The Attorney General, Constitutional Advice to Government, and the Case for Transparency

A One-Person Supreme Court? The Attorney General, Constitutional Advice to Government, and the Case for Transparency David Kenny* and Conor Casey** Introduction In many legal systems, the political branches play an important role in assessing the compatibility of legislation with constitutional commitments. They do so through engaging in pre-enactment, political review of constitutionality,1 where the executive and/or legislative branch assess the interaction of proposed legislation or policy with constitutional commitments.2 Often called ‘political constitutionalism’, this pre- enactment review has several supposed advantages: fostering greater rights consciousness and scrutiny amongst the political branches; avoiding the pitfalls of relying (solely) on judicial review; increasing democratic engagement on the content and scope of rights and values; and fostering inter-branch collaboration.3 Recent scholarship on political constitutionalism has primarily focused on a handful of jurisdictions associated with Westminster-style systems like Canada, the United Kingdom, and New Zealand. An interesting but less-examined facet of political constitutionalism is its diversity as a public law tradition. Many jurisdictions, including France, Ireland, and Japan have developed lesser-explored forms of pre-enactment constitutional review long before political constitutionalism received prominent attention in public law scholarship.4 Pre-enactment review in Ireland by the office of the Attorney General (AG), which developed informally alongside strong-form judicial review, is hugely influential. Surprisingly, there is little sustained domestic analysis of the AG in Ireland, either in * Assistant Professor, Trinity College, Dublin, School of Law. ** PhD Candidate, Trinity College, Dublin, School of Law. 1 Janet L Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model’ (2006) 69 Modern Law Review 7. 2 Hiebert (n 1) 12. 3 See Stephen Gardbaum, New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press 2013). 4 See David Kenny and Conor Casey, ‘Shadow Constitutional Review: The Dark Side of Pre-Enactment Political Review in Ireland and Japan’ (2020) International Journal of Constitutional Law (forthcoming). 1 academia or public discourse.5 There is a mismatch between the importance of the AG to the Irish legal system on the one hand and the level of critical analysis it has received on the other. This article seeks to begin renewed consideration of these issues. While there is much more that might be done, including interviews with key staff members and stakeholders, the first step is to map these problems as best we can and to formulate questions to guide later work. This article therefore provides a critical analysis of the operation of the AG’s office and its important impact on the Irish constitutional order based on what information is available. The AG fulfils several important functions, both constitutional and statutory. Many of these present interesting points for academic study, including the conflict between the roles of government legal advisor and an independent ‘Guardian of the Constitution’ and enforcer of public rights; the prosecutorial function of the office now delegated to the DPP; its role in extradition; and its role in relator actions.6 But here we focus on what we consider the AG’s most important function, and the one that is not well-scrutinised in the academic literature: the position of constitutional and legal advisor to the government and executive departments on formation of policy. For reasons described herein, the account is necessarily an imperfect one: there are simply too many aspects of this process that are shrouded in secrecy. This itself illustrates the most pressing difficulty with the role and influence of the AG: we cannot fully know it based on the limited information we have. Part I outlines the functions and structure of the AG’s office, and the process through which legal advice is provided; the substantive norms underpinning review by the AG; and the secrecy in which these norms are shrouded. Part II describes the impact of the system of AG’s advice on the policy-making process, illustrating recent instances where the AG’s advice has seemingly had the effect of vetoing policy- 5 With the very notable exception of James Casey’s landmark work on the AG. See James Casey, The Irish Law Officers: Roles and Responsibilities of the Attorney General and the Director of Public Prosecutors (Round Hall 1996). 6 See, for an overview of all these functions, Gerard Hogan, Gerard Whyte, David Kenny and Rachael Walsh, Kelly: The Irish Constitution (5th edn, Bloomsbury Professional 2018) [5.4.01]–[5.4.72]. 