Vol. 440 No. 2
3 Mr. G. Mitchell asked the Taoiseach if he will review the powers and role of the Attorney General; if so, if the review could be carried out along the lines of the review already carried out on the Office of Comptroller and Auditor General.
There are no proposals to carry out the review suggested by the Deputy.
Will the Taoiseach agree that while our Attorney General is the adviser to the Government his counterpart in Britain is the adviser to Parliament and, therefore, must be a member of Parliament and that this constitutional difference has presented major problems here in respect of accountability? Will he agree that the role of the Attorney General in examining warrants requesting extradition, the role the courts have conferred on him as the protector of citizens' rights, as prosecutor — even though part of that role has been hived off to the Director of Public Prosecutions — and his role as adviser to the Government, particularly in giving advice about which others receive conflicting advice, should be reviewed along the lines of the Office of Comptroller and Auditor General? Will the Taoiseach agree that the Attorney General should be made more accountable to this House or a committee of it?
The Constitution provides that the Attorney General is the legal adviser to the Government and is not a member of it. The purpose of that constitutional arrangement is to enable the Attorney General to give advice on legal issues that is completely frank and free from any party political considerations. The only legal advice that is worth having — and I am sure all Members would agree — is from a lawyer who gives unbiased advice so that the client knows where he or she stands. If the Attorney General were to be answerable to this House in regard to his duties the result would be to draw him into the party political arena which would be highly undesirable. Furthermore, it would breach the confidentiality of the lawyer-client relationship if he was drawn into debate on the advice he gives to the Government. I am sure that will clarify the matter.
Will the Taoiseach agree that under our extradition laws the vetting of warrants by the Attorney General, who sits at the Cabinet table, could be tainted because there is no accountability to the House? Will he also agree that, for example, the Attorney General has been involved in controversy because of his decision in the X case and other cases? Will he agree that in the case of the larceny of a consignment of cigarettes, worth approximately £500,000, about which a prosecution did not ensue, that nobody was accountable and that somebody should have been accountable? Will he agree also that if the Attorney General gives advice to the Government about which the President receives conflicting advice it gives rise to controversy?
The President should not be brought into the discussion.
For all those reasons, will the Taoiseach agree that the Attorney General should be brought before this House occasionally or before the Select Committee on Legislation and Security so that both he and the Director of Public Prosecutions are accountable, without interfering with their independence, as is the case in other jurisdictions from which we have taken some of our laws?
I am glad Deputy Mitchell raised a number of questions in regard to the Office of the Attorney General because it gives me an opportunity to put certain matters on the record.
The Government is entirely happy with the advice it has received from the Attorney General since his appointment and with the manner in which he has discharged his functions. Much of the criticism of the Attorney General voiced by a number of sources, usually the same sources, both inside and outside this House, are very wide of the mark. Even though some of those critics are lawyers they do not seem to have grasped the fact that the courts have repeatedly stressed the independence of the Attorney General's role where the upholding of the Constitution is concerned. In the past few years a number of difficult and complex cases arose for consideration by the Attorney General which required to be litigated by him in his independent constitutional role. In those cases he was invariably found to have acted correctly in initiating the proceedings and almost invariably the arguments which he advanced in the proceedings have prevailed. Only the courts have the competence to decide on the appropriateness of the actions of the Attorney General in those areas.
In the light of the court's vindication of the Attorney General's actions it is regrettable that critics persist in misrepresenting the position. Many of those critics have rushed to utter their criticism before the court had given any judgment and were then proved wrong, but have refrained from acknowledging that they were wrong. It is regrettable that that should be the case and where the courts have upheld the advice of the Attorney General and his actions Members at least should accept that he has acted in accordance with the highest traditions of his office.
I have not personalised the Attorney Geneal in supplementary questions.
The matter should not be personalised and I will not permit it.
I am glad the Chair agrees with me because he would not have permitted me to do so. The Taoiseach should not have been allowed to do so either.
When did the Deputy start running the House?
I have no control over what Ministers advise but I have control over supplementary questions.
