Ruairí Quinn
Ceist:2 Mr. Quinn asked the Taoiseach the plans the Government has to review the role, functions or duties of the Attorney General; and if he will make a statement on the matter. [20511/00]
Ceisteanna–Questions. - Role of the Attorney General.
John Bruton
Ceist:3 Mr. J. Bruton asked the Taoiseach if he will make a statement on the role and duties of the Attorney General; if he has satisfied himself that the web home page of the Attorney General's office adequately conveys this; and if he will make a statement on the matter. [21078/00]
I propose to take Questions Nos. 2 and 3 together.
The functions, powers and duties of the Attorney General are found in Article 30 of the Constitution, in legislation, principally the Ministers and Secretaries Act, 1924, in constitutional convention and in judicial decision.
Article 30 provides that the Attorney General is the adviser of the Government in matters of law and legal opinion. This includes advice to the Government, Ministers and the Departments or offices which they head. The Attorney General acts as lawyer for the State in virtually all civil litigation in which the State or its officers in an official capacity are parties.
Under the Ministers and Secretaries Act, 1924, the Attorney General has responsibility for the Office of the Chief State Solicitor and the Office of the Parliamentary Draftsman, now the Parliamentary Counsel to the Government, charities, escheated estates and the assertion or protection of public rights. The Attorney General retains certain prosecution functions, for example, under the Fisheries (Amendment) Act, 1978, and has functions under the Extradition Acts, 1965 to 1994. He also has functions under the Law Reform Commission Act, 1975 in relation to the Law Reform Commission. The Attorney General also has functions in relation to legislative programming and is a member of the Government legislation committee and in relation to the Attorney General's scheme, a non-statutory scheme under which certain legal proceedings not covered by legal aid can be funded.
There have been organisational developments in relation to certain functions currently handled by the Attorney General. They include the decision to transfer the criminal division of the Office of the Chief State Solicitor and responsibility for the State solicitor service from the Attorney General to the DPP and the proposals published in the National Treasury Management Agency (Amendment) Bill, 2000, in relation to the management of claims against the State.
There are no plans to review the role, functions or duties of the Attorney General. I am satisfied that the web page of the Office of the Attorney General conveys the role and duties of the Attorney General.
I thank the Taoiseach for comprehensively outlining the functions of the Attorney General. Will he agree that the functions could, broadly speaking, be divided into two categories, on the one hand legal adviser to the Government and defender of the public interest on the other? If he accepts this broad division of responsibilities, in which capacity was the current Attorney General speaking when, as the putative president of the putative radical party, he declared that he would like to see income tax rates of 16% and 33%? Was that a public interest function or was it a legal advice to the Government function?
The first part of the Deputy's question is correct. The Attorney General is the representative of the public in all legal transactions and proceedings and in the enforcement of law and the assertion or protection of public rights. The Attorney General defends the constitutionality of Bills referred to the Supreme Court under Article 26 of the Constitution. The Deputy will be familiar with his role in his capacity as Attorney General and what he is entitled to do outside that role when he makes speeches which are not relevant to his position as Attorney General. In the speech to which the Deputy referred, the Attorney General made it clear that he was not speaking in his capacity as Attorney General.
Since the same person signalled that he was appointed on his own merits and not on the nomination of the present leader of the Progressive Democrats, does the Taoiseach believe it helpful for the cohesion of the Government that the current Attorney General, as nominated by him and appointed by the President of the Republic, was attempting to become the executive president of the party currently led by the Tánaiste?
I do not know nor do I ask the Attorney General what he does outside his role as Attorney General. I am not responsible for him outside that role. He is free in a democracy to speak when he wishes and I am sure he will do so on occasions on issues outside his role as Attorney General. He follows a distinguished line of people who have done so in the past. On six occasions since the foundation of the State, Attorneys General were Members of the House. These people spoke on many issues outside their role as Attorney General.
We know he would like to be a Member of the House but his colleagues deprived him of that.
In the past the Attorney General was a very distinguished Member of the House. He now has another eminent role in which he is doing an excellent job.
