Brilliance under fire

Sat, Jun 27, 2009, 01:00

PROFILE: PAUL GALLAGHER:Widely regarded as a leading lawyer of his generation, the workaholic Attorney General has drawn flak this week for his advice on judges’ exemption from the pension levy

WHEN FORMER Supreme Court judge Donal Barrington described Paul Gallagher earlier this week as one of the most brilliant lawyers ever to hold the position as attorney general, few could be found to disagree.

Yet as the controversy over the exemption of the judges from the pension levy, and the special arrangements for them to make a voluntary contribution instead, raged during the week, his advice to the Government that this exemption was mandated by the Constitution came under fire.

The Constitution states that a judge’s remuneration shall not be reduced during his term of office. For some commentators, that clause referred to any attempt to single out a judge, or the judiciary as a whole, for a reduction in remuneration, but did not extend to exempting them from payments imposed on all other public servants. In a judgment known as O’Byrne, the Supreme Court had already found that it was constitutional to impose taxes on members of the judiciary, along with other citizenry, and many thought this provided clear enough guidance on the imposition of a levy.

However, other lawyers pointed to a lesser-known judgment, involving a District Judge called McMenamin, where the government’s failure to ensure that his pension contributions were sufficient to fund a gratuity was found to be an unconstitutional reduction in his remuneration, even though the government had taken no specific action.

In recent weeks Paul Gallagher’s name was also invoked in relation to the Defamation Bill, where he was cited as advising that the insertion of an amendment providing for an offence of blasphemous libel was mandated by the Constitution and a Supreme Court judgment stating that it was unclear in what the offence consisted.

One thing is certain: the advice he gave to the Government on the judges’ levy would have been researched very thoroughly indeed. It would also have been given on strictly legal grounds, without regard to potential political fall-out.

“He’s not a pragmatic person. He would be extremely fastidious. He’s not a person who’d give you the answer you’d want,” says one colleague.

He is also very forceful in his arguments, and would be likely to be very convincing in Cabinet. “He has a formidable intellect, he’s undoubtedly the most brilliant lawyer of his generation,” says another colleague. “Advising ‘on the one hand and on the other . . .’ that’s no use.” “He’s an exceptionally bright man, and a fantastic advocate in court, he’s very clear,” says another.

His intellectual abilities are matched by an almost superhuman work rate. Yet another colleague says that in his private practice he had two secretaries, as one could not keep up with his level of work. “He gives everything 105 per cent,” says a senior counsel who has worked with him. Others speak in awe of his ability to master vast volumes of documentation, and the fact that he reads every scrap of paper in a brief.

This level of work may not endear him to all his staff in the Attorney General’s office, who are accustomed to the more measured tempo of work in the public service. He is in the office from 7am until 7pm, taking a 15-minute lunch-break.

While he goes home at about seven in the evenings, he often returns at 8.30 or 9pm to continue working into the night.

“The AG’s office probably hardly knew what hit them,” a fellow senior counsel acknowledges. “He expects responses very quickly, and he gives them very quickly himself.”

“He is very, very active, very driven,” says a public servant. No detail of legislation or policy escapes his attention. Unlike some of his predecessors, he does not restrict himself to giving advice when asked.

Yet he is unfailingly courteous and polite, with an unassuming social manner. He has not succumbed to the virus that seems to invade the vocal chords of many of his colleagues, producing a certain pomposity of delivery, instead retaining the Kerry accent of his youth.

He is an impressive public speaker, often speaking at length without notes in speeches that can range over Greek philosophy and the place of law in society, before concluding with remarks of pithy relevance to the subject in hand. After he spoke at an international conference of collaborative lawyers a year ago, before the US election, one of the American delegates was heard to sigh: “I wish he was our attorney general.”

