Ciarán Lynch (Cork South Central, Labour)
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Question 90: To ask the Taoiseach the counsel that are currently nominated by the Attorney General to appear before the Moriarty tribunal to appear on behalf of the public interest; the arrangements in place over the years since the tribunal was established for the nomination of counsel to represent the public interest; the arrangements previously and currently in place in the Office of the Attorney General to ensure that counsel nominated by the Attorney General to represent the public interest and those nominated to represent clients of the Attorney General could, if necessary, represent different interests and make different arguments; and if he will make a statement on the matter. [18123/10]

Brian Cowen (Laois-Offaly, Fianna Fail)
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I am informed by the Office of the Attorney General that the modus operandi as to representation of the public interest at the Moriarty Tribunal is that there is no standing counsel appointed to represent the public interest at the public hearings of the Tribunal. Rather, the position is that, as and when a public interest issue arises, and when the Tribunal, having identified particular points of law in the public interest, seeks to be addressed on public interest issues, the Tribunal writes to the Attorney General of the day seeking argument or submissions to the Tribunal on the issue at hand. This procedure has been adopted in order to keep legal costs to a minimum. It should be pointed out, of course, that the Tribunal itself has a public interest function and must at all times act in the public interest.

When the need arises for the Tribunal to address a public interest issue, counsel for the public interest is appointed for the purpose by the Attorney General and makes such arguments and submissions as are needed. Such counsel will be different from counsel representing the Office's client Government Departments and will, of course, be representing the public interest and free to make arguments on its behalf, including, if appropriate, arguments different from those (if any) being made by counsel acting for client Departments.

Senior Counsel (and junior counsel where necessary) appointed by the Attorney General at the invitation of the Tribunal to address and / or prepare written submissions to the Tribunal since its inception were Mr Frank Clarke SC and Ms Emily Egan BL from 1998 to 2004/5 and Mr Michael McGrath SC and Mr Brian Kennedy BL 2005 to date.

Within the Attorney General's Office, the arrangements in place have always been that a Tribunal public interest issue, when one arises, is handled by an Advisory Counsel different from the Advisory Counsel assigned to representation of client Government Departments and there is strict demarcation between them. However, the Tribunal interacts directly only with counsel for the public interest and the (separate) solicitor appointed for that purpose in the Chief State Solicitor's Office.

I would add for the Deputy's information that oral submissions made by counsel for the public interest at an early public hearing of the Tribunal indicated that it was appropriate for the public interest to be involved in the Tribunal:

(a) where an issue relating to the Constitution might be raised, and the Attorney General considered it appropriate that the public interest be separately represented;

(b) where a dispute might arise about the terms of reference of the Tribunal, or the words of the resolutions giving effect to the establishment of the Tribunal; or

(c) where there might be a dispute relating to the powers of the Tribunal, or the interpretation of the relevant legislation under which it operates.

In making these submissions, counsel for the public interest made clear that it was the Attorney General's view that it was not appropriate for the public interest to be involved in the facts into which the Tribunal has to inquire itself.