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Leah Farrell
AG advice leak

Minister 'frustrated' at AG advice leak but says it backed Govt position on immigration and care

Taoiseach says government would have to think ‘long and hard’ about publishing future AG advice.

THE LEAKING OF the Attorney General’s advice the night before polling day is “really frustrating”, according to Equality Minister Roderic O’Gorman. 

Speaking to reporters in Dublin Castle today, the minister said it was a “a partial” leak of the Attorney General’s advice and was just one part “of a set of advices provided across the entire campaign”.

The Ditch published an article containing the leaked advice from Rossa Fanning on the proposed care and family amendments to O’Gorman on Thursday afternoon.

Senator Michael McDowell told RTÉ that he believes the leak came from someone within the government with a view to bolster the care referendum. 

However, he said that it “backfired spectacularly”.

Meanwhile, Fine Gael Senator Regina Doherty said there are “real questions behind why the AG advice was leaked in the first place and we will have to get to the bottom of that”. 

The leaking of the legal advice from the Attorney General on the wording of the government’s Family and Care referendums will likely be investigated, O’Gorman said today.

Publishing AG advice 

Questioned by The Journal as to whether the government should consider publishing AG advice in the run up to other future referendums, in a bid to avoid circumstances where it is leaked, Taoiseach Leo Varadkar said it is “difficult” question to answer. 

He said the nature of any legal advice is that it will set out what the vulnerabilities are in your case.

“A government would have to think very long and hard about publishing the strengths and weaknesses of its case,” he said, adding that the opposing side would not have to. 

In the past, summaries of the AG advice have been provided in some cases, he said, adding: “I think I could see it being done again.”

However, he said the nature of independent legal advice would be impacted if the AG advice were published. 

While McDowell said the AG advice, in his view, flatly contradicted what was said by government ministers, both the Taoiseach and O’Gorman stated that the AG advice supported the government’s Yes campaign arguments. 

“He [the AG] did take the view that the term strive was a was a strong term,” said Varadkar. 

O’Gorman said that despite what some campaigners claimed, the AG said extending the definition of family to other durable relationships, as was proposed, would be unlikely to have any particularly significant effect on immigration.

‘Little impact on immigration’, AG said

Fanning told the minister in the advice that the amendment to the Constitution would have little impact on immigration. 

“As referenced above, it is foreseeable that the amended Article 41.1.1° will be relied upon in the context of immigration. However, in my view, it is unlikely that it will have any particularly significant effect in this area,” the AG said.

In his advice, dated 8 December, he also said that there is a risk that the phrase “durable relationships” could be “distorted by some commentators so as to argue that, for example, polygamous relationships are included within the scope of the provision, which is not the policy intention”. 

O’Gorman said:

“Even if you look at the section that was leaked, it very clearly states that immigration decisions wouldn’t be changed by the family referendum, which is what government said, it very clearly says that.

“It also very clearly states in terms of that referendum on care, the proposed wording would have an impact, would be meaningful in [court] cases that people might take in the future where they’re arguing their constitutional rights. So notwithstanding, it’s hugely frustrating to have a leak at the end of the campaign.”

Varadkar told reporters that the AG “was very clear that this [the proposed wording] would not have had a significant impact on immigration law”.

“It is the case even now that we can deport non-national spouses of Irish citizens. There is no automatic right regarding people to receive family reunification and that’s under the existing provisions around marriage. So, you know, in my view it is evident that would not have had a significant impact on immigration,” he said. 

The Taoiseach said the view expressed by the AG that you can’t be certain about how the Supreme Courts would interpret any wording is true of any wording.

“Had we used the alternative wording – ‘reasonable measures’ – there would have been uncertainty about that too,” said Varadkar. 

The Taoiseach has conceded a “comprehensive” no vote, stating the government accept the vote result.

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