Vol. 461 No. 2
1 Mr. D. Ahern asked the Taoiseach if, in view of the provisional report of the Constitutional Review Group, he intends to make any immediate changes in the Office of the Attorney General; and if he will make a statement on the matter. [2207/96]
As the Deputy will see from reading the review group's report, it does not recommend any changes in the Office of the Attorney General which I would be in a position to make. The group does recommend one change in the Constitution relating to the Attorney General which will now be considered by the proposed all-party committee, together with any other constitutional changes which the group recommends.
The Government is committed to discussing all the group's recommendations in the context of the all-party committee and I will put forward proposals shortly to the Opposition leaders on the establishment of the committee.
The report referred to the Attorney General's two roles, but it is accepted that only about 5 per cent of the workload relates to his duty under the Constitution to protect and safeguard the public interest. The report recommends that there should be no change in that. Would the Taoiseach not accept that even within the 5 per cent workload there have been public occasions on which the Attorney General had two different positions within the one issue? It has been accepted by a broad spectrum of opinion in this House that there is a need for an independent person who would, in effect, represent the public interest as opposed to being legal adviser to the Government in high profile issues which are of major public concern.
As the Deputy will see when he reads the report, this is exactly the point the group referred to and, having examined it, they recommended no change. The report states:
The question remains how a conflict of interest between the Attorney General's role as legal adviser to the Government and as guardian of the public interest might be handled. The review group considers that the discretion on whether a conflict arises should be left with the Attorney General who would have to act in the full glare of publicity and under the closest scrutiny by the courts under the legal system. If he or she decides a particular issues presents such a conflict, he or she should be able to assign the task to one of a small panel of senior lawyers.
Having considered the matter, that is essentially what the review group said should be the case, in other words, that the present position should not be changed. However, it will be open to those who have a different view to advocate their view within the context of the all-party committee.
I have a copy of the report and I note what the Taoiseach says about it. I also note what the Committee has said in relation to the glare of publicity that the Attorney General might be under in a court case, but there is still a distinct reluctance both on the committee's behalf and on the Government's behalf to allow the Attorney General to be accountable in any way to a Dáil Committee. We only have to look at the Compellability of Witnesses Bill which excludes the Attorney General from coming before a committee of the House.
I am not sure if the Taoiseach knows that one of the committees of the House has already examined this issue and has come to a certain view as to whether the Attorney General should be answerable to the House and should have a separate position of protector of the public interest. Is the Taoiseach aware of the deliberations of that committee and will its views be taken into account in future amendments?
I am aware that the Constitutional Review Group, on which the Deputy's party was represented by a very eminent barrister, also considered the further question the Deputy has raised concerning the accountability of the Attorney General. I wish to quote again from their report. They found that:
The Attorney General's relationship to the Government, being that of lawyer to client, should entail no accountability to the Houses of the Oireachtas. Accountability for advice and action on it should be through the Taoiseach as specified in the Ministers and Secretaries Act, 1924. The Taoiseach should decide how much or how little he or she reveals of the advice, as in any other lawyer client relationship.
That is not my finding but the finding of the group. The Government is considering the matter independently. We will obviously take account of the very clear recommendation by this independent review group, which is representative of a wide range of expert opinion, that the present practice should not be changed.
When a Member of the Deputy's party occupied the office I now occupy and questions about changes of this nature were suggested to him, he made it quite clear that he did not believe any such change should be made. However, so far as this matter and any other matters in this report are concerned, the Government is happy to have them discussed in the all-party committee. I have no doubt that members of the all-party committee who do not agree with the review group's findings will be able to argue their point of view in the committee. That is probably the best way to proceed rather than attempting at Question Time to do the committee's job in advance, although I have no doubt they will be taking note both of the Deputy's comments and my own.
