THIS is a revised and expanded version of Professor Casey's book, The Office of the Attorney General in Ireland, first published in 1980. At that stage, the office of Director of Public Prosecutions had been in existence for a few years only and, as one would expect, its operations receive more detailed treatment here. The office of Attorney General, however, continues to be the main focus of attention.
The Attorney General, says the Constitution, is "the adviser of the government in matters of law and legal opinion". By tradition he sits at the Cabinet table and is privy to the most intimate secrets of the administration. He is the personal nominee of the Taoiseach, must be dismissed by the President if the Taoiseach so requests and automatically vacates office if the latter resigns. It may seem remarkable that, given those features of the office, there can ever have been room for doubt as to its essentially political nature. This is in part because, in contrast to the English position, the Irish attorney is not a member of the government and does not vote at cabinet meetings. But it may also have arisen because of a belief that someone who is close to a party in office may find it more difficult to give the sort of detached advice that one expects of a lawyer. Professor Casey suggests that even a politically detached attorney might be similarly embarrassed:
His regular attendance at government meetings may be a disadvantage, for an intimate acquaintance with its collective thinking and with the problems it faces might unconsciously distort judgment.
I doubt if many practising lawyers would agree. A solicitor or barrister who is fully aware of his client's concerns and sympathises with his objectives is scarcely disqualified from giving expert advice as to how they may be achieved. Equally, in the real world it is unlikely that politicians will entrust their closest secrets to, and accept advice from, people who are politically neutral or even hostile to them.
It is true, however, that the office occupies a somewhat ambiguous role in our political structures. Although the attorney may be a Dail deputy or senator, he is not required to be, and only six holders of the office have been at the same time members of the Dail. The Report of the Constitution Review Group, which was published after Professor Casey's book went to press, recommends no change in this arrangement. One can hardly quarrel with their view that requiring the attorney to be a member of the Dail would drastically narrow the range of possible candidates.
A more sensible recognition of the inescapable political dimension of the office would be an amendment of the Constitution which would make the attorney an ex officio member of the Seanad. This would enable him to answer directly to the Oireachtas for matters which arise in his office and would relieve the Ministers for Justice and Equality and Law Reform of some, at least, of the responsibility for piloting law reform legislation through both houses. Our singularly unimpressive record in the law reform area would surely benefit from such a change.
It could be said that if such changes were effected in the office of the Attorney General, one might as well go all the way and amend the Constitution further to provide that he or she (there have been no women in the office to date) should be a member of the government. I cannot see anything particularly apocalyptic in such a proposal, which would simply acknowledge the essentially political nature of the office. The idea of having one non elected member of the government is scarcely revolutionary: the United States functions effectively with a cabinet, none of whose members, except the President and Vice President, have to be elected and the Constitution of the Irish Free State envisaged the appointment of "Extern Ministers" who were not elected.
Ironically, another explanation for the reluctance to accept the political nature of the office is its origins in British constitutional law and practice. There has never been any doubt about the British attorney being a political animal - he is invariably an MP and a member of the government. And prior to independence the Attorney General for Ireland, although not always an MP, was on occasion a powerful political figure, not least because (unlike his English counterpart after 1879) he was solely responsible for all criminal prosecutions. Professor Casey quotes Litton Falkiner's description of one attorney in the early 19th century, William Saurin:
He became the embodiment of the policy of Dublin Castle and, until he was peremptorily removed from office in 1822, he practically directed the machine of Irish government.
But at the same time the attorney was regarded by the English and Irish judges as having a unique and special role under the common law which had nothing to do with his political responsibilities as the legal adviser of the government or with his position as chief prosecutor. He was also the "guardian of the public interest" and could initiate litigation where he thought that interest was under attack and there was no private litigant in a position to take action. That role continued after independence, and while in strict constitutional theory the office of Attorney General created by the 1937 Constitution was a new office, it was clear, as Professor Casey demonstrates, that it carried with it these special non political responsibilities. (They also included other roles: the attorney is the protector in court proceedings of charities and, somewhat improbably, under the Dublin Stage Regulation Act of 1786, Thrust conduct the enquiry into whether letters patent should be granted or renewed for any "theatre or playhouse" in the City or County of Dublin.)
Because there is a widespread assumption, for which politicians themselves are only partly to blame, that Ministers will invariably use powers of a wholly non political character for unashamedly political ends the vesting of the role of "guardian of the public interest" in a political figure such as the Attorney General has been criticised. Yet as some recent examples bear out, successive attorneys have shown themselves perfectly capable of taking actions which they believe to be in the public interest without seeking any instructions from the government and without regard to any political difficulties that their actions may create.
Since 1974, the responsibility of the Attorney General under the Constitution for the prosecution of criminal offences has been transferred almost entirely to the Director of Public Prosecutions, a civil servant who is independent in the discharge of his functions. It was no longer practicable for the attorney's office to deal with all criminal prosecutions and, in any event, the political nature of his office inevitably gave rise to suspicions, however ill founded that prosecutions might be initiated or quashed for the wrong reasons.
While the establishment of the office of DPP was thus an important and overdue reform, there is also room for change in the light of experience. The only holder of the office to date, Mr Eamonn Barnes, has been strongly of the view that he should not give reasons for his decisions to cute or not in individual cases. That is perfectly understandable: if reasons were given in one case, they would have to be given in all, with unjust results in many instances. Yet as Professor Casey points out, a Dail committee has recommended that machinery be put in place to enable the Attorney General to inquire into and report on cases where there might be concern as to the reasons for a decision. The same committee also recommended that the present system under which the gardai, State Solicitors and the DPP's office are all involved in the prosecution of criminal offences should be replaced by a comprehensive prosecutorial system headed by the DPP. Neither of these sensible reforms has been implemented.
Professor Casey's revised edition of his earlier work is well written and erudite. But I would question the wisdom of including so wearisomely detailed an account of Mr Harry Whelehan's departure from office. This appears to be based exclusively on the Dail Debates at the time and the Report of the Dail Sub Committee, adds little to what is already well known about those events, and seems out of place. I would also have expected a bibliography and an index compiled on less eccentric criteria: there is no reference to such well known Irish law officers as "Black Jack" Fitzgibbon, Saurin, and Christopher Palles, although all are dealt with in the text.