Lucinda Creighton: Why most attorney general advice needs to be made public

Jim O’Callaghan, Fianna Fáil legal adviser, councillor and general election candidate for Dublin Bay South, is misrepresenting Renua Ireland’s policy position on the publication of the attorney general’s legal advice.

On our website we have a 45-page document that outlines all the policy proposals we have developed, including those in the area of open government. A key policy commitment is the publication of Cabinet minutes, save in circumstances where they relate to “narrowly defined issues of vital national security”. At the launch of our new party, I indicated that we would favour the publication of the attorney general’s legal advice in most circumstances, a matter that was brought to the fore most recently in relation to the Fatal Foetal Abnormalities Private Members’ Bill.

During the vote, the Labour Party was whipped into voting against a Bill that it appeared many of its own members favoured, on the basis of “Attorney General legal advice” that purportedly said the Bill was unconstitutional.

The Attorney General’s legal advice was not made available to the public, but was summarised by an official in a closed-door meeting of Labour TDs. Selected leaked portions of the advice then ended up on the front page of a newspaper.

Incidentally, Jim O’Callaghan’s own party leader, Micheál Martin, insisted in the Dáil that the Attorney General’s advice on this Bill should be published.

Key promise

One of the key promises made by Fine Gael and Labour in the last general election, which saw those parties gain huge electoral support from small businesses around the country, was an unqualified commitment to “legislate to end upward-only rent reviews for existing leases”. A Bill on this issue was drafted by the minister, Alan Shatter, and copies were even shared, at the 11th hour, with some of the lobby groups interested in having the Bill enacted.

Suddenly, and without much explanation, the Dáil was told by the Taoiseach that the Attorney General had advised that such a Bill would be unconstitutional. The commitment would therefore not be upheld, even though the Bill had gone through a lengthy drafting process.

It was known to both parties before the last general election that the advice of the attorney general in 2010, according to Brian Cowen, was that such a Bill would be unconstitutional. Political commitments were given to the electorate on the basis of sound legal advice that was contrary to that communicated in 2010 by Cowen.

It is a longstanding political game that an attorney general’s advice, or versions of it, is referred to in absolute terms by the government of the day, to shield it against political decisions that are perceived as unpalatable. I am committed to ending that political game.

The reality is that doctors differ, and so do legal advisers. As a barrister, I know there is often a vast range of dissenting views on any given issue in legal circles. As a nominee to an office of state, an attorney general should be expected to stand over his/her advice and take the heat where necessary, rather than hide behind a seal of office. Renua Ireland believes in government in the sunshine.

Deliberately politicised

When an attorney general’s advice becomes deliberately politicised, not only should his/her advice be published, but, as in the US, he or she should be able to give a public account before an Oireachtas committee of how that advice was decided on.

Any policy that allowed for the publication of an attorney general’s legal advice would, of course, have to take into account legal attacks, such as the examples cited by Jim O’Callaghan. No advice from an attorney general could be published that would be prejudicial to the interests of the State.

The idea, however, that all attorney-general advice should remain secret because there are very limited circumstances in which the State could be put at a disadvantage in seeking to defend its position in the course of litigation is, to use Mr O’Callaghan’s own phrase, one where “hare-brained” logic is being applied.

The reality is that, in government, Fianna Fáil never published its legal advice. Its leader, in his recent call for it to be published, is playing the same political game that the Government plays in hiding behind the advice it has received. Micheál Martin, despite what he now says, has no intention of publishing the advice of an attorney general if he were he to be in government. At least the party’s official legal adviser is telling the truth about the real party position.

As Renua Ireland leader, I can say with certainty that, in addition to our existing proposals on open government, my party will present a very clear policy proposal illustrating the circumstances in which an attorney general’s advice should be published. This policy will be published on our website for all to scrutinise in advance of the next general election.

Scrutiny is good; we want more of it.

Lucinda Creighton TD is leader of Renua Ireland