In relation to the legal role the Attorney General provides and having regard to his responsibility as defender of the public interest, does the Taoiseach see any merit in making available to the public legal advice of a public general nature which the Attorney General may give from time to time as distinct from legal advice in relation to specific cases? In order for him to enhance his responsibility as defender of the public interest where he gives legal advice in relation to constitutional interpretations of a generic nature rather than of a specific kind, and not related to any particular case, does the Taoiseach see any organic development in the potential for fusing in a progressive way the role of legal adviser to the Government on the one hand and defender of the public interest on the other?
I am aware of what the Deputy said recently outside and also in this House. The State must be able to deal with legal matters in a confidential manner. In most instances the Attorney General acts when the State is defending a case. Government Ministers, Departments and agencies must be able to rely on the confidentiality of the legal advice when putting forward proposals involving competing third party interests. These interests must be protected. Attorneys General case law will show that this is not just a convention but a matter of governance.
In relation to the Deputy's question as to whether legal advice could be made available to the public in some instances, I recently inquired about this issue. The point was made to me that there have been examples of this. In a non-legal sense, because I am not a lawyer, I would feel more comfortable if the advice was made available where the State is not involved in defending an issue and it is just a matter of providing legal advice.
Would the Taoiseach be happy to see it published—
I would, but this has not been the practice. However, it would be more comfortable because one has to regularly defend oneself when the case is very clearcut. There are examples of people trying to share the advice. We did this in an all-party context in relation to the Amsterdam Treaty. In many instances it is not an adversarial issue, it is straightforward advice. It often appears that people give conflicting advice but the Government of the day must deal with that issue. I recall instances when I could not see the merit in keeping the advice a secret. This is not the preferred option.
Is the Taoiseach prepared to contemplate change?
I would consider the issue. However, there may be legal arguments involved. I have attempted to deal with this difficult issue, not just in my present position but as Minister for Finance, with which the Deputy will be familiar. In that case, if one could use the advice, it would help the argument. Perhaps sometimes we are too secretive in relation to issues.
Does the Taoiseach believe the current Attorney General is happy in his work?
He is ecstatic.
Will the Taoiseach explain why the Attorney General has applied for a full-time job elsewhere?
Perhaps the Deputy would ask him.
I am asking the Taoiseach as he is his employee. This gentleman applied for a full-time job to run another political party. If he was happy in his work he would hardly apply for another job.
I assure Deputy Bruton that I take enormous interest in the performance of the Attorney General in his day-to-day work. As in the case of any other Attorney General, I do not check up on what he does after he leaves the office.
The Attorney General was not applying for evening work or night study. He was applying to take over another political party and run it full time. This does not suggest he is happy in his current work.
Does the Taoiseach know the Attorney General has an office in South Frederick Street? Does he know what that office does?
The Deputy should refrain from allegations or innuendo.
My motives are as innocent as the driven snow. I am absolutely innocent of all malice.
I merely ask the Deputy to be mindful.
Is the Taoiseach aware the Attorney General has an office in South Frederick Street very close to the office of the Progressive Democrats? Does the Taoiseach know the function of that office?
Is he entitled to carer's allowance?
I am not sure what conspiracy theory we are discussing now. I am sure the Attorney General has an office or offices as most of his predecessors had.
This is a public office paid for by the State.
A previous Attorney General was involved in many high level legal cases, continued his extremely good interest and is now back at the Bar. I am sure Deputy Bruton did not pry into Mr. Gleeson's affairs outside his role as Attorney General.
The Attorney General is doing a superb job. He is an eminent gentleman whose advice is respected by the Government and every agency of the State.
The Attorney General's office in South Frederick Street beside the Progressive Democrats' office is the office of the hearing loss section. Is it the Attorney General or the Progressive Democrats who have the hearing problem? Is this why they have to be so close together?
Is there not a clear difference between an Attorney General speaking as a Deputy, as may have happened in the past, and one who has no such mandate, seeking publicity for points of view on, for example, Irish unity or the restructuring of coalition partnerships?
