AG not obliged to resign if advice not taken, expert claims

The fact that members of the Government have said they are going to vote for a Bill that the Attorney General Máire Whelan has advised is unconstitutional, is not a resigning matter for her, in the view of an expert in the area.

The key issue, according to the source, who has knowledge of the office, is whether the Government, as a government, is taking a position on the abortion Bill promoted by Independent deputy Mick Wallace.

Collective action

“The Attorney General is an advis

er to the Government as a whole, acting collectively. Is the Government, as a government, making a decision on the Wallace Bill? If not, then the opinion of the Attorney General is not as relevant." While it was unusual that a Minister was saying he was going to vote for a Bill which the Attorney General had said was unconstitutional, this was not "resignation territory" for Ms Whelan, the source said. The source pointed out that in 1974 the then taoiseach, Liam Cosgrave, voted against his government's contraceptive Bill, and helped defeat it, despite the constitutional requirement that the government act as a collective.

If the Attorney General advised the Government that something it proposed to do was unconstitutional, and that advice was rejected, that would be a resignation matter. But it is hard to see how the Government has any function in relation to a Private Members’ Bill, the source said. Another expert said the fact that a Minister intended to vote for a Bill the Attorney General had advised was “not just unlawful but unconstitutional” raised fundamental issues, but for the politicians rather than the Attorney General.

Increasingly politicised Another source said the latest controversy wa

s part of a trend whereby the Attorney General’s role was becoming increasingly politicised, with Opposition politicians often demanding to see the advice and Governments using advice received as “cover” for their decisions.

The Attorney General’s role has been changing since the 1980s and now involves political skills as well as legal nous, according to this source. “The role now requires a political thick skin.”