Ceisteanna — Questions. - Deputy Attorney General Post.

Ruairí Quinn

Question:

1 Mr. Quinn asked the Taoiseach the plans, if any, he has to establish a post of Deputy Attorney General in view of the report of the Select Committee on Legislation and Security which makes this recommendation; and if he will make a statement on the matter. [8026/98]

I have no plans at present to establish a post of Deputy Attorney General. Deputies may recall that the report of the Select Committee on Legislation and Security published in February 1996 was referred to the Constitution Review Group for consideration by my predecessor, Deputy John Bruton. The review group, it will be recalled, had issued a provisional report on the Office of the Attorney General in January 1996 and it was in that context that the select committee report was referred to the review group. The then Taoiseach, in reply to Parliamentary Questions Nos. 1 and 2 on 27 February 1996, informed the House that it would be prudent to await consideration of the matter by the review group.

In the event the final report of the review group did not recommend the creation of a post of Deputy Attorney General. I acknowledge that it did recommend that the Constitution should expressly permit delegation of the Attorney General's functions to another senior lawyer with the approval of the Taoiseach. I look forward to receiving the views of the Oireachtas All-Party Committee on the Constitution on this in due course.

The new management structure for the public service, introduced under the Public Service Management Act, 1997, provides that the authority, responsibility and accountability for the management functions are with the administrative head of a Department or office. Section 2 of the Act provides a mechanism to enable the Attorney General to be included under the terms of the Act. I understand that the Attorney General is completing the process of consultation within his office at the moment and will decide in the near future about consent to the Act.

I thank the Taoiseach for his reply. Does he agree that there are three issues associated with the operation of the Attorney General's office and its accountability to the Dáil? The first is the office's efficiency, the second is the staffing of the office and the third relates to the times the office has been obliged, due to the scarcity of legal advice, to go outside for advice it does not have internally.

The Ceann Comhairle has already ruled that I cannot pursue certain questions because under Standing Orders I am not allowed access to the content of the advice proffered to the Attorney General on different occasions. However, I feel I am entitled to ask how many times since 26 June the Attorney General's office has felt it necessary to go outside for professional legal advice.

The Taoiseach will be aware of this question as it was previously disallowed. A competent brief would have the answers.

I had information on this matter last week but the question was ruled out of order. I had the number of times the Attorney General went outside his office for advice because the question related to the cost of that advice. I have no difficulty in giving such information. Difficulties arise from the way the Deputy framed that question due to the breakdown of the advice. This can only be done in order, and the files, which are kept in the office of the Attorney General, would have to be broken down in a certain way. The office cannot break down the files in that way, but I will furnish the other information to the Deputy.

My question is whether a Deputy Attorney General is needed. The Taoiseach's reply is no. Does the Taoiseach not agree that one is necessary because the Attorney General's office has been obliged, since 26 June, to go outside the office for legal advice on a number of matters? I can restate the question that was disallowed by the Ceann Comhairle's office.

I cannot answer a question the Ceann Comhairle has disallowed. There is information available that I can give to the Deputy, but the suggestion that a Deputy Attorney General would make it unnecessary to go outside the Attorney General's office for advice is a nonsense. There are 22 legal assistants and barristers, 11 parliamentary draftsmen, solicitors, barristers and three full-time contract draftsmen, 73 solicitors, 47 law clerks including some on contract and one legal assistant assigned to the Attorney General himself. If those people do not have the information, one more individual, a Deputy Attorney General, is unlikely to change the situation dramatically. One would still have to go outside for information.

I know the Deputy does not mean to do so, but by focusing on 26 June he is suggesting that this has happened only in the life of this Government. My information is that this has been a regular occurrence since the Office of the Attorney General was set up.

I accept that. However, because a practice has prevailed in the past does not necessarily mean it should prevail in the future. Will the Taoiseach give the names of the legal counsel outside the Attorney General's office who were requested to give advice in relation to one item — matters related to the Tribunals of Inquiry Act, 1921?

This is a separate question.

This question was tabled last week and the information was ready in draft form in my office. The question was subsequently ruled out for a different reason and I do not have the information. However, I do not have any difficulty with most of the Deputy's question. I do not have the information with me but I will give it to him.

Let us stop the clock and address another issue. The Taoiseach wishes to answer a question I have put down, but somebody between the Taoiseach and the Ceann Comhairle has stopped this question from being answered. The Taoiseach has said that he has no difficulty in answering the question and I have been told in the past that you, Ceann Comhairle, have no part to play in denying questions.

The rules of the House——

They are now working.

——govern Question Time and individual Members have no authority to change those rules.

That is the point I am trying to make. I have had a number of questions ruled out of order by the Ceann Comhairle's office. When I queried this in private, with due courtesy to you, Sir, and your officers, I was told the Ceann Comhairle's office has nothing to do with the ruling in or out of questions. The Taoiseach has now said he is aware of the questions the Ceann Comhairle's office ruled out of order and is prepared to answer them, but we are hidebound by a decision made somewhere else.

The Chair must make decisions according to the rules of the House and that is what I have done in this case. If the Deputy wishes to start a procedure to change the rules, he may do so, but he cannot change them this evening.

I do not wish to be unruly. I am responding to an offer of information from the Taoiseach of this Republic.

The Chair has outlined the position.

The Chair may correct me if I am wrong, but it is my understanding the Ceann Comhairle's office does not determine the questions that can be answered. The Taoiseach has indicated he is prepared to answer questions which, by the Chair's observation of the rules, are out of order.