A motion is to come before the House. That is the proper way to deal with this matter.
The Attorney General is not publicity shy and this is a dangerous precedent for future Governments.
Are political questions not permitted in this House? Is this not a political assembly? Are we only to ask Civil Service questions?
I must correct Deputy Sargent. He misunderstands the position. Attorneys General, excluding the six who were Members of this House, have made statements on a range of topics.
As TDs.
No, not as TDs. They have spoken on Northern Ireland, civil rights, family law reform, the crime wave, joy riding, company law reform, divorce, the death penalty, radical intolerance, Unionist extremism, illegitimacy and many other subjects.
Mr. Hayes
Does this mean we can expect more?
If any criticism could be made of the excellent Attorney General it is that he works so hard that he does not make as many speeches as some of his predecessors.
Does the Taoiseach accept that one of the constitutional roles of the Attorney General is to be the legal adviser to each member of the Government and not merely to the Government? Does he accept that it would be difficult for him to be the legal adviser to the Tánaiste when he wants her job? Is the Taoiseach happy with that situation?
Is he happy to have the public made aware of a view of the Attorney General that seeks to use the Northern Ireland issue for party political gains at a time when he is the chief—
Allegations by statement or innuendo should not be made.
This is on the public record.
A motion is before the House, as Deputies are aware. It will provide ample opportunity to pursue those points. The person in question is not a Member of the House.
I will rephrase the last part of my question, in deference to you. Is the Taoiseach satisfied that the Attorney General can act impartially as the sole adviser to the Government on the implementation of the Good Friday Agreement, in view of what is now in the public domain?
I am not sure what that is intended to mean.
The Taoiseach knows very well what it means.
Other Attorneys General have made speeches—
That is not the question.
The Deputy should listen sometimes.
The Taoiseach should answer the question sometimes.
Other Attorneys General have made significant speeches – good, bad or indifferent depending on one's point of view – on a number of issues. I have no view on the Attorney General's opinion, other than in relation to the Good Friday Agreement. He was involved in many of the talks, including the recent talks since 5 May when he was totally involved, and his legal advice was extremely beneficial to both Governments and to the pro-Agreement parties.
Was the Taoiseach not embarrassed by the utterances?
The Taoiseach acknowledged, in response to Deputy Quinn, that the Attorney General has two roles, one of which is to defend the public interest. Why is that role nowhere identified among the five key objectives of the Attorney General's office, as set out on the office's website?
I was asked if the Attorney General's website gives a fair reflection of his role. I have given his role. He is the representative of the public in all legal proceedings and in the enforcement and protection of public rights. He carries that duty out whenever it is necessary.
If that is the case how can his office be so uninformed about that function that it did not include it even as one of the five objectives which it identified after extensive consultation through the strategic management initiative? Has the Attorney General not informed his staff that this is one of his functions or did he not read the insert on his web page?
Perhaps everything is not on the web page. I have seen a copy of it but I do not have one here. That is one of his functions. It is known to be one and everyone has a clear view of what that function is.
Will the web page be corrected in the light of what the Taoiseach has said? Can we have an assurance that the web page will be accurate?
I will point that out.
I gather from what the Taoiseach has said that he would welcome a greater degree of openness and transparency in some aspects of the legal advisory function of the Attorney General with regard to public policy. Would the Taoiseach be prepared to publish the legal advice he has received from the Attorney General that proposed legislation to ban corporate or business donations to political parties would be unconstitutional?
That is not what I said. The Deputy knows what I said. I published legal advice given by the Attorney General in a case last year. The Attorney General gave Deputy Quinn that advice when we met on that matter.
Could I have that written down? Does the Taoiseach's shrug mean "yes" or "no"?
Were the address given by the Attorney General to a Garda conference on policing and human rights in Dublin Castle ten days ago and the comments made by him, given and made on behalf of the Government?
I am not familiar with the detail of the Attorney General's address. He always states when he is speaking as Attorney General and when he is not. I am sure he did so on that occasion.