There was some surprise in legal circles when then taoiseach Bertie Ahern appointed him as Attorney General when Rory Brady decided not to continue after the election, as Gallagher’s political sympathies were thought to lie with Fine Gael. Attorneys general are usually chosen from among the legal political sympathisers of the government of the day. This means that they are likely to know their cabinet colleagues from the fund-raising dinner circuit, and be accustomed to engaging them in informal discussion about politics as well as law.

Gallagher would not have come to the job with this background. He was, however, close to Rory Brady, and it is thought that Brady would have recommended him, though the decision rested with Ahern.

THERE IS NO DOUBT that he took a huge drop in income by becoming Attorney General, but he would have a strong sense of public duty and therefore be happy to serve. “He has huge integrity,” a colleague says.

Before his appointment he had a practice that ranged from European to defamation law, including commercial and chancery. Some of the biggest names in Irish business were among his clients.

They included the Fitzwilton group in its challenge to the Mahon tribunal; PJ Carroll in a challenge to tobacco legislation; the VHI in its row with Bupa over risk-equalisation; the newspapers who were sued by Ian Bailey in his libel case concerning allegations he was a suspect in the Sophie Toscan du Plantier murder; Meath county council in the challenge to the M3 motorway route through the Skryne valley; and the State in its opposition to the attempt by Katherine Zappone and Anne-Marie Gilligan to have their Canadian marriage recognised.

His work has brought him into contact with the tribunals, and he has expressed concern about their implications for the right to privacy.

In 1999 he wrote in the Bar Review: “In its frenzy to root out supposed wrongdoing and in its desire to reintroduce a modern-day version of the medieval village stock where supposed and actual wrongdoers can be pelted with our collective venom and distaste through the mouths of tribunal counsel, society should not lose sight of the larger and more fundamental issues involved,” he wrote. “The twin objectives of rooting out wrongdoing and respect of the right to privacy are not incompatible.”

His most striking recent success, which came just as he was appointed AG, was in representing Fyffes in their long-running battle with Jim Flavin of DCC over allegations of insider trading, which they lost in the High Court, only to go on to win spectacularly in the Supreme Court, where he was instructed by Arthur Cox solicitors. Total legal costs in that case were stated to be €25 million.

He will be working with Arthur Cox again as Nama is established, in helping to draft legislation that will test him and his staff to their limits.

Gallagher was born in Tralee on March 20th, 1955. He attended the town’s Christian Brothers national school before going to Castleknock College for his secondary education.

He did two degrees in UCD, a BCL and a BA in history and economics, completing his BL in the King’s Inns at the same time. He then did an LLM in Cambridge, coincidentally a few years before his now Government colleague Brian Lenihan did a law degree there, and returned to Ireland to be called to the Bar in 1979. He was called on the same day as his friend and predecessor as attorney general, Rory Brady.

He became a senior counsel in 1991, and a Bencher of the King’s Inns in 2005. He was vice-chairman of the Bar Council from 1995 to 2009, and served as chairman of its European law sub-committee.

He was appointed as Attorney General by Bertie Ahern on June 14th, 2007, and reappointed by Brian Cowen on May 6th, 2008.

He is married to fellow barrister Blathna Ruane, and they have three sons. His interests include sport, where he is passionate about all forms of football. He plays soccer and attends both GAA and rugby matches.

He is also a keen cook, and, according to those who have enjoyed his hospitality, a very good one and very entertaining company. His other recreation includes reading – “he’s a voracious reader” according to a friend – and travel, including to far-flung destinations such as Antarctica.

Many of his colleagues attest to his commitment to spending a lot of time with his family, though they marvel at how he does it. The demands on his time can only increase in the coming months.

CV: PAUL GALLAGHER

Who is he?The Attorney General

Why is he in the news?His advice to the Government that judges should be exempted from the income levy came under fire this week in the Dáil and elsewhere

Most appealing characteristic: He works all the hours that God sent for the good of the country

Least appealing characteristic: He expects everyone else to do the same

Most likely to say: Can I please have that draft in an hour?

Least likely to say: In your own time