Gleeson's "private" memo has a message for public

ON November 8th, 1992, the Attorney General, Mr Dermot Gleeson, who was then leading the Goodman team at the beef tribunal, wrote a memorandum for his colleagues outlining their "tactical options" that stage. It was an internal document but last week was included by the taxing master in his judgment awarding costs of £7 million to Goodman International and Mr Larry Goodman.

As one of the documents supporting an award that will be paid out of the public purse, it has become public business. And it deserves attention because it raises questions about the nature of the office that Dermot Gleeson now holds.

One option he outlined has a bearing on his perception at that time of the office of attorney general. He was writing, of course, as a barrister seeking to defend the interests of his clients. What he wrote has to be seen in that context. He suggested "the possibility of writing to the attorney general, over the head as it were of the tribunal, as custodian of the public interest, and inviting him to intervene to protect our rights".

"This tactic has to be considered in the light of the possibility that there would be a change of attorney general within the next month or so; that an attorney general backed by an overall Fianna Fail majority might just take an interest in such submission, but no other attorney general would."

Two things about this are remarkable. One is that the month after the memorandum was written, the then attorney general, Harry Whelehan, did intervene to support a contention by Mr Gleeson that no allegations against Goodman International or Mr Goodman should be pursued.

THE attorney general made this intervention even though the company had admitted to systematic tax evasion and had been accused by the State of serious abuses of the beef intervention system and of the export credit insurance scheme. The chairman of the tribunal, Mr Justice Hamilton, rejected these submissions.

There is no suggestion that the then attorney general's intervention in this regard was motivated by any consideration other than his perception of where his duty lay.

The attorney general's office would not tell me if any representations along the lines suggested in the memorandum were made and, if so, whether they were acted on. It is likely that representations from Goodman International, if they were made at all, had no influence on him.

The second point is more important. It relates to Dermot Gleeson's apparent belief that the actions and reactions of an attorney general as "custodian of the public interest" might possibly be influenced by party politics. At the time he wrote his memorandum, the Fianna Fail/Progressive Democrats coalition had collapsed, and the shape of the new government was unclear.

It seems from the memorandum that Mr Gleeson, rightly or wrongly, believed that Goodman representations might receive a more sympathetic hearing from a Fianna Fail appointed attorney general. Such a belief would be at odds with the definition of the attorney general's role that has been repeatedly put forward by the courts.

The attorney general is supposed to be independent of the Government. In a ruling repeated several times since, the Supreme Court found in 1952 that it was "quite clear that the attorney general is in no way a servant of the Government but is put into an independent position. He is a great officer of State with grave responsibilities of a quasi judicial as well as of an executive nature . . . He is specifically excluded from being a member of the Government, which again underlines his independent position's.

The apparent suggestion in Dermot Gleeson's memorandum that attorneys general might be influenced by political considerations is important. because of the context in which it is expressed.

He was not, in the memorandum released last week, talking about the attorney general's role as legal adviser to the Government, but about his other role as "custodian of the public interest". It is in relation to protecting the rights of the public that he seems to have suggested that considerations of party politics might come into play.

Yet that job is, as the Supreme Court has made clear, a "quasi judicial one". The attorney general is assumed to act in the same way as a judge does, and with the same requirement for independence.

Imagine a statement from a leading lawyer that "a judge appointed by a Fianna Fail majority might just take an interest in our submission, but no other judge would". Would it not give rise to serious concerns? Would it not be important that such a statement be rebutted immediately and persuasively by leading judges so as to defend the integrity of the judicial system?

All this might be of academic interest if Dermot Gleeson was not, of course, the holder of this "great office of State". He has brought outstanding qualities of intelligence and commitment to that office, and is credited with restoring its morale after the Brendan Smyth debacle. It is because he is such an influential and admirable attorney general, though, that his understanding of the way the office operates matters.

Even assuming he was mistaken in his belief in 1992 that "an attorney general backed by an overall Fianna Fail majority" might take a different view of submissions made to him as custodian of the public interest, that such a view has become public when he holds that office makes it important that he should say whether he holds a similar opinion now.

WHAT is at stake is much more than a vague legalistic principle. The public interest - who defines it and how it is to be protected - is a vital part of a democratic society.

The beef tribunal process showed that time and again the consideration of the public interest has been notable by its absence. Nowhere has this been more starkly evident than in the insistence by the then attorney general that he did not represent the public interest before the tribunal.

There are genuine questions of public policy raised by the publication of Dermot Gleeson's memorandum. Unfortunately, we are not allowed to know the answers to these questions.

I asked his office whether it had received any submissions from him in November, 1992, asking it to take the action outlined in the memorandum, and, if so, whether it had acted on them. I was told that "the attorney general's office believes that it is not appropriate to comment on the existence or content of communications between the attorney general's office and third parties".

So a document cited in public as part of the justification for the payment of large amounts of public money and in which the possible actions of the "custodian of the public interest" are discussed is, after all, a private matter.

The public must mind its own business, which is, as it has been throughout this saga, to pay up and shut up.