This was a major conference on policing and human rights in Dublin Castle. Does the Taoiseach know whether the Attorney General, who I understand was speaking as Attorney General, was speaking on behalf of the Govern ment? In that context, is it the Government's view—
The Deputy cannot quote during Question Time.
I am not quoting.
The Deputy is paraphrasing.
Does the Government agree with the Attorney General's view as expressed at that conference that the Garda is foot-dragging in the introduction of video recording of suspects in prison cells and Garda stations?
Mr. Hayes
It is another personal view.
Is this the view of the Government or the Attorney General? Do the views coincide?
It is a moonlight job in his spare time.
Will the Taoiseach clarify the position?
I have no difficulty with the Attorney General making a speech and drawing on his experience in his position. In many of the speeches I have read, he stated clearly whether he was speaking in his capacity as Attorney General or otherwise. If he gives a view based on his experience and knowledge, he is correct in doing so.
Would the Taoiseach expect the Minister for Justice, Equality and Law Reform to have the same view on this issue as the Attorney General?
I call Deputy Joe Higgins.
Will the Taoiseach respond?
I called Deputy Joe Higgins.
That is the Attorney General's view.
Would the Taoiseach expect the Minister for Justice, Equality and Law Reform to have the same view? Are there different views? Is there a Minister of State, Deputy Willie O'Dea view on this issue?
(Dublin West): While I would not wish to transgress in any way on any individual's democratic rights, does the Taoiseach agree that there is a difference between having a political viewpoint and actively pushing a right-wing economic agenda?
Hear, hear.
(Dublin West): This would be incompatible with a position that is supposed to be that of an unbiased legal adviser and guardian of the public interest. Does the Taoiseach agree the claimed impartiality of the Attorney General's office is in conflict with the Attorney General who is a political wannabe, a would-be president of a radical party, although we are not too sure whether it would be radically redundant or redundantly radical?
It would be full-time anyway.
(Dublin West): Does the Taoiseach understand there is a difference between having a political viewpoint and actively pressing an agenda that is entirely partial to the small political viewpoint of the Progressive Democrats? It does not sit well with somebody who is supposed to be above political conflict in giving political advice and guarding the public interest.
He does not even know he is the guardian of the public interest.
There is a big difference between somebody giving his personal views in his non-Attorney General role and giving legal advice. None of the previous Attorneys General had a difficulty. For example, a previous Attorney General believed all the ills of the world could be found in the socialist prescription. I am sure Deputy Higgins would have agreed with that view. It is not that different for others to give their views, even if Deputy Higgins is of a different view.
It must have been John A. Kelly.
The Attorney General is entitled to speak in his non-Attorney General role and he states the capacity in which he is speaking. He is an excellent Attorney General and he makes fewer speeches than any of his predecessors.
Would he get the job again?
The Taoiseach said he was not aware of what the Attorney General does in his "down time" and that he can do whatever he wishes, such as play tennis.
Does he have a parallel existence?
Does the Taoiseach accept that when the Attorney General is billed at a conference or when he makes a speech, he is speaking in loco Attorney General as opposed to in loco would-be chief executive of the Progressive Democrats?
The radical party.
Is there any rule which requires the Attorney General when he is speaking in his down time, side time or moonlighting time not to bill himself as the Attorney General but to refer to himself as Michael McDowell, private citizen or senior counsel? The Taoiseach must accept that if he is listed as the Attorney General whenever he speaks, he is speaking as the Attorney General.
That is not the case. When the Deputy was the Minister for Justice, Equality and Law Reform the then Attorney General made many speeches about issues in her area. He made them as Attorney General, but at all times he stated that he was making them in his non-Attorney General role.
He did not make any speeches about becoming the chief executive of a political party.
I did not say he talked about that. I said he made speeches on various issues.
It is quite different.
He did not make speeches.
He made plenty of speeches.
He did not.
The speeches were in the context of Government policy.
He spoke at conferences as the Attorney General.
He made plenty of speeches but he was entitled to do so. However, he and his predecessor made it clear, as the current Attorney General does, that they were speaking in their non-Attorney General role. This makes the position clear to people at the conference.