As I understand the report, it states that where the Attorney General's two functions come into conflict the Attorney General himself will decide that question and will delegate one of his functions to a panel of senior lawyers. Does the Taoiseach accept that that recommendation is fatally flawed because the Attorney General himself will have to decide when his two functions are in conflict? Will the Taoiseach not accept that in most instances that will not be reviewable by the courts? This review group has decided that no powers or functions of the Attorney General should be ceded, but the group comprised the Attorney General himself and his chief legal assistant who are, effectively, acting as judges in their own case. Does the Taoiseach think that is acceptable?
Who guards the guards?
The group also comprised a barrister nominated by the Deputy's party and a number of other legal people of noted independence as far as the Attorney General or this Government is concerned. It was chaired by a very eminent public servant, the former Senator, Mr. Ken Whitaker. Having considered all these matters they came to these conclusions. All I am doing is drawing the attention of the House to their conclusions. I am not drawing any conclusion on the matter myself. I look forward to seeing this being discussed at the all-party committee. It is important for us to give some weight — and Deputy O'Dea and Deputy Dermot Ahern should give due weight — to the findings of this body. They should not attempt to impugn it or, indeed, to impugn this or any other Attorney General in so far as Deputy O'Dea suggested that he was acting as a judge in his own case.
Should he be a judge in his own case?
It is important to recognise that in matters of this kind one has to rely on the integrity of public office holders. It is not possible to provide detailed rules and procedures to govern every conceivable situation. In practice it is often the case that the surest guarantee is in the integrity of office holder to make difficult decisions where conflicts of interest occur. Conflicts of some kind or another are inherent in virtually every political decision.
I fully accept, as the Taoiseach says, that if a conflict arose on advice, the present and previous occupiers of the position of Attorney General, would undoubtedly, seek the advice of others and if he were advising the Government in one direction and thought perhaps that the rights of an individual in society required a separate mind to be brought to bear on the issue, separate advice might be got from some other legal adviser.
It is not so much a question of conflict of interests. Will the Taoiseach consider the point of a conflict of roles? For instance, without getting enmeshed in the circumstances of the X case, it might well be that the entire Cabinet might not want a case to be brought by the Attorney General on some issue that is against their views, but the Attorney General in his public protector role might arrive at the opposite view and think he was bound — as indeed some of the judges in the X case said — to bring an application. Where the potential conflict is, I think is in the conflict of roles of the Attorney General. What would happen if an entire Cabinet went on its knees to the Attorney General asking him not to bring a case as they did not want him to do so and to which he replied that he felt bound to do so in his role as protector of public rights? A practical example was the extraordinary situation after the High Court decision in the X case, when the then Taoiseach, Deputy Reynolds, had to publicly plead with the family involved to appeal the decision that had been obtained by his own Attorney General and offer them legal aid. Would the Taoiseach not agree that there is an extraordinary conflict on occasion between the roles of somebody who is advising the Government, which wants one thing to be done and somebody required by law to bring an action in the name of somebody whose rights are at issue?
In fact, Deputy Michael McDowell is making my case by citing that example in which, the then Attorney General showed he was able to make an independent judgment — independent of the Government of the day. That vindicates the point of view I have been advocating in general terms, that the person appointed as Attorney General will be chosen on the basis of integrity and knowledge and, therefore, should be capable where a conflict arises of recognising it and acting in a way that recognises the division of responsibility inherent in his office. By the example he cites, Deputy McDowell has disproven the case he seeks to make.
Deputy McDowell's point was well made. He referred to the possibility of a future Government finding itself in this difficulty if the present way of operating continues.
He referred to a specific case where his own case was demolished by what happened.
The Taoiseach referred to a report dealing with accountability for advice in which he said that action should be as specified under the Ministers and Secretaries Act, 1924. I understood the Taoiseach was proposing to amend that legislation, in effect to make the heads of Departments more accountable for their actions. Does the Taoiseach go along with the view that the Office of the Attorney General should be excluded from an amendment of that legislation? What are the Taoiseach's views on the proposal to delegate, and the proposal that the Attorney General be allowed to delegate some of his powers to someone under him? Is it now accepted — as we have seen in the past — where there was a conflict of interest because the incoming Attorney General had been involved in actions before taking office which would now be a potential conflict of interest, that he cannot, as the Consistution is framed, delegate them to someone below him to make a decision?
