose his job as soon as the Government went out, have an interest in holding on, it would instantly give him an interest in bending to that political pressure brought in favour of some member, at high or low level, of the party which is then in power. Therefore I cannot see, with all respect to Deputy de Valera, the faintest substance in his argument. I can understand the steps by which he reached it, but I think the argument is more than counterbalanced by the obvious damage to the public interest and the stultification of the main purpose of this Bill which would result if the Director of Public Prosecutions remained a political creature who would change with each change of political fortune.
There are just two other points I want to deal with. They both arise out of the provision in section 6 connected with the making of communications or representations—the House will forgive me if I say "representations" because that is what they are —to persons who have a function in the institution of prosecutions. The purpose of this section was to prevent people, except the very large category of exempted persons, from making representations in regard to the institution of criminal prosecutions. Let me begin by putting some emphasis on what was overlooked by the Opposition. The class of persons who still may make such representations is very large and absolutely adequate for all legitimate purposes. Communications or representations can still be made by people as described in the Bill:
a person involved in the matter either personally or as legal or medical adviser to a person involved in the matter or as a social worker, or a member of the family of a person involved in the matter.
That is apart altogether from the defendant or prospective defendant himself.
