The Attorney General (AG) is the State’s constitutionally designated chief law officer, attends all Cabinet meetings and is “the advisor of the Government in matters of law and legal opinion”.
His advice is sought if the Government, a Minister or a Government department has legal issues that need to be addressed or has to initiate or defend court proceedings. The AG represents the State in the courts and is involved in the preparation of all legislation published by Government.
Within our democratic, constitutional structure based on the separation of powers the AG straddles the constitutional divide between the Government and our independent judiciary and plays a pivotal role in judicial appointments and promotions.
The separation of powers and the rule of law is a foundation stone of our constitutional democracy
As a member of the Judicial Appointments Advisory Board, together with the Board’s other members, he determines the barristers and solicitors identified to the Minister for Justice as suitable candidates for judicial appointment.
Where the Minister for Justice is not a former practising lawyer with knowledge and experience of court practice, the AG’s advice to a taoiseach, party leaders or the Cabinet may determine what appointments are ultimately made, which judges are deemed suitable to be promoted to higher courts or to head a court. There is also no likelihood of any Government making a judicial appointment with which the AG disapproves.
All lawyers appointed to the judiciary, to preserve judicial independence, have since the foundation of the State within a short time transferred their outstanding cases to others. To ensure no litigant is seriously disadvantaged, implementation of a judicial appointment may be briefly delayed to facilitate the completion of an imminent court hearing. It is also not unusual that a newly appointed AG requires a short time after appointment to finalise or withdraw from existing cases.
While no law prohibits an AG from maintaining a private practice while in office, I believe doing so today is contrary to the public interest and risks damaging public confidence in the judiciary and the administration of justice. The lack of complete transparency surrounding the current AG’s continued engagement in private practice since his appointment, the manner in which information has emerged and the official response to it emerging exacerbates that risk.
If the AG intended to maintain any private practice for an extended period of time this should have been made public knowledge at the time of his appointment. The explanation given that his involvement in private practice was prolonged by the Covid pandemic is difficult to understand. We were in the midst of the pandemic in June 2020 when Paul Gallagher SC was appointed. It’s impact in delaying court hearings readily created additional time for the transfer of court briefs.
The issue is not simply about whether the AG continuing in private practice impacted on his availability to efficiently fulfil his obligations to Government but is also about avoiding conflicts of interest, real or perceived, ensuring public confidence in the manner in which he carries out his role and there being no public perception, however wrong, of the AG or any member of the judiciary’s judgement being affected by conscious or unconscious bias.
As the AG’s input may be sought on reform of defamation law and on bills affecting financial institutions, his representing while AG, for any extended period of time, present or former directors of media companies or any financial institution may be a cause of concern.
As his position as AG facilitates his substantially influencing judicial appointments, there could be a risk when he engages in private litigation, litigants on the opposite side may fear unconscious bias could influence the outcome of proceedings to their detriment.
The separation of powers and the rule of law is a foundation stone of our constitutional democracy. The constitution does not address the perceptions of conflict of interest or bias that can result from an AG maintaining a private practice. It is an issue that can be easily addressed by legislation requiring that he or she shall, as Attorney General, be a full-time officer of the State. The need for such legislation is now clear.
A declaration of Interest
Prior to June 2020, when appointed Attorney General, Paul Gallagher SC was Sean Guerin’s lead Senior Counsel in the court case I initiated in July 2014, subsequent to publication of the critical Guerin Report which resulted in my forced resignation from Government.
The proceedings ended in February 2019 with the Supreme Court concluding that Guerin, as a State appointee conducting a preliminary inquiry, exceeded his authority and wrongly criticised my conduct as minister for justice without a hearing. Earlier in 2016 I was totally exonerated by the O’Higgins Commission Report and my ministerial conduct praised.
In December 2020 An Taoiseach Micheál Martin informed the Dáil that a redacted copy of the Guerin Report with the offending criticism of me deleted was placed in the Oireachtas library. I expected that the Government would apologise on behalf of the State for the wrong done by the Report’s discredited critique but no apology was given.
In texts exchanged with Tánaiste, Leo Varadkar, in the summer of 2020 I urged that the Government respect and act on the Supreme Court decision. Responding he said he had discussed the issue with the AG despite being previously informed of Mr Gallagher’s role in the Guerin case.
Without in any way impugning the Attorney’s integrity I was concerned that the Tánaiste was oblivious to the obvious conflict of interest. I do not know to this day what, if any, advice was given to the Taoiseach, the Tánaiste or the Cabinet about the issue of an apology.
Alan Shatter was minister for justice from 2011 to 2014