Sir, – In his interesting column "Time to make Attorney General answerable for actions" (Opinion & Analysis, November 10th), Fintan O'Toole unfairly portrays the problems of the current disaster-prone incumbent as evidence that the office itself is somehow fundamentally deficient.
He says that the office is not “truly independent of politics”, and whose tenure is “at the whim of the Taoiseach”. But is this an entirely unreasonable position?
Article 30.1 of the Constitution says that the attorney general is “the adviser of the government in matters of law and legal opinion”. It would be a strange world indeed if a private citizen could not dismiss his own legal advisers, so why should the taoiseach or the government be precluded from doing so?
In spite of their ability to hire and fire the attorney general, it is not correct to say that the office is a political handmaiden of a taoiseach or a government. The Supreme Court itself has had to rule on this point on a number of occasions. In the McLoughlin case in 1958 it said that the AG was “in no way the servant of the government” and is an “independent constitutional officer”. In the X Case in 1992, the Supreme Court found that the AG has an obligation to vindicate the Constitution itself, above any political interests of the government, and that this is a duty which the AG must “fulfill independently”, notwithstanding their position as legal adviser to the government.
Fintan O’Toole unfairly singles out the late John Kelly as a former attorney general who held the post while also serving as a member of the Dáil and “subject to a party whip”. He is surely aware that not only was Kelly arguably the finest legal mind of his generation, but he was also a fiercely independent politician who took no instruction from anyone before forming an opinion on an issue. In any case, in the event of a TD holding the office, the Constitution makes it clear that his role as defender of the Constitution would take precedence above any duties he had as a member of the Dáil, let alone as a member of a political party.
Fintan O’Toole does raise a legitimate concern, however, about the number of times that the advice of the present Attorney general has been cited as a reason not to take a particular course of action. This has given rise to the impression that the office is a roadblock to reform or a defender of the status quo, and stands in stark contrast to her predecessor, Paul Gallagher SC, who developed an excellent reputation as a proactive problem-solver during a period of serious legal turmoil at the outset of the financial crisis.
I would suggest, however, that this worrying pattern has far more to do with the present incumbent than with the office itself. – Yours, etc,
BARRY WALSH
Clontarf,
Dublin 3.
Sir, – Fintan O’Toole points out that John Kelly served as attorney general in 1977 while also serving as a member of the Dáil and cites this as evidence of the “political” nature of the position.
He should surely have mentioned that Mr Kelly was in fact the third TD to hold the office, after Patrick McGilligan (1954-57) and Declan Costello (1973-77).
All three men were legal scholars of international repute, with Kelly and McGilligan serving as professors of law in Trinity College and UCD respectively, and Costello later rising to become president of the High Court.
It is highly unfair for Fintan O’Toole to suggest that the appointment of Kelly and these other TDs to the position was for the purposes of party political cronyism, when in fact on the three occasions that it did occur, the appointments were due to merit and the legal expertise of the gentlemen in question. – Yours, etc,
THOMAS RYAN, BL
Dublin 6W.
Sir, – I’m generally envious of Fintan O’Toole’s informative and concisely written articles on most things which “ail” us, but I’m still baffled by what he means by “colonial overhang”.
Any chance of an explanation in plain English? – Yours, etc,
JEROME KELLEHER,
Glanmire,
Cork.