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Opinion: The role of Attorney General should be more transparent - let's start by publishing the advice

Dr David Kenny and Dr Conor Casey argue that the refusal to publish the advice of the AG by successive governments serves no one.

Dr David Kenny & Dr Conor Casey

SEVERAL RECENT POLITICAL controversies – most recently the question of the need for a referendum on adoption information – have put into sharp focus the Office of the Attorney General (AG) and its role.

This is not before time: the power wielded by this Office is significant, and it demands close scrutiny.

As the government’s legal advisor under the Constitution, the AG advises the government as to legal and constitutional issues that might arise with proposed legislation or state action.

This fills an important role in making sure that the government operates within the limits set in law and the Constitution. 

AG advice as de facto veto

However, there has been growing criticism that the AG – who is not a judge and has no constitutional authority to issue final determinations of legality or constitutionality – may act as an obstacle to even legitimate laws and actions by being too cautious in providing legal advice.

Controversies about the AG’s advice are nothing new and have been a fairly constant feature of the last decade of Irish politics. The Fine Gael-Labour coalition government of 2011-2016 and Fine Gael Minority Government of 2016-2020 claimed to face severe limitations on legislation restricting property rights due to AG’s advice. 

Research undertaken by the independent Oireachtas Library & Research Service highlighted that in this period over a dozen legislative proposals either mooted by Government or proposed by backbenchers were abandoned or diluted by AG’s advice they were contrary to the Constitution. 

Controversies around constitutional property rights continue, from whether they make rent controls or general rent freezes unconstitutional, to whether they place strict limits on eviction controls in the pandemic period.

Several constitutional experts have suggested that the AG’s advice on property appears to be based on an overly conservative and cautious reading of the Constitution and previous judgments of the courts. 

The Constitution and the courts in fact give wide space for the Oireachtas to regulate property rights for the common good and social justice. 

If the government enacted some of these contested measures, the courts could weigh in an determine, once and for all, if they are constitutional or not. But the government, deferring to the advice of the AG, will not do so, and these measures simply never come to pass. The AG’s advice becomes a de facto veto on these measures. 

A new campaign has called for the insertion of a right to housing in the Constitution in large part to counteract the effect of strong constitutional property rights.

This might not be necessary if the government were willing to pass these laws and let the courts decide. But, without this, there is little choice but to amend the Constitution.

The adoption question

The role of the AG again came under scrutiny in light of the recent Mother and Baby Homes report.

That Report suggested, based on the advice of the former Attorney General, that the Constitution would have to be amended to allow automatic access of adopted people to their birth records. This is a policy the Report’s authors favoured, and something that adopted people should have as of right. 

The AG believed that the privacy rights of the parents, recognised in a 1990s Supreme Court case, required this. Again, many constitutional experts disagree with this, thinking it a misreading of that case. 

Katherine Zappone reports having had long and detailed exchanges with the then-AG when she was Minister for Children. Despite highlighting differing opinion and why the measure might be constitutional, she was unable to persuade him to change his mind. She felt bound to accept his advice and could not pursue the measure in this form.

However, in response to criticism of the new Report, the new AG has stated that a referendum is not required, and a new Bill will be forthcoming to provide this right of access to information.

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We do not know on what basis the new AG disagreed with his predecessor – it may rely on EU law and the GDPR – but this shows that AGs are not infallible and advice changes depending on who gives it.

All this adds up the AG acting as something of a one person supreme court, essentially able to stop proposed laws in their tracks. It is not clear that the government’s legal advisor should have this power.

Advice is just advice, and when deeply contested, the courts should decide.

There have also been suggestions that the government might hide behind AG’s advice. Perhaps the advice is qualified – this proposal might survive, but could face difficulties – but the government uses this as a pretext for inaction, letting the blame fall on the law rather than on the government if nothing is done.

We cannot know if this is so because the AG’s advice is almost never published. This means that parliamentarians and the public cannot consider the correctness of the AG’s advice for themselves.

But there is no legal reason the government could not publish the advice, or a detailed summary of it when it is the subject of major political or public controversy.

The government can waive legal privilege in the public interest, and we do not see why this would hinder the defence of laws in court, as some suggest. 

This would be a hugely valuable measure of transparency that would allow us to see the true influence of the AG, how the government relies on its advice, and to challenge it when appropriate. It would bring the AG’s role out into the light.

Dr David Kenny is Assistant Professor of Law at Trinity College Dublin. Dr Conor Casey is a Max Weber Fellow at the European University Institute, Florence.

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