Ministers must stop hiding behind the attorney general to avoid hard choices
The Government’s top lawyer is there to advise politicians but it is their job to lead the country, writes Charles Lysaght
‘IT can’t be done; the attorney general has advised it may be unconstitutional,” is quite a familiar refrain in our political discourse for shutting down further discussion.
Inevitably it has reared its head in the ongoing debate about whether legislation may be enacted granting an unrestricted right of access to information on the identity of one’s birth mother.
The last attorney general, Séamus Woulfe, felt constrained by a Supreme Court judgment to advise that such legislation would be unconstitutional unless exceptions were allowed enabling the right of privacy of mothers, who were promised secrecy, to be taken into account in individual cases.
It seems that his successor, Paul Gallagher, takes the opposite view.
This highlights a more general, important question on whether the opinion of an attorney general on this or any other prospective legislation should enjoy finality in the processes of government.
The Constitution provides that the attorney general is the adviser to government on matters of law and legal opinion.
On most matters, the rather general provisions of the Constitution admit several interpretations.
Opinions — whether they are given by the attorney general, or any other lawyer — on whether legislation is constitutional are no more than predictions as to how the courts, ultimately the Supreme Court, will interpret the Constitution.
“It is a brave man,” the former taoiseach Jack Lynch once said, “who will predict what the Supreme Court will decide.”
Assessment of the merits of a legal opinion is impossible without sight of its reasoning.
When citing the advice of an attorney general it is rare for a taoiseach or other minister to go beyond stating conclusions.
Attorneys general don’t go public on their advice; not being members of the government they are not answerable to the Oireachtas.
When denying the Oireachtas or others sight of the reasons supporting an opinion of the attorney general, government ministers are wont to rely on the general privilege of clients not to reveal the advice of their lawyer.
This ancient privilege is one related to the exigencies of litigation enabling prospective and actual litigants to be frank with their legal advisers and to get honest advice in return.
It has no rationale for legal advice given to government on the constitutionality of contemplated legislation.
The invocation of the privilege in such cases impoverishes public debate and is anomalous in an era of open government and freedom of information.
Legal professional privilege, as it is sometimes called, has allowed successive governments to hide behind the advice of attorneys general — without revealing in most cases the reasons for that advice — as justification for not proceeding with a host of desirable measures.
A long-standing casualty was the legislation recommended by the Kenny Report in the 1970s that would have reduced the price of land for building.
A more recent casualty was legislation designed to curb political patronage in judicial appointments. There are a host of other examples.
It has been remarked in criticism of the practice that it gives an excessive power of veto over legislation to the attorney general, who is not even a member of the government.
In reality, the position of attorneys general holding office at the pleasure of a taoiseach, and perhaps hoping for judicial preferment at the end of their term, is vulnerable.
They may find themselves under pressure from the taoiseach or other ministers to provide “helpful advice” enabling the government to cite legal advice to avoid responsibility when, for political reasons, they don’t want to promote legislation.
One needs strong attorneys general not beholden to the government they advise to resist the devaluation of their office by being used as a sort of mudguard for members of that government.
Ultimately, responsibility for legislation rests with the taoiseach and other ministers.
If they are convinced that a particular item of legislation would be in the public interest they should not be inhibited by doubts whether it is constitutional.
They should leave that to the courts that, alone, have the authority to give definitive rulings on the Constitution.
There is provision in the Constitution itself for referring bills to the Supreme Court to rule on their constitutionality.
In cases where there is genuine doubt, that is the proper way to proceed.
‘They must be strong and not be a mudguard for members of government’