2 making. We also interrogate two core assumptions about the system of AG’s advice – that the office is independent of government, and that the government is bound by the advice. In Part III, we examine the effect of this system of advice on the political and policy-making process, arguing that it disempowers the Oireachtas and the people and fails to create a culture of political constitutionalism; that it empowers the executive and its dominance of the political system at least as much as it restrains it; and that it might undermine aspects of the institution of judicial review. In Part IV, we argue for transparency in the form of partial publication of AG’s constitutional advice. This is necessary, desirable, and constitutionally permissible, and would enable public and academic discourse about its role, creating accountability for government and the AG’s office, and fostering meaningful political constitutionalism. Part I: The Attorney General’s Office and the Provision of Constitutional Advice Background and Structure The AG is an office in many common law systems with shared roots in English history.7 It has constitutional status in Ireland by virtue of Article 30 of the Irish Constitution, which provides that the AG is ‘the adviser of the Government in matters of law and legal opinion’ and is to perform this function, and any others provided for by law, including representation of the public in litigation and defence of public rights.8 The Constitution also makes the AG responsible for prosecution of crimes in the name of the People, but this has been delegated by law to a dedicated Director of Public Prosecutions.9 The AG is the legal adviser of the government, and not the Oireachtas10 or the president.11 At the same time, the AG operates with a degree of formal independence from government. The Constitution expressly states that the AG ‘shall not be a 7 See generally J Edwards, The Attorney General, Politics and the Public Interest (Sweet & Maxwell London 1984). 8 See Art 30.1 and 30.4, Constitution of Ireland; Prosecution of Offences Act 1974. See generally Casey (n 5). 9 See Hogan et al (n 6) [5.4.12]–[5.4.40]. 10 Declan Costello, ‘Reviews and Notices’ (1985) 20(1) Irish Jurist 223, 224. 11 David Gwynn Morgan, ‘Mary Robinson’s Presidency: Relations with the Government’ (1999) 34 Irish Jurist 256, 259. Morgan notes that President Mary Robinson had occasion to seek advice from the then chairman of the Bar Council Frank Clarke SC (now Chief Justice) on when the presidential prerogative to refuse a dissolution of the Dáil could be exercised. It was accepted that the president could not, and should not, seek such advice from the Attorney General. 3 member of the Government’.12 In a break from the Westminster tradition, the AG is not generally a member of the Oireachtas.13 However, the AG has a very close relationship with the government, being appointed by and serving at the pleasure of the Taoiseach,14 and (unlike in the UK) sitting in cabinet meetings.15 The AG has almost always been a lawyer of eminence and long standing that was a member of, or has some political affiliation with, one of the parties in government.16 Many who serve as AG go on to serve as senior judges17 and several have gone on to become Chief Justice.18 During the term of his office, the AG is given precedence before all other barristers in the State.19 The AG is called – informally or unofficially – the ‘Leader of the Bar’.20 The office carries considerable prestige in Irish legal and political circles. The size and complexity of modern government has put increased demand on the capacity of the AG, who has thus maintained a staff of civil servant lawyers to support him or her in his role. The office of the Attorney General includes three parts, which the AG oversees and directs. Legislative drafting is carried out by the Office of Parliamentary Counsel. The Chief State Solicitor’s Office (CSSO) inter alia manages various matters concerning litigation. The main functions of the office, however, are performed by the Advisory Counsel, which is responsible for the provision of legal advice and oversees the most important cases (particularly constitutional cases) to 12 Art 30.1. 13 The Attorney General can be, and occasionally has been, a member of the lower House of Parliament (eg JM Kelly and Declan Costello), but the general tendency has been for appointees to be a practising Senior Counsel at the time of appointment. Some Attorneys General were also prominent political figures after their appointment, including John Costello and Michael McDowell. See s 6 of the Ministers and Secretaries Act 1924. 14 He or she is formally appointed by the President, but the nomination is made by the Taoiseach, and the President has no discretion to refuse to make the appointment. 15 Indeed, the AG holds a prized seat at the cabinet table, very close to the Taoiseach. Eoin O’Malley, ‘The Apex of Government: Cabinet and Taoiseach in Operation’ in Eoin O’Malley and Muiris MacCarthaigh (eds), Governing Ireland: From Cabinet Government to Delegated Governance (Institute of Public Administration 2012) 49.

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