The Deputy is not strictly correct. We must proceed with the questions on the Order Paper, unless the Deputy has a supplementary relevant to the question.

May I attempt to rescue something from the exchanges we have just had?

If it is relevant to Question No. 1.

In light of the Taoiseach's reply to the question that was allowed, which relates to the possibility of establishing the post of Deputy Attorney General, and of his experience in Government, does he believe it is necessary to enhance the political and legal advice available to the Attorney General? I am not casting any reflection on the merits of the current Attorney General and I would not wish that inference to be taken from this. Previous Attorneys General have also sought legal advice outside the office. In the light of the Taoiseach's experience, does he agree a political post of Deputy Attorney General is desirable?

I thank the Deputy for outlining clearly that he is not casting any reflection on the current or past Attorneys General in this regard. As in the case of any other office holder, when the Attorney General is absent someone else has to make decisions. The senior legal assistant is nominated to make decisions when the Attorney General is absent. They tend to ensure that one of them is in the office at all times. In effect, therefore, the senior legal assistant acts as Deputy Attorney General. In the absence of the Attorney General I would automatically deal with the senior legal assistant. We do not want to give the impression that there is nobody to deal with the functions of the Attorney General in his absence.

While the report of the review group did not recommend the creation of a post of a Deputy Attorney General, it recommended that the Constitution should expressly permit delegation of the Attorney General's functions to another senior lawyer. An all-party committee is examining this issue. The matter raised by the Deputy is still under review. The question of whether the senior legal assistant should be designated those responsibilities — a view put forward in the earlier document — is still open to discussion by a committee of the House.

Does the Taoiseach agree that in the past five or six years the Office of the Attorney General has become the political cockpit of successive Governments and that the Attorney General has frequently been a surrogate target for the Government? This was certainly my experience during the last Administration. Does he agree it is one of the most dedicated offices in the State and that its staff work very hard? Does he also agree it would be a great relief to Attorneys General if they were afforded a platform whereby they could talk about their work in the Houses of the Oireachtas? Does he agree, therefore, that future Taoisigh should consider the appointment of the Attorney General as one of the Taoiseach's 11 nominees to the Seanad, so that he or she could have some interchange with Members? Furthermore, does he agree that, in the case of legal advice, the relationship between the Attorney General and the Government is privileged and that the public cannot gain access to it? Finally, does he agree the question of legal advice is a matter of judgment rather than science and that, therefore, Attorneys General should not be unduly sensitive if their legal advice is criticised? Legal issues, of their nature, can be the subject of different opinions and people should not be concerned if others do not agree with their advice in that regard.

I agree with most of the points raised by the Deputy. I agree with the thrust of the Deputy's comments about the demand on the office and the level of work and activity in which it is involved. Most Government matters are central to what is going on in the Attorney General's office. It is central to dozens of issues that arise every week that may not be in the public domain.

I could not give a simple yes or no answer to the question about whether the Attorney General should be a Member of the House. However, I have often considered it unfair that he cannot respond in a comprehensive manner to matters which, for one reason or another, are not always reflected properly in the House or in the public domain. They have followed the practice of not entering dialogue in this House or elsewhere. The committee recommended an amendment to the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act passed under the stewardship of the Government of which the Deputy was a member. The Attorney General is answerable to the Committee of Public Accounts in respect of the general administration of his office, which allows him to answer on those matters.

Most people are sensitive to criticism. I do not believe Attorneys General are concerned about people criticising their legal advice. They work extremely hard and leave another career to take up the office. However, I am not saying they do not work hard in the courts.

They are better remunerated in the courts.

That is correct. I have known the past five or six Attorneys General fairly well on a work level. They are more concerned about criticism which implies their legal advice is given to the Government to assist it. I do not believe any of them have done that. They certainly did not do it on the occasion when I and some colleagues were victims of circumstance. I do not believe it is fair for anyone to say they did. They are most sensitive when anyone suggests that.

It took the Taoiseach about three years to recover from that in terms of his attitude to the Attorney General's office.

Two and a half years.

Do not confuse the office with the office holder or any particular individual. It is a political office.

Their legal advice and how they give it——

It is always political.

It is not always political. I totally disagree with that.

In so far as they have discretion, they are political.

I totally disagree with that. It is not my experience of the Attorney General's office. I could say I spent two and a half years in Opposition because of the advice of the Attorney General but I do not agree with that interpretation. I have been at Cabinet tables since the early 1980s and, in my experience, Attorneys General will take account of what they believe——

Observe mycaveat. In so far as they have discretion, they are political because they are politically appointed.

We cannot have a discussion. Exchanges must be by way of supplementary questions.

A Cheann Comhairle, I cannot let something go with which I fundamentally disagree. I believe Attorneys General tend to follow case law and the practice and precedent of their office. I have yet to see an Attorney General who has taken a position different from that of his staff. They tend to follow the long held practice of the office and that has happened in several cases where precedent has been set down.

Does the Taoiseach agree that the Attorney General is like a Minister in that he or she must take ultimate responsibility for the advice they offer and that it is not a reasonable excuse to say that one is only following precedent set down in one's office? Is it not the Attorney General at the end of the day who is personally responsible for his or her advice?

Yes, but Attorneys General would state that they give legal advice in a legal way, not political advice in a political way.

It is up to politicians to accept it or reject it.

Politicians can change it, but that is a different issue.

It is independent advice. It is political advice according to the Opposition.