It is regrettable that the House cannot have a reply to supplementary questions. Will the Taoiseach agree that independence and accountability are different? The Attorney General has hived off some of his work to the office of the Director of Public Prosecutions but retains the right to consultation in respect of it. Will the Taoiseach agree that there is a growing concern about the failure to take prosecutions in a number of cases involving deaths? For example, a murder case was not pursued because the book of evidence was not produced and the case had to be re-entered in another way. In another case a major consignment of tobacco was stolen and the case was not pursued. Somebody should account for the lack of prosecution in cases where an explanation is required in the public interest and that accountability should not interfere with the independence of the Director of Public Prosecution or the Attorney General. Another jurisdiction has found a way to deal with that matter without interfering with the independence of the Attorney General or the Director of Public Prosecutions and it is time we had a similar system here where Deputies could be satisfied that all is kosher. I am not directing that remark to the current office holders, but the principle of accountability should exist in areas where there is such a level of power and independence.
Deputy Mitchell is confusing the role of the Attorney General and the Director of Public Prosecutions, both have independent roles. As I stated, the Attorney General's role is laid out in the Constitution and the role of the Director of Public Prosecutions is enshrined in legislation. I have no intention of discussing the role of the Attorney General. I have no proposals to carry out the review suggested in the Deputy's question.
I will hear three brief questions, but I advise the House that we cannot debate this matter today. I am concerned lest anything might be said which would reflect on the competence or integrity of the Attorney General or the Director of Public Prosecutions.
The Taoiseach should take that admonishment to heart.
The Chair has no need for concern.
I appreciate that, Deputy.
Accepting the Taoiseach's point that it would be unacceptable for the Attorney General to be responsible to the House in respect of advice he gives the Government — his client — will the Taoiseach agree that the Constitution does not deal with the role currently conferred on the Attorney General by common law as the protector of the Constitution and upholder of individual's constitutional rights? Will he also agree that in that capacity whoever discharges the function should be accountable to the public in some form and that decisions to attempt to uphold rights in some cases and not in others should not be a matter which we should all accept without an opportunity to examine the basis on which those decisions are made?
The Deputy may be considering cases where the Supreme Court made it clear that the Attorney General was correct in bringing proceedings and it was his duty to do so under the Constitution.
The Taoiseach is the only person who talks about the matter ruled out of order by the Chair.
Deputies should listen to the Taoiseach's reply.
On a point of order——
The Deputy was heard with the utmost courtesy and I expect him to give the same——
On a point of order——
No. I am dealing with disorder.
Is it in order to be disorderly and to answer a question I did not ask?
Deputy McDowell asked questions and he should listen to the reply.
I did not ask that question because the Chair ruled it out of order and the Taoiseach is now replying to it.
The Deputy should desist, I am surprised at him.
I am surprised at the Taoiseach.
The Constitution provides that the Attorney General is the legal adviser to the Government. I have spoken about that, I have nothing further to add and no intention of reviewing his role.
Will the Taoiseach agree that the Attorney General has two separate functions, one as adviser to the Government — and the Government should account for what it does in that regard — and a separate function to use his initiative to vindicate the rights of everybody under the Constitution? Will he also agree that there should be some mechanism whereby the Attorney General accounts for his acts or omissions in respect of his second function?
Deputies are suggesting that the Attorney General should be brought before the House to account for the separate functions outlined by Deputy Bruton. Such a measure would bring him into the role of politics, that is highly undesirable and the Government has no plans to change the ruling in this regard.
Deputies must proceed with the matter in another way if they wish to debate the pros and cons of the rights of the Attorney General or any other State official.
I accept the Taoiseach's point about independence. Will he refresh the memory of Members of the House by telling us if there has ever been an Attorney General who has not been a member of a party in Government or a prominent supporter? In the event of the office becoming vacant is it possible that a prominent Fine Gael supporter might be appointed to the office?
It is highly unlikely.
We should not personalise this matter.
Is the Taoiseach aware that in the past the Attorney General has been a Member of the Dáil, has had audience here, participated in debates and taken Estimates for his Department which did not hinder the execution of his role as Attorney General.
I am aware of that but I am not casting the Attorney General in the role the Deputy is portraying here in respect of his responsibility to the House for the decisions he makes and his reasons for them. The role the Deputy has in mind was not that adopted by the Attorney General.
I am now dealing with questions nominated for priority for which a strict time limit of 20 minutes applies.
