Ivana Bacik (Independent) | Oireachtas source

I was referring to the point raised by Senator McDowell on a previous occasion in regard to section 27, his point being that the provision would put the Attorney General in an invidious position, as he suggested the Attorney General would effectively be restricted on expressing his or her view frankly as to the merits of candidates before the Cabinet. The question was whether the Attorney General should be so restricted and whether this had the potential to be a measure that would lead us into unconstitutional territory, which is the argument Senator McDowell made. This refers to the ban on canvassing later in the Bill, which I support fully as I think it is a very important reform. Senator McDowell's point was that the ban on canvassing, coupled with the presence of the Attorney General on the commission, an issue that he supported, and I know he and the Minister were in agreement on that point, together with the prohibition on the disclosure of identities of unsuccessful candidates to the Government, could lead to an unconstitutional restriction on the powers of the Attorney General.

The continued presence of the Attorney General on the commission in a sense undermines at least some of the purported purpose of the reforms in the Bill. There is this fundamental contradiction, if one likes, that while the Bill purports to be an attempt to reform the judicial appointments process fundamentally so as to render it less politicised, as with the ban on canvassing, which, as I said, I support, the continued presence of the Attorney General makes it clear the appointments process retains its political tenor. That is not necessarily a bad thing and, indeed, under the Constitution, the Cabinet and the Government cannot be curtailed in their choice.

There is also an interesting academic debate about the importance of having a political voice in the selection of judges and that it should not just be, for example, judges choosing their own. We are all conscious of the existence of affinity biases within selection and recruitment procedures generally, so I would be very much against any model that had judges simply, without any external influence, capable of choosing other candidates for the Judiciary. That is important.

The difficulty is how the Attorney General's position will be left after section 27, in particular as amended by the Government amendments. I want to say a little more about the constitutional function of the Attorney General as it will be affected by this section. We know the principal constitutional function of the Attorney General is to act as legal adviser to the Government, in that capacity to attend all Government meetings and to advise the Government on all constitutional and legal issues which arise prior to or at Government meetings. This would include whether proposed legislation such as this Bill complies with the provisions of the Constitution or with Acts and treaties of the European Union, the European Convention on Human Rights or other international treaties to which Ireland has acceded. We are all well aware of these functions of the Attorney General.

There are other aspects to the role of the Attorney General, and this is where section 27 becomes significant. For example, as the forensic representative, and this is topical in another setting, the Attorney General represents the State in legal proceedings. The Attorney General is legal adviser to each Department and to certain other public bodies and, indeed, is the representative of the public in all legal proceedings for the enforcement of law and the assertion or protection of public rights. The Attorney General defends the constitutionality of Bills referred to the Supreme Court under Article 26 of the Constitution and in other constitutional proceedings. I am reminded of being against Senator McDowell when he was Attorney General and I was arguing a case against the putting of a particular referendum to the people. He won that case, but that is just an aside. The Attorney General is an ex officiomember of the Council of State, which the President can consult in regard to his or her exercise of certain powers and functions under the Constitution. The Attorney General has functions in respect of the Law Reform Commission under the Law Reform Commission Act 1975. As we know, as regards legislative programming, he or she is a member of the legislation committee chaired by the Government Chief Whip and also has a function under the Coroners Act 1962 to direct a coroner to hold an inquest where he or she considers that the circumstances of a person's death make the holding of an inquest advisable.

The Attorney General has other miscellaneous and limited statutory functions, for example, under the Geneva Conventions Act 1962. The Office of the Parliamentary Counsel and the Chief State Solicitor's office are constituent parts of the Attorney General's office and, accordingly, the principal legal functions carried out by the office as a whole include the provision of legal advice, legislative drafting, the provision of litigation conveyancing and other transactional services on behalf of the Government.

This is the point relating to section 27. If the Attorney General is by statute appointed ex officioto membership of the commission, clearly he or she is so appointed in the capacity of the Government's legal adviser. In that capacity, as in the other capacities I have outlined, a normal lawyer-client relationship has long since been recognised as arising. This is the crucial point that Senator McDowell was suggesting when he spoke to the amendments to the section, although we have not yet had the opportunity to debate the section itself. That normal lawyer-client relationship, as the Minister is aware, carries with it the normal principles of legal professional privilege. If, as this statute purports to do, a statute appoints the Government's lawyer to be a member of a commission whose recommendations are brought back to Government to be discussed, it seems both unreasonable and unfeasible to seek to prohibit the lawyer from discussing with their client, that is, with the Government and the Ministers at Cabinet, what may have transpired at meetings of that commission. That is the point about section 27. It would seem to curtail the Attorney General from so doing. This would be unreasonable because it encroaches upon the proper performance of the functions of the Government's legal adviser in regard to what is, under the Constitution, Government business.

