The AG, by law, is meant to be ‘the guardian of the public interest’

Perhaps it’s time to heed Fine Gael and split the Attorney General’s role

MOST people in Ireland have only a hazy notion of what it is the Attorney General is supposed to do. People will probably know that the attorney is a senior lawyer who works closely with the Government of the day. Some people may believe that the attorney is there to ensure that the Government behaves not just legally but also in a way which promotes ‘the common good’ or ‘the public interest’.

The Attorney General, rather unusually, has in the past week or so become the focus of considerable media and political attention. This arises from the role of the present AG, and indeed his predecessors, in devising and executing a legal strategy to deal with litigation concerning compensation claims for nursing home costs. These claims are by or on behalf of people who, in the period up to 2005, were entitled to free public nursing home care but were unable to access public care. They had no choice but to pay for private care themselves. While the present Attorney General has robustly defended the State’s litigation strategy in these cases, that strategy has been heavily criticised.

Under the Constitution, the role of the Attorney General is to ‘be the adviser of the Government in matters of law and legal opinion’. The AG is appointed by the President on the nomination of the Taoiseach. So the appointment is effectively a political appointment and the appointee must work closely with the Taoiseach and Government.

What is not very well known is that the Attorney General has a second role sometimes referred to as the ‘guardian of the public interest’. This is provided for in legislation from 1924. In the past the Attorney General’s Mission Statement used to include the statement that the Attorney may ‘exercise a role as representative of the public for assertion or defence of public rights...’.

It is surprising that this role as ‘guardian of the public interest’ is so little known. In 1994 the then Chief Justice, Liam Hamilton, in welcoming the appointment of a new Attorney General, commented that the ‘guardian of the public interest’ role is of far greater importance than the Constitutional role as legal adviser to the government. According to Hamilton, as ‘guardian of the public interest’ the Attorney is required to ‘protect the Constitution and the rights of the citizen as outlined in the Constitution’.

A former Ombudsman, the late Kevin Murphy, envisaged that there is scope for the Attorney General to act where the State itself is acting illegally. He commented that the public has a fundamental right to be protected against the State acting illegally ‘and that it is the Attorney General’s responsibility to ensure that protection’. But Kevin Murphy also noted that ‘30 years of illegality’ in the charging of medical card holders for long-stay care had gone unchecked by successive Attorneys even though they would have known of the illegality.

It is difficult to reconcile the Attorney General’s role in protecting the public interest with his robust support for the State’s litigation strategy in the nursing home cases. The main criticism of that strategy is that the State, in defending its position, disregards the fact that the litigants are from a vulnerable group in society and adopts the type of hostile and aggressive behaviour which is often a feature of litigation generally. And perhaps most importantly, the strategy is designed to ensure that the key legal issue about entitlement is never decided by the courts.

Insofar as the Attorney General is concerned, the criticism is that he defends the State’s adversarial strategy as if it were just another legal contest between equals.

The argument seems to be: the State is entitled to use all the weapons in its legal armoury to defend its position and avoid defeat. In any case, the Attorney argues that the State’s strategy actually serves ‘the public interest’ in protecting the taxpayer.

It is difficult to accept the Attorney’s argument. As academic lawyer Mairéad Enright put it, the Attorney mistakenly ‘conflates the public interest with the State’s interest in managing the public purse’. The Irish Times columnist Justine McCarthy observes that the position of the Attorney, in defending the strategy, is simply what you would expect from a lawyer. ‘Had the Cabinet sought counsel from an ethics adviser, the answer would have been quite different,’ says McCarthy.

Clearly, what is missing in the State’s strategy is any real moral or ethical dimension.

THE question to be asked is whether it is realistic to expect the Attorney General to behave other than as an experienced but partisan lawyer? Is the Attorney’s role as adviser to the Government compatible with the ‘guardian of the public interest’ role? The answer has to be that often they will not be compatible.

For example, the State’s litigation strategy regarding the nursing home costs issue is designed to ensure that the key legal issue about entitlement is never decided by the courts. As Mairéad Enright has commented: ‘There is a public interest in meaningful access to justice. What does the Attorney General have to say about that?’

The two roles need to be separated. Various suggestions have been made as to where the ‘guardian of the public interest’ role should be located. Intriguingly, one of the suggestions comes from the Fine Gael party. In its New Politics document (2010) Fine Gael proposed that the ‘guardian of the public interest’ role should be conferred on the Ombudsman. The Fine Gael document comments that there ‘is a potential conflict of interest between this [“public interest guardian”] function of the Attorney General and his other function as adviser to the Government’.

Now, 13 years on, maybe the time has come to act on this suggestion.

The AG mistakenly “conflates the public interest with the State’s interest in managing the public purse