We need to look again at whether an Attorney General - legal adviser to the Government - can also act effectively as guardian of the public interest, writes Kevin Murphy
In an article in last Tuesday's Irish Times on the occasion of the launch of her excellent second annual report as Ombudsman, Emily O'Reilly raised the question of weaknesses in our system of government which give rise to illegal actions by the State.
Despite the Travers Report and the report of the Joint Oireachtas Committee on Health and Children, it has proved impossible to unravel the mystery of how the Department of Health could continue to act illegally for nearly 30 years by charging medical card holders in long-term residential care. This occurred despite the Supreme Court finding in 1976 in the McInerney case that medical card holders could not be charged once there was an element of medical care involved.
I want to raise some questions about the role of the office of the Attorney General (AG) in matters involving illegality by Government departments. The Constitution provides that the AG is the adviser of the Government in matters of law and legal opinion.
The office's strategy statement (2003-05) sets out the role and functions of the office and also the AG's personal responsibilities. Strangely, the document puts very little emphasis on the independence of the AG as a constitutional office holder or, indeed, on the office as guardian of the public interest.
In the 1958 McLoughlin case, the Supreme Court took the view that it was vital for the AG to be independent of the Government and ruled that the staff of the office were civil servants of the State unlike ordinary civil servants who are civil servants of the Government.
The view of Hogan and Morgan in their definitive textbook Administrative Law in Ireland is that this is a difference of substance which confirms that the AG's staff should not be subject to the instructions of the government or any of its ministers. The practice since the McLoughlin case has been to designate the staff of offices which are independent of government as civil servants of the State.
The AG's independence is subject to the limitation that he/she is accountable to the Government through the Taoiseach who may demand the AG's resignation at his/her discretion or insist on the termination of the appointment.
The role of the AG as guardian of the public interest derives from section 6 of the Ministers and Secretaries Act 1924 which mentions "the assertion and protection of public rights" as one of the AG's duties. The strategy statement simply says: "The Attorney General is representative of the public in all legal proceedings for the enforcement of law and the assertion or protection of public rights."
In the absence of any further elaboration in the statement, it is difficult to form a view as to what this would encompass; it could be read as confining the AG's role to taking legal proceedings against third parties who are seen to be acting against the public interest.
The public have a fundamental right to be protected against the State acting illegally. It is the AG's responsibility to ensure that protection and, in a situation where a minister or Government might refuse to stop breaching the law, there seems to be no barrier to the AG suing them at the instance of some members of the public.
To what extent then could one argue that 30 years of illegality is a serious reflection on the AG's role as guardian of the public interest? The AG's office is responsible for drafting, or settling drafts of, statutory instruments that are made by Government or by ministers. Unfortunately, as the Ombudsman has pointed out in her article, there have been cases where regulations such as the Nursing Home (Subvention) Regulations 1993 have been ultra vires the primary legislation.
In the residential care case, the 1976 regulations enabling health boards to levy charges were fully consistent with the Supreme Court findings in the McInerney case since they excluded medical card holders. But when the regulations were issued, they were accompanied by a Department of Health circular which turned the regulations on their head by providing that, once people went into long-term residential care, their medical cards were effectively revoked.
One must assume that the AG's office was not consulted about or was not aware of the circular.
It is a moot point, however, whether or not the office continued to be unaware of the problem for the next 30 years despite the concerns expressed by the Department of Health's own legal adviser and the legal advisers of various health boards, despite the issue being raised at Government and, frequently, in the Dáil and being aired in various published reports including the 2001 special report of the Ombudsman on nursing home subventions.
This would seem to indicate that the AG's role as guardian of the public interest is much more passive than active. It also resurrects the concerns mentioned in the report of the Constitution Review Group that, on occasion, the public interest role of the AG may run counter to the obligation to act as legal adviser to Government.
The group considered the question of whether the responsibility of guardian of the public interest should be borne by someone other than the AG but came down against such a change. In the light of recent events, it might be worthwhile re-examining this question.
The position of the chancellor of justice in Finland, Sweden and the new democracy of Estonia is of interest. In Finland, for example, the chancellor, while part of the executive, has the constitutional duty of overseeing the lawfulness of the official acts of government, and, for this purpose, attends all meetings of Government and examines in advance all the documents to be considered. And, significantly, members of the public may make complaints of illegal actions directly to the chancellor.
Finally, with the benefit of hindsight, I regret that when I sent my special report in 2001 to all members of the Dáil and Seanad and to all ministers, I did not send a letter to the Attorney General specifically asking him to look at the issue as guardian of the public interest. At least, it would have made the subsequent nonsense of the "missing" file irrelevant.
Kevin Murphy was Ombudsman from 1994-2003