Vol. 448 No. 1
1 Miss Harney asked the Taoiseach the arrangements, if any, which have been put in place in regard to the State's legal team in the claim by the Goodman organisation for 200 million pounds in damages in view of the Attorney General's previous role as counsel for that organisation. [1145/95]
The Attorney General has made special arrangements to deal with cases, including the case referred to, where prior to his appointment as Attorney General he had acted as counsel for the other party in litigation involving the State. Those arrangements, in summary, are that such cases will be dealt with by his professional staff, with the assistance of the counsel acting for the State in the case and, if necessary, outside counsel.
Where the Minister or Ministers concerned in the case wish to be advised by the Attorney General personally, then in conformity with Article 30 of the Constitution the Attorney General will, as he must, give his advice. If that advice differs from the advice that has been tendered to him by his staff or by outside counsel the Minister will be furnished with those other advices also. The final decision will be a matter for the Minister.
Did the Taoiseach discuss the conflict of interest that arises with the Attorney General before his appointment?
No conflict of interest arises. The fact is that if one was to look for any Attorney General who was likely to have done a good job and was successful at the Bar it is almost certain that he or she would have acted in recent times against the State. Short of changing the entire system for the appointment of Attorneys General this type of situation could not be avoided. I am glad that the Attorney General, on his own initiative, put in place a procedure which clearly puts Ministers receiving advice from him in a position in which they know if he was involved in a case. They also have a separate source of advice independently of him so that in coming to a decision they know exactly what advice they are acting on. There is no question of any conflict of interest arising.
I am surprised at the Taoiseach's reply and I hasten to add I am not impugning the character and integrity of the Attorney General. He is a person for whom I have a high regard but I believe a clear conflict of interest arises in this case. The Attorney General represented this organisation for two years where issues fundamental to this case arose. For example, would the Attorney General accept that forged stamps were used to claim export credit, which is the State's contention? Will the Taoiseach accept there is a clear conflict of interest and that it is unsatisfactory for the present Attorney General to have any role in advising Ministers in relation to this case or in giving direction to counsel about how this case might be run?
As I explained in my original reply the position is that in the normal course of events the Minister for Agriculture, Food and Forestry, or any Minister acting on these matters, will not receive their advice from the present Attorney General. As I explained, he has put in place arrangements in his office whereby that advice can be prepared and tendered separately through his office, or through counsel employed by his office, direct to the Minister without his involvement. That is what he has done to avoid that situation. If the Deputy consults the Constitution she will be aware that it is obligatory on an Attorney General, because he is the legal adviser to the Government, to provide advice if asked for it. It is only in the unlikely event that the Ministers were not satisfied with the advice provided to them by independent counsel and the staff in the Attorney's Office that they decided they want the advice of the present Attorney General separately, even though he may not want to give it. Under the Constitution, if he is asked for the advice by Ministers he is obliged to provide it. As I have outlined already he has put in place arrangements to deal with that unlikely eventuality by making sure in tendering his advice that any other advices that have been provided that may differ from his in any way are also provided simultaneously. This is just advice, the decision will be taken by Ministers.
Deputy Harney rose.
I wish to bring in Deputy Bertie Ahern but I will call Deputy Harney again.
Is it not a fact that there is no statement of claim from the Goodman organisation for £200 million in damages, that the figure is now reduced to £18 million and that it may be wiped out altogether by the international agreement with Iraq making the statement of claim zero?
If the Deputy — or any other Deputy — wants to put down questions about the Goodman claim against the State that is a separate matter. Such questions would more appropriately be addressed to the Minister for Agriculture, Food and Forestry. I have not come here with a brief enabling me to deal with any of the issues about the claim, stamps or any other matters that have been introduced to this discussion to give colour to it by Deputy Harney. I am not here to answer for the courts in regard to what decisions they may take about any of these matters. I am here to answer in regard to the very honourable arrangements by an eminent senior counsel, who has agreed to become the Attorney General for this Government, put in place to ensure absolute transparency and there is no suggestion of conflict of interest in this case. I ask all Deputies concerned, including Deputy Harney, to accept the validity and value of those arrangements.
Of course I accept the Attorney General is acting honourably but his function is to protect the State's interest and to give direction on how cases of this kind are run. I could be much more colourful if I quoted what he said in this House in early September — which I read this morning — in relation to this matter. Will the Taoiseach accept that Ministers are not obliged to seek the advice of the Attorney General in relation to this matter? Will he instruct his Ministers not to seek the advice of the Attorney General on this matter so that he is not placed in a position where there is a potential conflict of interest?
I will not do that because if I were to instruct Ministers not to seek the advice of the Attorney General on any matter I would be acting in defiance of Article 30 of the Constitution. I advise the Deputy to read Article 30 of the Constitution——
I am not obliged——
——because it is clear, under the Constitution that the Attorney General is the adviser to the Government on legal matters and Ministers have a right and an obligation to consult him where and when they think necessary. I have outlined to the House the arrangements that have been made to ensure that no conflict of interest arises. I would ask Deputy Harney, and others, to bear in mind that any senior counsel worth his or her salt who is appointed Attorney General is bound to have acted against the State in the previous two years. This so-called conflict of interest the Deputy is trying to make so much of has existed in respect of the appointment of every Attorney General since the office of Attorney General was founded. Mr. Dermot Gleeson is probably the first Attorney General — I cannot say this for certain — who, of his own accord, not at my suggestion, has put in place arrangements to ensure that no suggestion of a conflict of interest can arise.
I want to come to finality on this question. The House will appreciate I cannot remain unduly long on any one question when there are a large number of questions tabled to the Taoiseach.
Will the Taoiseach accept this is no ordinary case? It is not a case of a technical nature or a simple hit-and-run case that previous Attorneys General might have been involved with. Is there a precedent for an Attorney General acting, as the present Attorney General has done, or believing it necessary to act in such a way? Will the Taoiseach accept that while the Attorney General is obliged to give advice when Ministers seek it, Ministers are not obliged to seek his advice under the Constitution?
I am not going to provide an interpretation of the Constitution on the hoof for the House but it seems that if the Constitution provides a facility for the taking of advice on a matter, a Minister fails to avail of that facility and subsequently a problem arises, the Minister is in some difficulty for having failed to avail of the facility under Article 30 of the Constitution. Furthermore, I would regard it as a reflection on previous Attorneys General to suggest that most of them were involved, to use Deputy Harney's words, in technical cases or running down actions. All Attorneys General appointed by previous Governments have been extremely worthwhile people in their field and would have acted against the State in substantial and significant matters on which they were likely subsequently to have to advise the Government on appointment as Attorney General. However, it was not necessary, or they did not decide to make arrangements of the elaborate procedural nature that Mr. Gleeson has made, which are very good arrangements and I have no doubt will set a precedent that will be followed by all future appointees.