As the Deputy is well aware, this problem will arise every time a practising barrister with a sizeable practice is appointed as Attorney General. There will be cases in hand from his previous capacity and it would be normal to assume that among those would be cases against the State or in which the State might be involved. The Attorney General has made perfectly transparent and effective arrangements to ensure that no conflict arises in those situations by having independent and separate counsel and there is no constitutional barrier to what he has done in this instance.
In response to the earlier part of the Deputy's question, it is the case that the Government is looking at the whole matter, including the relevant functions of the Attorney General in the context of the review of the Ministers and Secretaries Act, 1924, which the Minister for Finance is undertaking? I referred to that already when I said the Government is looking at this matter independently. We are proposing to set up an all party committee where all these matters and the views for and against the recommendations of the expert group can be discussed and, if possible, a consensus reached at political level before any decisions are taken or recommendations made to the people. The Deputy should have confidence in that process.
I was requested to put down a parliamentary question.
It would be subversive of the process we intend to adopt, which is to try to seek an all party approach on these matters, for the Deputy to attempt to get me to take a position on behalf of the Government on each one of these individual recommendations before they had been considered by the all party committee. It would be better to allow the all party committee to consider the matter and draw the conclusions together from that consideration. I think that is an appropriate way to go forward. Perhaps the Deputy does not agree, but that is the way we will go.
Will the Taoiseach go against the grain and appoint an Opposition Deputy to chair this all party committee in view of the fact that we have the chair of three of the 17 committees of the House?
I will not be in a position to make a statement on that matter until I have considered it fully. I would have regard also for precedents in regard to the previous reviews of the Constitution when the Deputy's party had an opportunity as the Government of the day to decide who should be in the chair and they did not, I believe, appoint a chairman from the Opposition parties but appointed one of their own number.
There are now 17 committees.
I do not wish to prolong this discussion unnecessarily or to anticipate the discussion which will undoubtedly take place if such a committee is established, no matter by whom it is chaired. Does the Taoiseach accept I was not suggesting that the X case was an example of where there was not a conflict of interest? I was suggesting that it is quite possible to see further situations where a Cabinet will be of one view and the Attorney General of another.
We are having repetition.
I am not repeating myself.
I take a different view, Deputy.
If I am going to be shouted down both by the Chair and the Taoiseach there is hardly a point——
There is no question of shouting down anybody.
If I may be allowed to finish my question, does the Taoiseach not agree that it is perfectly possible to anticipate future circumstances where the Cabinet will be of one view and the Attorney General of another view in their respective roles and in which a future Attorney General would be forced into the position of either resigning his office to protect the rights of an individual or, alternatively, maintaining an action as Attorney General which the entire Cabinet does not want made in the name of the law?
On the contrary, the example cited by the Deputy proves the direct opposite. I have no doubt in that case the Government of the day might well have preferred that the Attorney General of the day had not taken the action, but he properly recognised that in this matter, as guardian of the Constitution, his responsibility was to act autonomously and he did so. One may question whether he made the right judgment but there is no doubt that he showed the requisite independence of judgment in this case.
Nobody is suggesting he did not.
That brings me to the point made by the committee, namely, that at the end of the day one can trust Attorneys General to make independent judgments of this nature. It is a reflection of a particularly adverse kind on politicians that Deputy McDowell suggests that an Attorney General appointed by a Government, regardless of its composition, decides as guardian of the Constitution, autonomously of the Government, to take a particular course, no Government would force him to resign. Politicians understand the value of having an independent judgment by an Attorney General, in a matter where he has a separate role from that of the Government, as being an important value in our Constitution. No Government, certainly none with which I would be associated, would endeavour to force an Attorney General to resign because in the public interest——
That is just what the Taoiseach did in Opposition.
——in the exercise of his function he decided to take an independent course.