To speak for a moment about the overall context, we are looking at legislation that seeks to reform judicial appointments fundamentally. Of course, we still retain this political element in the appointment of judges, and that is the requirement under the Constitution. However, any lawyer must be permitted to discuss fully and frankly the business of his or her client with the client. This is the argument arising from the Attorney General's functions more globally and the role he or she has under other legislation, by convention and under the Constitution. This facility to discuss fully and frankly the business of the client is all the more important if the lawyer is the Attorney General, the client is the Government and the business is vested in that client by the Constitution, as with the appointment of judges. Any prohibition, therefore, is not just unreasonable but also unfeasible, and that is what would put the Attorney General in this invidious position.

Under the doctrine of Cabinet confidentiality, which was also raised in Senator McDowell's earlier discussion, details of what is discussed at meetings of the Government are inadmissible in any court or other proceedings.This relates to section 27, but we will make a similar point about section 28. Section 27 seeks to enact a rule in circumstances where it would be constitutionally impermissible to prove that the rule was ever breached. We must recall how this section and section 28 fit within the existing provisions of the Constitution which provide for the concept of Cabinet confidentiality which were passed, as we know, in a referendum some years ago. It is really where I would like to receive a response. How can these points which are related to the putting of the Attorney General in an invidious position vis-à-vishis or her client be addressed in section 27?

I looked back at what the Minister said in response to some of the matters raised by Senator McDowell on 6 November. He said he had taken the opportunity to seek further advice on the status of the Attorney General. He stated: "It is clear from that advice that the Attorney General would not be at liberty to say that a candidate who was not the subject matter of a recommendation and whose name did not appear was, in effect, more suitable than any of the three people who were recommended." It took me some time to unravel that sentence because there is a triple negative. He is saying the Attorney General would not be free to say a candidate who was not the subject matter of a recommendation from the commission and whose name did not appear on a short list was more suitable than any of the three people recommended. That is the point where we are saying the Attorney General's capacity to advise his or her client - the Government - in a full and frank manner is curtailed.

The Minister went on to say that when the Attorney General signed up to a report from the commission, "it would be unlikely - in fact, it would be unacceptable - for him or her to say something completely different at a Cabinet meeting, or to do the opposite in practice." Senator McDowell took issue with him on the point that the Attorney General should not be so curtailed. He went on to say: "To function properly as Attorney General, the individual in question should be free at a Cabinet meeting to express his or her views not merely as between the short-listed people, particularly when it is quite possible that he or she will not have agreed with the composition of the short list in the first place, but to indicate to the Government that there are other people who are interested in the job, have not been short-listed and, in his or her view, are more suitable for appointment." That is a really fundamental constitutional point. Does the Attorney General have this duty under the Constitution and does this function to be "full and frank", as we might put it, derive from the constitutional relationship of the Attorney General as legal adviser to the Government and the normal rules of legal professional privilege? If so, is that not a really problem with section 27?

In an attempt to be constructive, I looked at the Minister's responses to see if the answer had been given to the question. I know that it was raised in the context of a debate on a group of amendments to section 27, rather than the substance of the section, but I cannot see a specific response to it. I know that the Minister has said he does not see the position arising because if a Government were to choose not to go with a recommendation of the commission - I am paraphrasing a previous response - it would be rejecting a decision of the commission and also rejecting a decision to which the Attorney General was a party. If I am correct, it is almost circular reasoning, as the Minister is saying that once the decision is made by the commission, there is an assumption that the Attorney General must have been a party to and, I presume, in agreement with it, but I am not sure if that is necessarily the case. The argument is it would be invidious for the Government to refuse to follow the decision as it would go against the advice of its Attorney General, but I do not see how that can be the case. The decision of the commission is not the same as Attorney General's legal advice. Where the Attorney General gives advice to the Government, it is clearly a big problem if the Government fails to follow it. It also demonstrates a lack of trust. It is the fundamental issue of a breach of the relationship as the client would no longer be in a trusting relationship with the lawyer in refusing to follow the advice given. It is clear if the Attorney General gives legal advice, but I do not see how the same conclusion can be drawn from a report of the commission just because the Attorney General is an ex officio member. That does not necessarily mean that the Attorney General is in agreement with the decision or a party to it. The Minister has said that in rejecting a decision or recommendation of the commission, the Government would be rejecting a decision to which the Attorney General was a party. However, if I am right, that is the problem, as the Government would not know it because of section 27. The Government would not know if the Attorney General was in agreement with the decision. I would welcome an answer as I do not see it in earlier debates, but it is a very fundamental point.

There are related points and to be constructive I will mention a number of them. The question was put as to whether the Attorney General could tell the Government if candidates recommended had previously been short-listed, rejected or turned down. It is another question to which I could not see a specific answer. A related question concerns the information given to the candidates who are short-listed. If a candidate for judicial office has applied previously or been short-listed on previous occasions but turned down, can the judge be told? These are certain questions-----